author: SCHOTT, Judge. LEMMON, Judge,

text:
    Felix LEBOUEF, Administrator of the Estate of his minor son, Michael Lebouef v. Jacqueline L. Montelius, wife of/and Robert J. MONTELIUS, et al.
    No. 8995.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellant.
    Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart and J. Wayne Anderson, Metairie, for defendants-appellees Louisiana Power & Light Co.
    Before LEMMON, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit against Louisiana Power and Light Company (LP&L) on this defendant’s motion for a summary judgment.

Plaintiff brought this suit for damages arising out of an accident in which his minor son Michael was injured. The allegations of the petition are as follows: Michael had been riding his bicycle with some friends on another bicycle on the left side of a two-lane highway when he was confronted by a utility pole in the shoulder ahead of him. There was an approaching automobile, operated by Mrs. Montelius, whose lights began blinking, whereupon Michael went around the pole on the highway side and was forced into the pole by the Monteli-us automobile, resulting in a collision in which Michael was injured. Negligence was attributed to Mrs. Montelius, the Highway Department and LP&L, the latter’s consisting of its installing a utility pole on the highway right-of-way or in close proximity to the highway “knowing full well that there was no sidewalk in said area and that pedestrians and/or cyclists would be pushed into said utility pole in the event of two-way traffic” on the highway. LP&L was also negligent in failing to install reflectors or warning devices on the pole.

The depositions of Michael LeBouef along with his friends Karl Oubre, operating the other bicycle, and Dale Haydel, who was riding on Karl’s handle bars, and Mrs. Mon-telius were taken. Photographs were also filed in the record by LP&L and plaintiff.

The uncontradicted facts are that the area was in darkness but that the pole was illuminated by the street light mounted on it. The photographs show that there was a sidewalk running along the highway divided from the highway by a shoulder. The pole was located immediately adjacent to the sidewalk with an undetermined width of the shoulder running to the asphalt of the highway. Oubre and Haydel testified that both of the bicycles had been proceeding along the sidewalk when Michael drove onto the shoulder to go around the pole. Michael testified that he had been riding along the shoulder as he approached the light pole. His testimony as to the details of the accident was rather vague, but to the effect that the pole was lighted and he knew it was there from previous experiences of riding his bicycle. But he did not remember whether or not he noticed the pole on this occasion before Mrs. Montelius’ automobile approached and her lights flashed.

A motion for summary judgment shall be rendered if there is no genuine issue as to material fact. LSA-C.C.P. Art. 966. The only issue of fact which emerges in any way from the depositions is whether Michael was riding on the sidewalk as he approached the utility pole or on the shoulder, but in either case we fail to see how this fact is material to the issue of LP&L’s liability. In the first place, plaintiff has cited no statute which was violated by the position of this pole. Secondly, Michael was in violation of R.S. 32:197 in that he was not riding on the right side of the highway and did not take advantage of the “usable path for bicycles” which was provided in the form of a sidewalk. Thirdly, the facts of the accident as established by the depositions demonstrate that it happened because Michael unnecessarily placed himself in close proximity to the highway when he elected to travel on the shoulder between the pole and the highway rather than on the sidewalk which was available to him.

We have concluded that this case is appropriate for a summary judgment in accordance with Cosse v. Schwegmann Brothers Giant Supermarkets, 336 So.2d 1074 (La.App. 4th Cir. 1976) and Continental Casualty Company v. McClure, 313 So.2d 260 (La.App. 4th Cir. 1975), in that LP&L filed depositions which had the effect of shifting the burden to Michael to establish that there was some factual dispute that LP&L’s negligence caused this accident or suffer the possibility of a summary judgment.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

LEMMON, Judge,

concurs and assigns reasons.

Under any version of the accident presented in the depositions of the three boys and the motorist, any breach of duty by LP&L in the placement of the pole or in failing to install reflectors was not a legal cause of the accident. Any duty imposed by a rule of reasonableness which would prohibit placement of a pole in this position does not encompass the risk that a bicyclist riding on the sidewalk or shoulder against traffic will be blinded by an on-coming automobile, strike (or barely miss) the post, and fall against the car. There is simply no ease of association between the duty to locate the pole in a reasonable position and the injury which occurred in this case. Hill v. Lundin & Assoc., 260 La. 542, 256 So.2d 620 (1972).


source: Caselaw Access Project

author:
LEMMON, Judge.
      BEER, Judge,

license: Public Domain

text:
    Roland ANDRY v. The PARISH OF ORLEANS, Louis A. Heyd, Jr., Sheriff and Deputy Sheriff Charles Engle.
    No. 9004.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Byron D. Magbee, Baton Rouge, for plaintiff-appellant.
    Cronvich, Wambsgans & Michalczyk, Anthony W. Wambsgans, Metarie, Durrett, Hardin, Hunter, Dameron & Fritchie, Emile C. Rolfs, III, Baton Rouge, for defendants-appellees.
    Before LEMMON, SCHOOT and BEER, JJ.
   LEMMON, Judge.

This is a suit for bodily injury allegedly inflicted upon plaintiff, an inmate of parish prison, by a prison guard while thwarting an attempted break by 13 prisoners.

Defendants argue that the normal duty owed by a person not to injure another is not applicable to a prison guard during the course of a prison break, since the guard’s paramount duty is to protect the citizenry in general by keeping criminals confined for their terms in prison. On the other hand, plaintiff contends that once the escaping prisoners were brought under control, the prison guards could not punish unarmed, handcuffed prisoners by pistol whipping and kicking them. Thus, both sides rely on reasonableness, which is always the touchstone of the determination of duty. But our analysis of this record reveals that the determination of duty is not the critical issue, since the record supports a conclusion that plaintiff was not beaten during the break attempt.

The guard’s version was that the prisoners were apprehended; were lined up facing the wall and “frisked”; then were made to lie on the ground and were handcuffed; and finally were escorted in an orderly manner to central lockup. Two other guards corroborated this version.

Plaintiff’s version was that they were made to lie on the ground and were handcuffed; that they were then told to lean facing the wall; that when he turned to tell the guard he was too short to reach over the barrel in front of him, he was struck on the head with a pistol and kicked in the ribs and then choked while lying on the ground handcuffed; and that he asked for medical attention for three days before being taken to a hospital. Four other prisoners substantially corroborated this version, including one who observed the incidents from his second floor cell.

The hospital examination revealed two fractured ribs and hysterical dysphonia or aphonia (inability to produce voice). Although plaintiff contends the fracture resulted from the guard’s kicks and the apho-nia resulted from the choking, the speech pathologist whom plaintiff relied upon to prove causation of the psychological condition testified that plaintiff stated he lost his voice after a fight in the bathroom and that a threat or physical violence could cause the condition.

The undisputed fact that plaintiff had certain injuries three days after the attempted escape which he did not have prior to that time raises a strong inference that he sustained these injuries during or shortly after the break, but the injuries could have been caused in that time frame in some other manner than a beating by the guard. Moreover, the pathologist’s testimony as to plaintiff’s statement about the bathroom fight lends support to the trial court’s otherwise reasonable resolution of the conflicting versions. No manifest error has been demonstrated.

The judgment is affirmed.

AFFIRMED.

BEER, Judge,

concurring.

Prison breaks, by their very nature, demand swift and unequivocal response. Indeed, some excesses in immediately responding to such incidents are understandable. But, here, in my view, the beating was unrelated to the actual recapturing of the escapees and was in direct retaliation for attempting to escape.

Since the record can, however, support contrary findings, I concur.


author: BEER, Judge.

text:
    Gary L. BAKER v. Joanne Taranto, wife of Gary L. BAKER.
    No. 9005.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Guy J. D’Antonio, II, Metairie, for defendant-appellant.
    Emile J. Dreuil, Jr., New Orleans, for plaintiff-appellee.
    Before LEMMON, SCHOTT and BEER, JJ.
   BEER, Judge.

The only issue properly before us in this appeal is whether or not the record supports the trial court’s conclusion that appellant is not in such relatively necessitous circumstances as should form the basis for an award of permanent alimony.

We find no abuse of the trial court’s sound discretion in its determination that appellant’s take home pay of $597 per month is sufficient for an acceptable level of support and maintenance, notwithstanding the fact that her overall standard of living will, doubtlessly, be reduced from that existent during her marriage to appel-lee.

Some adjustment to a differential in one’s standard of living is, unfortunately, more often than not, an inherent part of the processes of divorce, but this factor alone cannot form the basis for an award of permanent alimony except in the instance of relatively necessitous circumstances — not proven here.

The judgment is affirmed.

AFFIRMED.

      . Since the husband did not appeal from the judgment which specifically found the wife free from fault, the wife is eligible for alimony if circumstances change so that she no longer has sufficient means for her maintenance.


author: REDMANN, Judge.

text:
    Succession of Emma C. TEBO.
    No. 9006.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Breard Snellings, Sessions, Fishman, Ro-senson, Snellings & Boisfontaine, New Orleans, for plaintiffs-appellants.
    Dudley D. Flanders, Richard T. Simmons, Flanders & Flanders, New Orleans, for defendants-appellees.
    Before REDMANN, GARSAUD and De SONIER, JJ.
   REDMANN, Judge.

By rule to traverse the descriptive list of the assets in this succession, a niece and a grandniece of decedent assert the effectiveness of inter vivos acts of decedent:

1. to donate checking account balances to the grandniece and a great-grandnephew by means of blank checks drawn by decedent to the niece’s order, with written, dated and signed instructions to the niece, which the niece carried out prior to decedent’s death, to close out the two cheeking accounts and to deliver the balances to the named grandniece and great-grandnephew; and
2. to donate certain bearer bonds located in decedent’s bank box and specifically described in a note addressed to the grandniece, written by decedent but undated and unsigned and by decedent’s order and in her presence delivered to the niece (who is that grandniece’s mother) at the same time the blank checks and their instructions were delivered, when the niece had written standing authority from decedent to enter the bank box and “remove at will” its contents, but did not get the bonds from the box and deliver them to her daughter (the named grandniece) because the relatives (including the residuary legatee) who had keys to the box would not give her a key to enable her to do so and, presumably, she and her daughter would not force the issue either by enlisting decedent’s aid (decedent was then hospitalized but alert and lived two months longer) or by asserting her independent right to enter the bank box against the bank (through court proceedings if necessary).

The judgment appealed from held both acts ineffectual. We reverse as to the cashed checks and affirm as to the bonds.

The purely gratuitous donation inter vivos must be in the form of an act before notary public and two witnesses under penalty of nullity, La.C.C. 1536 and 1538, except that, as art. 1539 provides,

The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.

Here there was no notarial donation. Thus no donation inter vivos was effected unless the described acts constituted manual gifts.

The Checks

Because cash is considered a corporeal movable which may be donated by manual gift, the gift of an amount of money represented by the donor’s check is a valid manual gift if “reduced to possession” by being cashed by the donee (prior to the donor’s death), Succession of De Pouilly, 1870, 22 La.Ann. 97: “The check was the means or the vehicle of delivery.” The principle which thus allowed De Pouilly to make a valid manual gift (upon fulfillment of his order), by ordering in writing his bank to deliver cash to a named donee, is equally applicable to allow our donor, Miss Tebo, to make a valid manual gift (upon fulfillment of her orders), by ordering in writing her bank to deliver cash to her named niece, whom she further ordered in writing to deliver the cash to the two intended donees. We are unable to distinguish the one-written-order situation in De Pouilly from the two-written-orders situation before us.

Prior to Miss Tebo’s death the grandniece accepted this donation to herself by physically accepting the cash, thus completing the donation. The minor great-grandnephew’s case is different although we reach the conclusion that an acceptance was made for him. Presumably because the written instructions were addressed to both the niece and a niece-in-law (enclosing two sets of blank cheeks, one payable to the order of the niece and the other to the niece-in-law), the niece delivered the money for the great-grandnephew to the niece-in-law, who is the grandmother of the great-grandnephew for whom the cash was intended. However, that niece-in-law and her husband (the grandparents) had reservations about the gift (in part because of an erroneous notion that gifts within three years prior to death were invalid) and therefore did not deliver the cash to the minor’s father, as administrator of the minor’s estate, C.C. 221. Nevertheless the grandfather did place the money in a savings account identified as for the benefit of the minor. We deem this an acceptance by an ascendant which is valid even though the ascendant not be the tutor of the minor, C.C. 1546.

Accordingly the cash actually transferred by both cashed checks was the subject of valid manual donations inter vivos, and the checking account balances are erroneously listed in the descriptive list of decedent’s assets (as due from the niece).

The Bonds

Bearer bonds may also be transferred by manual gift, Succession of McCrocklin, 1962, 242 La. 404, 137 So.2d 274, although — as in any manual gift — delivery must be had to make the gift effective, Succession of Land, 1947, 212 La. 103, 31 So.2d 609. The delivery required by the law is delivery by the donor or (as in the case of the checks in De Pouilly and here) by another acting upon the donor’s orders.

We hold the bonds not manually given because there was no showing of delivery by the donor, nor of any order by the donor for delivery by another. The absence of physical delivery may be ignored under the circumstances. The residuary legatee could not be allowed to increase his own legacy by preventing the testatrix from completing delivery, through the niece, of an inter vivos gift. Were that the case the residuary legatee (and other legatees who prevented delivery) should be estopped to assert non-delivery. But that is not the case. No delivery order by the testatrix to the niece is shown and therefore, had the niece gained entry to the bank box and physically delivered the bonds to her daughter, there would still have been no valid manual gift. The niece’s understanding that she (or the niece-in-law) had orders to deliver the bonds arose from the facts that: (1) decedent’s general note of instruction regarding the packet of several notes was “If I am very ill give this to [the niece-in-law and the niece] immediately”, with the word immediately underscored thrice, indicating present urgency rather than testamentary intent; (2) the wording of the note to the grandniece included “these are to be used for down payment for house — keep interest to add to principal”, indicating do-native intent; and (3) decedent had long previously given authority to niece and niece-in-law individually to enter the bank box and remove at will its contents, thus making it possible for either to obtain the bonds and to deliver them to the grandniece. (Decedent had also twice told the niece “there were some important envelopes in her desk that had to do with [the grandniece and great-grandnephew] but what was in them I had no idea.”) The niece’s inference that decedent intended a present manual gift to be perfected by niece or niece-in-law’s obtaining and delivering the bonds is a reasonable inference. But a reasonable inference is an insufficient foundation for an agent’s power of attorney, or mandate, to make a donation: “to alienate . . . or do any other act of ownership, the power must be express”, C.C. 2996; “the power must be express . where things to be done are not merely acts of administration,” C.C. 2997. Because there is no testimony or other evidence of an express power authorizing the niece to give the bonds to the grandniece, we conclude that no manual gift has been established.

Accordingly the grandniece has no entitlement cognizable by law. At best there may exist the “natural obligation on those who inherit an estate ... to execute the donations or other dispositions which the former owner had made, but which are defective for want of form only”, C.C. 1758. “A natural obligation”, however, “is one which can not be enforced by action, but which is binding on the party who makes it, in conscience and according to natural justice.” C.C. 1757(2).

The bonds are correctly listed among the assets of decedent’s succession.

We assess all costs to the Succession because all costs were necessarily expended in the attempt to determine and effectuate the will of decedent.

Reversed as to checking account balances; affirmed as to bonds; costs to be paid by the Succession.

      . These instructions thus met the formal requirements for an olographic will or codicil, La.C.C. 1588, and they are dated after the date of the last will.

      - “July 30, 1975
      “Dear Leonard & Jessie,—
      “If I am very ill and will not be able to use, in the future my checking account. Close E. C. Tebo and give to Sherrill. Close out Emma C. Tebo and give to Christopher Nelson. I have made checks to both of you in case one is out of town or cannot be reached. Don’t say anything about this. Keep it quiet please please. Thanks.
      “T’Emma”

      . We mention, but do not fully discuss, that a long-time nurse-sitter of decedent, who gave the envelope containing several handwritten items to the niece, was given $200 by the niece out of the proceeds of the account that went to the niece’s daughter. The sitter had a check drawn by decedent on that account to the order of the sitter, blank in amount, and told the niece that it was to be for $200. The fact of the check’s existence can hardly be doubted after reading the testimony of the wife of the then principal adviser (and later co-executor and residuary legatee) of decedent, although the check was tom up and thrown into a wastebasket in decedent’s hospital room (as both the niece and the sitter testified). That the niece cashed only the one check on that account, rather than both one for $200 and one for the balance, does not alter the legal result from that which would have obtained had she cashed the two checks on that account.

      . Just before the quoted words, however, after describing bonds, the note says “if not needed for Rosetta, Bea & Antoinette” [three nurse-sitters]. This language seems inconsistent with an intent to make a present gift to the grandniece.


author: STOULIG, Judge.

text:
    Reginald D. WILLIAMS v. Arthur SCHEINUK and General Accident Insurance Company.
    No. 9019 Consolidated with No. 9020.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Douglas J. St. Romain, New Orleans, for plaintiff-appellee.
    Monte J. Ducote, New Orleans, for General Acc. Fire and Life Assur. Corp., Ltd., defendant-appellee.
    Phillip S. Brooks, City Atty., Allen C. Hope, Jr., Asst. City Atty., for City of New Orleans, intervenor-appellant.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

The City of New Orleans has appealed a summary judgment dismissing its intervention in Civil District Court Proceeding No. 597-042 entitled “Reginald D. Williams v. Arthur Scheinuk and General Accident Insurance Company.”

Eleven days after plaintiff and the defendants filed a joint motion to dismiss with prejudice the principal demand for damages which they had compromised, the City filed a petition to have recognized its privilege on the damages recovered to the extent it had paid compensation benefits.

C.C.P. art. 1039 requires that the incidental demand be filed prior to the dismissal of the suit in order to be unaffected by the dismissal.

The case was consolidated with another suit by Roy LaFleur, a co-worker of plaintiff, injured in the same accident. Again the City paid compensation and filed a petition of intervention asserting its privilege for reimbursement for compensation payments against LaFleur’s recovery. That petition was filed before the joint motion to dismiss with prejudice was filed by plaintiff and defendants. The City argues that because of the consolidation the petition of intervention in the LaFleur case, which was filed prior to the motion to dismiss in the instant case, also served to assert the incidental demand for reimbursement in both cases.

We disagree. The consolidation of these two cases did not in anywise enlarge or decrease the rights of the litigants in the prosecution of or the defense against the claims asserted. Procedural or substantive rights peculiar to one case are not rendered applicable to the companion suit by the mere fact of consolidation. Each case must stand on its own merits. Consolidation only effects an expeditious adjudication of common issues of law or fact presented in two or more cases. The timely filed petition of intervention limits the claim for reimbursement to the LaFleur situation.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . Petition for damages filed August 12, 1975. Joint motion to dismiss filed December 19, 1975. Petition of intervention filed by City of New Orleans on December 30, 1975.

      . Civil District Court, Parish of Orleans, Docket No. 597-814.


author: GARSAUD, Judge. REDMANN, Judge,

text:
    Mrs. Harriet B. Wagner HILLARY v. The GASTEL CORPORATION et al.
    No. 9026.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Scariano & McCranie, George Scariano, Metairie, for defendants-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, Ernest L. O’Bannon, David E. Walle, New Orleans, for plaintiff-appellee.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   GARSAUD, Judge.

This appeal is from a judgment maintaining an exception of no cause of action, thus dismissing an action for nullity brought by appellants Gastel Corporation and Gerald G. Pfister. The original suit was instituted by Mrs. Harriet Hillary against The Gastel Corporation, Gerald Pfister, and Carol L. Wood, III on two promissory notes. A preliminary default was entered against all defendants on June 3, 1976. The default judgment was confirmed on July 22, 1976 against the three defendants in solido for $17,510, the principal amount of one of the notes, plus interest and attorney’s fees. Similarly, a default judgment was confirmed on the second note for the principal amount of $3,060, plus interest and attorney’s fees. This latter judgment was against The Gastel Corporation only. None of the defendants filed an answer, made an appearance, applied for a new trial, or took an appeal from these default judgments.

In January 1977, Gastel and Pfister sought to annul the earlier judgments by filing a petition for nullity of judgment under Article 2004 of the Code of Civil Procedure. Plaintiff filed exceptions of venue, improper cumulation of actions, vagueness, and no cause of action. Because the trial judge maintained the exception of no cause of action, no ruling was made on the remainder of the exceptions. In well-set-forth reasons, the trial judge found that the petition for nullity failed to allege sufficiently any facts which would constitute fraud to justify the annulment of the earlier default judgment. Appellants base this appeal solely on the “failure of the trial court to grant petitioner leave to amend the pleadings in order to correct the alleged failure to state a cause of action.”

With regard to the claim that an amendment to the pleadings should have been permitted, Article 934 of the Code of Civil Procedure provides:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

If the petition is capable of being amended so as to state a cause of action, then leave to amend should have been granted. Spell v. Executive Officers, Directors and/or Shareholders of P & W Industries, Inc., 316 So.2d 474 (La.App. 1st Cir. 1975), writ refused La., 320 So.2d 911; Menard v. Associated Royal Crown Bottling Co., 249 So.2d 363 (La.App. 4th Cir. 1971). Here, the question is the amendment vel non of a petition for nullity. Thus, an amendment should be ordered under C.C.P. Art. 934 only if petitioner can amend in conformity with Article 2004 of the Code of Civil Procedure. This article provides:

“A final judgment obtained by fraud or ill practices may be annulled. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

The mandate of Article 934, however, is inapplicable here, as the record clearly supports the view that the petition for nullity was incapable of being amended to state a cause of action under C.C.P. Art. 2004. Nowhere in pleadings or in brief do appellants indicate what constituted the fraud and ill practice alleged on the part of the plaintiff-appellee. Gastel and Pfister merely allege fraud. The alleged fraud is described by a further allegation that plaintiff Hillary “. . . [swore] out a false affidavit alleging the amount due on the note.” There are no facts pleaded supporting the claim of false affidavit other than, by implication, payment on defendants’ part. They completely fail to show what amendment to their original petition can be made to state a cause of action.

The only possible contention that could be construed as a factor permitting amendment is defendants’ claim of payment or overpayment. These, however, are affirmative defenses, which cannot be maintained in an action for nullity, and which should have been pleaded in the original suit. Steele v. Ruiz, 202 So.2d 376 (La.App. 4th Cir. 1967), and cases cited therein. Nowhere in the pleadings do the defendants allege any reason for their failure or inability to present their affirmative defense at an appropriate time. Thus, the trial court was correct in maintaining the exception of no cause of action, as there was no arguable position advanced by appellants which would have constituted a viable amendment to their petition for nullity resulting in a cause of action.

Further, the appellants’ position is not encompassed within the rationale supporting C.C.P. Art. 2004, as it was set forth by Justice Marcus in Johnson v. Jones-Journet, 320 So.2d 533 (La.1975) at 537:

“Article 2004 is drawn primarily from Article 607 of the Code of Practice, which, in addition to announcing the general rule that judgments obtained by fraud or ill practices were subject to annulment, set forth as illustrations bribery of the judge or witnesses, production of forged documents, and perjury by the party obtaining the judgment. These illustrations were not considered exhaustive of actionable fraud or ill practices, however; the jurisprudence set forth two criteria to determine whether a judgment had, in fact, been obtained by actionable fraud or ill practices: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) the enforcement of the judgment would have been unconscionable and inequitable.
“When the Code of Civil Procedure replaced the Code of Practice in 1960, the former rule was retained as article 2004. Although the illustrations were deleted, 1. . . there was no intention to change the law.’ [La.Code Civ.P. art. 2004, Comment (b) (I960)] Hence, the criteria of relief set forth in the jurisprudence still obtains.”

Under no stretch of the imagination can it be argued that the judgment rendered against these defendants deprived them of any legal rights, nor was the enforcement of the judgment unconscionable or inequitable. As a matter of fact, what the defendant is seeking here is not the proverbial two bites at the apple, but a third bite at the apple. His first opportunity was to defend on his claim of overpayment against the initial petition. This he failed to do. He then failed to ask for a new trial or take an appeal from the default judgment. Now he asks for a third chance to present his affirmative defense of payment or overpayment by seeking a nullity of judgment. If anything, we would worry about the inequity of permitting, in effect, the substitution of an action for nullity for an appeal in this instance. We believe that the well-established rule that an action of nullity is not intended as a substitute for an appeal is precisely on point. Chauvin v. Nelkin Insurance Agency, Inc., 345 So.2d 132 (La.App. 1st Cir. 1977); Alleman v. Guillot, 225 So.2d 607 (La.App. 1st Cir. 1969); Romero v. Galley, 79 So.2d 625 (La.App. 1st Cir. 1955).

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.

REDMANN, Judge,

dissenting.

La.C.C.P. 934 draws a line that is theoretically distinct but practically blurred. That line divides defects in petitions subject to peremptory exceptions into those that can and those that cannot be removed by amendment. The article surely contemplates the existence of non-removable defects in petitions. Therefore the removing of a defect must be something other than withdrawing an affirmative allegation constituting a defect: if plaintiff’s tort petition alleges that his own fault caused his injury (even if it also alleges causative fault by defendant) presumably that defect is non-removable. Such a plaintiff’s problem is not mere failure to state a cause of action because of inadequate pleading; his problem is failure to have a cause of action. To amend by merely withdrawing his allegation of his own contributory negligence would, in a semantic sense, remove the defect of his pleading but for obvious reasons such an amendment ought not to be allowed (in the absence of a showing that the original allegation was a clerical error or the like).

Probably, however, any amendment short of a deletion ought to be allowed, as a general rule under C.C.P. 934.

Petitioners could amend here to allege payment or at least to allege that they have receipts for payment. See the cases noted in the annotations to La. Code of Practice (1870) art. 607. Johnson v. Jones-Journet, La.1975, 320 So.2d 533, 537, points out that although C.P. 607’s examples were deleted in its replacement by C.C.P. 2004, “there was no intention to change the law.”


author: BOUTALL, Judge.

text:
    Fred C. DANIEL v. BLUE CROSS OF LOUISIANA, a/k/a Louisiana Health Service and Indemnity Company.
    No. 9032.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    R. Patrick Vance of Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for Blue Cross of Louisiana a/k/a Louisiana Health Service and Indem. Co., defendant-appellant.
    John H. Wells of Wells & Breaux, New Orleans, for Fred C. Daniel, plaintiff-appel-lee.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a claim for benefits under a hospitalization and medical care policy. Payment was refused by the insurer contending that plaintiff’s condition arose prior to the effective date of the policy, and hence came within an exception to the policy. The trial court granted benefits, and the insurer appealed.

The pertinent facts are that Fred C. Daniel had suffered for years with a chronic neuralgia arising from an injury to his back and several operations as a result thereof during 1962 and 1963. Although he suffered intermittent pain during that period, he had learned to cope with his problems and there was no necessity to seek medical treatment for his condition up to the time of the current events. On December 29, 1975, he signed application for a health insurance policy with Louisiana Health Service and Indemnity Company, better known as Blue Cross of Louisiana. The application was approved by an underwriter at Blue Cross on January 6,1976, with the effective date of the policy to be February 1, 1976. Some time during the second week in January, after the policy was approved, but before its effective date, Daniel attempted to put a spare tire into the trunk of a car, and when he leaned over he felt a cutting sensation or pulling sensation in his back and hip and began suffering such pain he could not work. This pain did not resolve itself as had the pain he suffered on previous occasions, and on January 29th he sought the medical services of Dr. Llewellyn. The episode resulted in his hospitalization in February, after the effective date of the policy, and is the basis of the claims made.

The insurer refused to pay the claim contending that the original effective date of the policy is February 1, and that the February medical care is subject to an exclusion contained in the policy in Article IX thereof:

“A. No Health Care allowance will be provided for:
1. services rendered during the first year of coverage for, or as a result of, any ailment, disease, or physical condition, the symptoms of which exhibit themselves before the Original Effective Date; * * ”

The issues presented to us are twofold, first, the effective date of the policy, and secondly, when did the symptoms of the physical condition arise. The trial judge gave detailed reasons for his judgment awarding benefits and concluded that the symptoms arose as a result of the injury in the second week of January, 1976. There is sufficient evidence in the record to support such a conclusion, and we agree. However, he also found that the effective date of the policy was its acceptance on January 6, and with this we disagree as a matter of law.

There is nothing in the application which makes the insurance effective upon the signing of the application and tender of the first month’s premium, but instead it shows that the policy is not to be issued unless there is an acceptance by the insurer. The acceptance by the insurance was on January 6, but that acceptance was conditional upon making the effective date of the policy February 1. The beneficiary was forwarded a card or certificate showing that to be the effective date, and indeed he raises no evidence to dispute this fact. We find nothing in the law which would preclude the insurer from issuing the policy effective February 1, and the contract is the ruling law between the parties.

Since we find the effective date of the policy to be February 1, it is apparent that the symptoms arose prior to that effective date, to-wit, the incident in the second week in January and the subsequent consultation with Dr. Llewellyn on January 29. The claimed medical treatment came within the policy exclusion. Accordingly, the judgment appealed from is reversed and plaintiff’s suit is dismissed at his cost.

REVERSED.


author: WICKER, Judge.

text:
    Elzy Joseph JUNEAU v. TULANE INDUSTRIAL LAUNDRY.
    No. 9078.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Francipane, Regan & St. Peé, Metairie, Wayne H. Scheuermann, New Orleans, for plaintiff-appellee.
    Nelson, Nelson & Lombard, Ltd., J. Thomas Nelson and Irving H. Koch, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   WICKER, Judge.

Plaintiff instituted this suit against his employer and its insurer for total and permanent disability benefits under the provisions of the Louisiana Workmen’s Compensation Act. Following trial on the merits, judgment was rendered in favor of plaintiff for total and permanent benefits and medical expenses in the full amount allowed by law, subject to a credit for compensation already paid. Defendants have appealed.

In this court appellants contend: (1) Plaintiff failed to bear the burden of proof that an accident occurred; and, alternatively, (2) the medical evidence does not support a finding of total and permanent disability.

Plaintiff testified: He was employed by defendant industrial laundry to deliver uniforms throughout Louisiana and Mississippi. On or about December 13, 1976, at 9:30 a. m. while delivering uniforms to a machine shop in Picayune, Mississippi, he injured his back when he slipped and lost his balance. He was offered assistance by an employee of the shop, but declined, and continued his duties. At about 4:45 that afternoon in Bogalusa, Louisiana he checked into a hotel room, took anacin to relieve the pain and went to sleep. The following day he continued to work and upon the completion of his route returned to New Orleans. He told his boss, Mr. Morreale, that he had fallen and hurt his back and was unable to unload the truck. Plaintiff continued to work for the company until January 7, 1977 when, because of back problems, he was unable to continue. He was admitted to Veterans Hospital on January 18, 1977 where a back operation was performed later that month.

The deposition of Mr. William McConnell, an employee of the Picayune Machine Shop, indicated that some time in December, 1976, he was standing about 5 feet from plaintiff with his back to him, counting and separating his uniforms when plaintiff yelled in pain: “Ow! My back’s hurt.” The witness further testified that plaintiff sounded like he was in pain. As he looked around, plaintiff was rising from a bent position, and had his hand behind his back. McConnell asked if plaintiff needed any help but plaintiff said he would be O. K., so McConnell went about his business.

Mr. Raymond R. Lossett, Sr., owner of the machine shop where the accident allegedly occurred, testified that he did not know of the incident except what he had heard through McConnell, but he considered McConnell to be very reliable and that if McConnell said he saw the man raise up holding his back and uttering some words he would believe him.

The record further establishes, through the deposition of Dr. Charles B. Clark, that when seen in January, 1977, plaintiff gave a history of his present back problems as having occurred when he was on the job leaning over to pick up a laundry bag some five weeks prior to this examination. He had a previous history of a back operation in 1961, but only occasional back problems since that time.

While no one from defendant laundry appears to have known about the accident at the time it occurred, we are impressed with the testimony of Mr. Morreale, the vice president of defendant corporation, that plaintiff was an excellent worker whom he described as a “hustler”. Plaintiff had won a contest put on for the employees every year to earn extra Christmas money and was described by Morreale as being very conscientious.

Our settled jurisprudence is to the effect that as in any other civil suit plaintiff in a workmen’s compensation case has the burden of establishing his claim by a preponderance of the evidence. It is also established that liberal construction of the law in favor of the injured employee in workmen’s compensation cases does not relieve the claimant of this burden.

However, the trial court found and, on the basis of the record before us, we agree that plaintiff has proven that an accident occurred in the instant case.

Relative to appellant’s second contention, the medical evidence is that on January 21, 1977, plaintiff underwent removal of the fourth and fifth lumbar discs. The onset of this problem was related by the doctor to the incident in December, 1976. The disc surgery performed in 1961 was in another area, with removal of an S-l disc. Dr. Clark indicates that on June 27, 1977, he concluded plaintiff was unsuitable for any kind of lifting, bending, stooping, or prolonged periods of sitting or driving. His further prognosis would have to depend on a future examination. He was of the opinion there was a good possibility that these symptoms would subside in time, but on the other hand, if they did not, plaintiff would need further evaluation and investigation. Whether or not the condition would be temporary total disability would depend on further evaluation and investigation. He concluded plaintiff would probably have some residual permanent disability but the degree was not determinable at this time, and plaintiffs permanent disability may be only temporary in nature. He was unable to state a percentage of partial disability until further examination at a later date.

When the period of disability of the injured employee is indefinite, the correct procedure is to allow the compensation during disability not to exceed the statutory maximum. Where the evidence in a compensation case indicates that the plaintiff has sustained total disability at the time of trial, the defendant would have the right to rule the plaintiff into court after 6 months from date of judgment to test whether or not he has recovered. Thus, we are of the opinion that compensation for total permanent disability was properly awarded at the time of the trial.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . LSA-R.S. 23:1201 et seq.

      . Crooks v. Belden Corporation, La.App., 334 So.2d 725; Dunman v. Kroger Company, La.App., 333 So.2d 427.

      . Tillman v. Hartford Accident & Indemnity Co., La.App., 314 So.2d 507; Mamon v. Western Waterproofing Co., La.App., 243 So.2d 105.

      . Whiddon v. Concrete Pipe Products Company, La.App., 78 So.2d 439.

      . LSA-R.S. 23:1331; Johnson v. Cajun Enterprises, La.App., 293 So.2d 617; Brown v. international Paper Co., La.App., 58 So.2d 557; McClung v. Delta Shipbuilding Co., La.App., 34 So.2d 70.


author: GARSAUD, Judge.

text:
    Frances Saltarelli, wife of Deceased Salvador E. GUTIERREZ, Sr. v. TRAVELERS INSURANCE COMPANY and Vinson Guard Service.
    No. 9173.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Gutierrez & Hand, Salvador E. Gutierrez, Jr., New Orleans, for plaintiff-appellee.
    Leach, Paysse & Baldwin, William G. Tabb, III, Michael A. Britt, New Orleans, for defendant-appellant.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   GARSAUD, Judge.

This workmen’s compensation suit was filed by plaintiff, Frances Saltarelli, widow of Salvador E. Gutierrez, Sr., for widow’s death benefits pursuant to R.S. 23:1231. Made defendants were decedent’s employer, Vinson Guard Service, and its workmen’s compensation insurer, Travelers Insurance Company. After a trial on the merits, the lower court gave plaintiff a lump sum award of $32,000 plus $1,500 funeral expenses and medical expenses of $1,592.77.

Among appellant’s assignments of error is the following:

“The trial Court erred in allowing inadmissible hearsay testimony from the deceased’s son (and plaintiff’s attorney), and in refusing to require the sequestration of the deceased’s son from the Court room during the course of trial over objections of counsel.”

We are troubled by the circumstances which gave rise to this assignment of error, as these circumstances amount to more than simply a question of sequestration of the witness.

In this instance, the plaintiff’s stepson and deceased’s child, acted as plaintiff’s counsel, while also testifying on her behalf as a substantial part of her case. When on the witness stand he was examined by his law partner.

Ethical Considerations 5-9 and 5-10 of our Code of Professional Responsibility state respectively:

“EC 5-9. Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears' as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.”
“EC 5-10. Problems incident to the lawyer-witness relationship arise at different stages; they relate either to whether a lawyer should accept employment or should withdraw from employment. Regardless of when the problem arises, his decision is to be governed by the same basic considerations. It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue. In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness. In making such a decision, he should determine the personal or financial sacrifice of the client that may result from his refusal of employment or withdrawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.”

Disciplinary Rules 5-101 and 5-102 state i follows:

“DR 5-101. Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
(1) If the testimony will relate solely to an uncontested matter.
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”
“DR 5-102. Withdrawal as Counsel When the Lawyer Becomes a Witness.
(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 6 — 101(B)(1) through (4).
(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.”

These rules are unequivocal and regardless of the good faith of the parties, they must prevail. We cannot permit rights to be adjudicated in the context of a violation, albeit unintentional, of the Code of Professional Responsibility, particularly where the provision in question deals with the interest of a client. The inconsistency here is too patent for extended comment. See 9 A.L. R.Fed. 500 at 520; In Re Rappaport, 558 F.2d 87 (2d cir. 1977).

With regard to the exception found in DR 5-101(B)(4), the critical question is whether the distinctive value of a particular lawyer or his firm as trial counsel is so great that withdrawal would work a substantial or other hardship upon the client. We assume that is the basis upon which the attorney herein would contend that his appearance was permissible. From the record before us, it would not appear that this exception can be availed of in this instance. Accordingly, as the plaintiff’s attorney was the material witness for the plaintiff in this case, it is our opinion that his representation is inconsistent with the clear mandate of the Code of Professional Responsibility.

Mindful of the plaintiff’s right to pursue an arguable cause of action, however, we remand the case for a new trial consistent with this opinion. As his testimony is crucial to plaintiff’s case, Mr. Gutierrez ought to testify and plaintiff should retain counsel other than Mr. Gutierrez or his firm.

“Accordingly, the Code generally requires that a lawyer who ought to be a witness for the client should fulfill that function and should not diminish the value of his prospective testimony by also being the client’s trial advocate. The client’s need for the testimony from a disinterested source and the client’s entitlement to an advocate whose effectiveness cannot be impaired because of his advocate being a witness as to contested issues are the foundation of DR 5-102(A) and DR 5-102(B).” A.B.A. Formal Opinion 339 (1974); J. P. Foley & Co., Inc. v. Vanderbilt, 523 F.2d 1357 (2d Cir. 1975).

ANNULLED AND REMANDED.


text:
    Jack A. HUDSON, D.D.S. (a Professional Corporation) v. Nurit Wahlder, wife of/and Michael M. WAHLDER.
    No. 9193.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Max Nathan, Jr. and Linda S. A. Burke, New Orleans, for plaintiff-appellant.
    Henican, James & Cleveland, C. Ellis Henican, Jr., New Orleans, for defendants-appellees.
    Before REDMANN, GARSAUD, and De-SONIER, JJ.
   GARSAUD, Judge.

Plaintiff-appellant, a professional corporation, appeals from the trial court’s judgment sustaining defendants-appellees’ exception of improper venue. Appellant sued appellees, domiciliaries of Rapides Parish, in the First City Court of New Orleans for $400 allegedly owed on a contract for dental services performed by appellant’s employee for the benefit of appellee Nurit Wahlder. To this suit, appellees filed a pleading entitled “Exception of Improper Venue and Answer.”

The sole issue on appeal is whether the appellees’ pleading contained a reconven-tional demand. If it did not, the sustaining of the exception of improper venue was correct. If it did, the appellees have waived their objection to the venue, and sustaining the exception was error.

In defendants’ pleading captioned “Exception of Improper Venue and Answer,” after praying that the exception be maintained and plaintiff’s suit be dismissed, the defendants state, “Now, without waiving the exception set out above [improper venue], defendants answer plaintiff’s petition as follows: . . . .” There follow 12 numbered paragraphs basically denying the allegations of plaintiff’s petition. Immediately preceding paragraph 13 defendants state, “And now, still without waiving the exception set out above, defendants further respectfully represent: . . . Paragraphs 13 through 16 then allege negligence on the part of appellant’s employee and breach of contract, all resulting in certain enumerated damages.

Paragraph 17, the last paragraph of defendants’ pleading, then states,

“Defendants in reconvention are entitled to recover all costs of these proceedings.
“WHEREFORE, Nurit Wahlder, wife of/and Michael M. Wahlder pray for judgment rejecting plaintiff’s demands at its costs.”

Appellant contends that this pleading amounts to a reconventional demand, thus waiving the exception. The appellees contend that their pleading does not contain a reconventional demand, but rather is an answer alleging an affirmative defense by way of set-off.

The style of the pleading will not be determinative, one way or the other. The substance of the pleading controls. Person v. Person, 172 La. 740, 135 So. 225 (La.1931); Good v. Ber, 212 So.2d 198 (La.App. 4th Cir. 1968), writ ref. 252 La. 890, 214 So.2d 717; Bert’s Boat Works, Inc. v. Cuccia, 278 So.2d 134 (La.App. 4th Cir. 1973).

Under Article 1032 of the Code of Civil Procedure, a plaintiff in reconvention must adhere to the same rules for pleading as a plaintiff in a direct action. Under C.C.P. Art. 891, the plaintiff “shall conclude with a prayer for judgment for the relief sought.” (Emphasis added.) Here the relief sought was simply “the rejection of plaintiff’s demands at its costs.” By its very terms, the relief sought does not go beyond a prayer for the mere rejection of plaintiff’s demand to a specific demand against plaintiff. Hence, it lacks the essence of a demand in reconvention. See Person v. Person, supra.

Further, C.C.P. Art. 1063 requires service of the petition in reconvention to be made by the sheriff in the manner prescribed in C.C.P. Art. 1314. No such service was utilized here, reaffirming the limited request evidence by the prayer for mere rejection of plaintiff’s claim.

Appellant relies heavily on Mexic Bros. v. Sauviac, 191 So.2d 873 (La.App. 4th Cir. 1966). We believe this reliance is misplaced, as Mexic Bros. proceeds from the proposition that a reconventional demand was filed. In other words, a basic fact in that case is the very issue in this case.

For the reasons assigned, we affirm the decision of the trial court maintaining the exception of improper venue.

AFFIRMED.


text:
    Charles C. FOTI, Jr., Criminal Sheriff for the Parish of Orleans v. ORLEANS PARISH SCHOOL BOARD, Dr. Gene Geisert, Superintendent of the Orleans Parish School Board, et al.
    No. 9263.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Polack, Rosenberg, Rittenberg & Endom, Samuel I. Rosenberg, Richard G. Verlander, Jr., New Orleans, for defendants-appellants.
    Usry, Leefe, Hartley & Stahl, T. Allen Usry, John F. Weeks, II, Leroy A. Hartley, New Orleans, for plaintiff-appellee.
    Before STOULIG, BEER and GAUDIN, JJ.
   BEER, Judge.

Orleans Parish School Board appeals from a district court judgment mandating acceptance of the offer of appellee, Foti, Criminal Sheriff for the Parish of Orleans, to purchase property at 700 S. Rendon Street in New Orleans (Fisk Elementary School).

The Criminal Sheriff, acting under federal court order, sought additional incarceration facilities. Fisk had been closed by the School Board in 1974. Foti believed that the site could be well used as a restitution center where probationers would be housed and provided with a job which would enable them to make restitution to the victims of their offenses.

The School Board, at its April 5, 1976 meeting, directed its staff to investigate the possibility of a lease or sale of Fisk for such use including the impact on the neighborhood. By the time of its October 11, 1976 meeting, a large number of area residents had heard of and were actively protesting the sale of Fisk to the Sheriff, reasoning that the area was already saturated with criminal detention facilities. (Parish prison, central lockup, and the house of detention are all in the same area.) The Board voted (3-2) to reject a motion to sell Fisk to Foti for the appraised price of $60,000.

Foti again appeared at a School Board meeting on October 25, 1976, requesting that the Board sell or lease the Fisk site and/or the former Wicker Elementary School site on Bienville Street. The Board again adopted a resolution directing a study of the request. At a November 8, 1976 meeting of the Board, a number of citizens again protested, and, at a November 15, 1976 meeting, with citizens’ protests still the order of the day, the Sheriff took his white handkerchief from his pocket, waved it at the audience, and declared that he withdrew his proposals.

Later in November, 1976, the Fisk facility was advertised for sale by the Board, and sealed bids were solicited. The proposal contained the following language: “The Orleans Parish School Board reserves the right to reject any and all bids.” The only bid received was that of Sheriff Foti, for $70,030, clearly in excess of the required $60,000 minimum bid. At its January 24, 1977 meeting, a motion to accept the bid failed to carry, and at the next meeting on February 14, 1977, a motion to accept the bid was defeated 3-2.

As a result of suit instituted by the Sheriff, a temporary restraining order issued, prohibiting the Board from disposing of the property other than by sale to the Sheriff. Subsequently, a permanent injunction issued, from which appellant, the School Board, has suspensively appealed.

La.R.S. 17:87.6 provides that any parish school board may sell surplus school property at private or public sale, and La.R.S. 41:891 et seq., provides for sale at public auction, or under sealed bids, of school property in cases in which the best interest of the public school system would be served thereby.

The jurisprudence has long recognized the right of a public board to reject all bids in cases involving public contracts. In State ex rel. Irondale Chert Paving & Improvement Co. v. City of New Orleans, 48 La. 643, 19 So. 690 (1896), the city of New Orleans, acting under its city charter which gave it the right to reject any and all bids, advertised for and received bids for performance of a paving contract. Its action in rejecting all bids was upheld by the Louisiana Supreme Court, which set the following standard for rejection:

“We do not think the terms of the advertisement play any part in the issues presented to the court; for, whatever may have been those terms, or the character of the bids, we think the council had unquestionably, as we have said, the power and right to reject them, if, in its opinion, the public interests would not be subserved by accepting them. (Emphasis added.)” Id., at 693.

In D. J. Talley & Son, Inc. v. City of New Orleans, 303 So.2d 195 (La.App. 4th Cir. 1974), we affirmed the right of a public body acting under the public bidding statute, La.R.S. 38:2212, to reject all bids. There, because of uncertainties in the bid specifications of the lowest bidder for performance of a public contract, all bids were rejected and the city readvertised for bids and accepted one of the second group of bids. The lowest bidder of the first group sought a mandamus to compel the city to accept its bid. We noted:

“The clear language of L.R.S. 38:2212 states the following in pertinent part. ‘The governing authority may reject any and all bids. This law does not impose any limitation upon the governing authority in its rejection of all bids. The purpose of the public contracts law is to protect tax paying citizens against contracts of public officials entered into because of favoritism and involving exorbitant prices. [Citations omitted.] To require the governing authority to enter a contract simply because it has advertised for bids would certainly destroy its ability to achieve a fair price within the budgeted amount of the project.
“When a contract is awarded, it must be awarded to the lowest responsible bidder, but the court has no power to require the acceptance of a bid, and the court recognizes the right of the governing authority to reject all bids. [Emphasis added.]” Id., at 197.

In cases involving rejection of the lowest bid for a public works contract, and acceptance of a higher bid, the right of the public board to reject all bids has been acknowledged in dictum. See, e. g., Gurtler, Hebert & Co. v. Orleans Parish School Board, 251 So.2d 51 (La.App. 4th Cir. 1971); Housing Authority of Opelousas, La. v. Pittmann Constr. Co., 264 F.2d 695 (5th Cir. 1959).

It is suggested by appellant that, in the absence of cases interpreting La.R.S. 41:892, the standard of review by which its action must be tested is that used in analogous cases under the public bidding statute involving the rejection of the lowest bidder for performance of a public contract in favor of another bidder. In those cases, it has been held that the bid of the lowest responsible bidder must be accepted. In determining the responsibility of bidders, public boards have been given wide discretion. In Housing Authority of Opelousas, La. v. Pittmann Constr. Co., supra, at 703, the court stated:

“From these and other cases it is clear that Louisiana follows the general rule of vesting an awarding body with discretion subject to judicial review. Courts will not substitute their judgment for the good faith judgment of an administrative agency, but an awarding body’s administrative discretion must be exercised in a fair and legal manner and not arbitrarily. “The Board has the right to be wrong, dead wrong; but not unfairly, not arbitrarily wrong.”

Accordingly, in Housing Authority of Opelousas, La., supra, the action of the Board in rejecting plaintiff’s bid was found illegal for the reason that the Board had unfairly deprived plaintiff of an opportunity to disprove charges of irresponsibility.

The rationale of applying the test of arbitrariness and capriciousness to the actions of a public board in rejecting the lowest bid and accepting another has been stated as protection of the public interest in securing competition and protection of the taxpayer from exorbitant prices. It can readily be seen that similar policy interests exist where public property is to be sold, i. e., the interest in securing a fair price for the property and of promoting competition for such purchases. To permit the arbitrary refusal to accept all bids would result in a loss of public confidence in the bidding procedure. It might also result in lower bidding in a second round of bidding by those who were made aware by the first round of the perhaps limited demand for certain property. Thus, the least that is required of a public body before rejecting all bids is a reasoned consideration of the effect on its constituency of such a rejection.

The standard set by the trial judge in his reasons for judgment were . . this rejection must be on a basis that can be considered reasonable, and not for political reasons.” As we see it, the pertinent inquiry is whether the Board acted reasonably and for reasons within the scope of its function in rejecting the Foti bid. The location per se of rehabilitative or corrective facilities is outside of the proper decision making sphere of the School Board, as is the feeling of the area residents as to the effect of such a facility on their persons while at home or on the streets. However, the effect of such a center on the safety of school children en route to school, or the effect on the $2 million investment in a new school in the area, may well be within their proper sphere of concern.

Testimony of the Board members who voted against the Sheriff’s bid is illuminating. Member Harwood “Woody” Koppel testified that his decision was based on matters properly the concern to the School Board. The testimony of member Rose Mary Loving also showed a concern for school related matters. Dr. Mack Spears, who also voted against the sale, did not specify school oriented reasons for his vote and seemed to focus on the general safety of the residents. It is difficult to say, however, that the welfare of school children was not included in his concerns.

On the other hand, there is no evidence that the School Board staff, commissioned to determine the effect of the facility on the neighborhood, ever made its report. Also, it cannot be doubted that the public outcry and unpopularity of the facility influenced the members of the Board.

Though innumerable Louisiana cases denied mandamus where the actions of public officials was discretionary, mandamus has issued to compel performance where an abuse of discretion was found.

In Charbonnet v. Board of Architectural Examiners, 205 La. 232, 17 So.2d 261 (1944), the Supreme Court affirmed a judgment issuing a mandamus to compel the defendant Board of Architectural Examiners to issue relator a license to practice as an architect. Act 231 of 1910, setting forth requirements for certification, required only that the applicant present a diploma from an architecture school in good standing, or pass a satisfactory exam on specified subjects, and also that the applicant be 21 years of age, of good character, and possess a good primary education. The statute directed that when such requirements were met, the Board “shall” issue the certificate. The Board refused the certificate on the grounds that applicant had not met an apprenticeship requirement. Concerning the decision of the Board to impose such requirement, the court commented as follows:

“Clearly, we think, the members of the Board of Examiners have misconceived their duty, power, and responsibility.” Id., at 263.

In support of issuance of a writ of mandamus, the court cited State ex rel. Mauldin v. Matthews, 81 S.C. 44, 62 S.E. 695, in which the Supreme Court of South Carolina said:

‘ “Generally mandamus does not lie to control the judgment or discretion of a public [official], lying only to require performance of a plain ministerial duty; but courts can control officers or official boards vested with discretionary power, when they refuse to perform official duty or so misconceive official power or duty that the purpose of the law will be defeated.” ’ Charbonnet, supra at 264.

In State ex rel. Day v. Rapides Parish School Board, 158 La. 251, 103 So. 757 (1925), the defendant Board closed the schools for a year for the reason that it was financially impossible to remain open and yet comply with Sec. 32 of Act 100 of 1922 which required conversion from calendar year to fiscal year basis. The court found that the statute in question, which also authorized defendant to borrow money to keep the schools open, contemplated that the schools remain open. The court observed:

“The school districts in that parish are entitled, at all events, to the delay granted them by the statute, and may yet be able to adjust their finances by July 1, 1928, according to the requirements of section 32 of said act. The closing of the public schools in the various school districts of Rapides parish by respondent board is based, therefore, upon a wrong interpretation of section 32 of Act 100 of 1922, is unauthorized, and is arbitrary action upon the part of said board, by reason of a mistaken view of the law. Mandamus will lie in such a case.” Id., at 760.

Although the two cases discussed above are the only Louisiana cases found in which misunderstanding of the extent of discretion afforded by the law was the basis for mandamus, the principle was upheld in dictum in State ex rel. Bank of Franklinton v. La. State Board of Agriculture and Immigration, 122 La. 677, 48 So. 148 (1909). Relator sought mandamus to compel acceptance of its bid as that offering the highest rate of interest on State funds, and also sought an injunction to prevent acceptance of other bids. Defendant had rejected relator’s bid on the grounds that because of the distance the funds would have to be transported from the capital to the bank, the bid was not the safest. The court found that the mandamus which would fit this case was one compelling the Board to pass upon the bids merely on the basis of safety of the funds once they had reached the bank, which was the intent of the statute. Relator had asked for a mandamus to compel acceptance of its bid, which was not proper in light of the fact that there remained the necessity for a discretionary decision as to reliability of the funds in the bank. Mandamus was denied because relator had not asked for the proper mandamus, but in dictum, the following analysis was made of the case:

“And we are equally clear that defendant’s function in ascertaining which bank has ‘offered the highest rate of interest’ is confined to comparing the face of the bids. Defendant is not asked, or required, to dispose of the funds to the best advantage, or in such a way as to bring the largest return; but simply to invite bids by published advertisements, and to open the bids as soon as possible and publicly, and let the funds to the highest bidder.
“The only discretion defendant is invested with is to determine whether the bids are regular, and whether the bank whose bid is highest on the face of the papers would be a safe depositary in the sense of safely keeping and restoring the funds. The defendant has thus far, as a matter of fact, not yet exercised that discretion; but has gone out of its way to determine a question it had nothing to do with, namely, whether there would be expense or danger to the funds in transmission to and from a distant bank. The law applicable to such a case is stated in 19 A. & E. E. 739, as follows:
“ ‘If, by reason of a mistaken view of the law, or otherwise, there has been in fact no actual and bona fide exercise of discretion, as, for instance, where the direction is made to turn upon the matters which under the law should not be exercised, mandamus will lie.’ ”

For similar dictum, see also, State ex rel. Kohler's Snowite Laundry & Cleaners, Inc. v. State Board of Commerce and Industry, 205 La. 622, 17 So.2d 899 (1944).

Mandamus has also issued where an outright abuse of discretion for political reasons was found. In two similar cases, the respective salaries of two village marshals were decreased, purportedly for economic reasons, although no comparable decreases of other officials’ salaries were made. It was held that mandamus would lie to compel restoration of the prior salary where the decrease was made arbitrarily and for political reasons. State v. Village of Roseland, 21 So.2d 96 (La.App. 1st Cir. 1945); State ex rel. Meaux v. Village of Morse, 6 So.2d 221 (La.App. 1st Cir. 1942).

Finally, the jurisprudence supports issuance of mandamus where the official action sought to be compelled is held to be purely ministerial and therefore mandatory. Bussie v. Long, 257 La. 623, 243 So.2d 776 (1971) (mandamus to compel tax commission to fix assessments according to actual cash value where statute so required); Schwegmann Bros. Giant Super Markets v. Edwards, 323 So.2d 810 (La.App. 4th Cir. 1975), writ ref., La., 326 So.2d 503 (mandamus to compel defendant to grant permit to Mississippi dairy to import milk where it was held that statute made permit issuance mandatory in spite of State’s authority to inspect milk and require Louisiana Grade A standards be met).

Here, the School Board advertised for bids for the purchase of public property, and set a minimum acceptable amount. Under La.R.S. 41:892(D), its discretion with regard to the rejectance of any and all bids, though not necessarily limited to consideration of the financial reliability of the bidder, could not depend on factors beyond the bounds of the discretion reasonably vested in it.

The record supports the trial court’s essentially factual determination that however well (or otherwise) intentioned, the Board went beyond its proper sphere of concern, notwithstanding the after-the-fact testimony of various Board members. We find no abuse of discretion in this critical trial court appraisal of the evidence. The judgment is affirmed.

AFFIRMED.


author: GULOTTA, Judge. BEER, Judge,

text:
    Miss Carrie ARMONT v. BOARD OF COMMISSIONERS OF the GRAMERCY RECREATION DISTRICT and X. Y. Z. Insurance Company.
    No. 9392.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Murray, Murray, Ellis, Braden & Landry W. Glenn Burns, New Orleans, for plaintiff-appellant.
    Schoemann & Golden, Rudolph R. Schoe-mann, New Orleans, for defendants-appel-lees.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This matter is before us on writ of certio-rari.

Plaintiff seeks to “prosecute” her damage suit in forma pauperis. The trial judge denied plaintiff’s motion. In an earlier writ application (No. 8964), filed in response to the trial court’s denial of the motion, we ordered that an evidentiary hearing be held in the trial court on the forma pauperis motion.

The trial judge, after the hearing, denied (a second time) plaintiff’s request to file in forma pauperis. A jury bond was set in the amount of $3,000.00.

In this writ application, plaintiff-relator seeks an order permitting her to file suit in forma pauperis or, alternatively, a reduction in the $3,000.00 jury bond.

In the evidentiary hearing conducted by the trial judge, pursuant to the earlier order issued by this court, plaintiff testified that she was receiving $733.00 per month from Social Security disability payments; that plaintiff’s four children were residing with her in a rent-free residence owned by plaintiff’s family in which she had a one-ninth (1/9) interest; that because of disability, she was unable to be employed. Plaintiff testified further that she owned no automobile and had accumulated no savings. The record is silent as to the ages of the children; however, a neighbor witness testified that she thought the oldest child was 17 years of age and apparently corrected her testimony to state that the child was 24 years of age.

We recognize that a determination of a litigant’s right to file suit in forma pauperis is discretionary with the trial court. LSA-C.C.P. art. 5181. Nevertheless, the evidence considered in the instant case in connection with the recent holding of the Louisiana Supreme Court in Benjamin v. National Super Markets, Inc., 351 So.2d 138 (La.1977) leads us to conclude that the trial court’s denial of plaintiff’s motion to file suit in forma pauperis constitutes an abuse of that discretion.

Accordingly, the trial court’s order denying plaintiff’s motion to proceed in forma pauperis is reversed and set aside. IT IS NOW ORDERED that plaintiff is permitted to prosecute her suit under the provisions of LSA-C.C.P. arts. 5181 et seq. This matter is remanded to the trial court for further proceedings.

REVERSED AND RENDERED.

BEER, Judge,

dissenting.

I respectfully dissent being of the view that the trial court’s denial was not an abuse of discretion.


author: BOUTALL, Judge. LEMMON, Judge, GARSAUD, Judge, BAILES, Judge,

text:
    Louis CHARBONNET, III v. Henry E. BRADEN, IV.
    No. 9522.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 1978.
    Tucker, Schonekas & Garrison, Gibson Tucker, Jr., Andry & Andry, Gilbert V. Andry, III, New Orleans, for plaintiff-ap-pellee.
    Murray, Murray, Ellis, Braden & Landry, Stephen B. Murray, Douglas, Nabonne & Wilkerson, Ronald P. Nabonne, New Orleans, for defendant-appellant.
    Donald B. Ensenat, Asst. Atty. Gen., for State of Louisiana.
    Before SAMUEL, REDMANN, LEM-MON, STOULIG, BOUTALL, SCHOTT, BEER, GARSAUD and BAILES, JJ.
   BOUTALL, Judge.

Candidate Louis Charbonnet, III contests the election of Henry E. Braden, IV to the office of Senator, Fourth State Senatorial District of Louisiana. The respondent filed exceptions of prescription and peremption which were overruled. On the merits the trial court ruled in favor of Charbonnet, and Braden appealed. The election and the resulting contest are within the provisions of Louisiana’s new Election Code, effective January 1, 1978, Act 697 of 1976 as amended, now Revised Statutes, Title 18.

EXCEPTION OF PRESCRIPTION

R.S. 18:1406 A provides:

“An action objecting to candidacy or contesting an election shall be instituted by filing a petition in a competent court and posting a copy of the petition in a conspicuous place at the entrance of the office of the clerk of court where the petition is filed. The petition shall set forth in detail the grounds for the objection or contest.”

Defendant contends that this action was not timely, because although the petition was filed within five days after the date of the election, a copy of the petition was not posted in a conspicuous place at the entrance of the office of the clerk of court until the sixth day after the election.

The Election Code does not allocate the responsibility for completing the mandated procedures, once the judicial machinery is put into action by the filing of a petition. Defendant’s exception is based on the premise that the posting of the petition at the entrance of the clerk’s office is a burden placed on the plaintiff in an election suit in order to toll the running of the peremptive period of R.S. 18:1405 B.

The statute requiring the posting cannot be reasonably interpreted to impose this burden on the plaintiff. The handling of petitions after timely filing is a function traditionally assigned to the clerk of court, and we perceive no intent of the Election Code to change this function, nor do we perceive any purpose for doing so.

We hold that a plaintiff in an election suit interrupts any period of prescription or peremption by filing a petition in a competent court, and any mandatory provisions thereafter relating to the handling of the petition do not affect the question of timely filing.

ON THE MERITS

In his petition plaintiff Charbonnet raises two bases on which he seeks to declare the election void: 1.) the polling place in Ward 7, Precinct 6 was moved just prior to the election from its location in the primary to a new location in a school within the geographical boundaries of another precinct, some ten or twelve blocks away; 2.) the tabulations on 34 voting machines show a total of sixty fewer votes counted for the candidates than the total amount of people voting. Since the difference between the candidates was a total of 14 votes it is argued that the 60 votes are sufficient to have changed the course of the election. Plaintiff further pleaded a constitutional question which is not at issue herein.

The trial court found that the difference in the count of the votes was not due to malfunctioning of the voting machines, but was caused by errors of the voter in casting a ballot, that the amount of such votes were minimal, and that there was no reason to believe that re-voting in a new election would cause a different result. He resolves this issue in favor of defendant. However, on the issue of the location of the polling place, the court found as a fact that the polling place of Ward 7, Precinct 6, was not located within the precinct boundaries, stating:

“Simply stated, the provisions of L.S.A. 18-533 have been violated by those whose duty it was to follow the law and to place the voting machines in precincts in which the voters were registered, resulting in a deprivation of the right to vote in the precinct in which the voter is registered.”

The court noted there was proof of other precincts with polling places located outside the precinct boundaries, but those were not put at issue by the parties. Accordingly he rendered judgment solely on the basis of the illegal polling place of Ward 7, Precinct 6. His judgment did not void the election, but he ordered that another election, with adequate notice, be held only in Ward 7, Precinct 6 at a poll within the Precinct boundaries, the results of that election to be added to the already tabulated votes of the candidates to determine the winner.

At the outset we must say that the new election code of Louisiana contains provisions regulating the court’s determination of election contests. R.S. 18:1431 through 1434. Generally speaking, this enactment by the legislature provides us with the guidelines governing our inquiry into the case, and the result to be reached upon a final determination by the court. We note that the result ordered by the trial court is not among the remedies afforded. The parties both argue that Section 1431, concerning fraudulent or illegal votes is not applicable, and indeed there is no issue of fraud whatsoever raised in this case. The issues presented come under the provisions of Section 1432 which provides only for a declaration that the entire election be voided.

It is apparent that the plaintiff in this suit is required to prove either that 1.) it is impossible to determine the result of the election, or 2.) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote. We conclude that his proof is insufficient in either case.

It is conceded that the polling place in question was outside the precinct boundaries in violation of R.S. 18:533 B. But what is the effect on the results of this election? Neither of the parties had anything to do with its change or location, which is solely within the responsibility of the governing authority. § 533 A. As we consider the evidence, the main problem that arose here is the lateness of the change from one location to another. § 534 and § 535 regulate the change of polling places and require publication. Some two weeks before the election the change was made but no publication appeared until the afternoon before the election, when the Board of Election Supervisors published an official list of polling places in its official journal, The New Orleans-States Item. The only other notice was a list published by the Times Picayune newspaper as a news item on the morning of the election.

Under these circumstances, we do not consider that the votes cast in that precinct should be disregarded and not counted because cast at an illegal voting place. See § 531 A. We quote from the case of Johnson v. Sewerage District # 2 of Parish of Caddo, 239 La. 841, 120 So.2d 262 (La.1960) at page 271:

“It has frequently been observed by us that in the absence of fraud, corruption or proof that the irregularities complained of would have changed the result of the election, the election will not be set aside solely because of the failure of some ministerial officer to perform every formal direction prescribed by law. Duncan v. Vernon Parish School Board, 226 La. 379, 76 So.2d 403 (and cases cited therein).”

This principle is still being followed by our courts, and is still applicable law under the new election code.

To overcome this principle of law, plaintiff must show that what happened here created a situation that, in effect, was a denial of the right to vote sufficient to change the result of the election as contemplated in the new election code. As we analyze the facts, the householder at the old polling place on LaHarpe Street put assign on the premises notifying that there was no voting there that day and that approximately 6:15 A.M. (the polls opened at 6:00 A.M.) added to the sign “New location 1932 Touro St. Rivers Friderichs School”. He also testified that later on there were persons directing the voters to the new location. Mr. Charbonnet himself visited the polls shortly after 9 o’clock and requested some of his workers to man the area to notify prospective voters and to furnish transportation to the new polling place.

The main evidence relied upon by plaintiff to show loss of the right to vote were the depositions of 16 people who were registered in the precinct and testified generally that they would have voted at the old location. One of these actually voted, 3 did not go to the old location at all, but heard that it was closed and so did not attempt to vote, 7 knew of the change in location but found it inconvenient to vote there and 5 testified that they went to the old location but were not aware of the change to the new location and so could not vote. It was stipulated that some 8 other witnesses would testify generally to the same effect as these witnesses.

We conclude that this is insufficient to meet the requirements stated in R.S. 18:1432 to declare this election void. With this conclusion, plaintiff is not entitled to the relief he sought, or to the relief afforded by the trial judge, whose judgment we reverse.

In connection with the issue of the 60 votes allegedly uncounted on the vote machines, we agree with the findings of the trial judge and his reasoning on that point, within the application of the law and reasons discussed above.

For the reasons assigned, the judgment appealed from is affirmed insofar as it overrules the exceptions of peremption and/or prescription. The judgment is reversed on the merits, dismissing plaintiffs suit at his costs.

AFFIRMED IN PART, REVERSED IN PART.

LEMMON, Judge,

concurs and assigns reasons.

The critical issue in this case is whether the court should afford plaintiff relief, irrespective of the Election Code, because the moving of the polling place so substantially deprived the voters of Precinct 6 of the right to vote that the result of the election may have been different if this right had been fairly accorded to these voters.

Although the diligence of the governing authority left something to be desired in accomplishing the removal of the old polling place requested by the property owner, the record establishes the existence of an emergency shortly before the election. Thereafter, the situation was handled reasonably. A nearby location was secured by a City official who was unaware of the new law requiring the polling place to be located within the precinct. Notice of the change was published in the newspaper on the afternoon before and the morning of the election. A sign was placed at the old polling place, notifying voters of the move and of the location of the new polling place.

Equally important, there was absolutely no suggestion of fraud or purposeful confusion. Nor was there any suggestion of untimely changing of polling places as a way of life in local elections or of any other reason to doubt the motives of the governing authority.

The record justifies the conclusion that this was a fair election in which all voters were fairly accorded the right to vote.

GARSAUD, Judge,

concurring.

Although I am in full agreement with the majority opinion, I believe the question of waiver should be addressed.

Appellant argues that under R.S. 18:1434, plaintiff waived any objection to an irregularity. That section states:

“An objection to the qualifications of a voter or to an irregularity in the conduct of the election which, with the exercise of due diligence, could have been raised by a challenge of the voter or objections at the polls to the procedure is deemed waived.”

It is the appellant’s view that with due diligence, plaintiff could have and should have discovered the change in the location of the polling place for Ward 7, Precinct 6 in the official notice of such change in the States-Item of Friday, March 31, 1978. Had he exercised diligence, the appellant argues, plaintiff would have been aware of the change and could have raised a timely objection as, for example, seeking judicial relief. By failing to do so, under circumstances where it is apparent the person objecting could have done so, an individual waives the objection.

I agree with the appellant that the principle of estoppel underlying R.S. 18:1434 applies, and conclude that plaintiff waived his objection. Plaintiff was in a position to challenge timely the irregularity and chose not to do so. To rule otherwise would be to condone a situation where a candidate, fully apprised as a matter of law of an irregularity, could sit back and wait until the election is over and then register an objection only with regard to those irregularities that the election results show adversely affected him. The election process is for the benefit of the people and not for the exclusive benefit of the candidate. Justice and fairness require that a candidate object to an irregularity quo irregularity, and not after the fact, when it may be used exclusively to his own advantage. Of course, where there is no chance for the candidate to be aware of the irregularity until after the election, this analysis would not obtain. However, the facts in our case indicate an opportunity to object prior to the election.

BAILES, Judge,

concurring.

I concur in the result of the majority that the judgment appealed must be reversed. There is no authority within the four corners of the Election Code for the court to order a revote in one precinct save the provision of Section 1433 in an instance of malfunction of a voting machine.

Although the plaintiff'does contend there was voting machine malfunction, the proof is clear that the voting machine(s) did not malfunction. The evidence clearly preponderates that voter error accounts for the recording of a larger number of voters entering the machine than the combined total • of votes cast.

There is no question whatever that the changing of the voting place for Precinct Six, Ward Seven, voters is an election irregularity, but this irregularity does not vitiate the election.

Under Part II of Chapter 9 of the Election Code, the Code details the only grounds for the Court to void an election. If the reasons or grounds advanced for voiding an election are not contained therein, the Court cannot void the election.

Section 1431 treats questions of fraudulent, illegal votes and uncounted votes. This has no application to this suit.

Section 1432 states:

“The final judgment in an election contest shall declare the election void if: (1) it is impossible to determine the result of election, or (2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote, or (3) the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, or (4) a combination of the factors referred to in (2) and (3) herein would have been sufficient to change the result had they not occurred.”

The only possible cause that deserves discussion is,

(2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote.

If the voting place change can be construed as a denial of the right to vote to those individuals who stated they went to the former voting place at 1406V2 LaHarpe Street, such denial was not by the election officials. The voting place change was made at the demand of the property owner of 1406% LaHarpe Street by an administrative assistant of the mayor of the City of New Orleans. This administrative assistant is not an election official.

Additionally, I find that the plaintiff candidate waived any objection he had to the irregularity complained of by not protesting or seeking to enjoin the voting place location change. The notice of the change was advertised in time for protest prior to the election.

For these reasons, I find the judgment appealed must be reversed and, accordingly, I concur in the result of the majority.

      . R.S. 18:1405 B provides:
      “An action contesting any election involving election to office shall be instituted within five days after the date of the election, and no such contest shall be declared moot because of the performance or nonperformance of a ministerial function, including but not limited to matters relating to the printing of ballots for the general election.”

      . Braden received 7592 votes and Charbonnet 7578. In Ward 7, Pct. 6, the totals were Braden 41, Charbonnet 202, machine counter 245.

      . It is relatively insignificant that the new polling place was established in another precinct in violation of the Election Code. The statute requiring the location of the polling place within the particular precinct is directory to the governing authority in the sense that the authority has no discretion. However, violation of this directory statute does not automatically void the election, in the absence of showing of fraud or other calculated or unreasonable detriment to the candidate contesting the violation.