text:
    Lillian RACHAL, Plaintiff-Appellant, v. BROOKSHIRE GROCERY STORES, INC. (BROOKSHIRE GROCERY COMPANY), Defendant-Appellee.
    No. 5552.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.
    Writ Refused Nov. 30, 1976.

      John G. Williams, Natchitoches, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons, by C. Gary Mitchell, Shreveport, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY, and BERTRAND, JJ.
   DOMENGEAUX, Judge.

This is a tort suit wherein damages are sought for injuries sustained by plaintiff, Mrs. Lillian Rachal when she slipped and fell on the floor while shopping in defendant’s supermarket. After trial on the merits the District Judge, rendering written reasons, concluded that the plaintiff had failed to prove actionable negligence on the part of the defendant, but assuming ar-guendo that there was such negligence, the plaintiff herself was guilty of contributory negligence which barred her recovery. From a judgment dismissing her demands, plaintiff has appealed. We affirm.

The accident occurred on June 6, 1975. The plaintiff was a regular customer at defendant’s supermarket. Accompanied by her 6 year old daughter, she entered the establishment shortly before 9:00 A.M., cashed a check at the office situated in the front portion of the building, picked up a push cart and commenced to do her grocery shopping. She eventually reached an area in the supermarket designated as Aisle 6. Donald Harris, the janitor for the defendant was in the process of mopping up the remains of a broken bottle of pine oil which had fallen from the shelf previously inside the aisle. Leaving the push cart and her 6 year old daughter near the entrance of the aisle, plaintiff proceeded past Mr. Harris to secure a bottle of Purex, which was on sale. After obtaining the Purex she turned around, started forward, and slipped, but did not fall. She nevertheless continued walking and slipped again, this time falling to the floor and causing the injuries of which she complains. Her accident occurred in the area where the pine oil had spread, and where Harris had been mopping.

NEGLIGENCE OF THE PARTIES

The evidence shows that the janitor, Donald Harris, came to work at 6 A.M. He completed his general cleanup work by approximately 8:30 A.M. which consisted of sweeping the store, buffing the floor, mopping up the places which needed mopping, and then buffing again. Harris then returned to the back of the store in furtherance of his job duties. At approximately 8:35 A.M. a bottle of pine oil which was on a shelf in Aisle 6 fell to the floor and broke. The record does not indicate who or what caused the pine oil to fall, but Mr. Claude Adcock, the Assistant Manager for the defendant, who was in his office, heard the break and saw the broken bottle and its contents on the floor. He immediately summoned Mr. Harris over the loudspeaker to clean up. The janitor promptly got a bucket and mop and then a box and dust pan and proceeded to Aisle 6. When he arrived at the scene he saw a broken 32 oz. bottle of pine oil on the floor. He picked up the broken glass and placed same in the box, pushed the box aside, and began to wet and then dry mop the pine oil substance. While he was so engaged the plaintiff arrived at the scene as aforesaid.

Mrs. Rachal admitted that she saw Harris mopping the area, utilizing the bucket and the mop, and that the mop looked wet to her. She said that she spoke to Harris and told him “you cleaning up and I’m going to come mess up.” She admitted that the area was damp, but that she nevertheless proceeded down the aisle past Harris. She also admitted that she did not take her daughter down the aisle but rather left her, together with the grocery cart, near the spot where Harris was mopping. She testified that there was no one else in the aisle and that she did not see anything on the floor before she fell and neither did she smell the pine oil. She denied that she was warned of any substance on the floor and specifically denied that Harris warned her not to go there because it was slippery. She stated that when she first slipped she caught herself and prevented a fall, at which time she looked on the floor and saw nothing but a “plain damp floor”. She admitted, after that episode, that she started out again, at which time she slipped a second time, resulting in the fall.

Donald Harris testified that when plaintiff came to the area where he was mopping and took one step in the aisle, he warned her that the aisle was slippery with pine oil and told her not to enter. He said it was about that time that plaintiff made a statement generally to the effect that she testified to, i. e. “you cleaning up and I’m going to come mess up.” He further testified that a little of the pine oil was still visible on the floor and the odor was prevalent. He stated that after he warned her she said that she thought she “could make it”, and with that she continued on into the aisle. Further, he saw her take the Purex from the counter, and turn around in his direction. He was still mopping as she walked back towards him, and he saw her slip, catch herself, start walking again, and then slip again and fall on the pine oil.

While Harris was cleaning up as aforesaid, it is conceded that there was no sign, barricade, or rope blocking off the area. However, the mop bucket was lettered with the words “Wet Floor”.

Generally, a storekeeper has the responsibility of providing a safe place for his customers. He is not the insurer of their safety, however, and he need only keep floors and passageways in a reasonably safe condition for use in a manner consistent with the purpose of the premises, that is, free from defects or conditions in. the nature of hidden dangers, traps or pitfalls which are not known to the invitee and would not be observed by him in the exercise of reasonable care. The invitee assumes the obvious, normal or ordinary risks attendant on the use of the premises, and the storekeeper is not' liable for injuries to an invitee whose injuries result from a danger which should have been observed by the latter in the exercise of reasonable care. See Jones v. W. T. Grant Company, 187 So.2d 470 (La.App. 3rd Cir. 1966), and cases cited therein.

Under the facts of this case we find no manifest error in the trial court’s conclusion that plaintiff failed to prove actionable negligence on the part of the defendant, and we will not elaborate further on that aspect of the case in view of the obvious negligence on the part of the plaintiff herself. Such being the case, she cannot recover even if there was some violation of any duty owed plaintiff as an invitee.

Owners of business establishments are not liable for injuries to an invitee when those injuries result from a danger which should have been observed by the latter in the exercise of reasonable care; the invitee assumes the obvious, normal or ordinary risks attendant on the use of the business premises. Nurdin v. Connecticut Fire Insurance Company, 211 So.2d 688 (La.App. 4th Cir. 1968).

In the instant case Mrs. Rachal knew or should have known of the possible danger of traversing the area in Aisle 6 under the circumstances described herein-above. She should have realized the possibility of slipping but apparently thought that she could traverse the area safely. She took her chances. Concerning her negligence, the facts herein are similar to the facts in the cases of Tebbetts v. Marquette Casualty Company, 180 So.2d 45 (La.App. 2nd Cir. 1965), writ refused, 248 La. 783, 181 So.2d 782; and Jones v. W. T. Grant Company, supra, where the plaintiffs therein were denied recovery because of their own carelessness and disregard of an obvious danger.

LAST CLEAR CHANCE

Alternatively in her petition, plaintiff pleaded the doctrine of the Last Clear Chance and argues likewise on appeal.

The doctrine of the Last Clear Chance, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff’s negligence. See 57 Am.Jur.2d, Sec. 837; 27 L.L.R. 269. In order for the doctrine to be applied the plaintiff herein was obligated to prove three essential facts: (1) That she was in a position of peril of which she was unaware or from which she could not extricate herself; (2) That the defendant actually discovered or should have discovered her peril; and, (3) That after the defendant actually discovered or should have discovered plaintiff’s peril, said defendant had a reasonable opportunity to avoid the accident. Thomas v. Dispenza, 214 So.2d 387 (La.App. 3rd Cir. 1968); Kontomitras v. New Orleans Public Service, Inc., 314 So.2d 441 (La.App. 4th Cir. 1975). In order to apply the doctrine there must be negligence on the part of both parties. St. Amant v. Travelers Insurance Company, 233 So.2d 23 (La.App. 4th Cir. 1970).

We conclude, based on the factual context of this case, that the Last Clear Chance doctrine is not applicable herein for either of two reasons: (a) The trial judge concluded that the plaintiff failed to prove any actionable negligence on the part of the defendant and we find no manifest error in that conclusion; (b) Plaintiff failed to prove one of the essential facts required to apply the doctrine, i. e. that she was in a position of peril of which she was unaware.

COMPARATIVE NEGLIGENCE

Plaintiffs counsel in brief and oral argument recognizes that the Doctrine of Comparative Negligence has been rejected in this state; but he suggests, assuming causal negligence of both parties herein, that the time has come to apply the doctrine in Louisiana, the authority being Civil Code Article 2323.

Even if we found joint causal negligence herein, we would be powerless to apply the doctrine of comparative negligence. We are bound to follow our Supreme Court which, to this point in time, has rejected the application of that theory in this State. Crum v. Holloway Gravel Company, Inc., 273 So.2d 566 (La.App. 1st Cir. 1973), writ refused, 276 So.2d 701 (La.1973) “No error of law”; Legendre v. Consumers’ Seltzer & Mineral Water Mfg. Co., 147 La. 120, 84 So. 517 (1920); Belle Alliance Company v. Texas & P. Ry. Co., 125 La. 777, 51 So. 846 (1910).

For the above and foregoing reasons, the judgment of the district court which dismissed plaintiff’s suit is hereby affirmed at her costs.

AFFIRMED.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    Helen M. FLOWERS et vir., Plaintiffs-Appellants, v. The ST. PAUL COMPANIES et al., Defendants-Appellants.
    No. 12984.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.

      Hal V. Lyons, Shreveport, for plaintiffs-appellants.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendants-ap-pellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Helen M. Flowers was injured in an automobile accident. She sought judgment for her personal injuries and her husband sued for the accident-related expenses incurred by the community. The lower court found the defendant driver negligent but that Mrs. Flowers’ negligence was a contributing cause of the accident which barred her recovery. From this judgment plaintiffs appeal. We affirm on a finding that the accident was caused entirely by the negligence of Mrs. Flowers.

The issue is whose fault caused the automobile accident which resulted in the injury to Mrs. Flowers.

On a rainy afternoon Mrs. Flowers was driving the family automobile north on the inside lane of a four-lane highway. Immediately ahead of the Flowers vehicle, also in the inside lane, was a car driven by Mrs. Greening who is not a party to this suit. In the same lane directly behind the Flowers vehicle was a hearse operated by defendant driver.

Mrs. Greening brought her vehicle to a normal stop in the inside lane. Mrs. Flowers said she was able to bring her automobile to a safe stop immediately behind Mrs. Greening’s car; that she was struck from behind once and then again by the defendant’s hearse; that plaintiff’s injury resulted from this second blow; and that defendant was negligent in failing to keep a proper lookout and was following her too closely in view of the prevailing unfavorable weather conditions.

The defendant driver stated that he was carefully driving in the inside lane when he saw the flash of the brake lights of the Flowers car. He quickly applied his brakes, but was unable to avoid striking the rear of the Flowers automobile with the front of his hearse. The defendant driver insisted he collided only once with the Flowers car, which collision forced the Flowers car into Mrs. Greening’s automobile. Defendant driver further claimed that Mrs. Flowers had not stopped behind Mrs. Greening but rather, had already struck Mrs. Greening’s automobile from behind seconds before he rear-ended the Flowers car. The impact from defendant’s hearse then knocked the Flowers vehicle into Mrs. Greening’s automobile a second time.

The defendant’s version of the sequence of events was borne out by the testimony. The investigating officer’s report, as well as a medical report, indicated Mrs.' Flowers had admitted that she was unable to stop her car and had slid into Mrs. Greening’s stationary automobile moments before being struck from behind by the hearse. Further, Mrs. Greening testified she was struck twice within several seconds by the Flowers automobile. This double collision could not have resulted from the sequence of events as Mrs. Flowers described them. Finally, the uncontradicted testimony of an expert established the damage done to the rear of the Flowers automobile was caused by one collision, casting further doubt on Mrs. Flowers’ unsupported claim that she was struck" twice by the defendant driver’s hearse.

The trial court found Mrs. Flowers was negligent in failing to keep a proper lookout and in allowing her car to strike the rear end of Mrs. Greening’s automobile which had necessarily and reasonably stopped in Mrs. Flowers’ lane of traffic. The lower court further found the hearse driver was negligent in not taking the proper precautions when he saw the preceding line of traffic had stopped. We agree Mrs. Flowers was negligent but we disagree that defendant driver was negligent.

As defendants’ brief correctly notes, the testimony does not indicate the hearse driver observed the preceding line of traffic had stopped. Defendant driver testified he was aware of a string of traffic ahead of him but he did not know it had halted. He stated he was traveling approximately 80 feet behind the Flowers vehicle at a speed of 30-35 miles per hour. There is no reason to believe this driver saw the preceding line of traffic had stopped, nor is there testimony indicating that he reasonably should have seen that this traffic had stopped.

While a following driver has a duty to follow preceding vehicles at such a distance as to be able to control his vehicle should foreseeable dangers and emergencies arise, he is not expected to be able to avoid emergencies which unexpectedly and suddenly present themselves. The following driver is held liable only for his failure to avoid foreseeable danger. Aetna Casualty and Surety Company v. Henry, 307 So.2d 375 (La.App. 1st Cir. 1974); Taylor v. Genuine Parts Co., 192 So.2d 241 (La.App. 4th Cir. 1966); Rizzuto v. Bracamontes, 310 So.2d 132 (La.App. 4th Cir. 1975); and Coates v. Marcello, 235 So.2d 162 (La.App. 4th Cir. 1970).

Here, the defendant driver was proceeding reasonably when he was, without a timely warning, confronted with an emergency created by Mrs. Flowers’ own negligence. Upon seeing the brake lights of her car, he immediately applied his brakes but was unable to avoid the accident.

Had Mrs. Flowers acted reasonably and applied her brakes early enough to bring her car to a safe stop behind the Greening vehicle, then we must assume, since there was no evidence to the contrary, the defendant driver would have noted the brake lights of the Flowers car in time to also bring his own vehicle to a safe stop. We find Mrs. Flowers’ negligence was the sole cause of both collisions.

The judgment dismissing plaintiffs’ demands is affirmed at appellants’ cost.


author: HALL, Judge.

text:
    Shelby L. JOHNSON, Sr., Individually and as the natural tutor of Shelby L. Johnson, Jr., Plaintiffs-Appellants, v. Lyle SWEITZER and F. A. Sweitzer, natural tutor of Lyle Sweitzer, Defendants-Appellees.
    No. 12971.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    Baker, Culpepper & Brunson by Joseph A. Cusimano, Jr., Farmerville, for plaintiffs-appellants.
    Coon & Lewis by James E. Lewis, Monroe, for defendants-appellees.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

This appeal is from a judgment rejecting plaintiff’s action for damages arising out of an alleged battery intentionally inflicted upon plaintiff’s six year old son by a sixteen year old boy while they were riding home from school on a school bus. Plaintiff, individually and on behalf of his son, originally sued the older boy, his father, the school bus driver, the Union Parish School Board and the School Board’s liability insurer. On appeal, plaintiff pursues his claim only against the teen-age boy and his father.

The thrust of plaintiff’s case is that the sixteen year old boy hit plaintiff’s son and threw him to the floor of the bus, knocking out the child’s tooth. The thrust of defendant’s case is that plaintiff’s son was scampering up and down the aisle of the bus contrary to the driver’s instructions, went up to and hit the sixteen year old boy who was seated, then moved behind the seat, tripped or stumbled, and hit his jaw on a part of the bus, knocking out his tooth.

In oral reasons for judgment given at the conclusion of the trial, the district court found serious discrepancies in the testimony of plaintiff’s witnesses (plaintiff’s son who was then eight years old, the child’s brother who was about a year older, and the child’s cousin about the same age), accepted the testimony of a disinterested teen-age girl who backed up defendant’s version of the incident, and held plaintiff failed to prove his case by a preponderance of the evidence.

The record amply supports the decision of the district court. The testimony of the small children who testified for plaintiff is conflicting and unpersuasive. The testimony of the older children who testified for defendants is consistent, persuasive, and supports a finding that the older boy did not hit the younger boy, throw him to the floor, or otherwise cause him to fall to the floor.

The issue presented on appeal is purely factual. Our finding of the facts is in accord with that of the district court.

For the reasons assigned, the judgment of the district court rejecting plaintiff’s demands is affirmed, at plaintiff-appellant’s costs.

Affirmed.


author: CULPEPPER, Judge. HOOD, Judge

text:
    Eric W. PARKS, Plaintiff and Appellant, v. WINNFIELD LIFE INSURANCE COMPANY et al., Defendants and Appellees.
    No. 5567.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 1, 1976.
    Rehearing Denied Sept. 20, 1976.
    Writ Refused Nov. 30, 1976.

      Riddle, Bennett & Ryland, by John T. Bennett, Marksville, for plaintiff and appellant.
    Gahagan & Gahagan, by H. C. Gahagan, Jr., Natchitoches, for defendants and appel-lees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a suit for damages resulting from an alleged malicious prosecution. From a judgment sustaining an exception and dismissing his suit, plaintiff appealed.

The substantial issues on appeal are: (1) Where evidence is received without objection at a hearing on an exception of no cause of action in advance of trial of the case, should that evidence be considered in deciding the exception? (2) Does plaintiff’s petition state a cause of action for malicious prosecution?

Plaintiff in this suit is Eric Parks, a 25-year old insurance salesman. The three defendants are: (1) Winnfield Life Insurance Company, (2) its president, Ben D. Johnson, and (3) its attorney, Russell Gaha-gan. Basically, plaintiff’s petition alleges that defendants maliciously, and without probable cause, instituted criminal proceedings against him for theft and false swearing. It alleges further that a grand jury, after hearing the testimony of defendants Johnson and Gahagan, returned indictments against plaintiff on both charges. According to the petition, the charges against plaintiff were dropped by the Natchitoches Parish District Attorney before the commencement of a criminal trial. After the charges against him were dismissed, plaintiff filed this suit for malicious prosecution.

Defendants filed a pretrial exception labeled “Exceptions of No Cause of Action and No Right of Action.” In this exception, defendants allege first that the grand jury indictment returned against plaintiff showed that there was probable cause for the criminal prosecution giving rise to this suit and, second, that plaintiff’s petition failed to allege that a warrant issued for plaintiff’s arrest prior to the grand jury indictment. At the hearing of the exceptions in the trial court, Russell Gahagan testified without objection by plaintiff. The trial court then sustained the exception and dismissed plaintiff’s suit with this statement:

“ * * * It is encumbent upon plaintiff to prove today, that there was some malice or lack of probable cause for the proceeding. The court sustains the exception of no right of action filed on behalf of all defendants.” (emphasis supplied)

At the outset we find it necessary to state the fundamental rules of law distinguishing the exception of no cause of action from the exception of no right of action. Recently our Supreme Court, in Hargroder v. Columbia Gulf Transmission Company, 290 So.2d 874 (La.1974), differentiated the two exceptions with this explanation:

“Generally speaking, an exception of no right of action serves to question the right of a plaintiff to maintain this suit, i. e., * * * his interest in the subject matter of the proceeding, whereas an exception of no cause of action addresses itself to the sufficiency in law of the petition and the exhibits attached thereto. Outdoor Electric Advertising v. Saurage, 207 La. 344, 21 So.2d 375; Termini v. McCormick, 208 La. 221, 23 So.2d 52 and Bartholomew v. Impastato, 12 So.2d 700 (La.App.Orl.Cir.1943). The latter is triable entirely on the face of the papers, while evidence may be received under an exception of no right of action for the purpose of showing that plaintiff does not possess the right he claims or that the right does not exist. Soniat v. White, 153 La. 424, 96 So. 19; Schmidt v. Conservative Homestead Association, 181 La. 369, 159 So. 587; Duplain v. Wiltz, supra, [174 So. 652 (La.App.Orl.Cir.)] and La Casse v. New Orleans, T. & M. R. Co., 135 La. 129, 64 So. 1012.”

The exception filed by defendants in this case is in truth an exception of no cause of action. The essential nature of this exception is not altered by either the label placed on it by defense counsel nor by the trial judge’s reference to it as an exception of no right of action. Georgia Pacific Corp. v. B. G. M. Builders, 154 So.2d 78 (La.App. 1st Cir. 1963). The allegations of the exception, the evidence received at its trial, the arguments of counsel and the rationale for the trial judge’s ruling are all related to the sufficiency in law of plaintiff’s petition to allow recovery by anyone against these defendants for malicious prosecution. No issue is raised as to whether this particular plaintiff has an interest in recovering for the malicious prosecution alleged. Therefore, the exception before us is one of no cause of action. There is no exception of no right of action before us for consideration.

LSA-C.C.P. Article 931 states in pertinent part that:

“No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.”

Despite the prohibition contained in Article 931, evidence was introduced by defendants at the hearing on the exception. Plaintiff did not object. The trial judge considered the evidence in sustaining the exception. The threshold question before us is whether the trial judge erred in considering this evidence.

There is a conflict in cases from the Courts of Appeal as to whether evidence admitted without objection at a hearing on an exception of no cause of action may be considered in deciding that exception. In Bielkiewicz v. Rudisill, 201 So.2d 136 (3rd Cir. 1967); Babineaux v. Southeastern Drilling Corporation, 170 So.2d 518 (3rd Cir.1965); and Breaux v. Pan American Petroleum Corporation, 163 So.2d 406 (3rd Cir.1964) this Court held such evidence could be considered. These' and other similar cases cited therein are the progeny of Rheuarh v. Terminal Mud & Chemical Company, 213 La. 732, 35 So.2d 592 (1948). Cases holding to the contrary are Davenport v. Kaiser Aluminum and Chemical Corporation, 206 So.2d 526 (La.App. 1st Cir. 1968); Potter v. Brein, 289 So.2d 309 (La.App. 1st Cir. 1973); and State ex rel. Guste v. Audubon Park Commission, 320 So.2d 291 (La.App. 4th Cir. 1975).

In the recent Supreme Court case of American Creosote Company v. Sponger, 257 La. 116, 241 So.2d 510 (1970) the Court unanimously held that only the well-pleaded facts in plaintiff’s petition, or documents attached thereto or made a part thereof, could be considered in ruling on an exception of no cause of action. The Court took occasion to expressly overrule several prior Court of Appeal cases which had held that documents not attached to or made a part of plaintiff’s petition could nevertheless be considered in deciding an exception of no cause of action.

In its opinion in American Creosote Company v. Springer, our Supreme Court used strong language in stating that LSA-C.C.P. Article 931 should be strictly construed as prohibiting the consideration of any evidence to support or controvert the objection that a petition fails to state a cause of action. Although that case does not address itself to the precise question presented in the present matter, of whether evidence introduced without objection at a pretrial hearing on an exception of no cause may be considered in deciding the exception, the decision does indicate that our Supreme Court favors a strict interpretation of Article 931.

Following the decision of the Supreme Court in American Creosote Company v. Springer, there were several Court of Appeal cases which applied it. In Borenstein v. Joseph Fein Caterers, Inc., 308 So.2d 396 (La.App. 4th Cir. 1975) an exception of no cause of action was filed during the trial on the merits. Citing American Creosote Company v. Springer, the Court held that the evidence which had already been introduced at the trial on the merits could not be considered in deciding the exception.

In Parr v. D. H. Holmes Company, Ltd., 311 So.2d 463 (La.App. 4th Cir. 1975), an exception of no cause of action’was filed at the close of plaintiff’s presentation of evidence at the trial on the merits. The trial judge referred the exception to the merits and then, on the completion of the trial, sustained the exception. On appeal the plaintiff argued the trial judge erred in sustaining the exception after evidence had been heard. The Court of Appeal cited American Creosote Company v. Springer for its holding that under Article 931 the trial judge should not have considered the evidence. However, the Court resorted to LSA-C.C.P. Article 2164, which allows the appellate court to render any judgment which is just upon the face of the record, and then proceeded to decide the case on the merits, reasoning that since both parties had introduced all of their testimony it was proper to pass on the merits of the case rather than decide the exception of no cause of action. Several cases are cited in which a similar procedure was followed.

In Murphy Oil Corporation v. Gonzales, 316 So.2d 175 (La.App. 4th Cir. 1975) an exception of no cause of action was filed after the appeal was lodged. The court held that an affidavit filed in the Court of Appeal and evidence taken in the trial court at the post-trial hearing of a motion to increase the amount of the appeal bond, could not be considered in deciding the exception of no cause of action. Although it was perhaps not necessary to the decision, the court cited Borenstein v. Joseph Fein Caterers, Inc., supra, as holding that in deciding the exception of no cause of action, the court could not consider any evidence, “even if properly offered at the trial in support thereof.”

In an effort to resolve these apparent conflicts in the jurisprudence, and in particular to find an answer to the precise question presented in the present case, which is whether evidence introduced without objection at a pretrial hearing on an exception of no cause of action should be considered in deciding the exception, we note that the Federal Rules of Civil Procedure provide a solution to this problem. Rule 12(b) lists seven motions which may be pleaded as defenses to a claim for relief. No (6) is the “failure to state a claim upon which relief can be granted”, which would include the objections which can be urged under our exception of no cause of action. As to this particular motion, unlike the other motions such as lack of jurisdiction, improper venue, etc., where evidence is clearly admissible on the hearing of the motion, the rule contains the following provision:

“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

Thus, under Rule 12(b) the problem presented in the present case would be solved. If any evidence outside the pleading in the exception of no cause of action was not excluded by the court at the hearing on the exception, then the exception would be treated as a motion for summary judgment and all parties would be given an opportunity to present admissible evidence. However, our Code of Civil Procedure does not contain a provision similar to that quoted from Federal Rule 12(b).

The present case is a classic example of a situation where the lack of a rule similar to the quoted provision from Federal Rule 12(b) has in effect caused a serious injustice. It has resulted in plaintiff being deprived of the opportunity to present his evidence. Here we have a plaintiff whose petition alleges all facts necessary to recover on a claim for malicious prosecution, as is more fully explained in detail later in this opinion. The defendants filed what they labeled “An Exception of No Right Of Action and Exception Of No Cause of Action”, in which they allege essentially that plaintiff’s position did not state a cause of action because plaintiff alleged that a grand jury indictment had been returned against plaintiff, which in effect showed that there was probable cause for the prosecution, and that there was no allegation in plaintiff’s petition that a warrant issued for plaintiff’s arrest prior to the grand jury indictment. Then at the hearing on the exception, Mr. Gahagan testified that both he and the defendant Johnson appeared before the grand jury and gave testimony which resulted in an indictment. Gahagan testified that he thought there was probable cause for an indictment for theft and that there was no malice. It is true that plaintiff’s counsel did not object to the introduction of this testimony as to the exception of no cause of action. However, perhaps he was misled by the fact that the exception had been labeled both an exception of no right of action and an exception of no cause action. Of course, evidence is admissible on an exception of no right of action. In any event, plaintiff did not object to the testimony by Mr. Gahagan and he did not attempt to present any evidence of his own. The court then decided on the basis of the allegations of plaintiff’s petition and the testimony of Mr. Ga-hagan that the plaintiff was not entitled to recover. It was in effect a decision on the merits, although plaintiff was not given fair notice that there was to be a hearing on the merits. The end result is that the plaintiff has been denied an opportunity to present his evidence and has been denied his day in court through a technical legal ruling.

We recognize there is an argument that the problem is caused by plaintiff’s failure to object to the evidence introduced at the hearing on the exception. However, plaintiff’s failure to object may be traced to the fact that all parties involved, including the judge, considered the exception to be one of no right of action. If we allow this case to be decided on the basis of evidence admitted erroneously, but without objection, at the hearing on an exception of no cause of action, we would be condoning the use of a trap-like device designed to ensnare unwary counsel.

We therefore conclude that under LSA-C.C.P. Article 931 evidence admitted without objection at a pretrial hearing on an exception of no cause of action should not be considered in deciding the exception. The apparent harshness of this rule is tempered by the availability of the Motion for Summary Judgment which provides for admission of evidence. La.C.C.P. Article 966 et seq.

To hold otherwise would condone and encourage the loose practice of filing an exception labeled “Exceptions of No Right or Cause of Action”, and then alleging as grounds therefor only objections related to no cause of action. This causes confusion to counsel and to the trial courts, as it did in the present case. The two exceptions have different purposes and are subject to entirely different rules. The bar and the trial courts should be encouraged to recognize which exception is pleaded and to apply the proper rules. This was clearly intended by the redactors of our Code of Civil Procedure.

We wish to make it clear we do not hold that evidence admitted without objection cannot be considered in deciding an exception of no cause of action, where the exception has been referred to the merits without objection, as in Desormeaux v. Central Industries, 333 So.2d 431 (La.App. 3rd Cir. 1976). Nor do we hold, as the Fourth Circuit has in the above cited cases, that where the exception is filed during or after the completion of a trial on the merits, or is filed in the appellate court, evidence in the record without objection cannot be considered. This issue is not before us. We hold only that evidence admitted without objection at a pretrial hearing on an exception of no cause of action cannot be considered in deciding the exception.

LSA-C.C.P. Article 1154 should be mentioned, although it is not applicable in the present case. It provides that “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading.” (emphasis supplied) In the present case, the evidence did not present new issues. It contradicted the allegations of fact in plaintiff’s petition.

Having excised from our consideration the evidence received at the trial of the exception of no cause of action, we now focus our attention on plaintiff’s petition to determine whether or not it states a cause of action.

“The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. The correctness of the well pleaded allegations of fact is conceded, the issue is whether the face of the petition presents a case which legally entitles the mover to the redress sought.” Hero Lands Company v. Texaco, 310 So.2d 93 (La.1975).

In order to state a cause of action for malicious prosecution, plaintiff must allege in his petition the concurrence of these elements:

“(1) The commencement or continuance of an original criminal or civil judicial proceeding.
(2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
(3) Its bona fide termination in favor of the present plaintiff.
(4) The absence of probable cause for such proceeding.
(5) The presence of malice therein.
(6) Damage conforming to legal standards resulting to plaintiff.” Johnson v. Pearce, 313 So.2d 812 (La.1975); Eusant v. Unity Industrial Life Insurance Corporation, 195 La. 347, 196 So. 554 (1940).

We find that plaintiff’s petition states a cause of action. The first element is met by paragraph 3 of plaintiff’s petition, which alleges that criminal proceedings were brought against plaintiff in the Tenth Judicial District Court for the Parish of Natchi-toches.

Legal causation of the proceeding, the second element, is alleged in several paragraphs as follows: (3) “(defendants) * * instituted criminal proceedings against plaintiff * * * (4) “ * * * defendants caused plaintiff’s arrest * * * (6) “an affidavit was signed by defendant, Winnfield Life Insurance Company charging plaintiff with theft”; (7) “ * * * at the instance of defendants, charges were brought before the grand jury * * * and (8) “ * * * the charges were brought before the grand jury by Russell Gahagen and/or Ben Johnson * * * without the aid or cooperation of the District Attorney’s office.”

The third element, that of termination of the criminal proceeding in plaintiff’s favor, is met by the allegations of paragraph 27 which state that the District Attorney dismissed charges against Parks before trial. Dismissal by the District Attorney is a termination of proceedings in plaintiff’s favor. Cormier v. Blake, 198 So.2d 139 (La.App. 3rd Cir. 1967); Glisson v. Biggio, 139 La. 23, 71 So. 204 (1916).

The requirement of lack of probable cause, fourth in the Supreme Court’s above enumeration, is stated as a legal conclusion in paragraph (3) of the petition and is supported by the allegations of fact in paragraphs (5) and (7). Malice, the fifth element, is alleged in paragraph (3) and is indirectly alleged in several other paragraphs. Of course, malice may be alleged generally, since it is a condition of the mind, LSA-C.C.P. Article 856. Damages, the final element, are alleged in several paragraphs of Parks’ petition. All elements of malicious prosecution are alleged in plaintiff’s petition. Therefore, defendants’ peremptory exception of no cause of action cannot be sustained.

Defendants argue that the alie-. gations contained in paragraph (9) of plaintiff’s petition are fatal to maintenance of his action, citing Lyons v. Carroll, 107 La. 471, 31 So. 760 (1902); Lavigne v. Balter, 153 So. 546 (Orl.La.App.1934), and Strong v. American Railway Express Company, 163 La. 180, 111 So. 669 (1927) for the proposition that a defendant’s liability in malicious prosecution cases arises only when he signs an affidavit charging plaintiff with the subject crime. Paragraph (9) of the petition states:

“That according to the district attorney, Ronald T. Martin, no warrant of arrest or charges were filed prior to the bringing of the matter to the attention of the grand jury.” (emphasis added)

We disagree with defendants’ contention that paragraph (9) is an admission that no charges were filed nor warrant of arrest issued before plaintiff’s indictment. In paragraph (17) of the petition, plaintiff explains that the subject matter of paragraph (9) was communicated to plaintiff’s attorney via letter from the district attorney. Plaintiff does not concede the truth of a statement made by a third person by pleading merely that the statement was made.

Furthermore, if a petition states facts consistent with a cause of action, it will not be dismissed on an exception of no cause of action simply because other language of the petition might be subject to an interpretation that it is inconsistent with a cause of action. Johnson v. Graham, 35 So.2d 278 (La.App. 2d Cir. 1947); West v. Ray, 210 La. 25, 26 So.2d 221 (1946).

Plaintiff’s petition is vague on the point of whether defendants signed affidavits or caused them to be signed. In paragraph (3), plaintiff alleges that defendants instituted the prosecution. In paragraph (6) plaintiff alleges that defendant insurance company signed an affidavit. Obviously the latter allegation means that the signature was made by an agent of the insurance company. The question of whether all defendants signed affidavits charging plaintiff Parks with the subject crime or caused them to be signed is an issue to be decided not on the exception of no cause of action but upon trial on the merits. Banken v. Locke, 136 La. 155, 66 So. 763 (1914). As we have already stated, plaintiff’s allegations that defendants caused, instituted and conducted criminal proceedings against plaintiff satisfy the legal cause requirement as it relates to an exception of no cause of action.

Defendants also argue that a malicious prosecution action cannot be maintained against them after an indictment has been returned against the plaintiff. There is no merit in this argument. By raising the issue of the grand jury indictment, defendants are simply attempting to prove that there was probable cause to institute the proceedings. A grand jury indictment is not conclusive evidence of probable cause and any presumption which may arise as a result of it can be rebutted by proof that the indictment was obtained by false testimony or by proof that defend.ants failed to make a full and complete statement of the facts to the grand jury. Cormier v. Blake, 198 So.2d 139 (La.App. 3rd Cir. 1967); Robinson v. Rhodes, 300 So.2d 249 (La.App. 2d Cir. 1974). Plaintiff’s allegation that the criminal proceedings were instituted without probable cause is an allegation of fact which should not be decided on an exception of no cause of action. Schmidt v. Conservative Homestead Association, 181 La. 369, 159 So. 587 (1935). The issue of probable cause and the effect that a grand jury indictment may have upon it are to be determined at a trial on the merits.

In Hero Lands Company v. Texaco, cited supra, the Supreme Court vigorously reaffirmed the basic principle that in considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining its sufficiency to afford the litigant an opportunity to present his evidence. We have considered the legal sufficiency of plaintiff’s petition in light of this mandate and have concluded that he has alleged a cause of action for malicious prosecution.

For the reasons assigned, the judgment of the trial court is reversed, the peremptory exception of no cause of action is overruled and this case is remanded to the district court for proceedings according to law and consistent with the views expressed in this opinion. All costs on appeal are assessed against the defendants, Winnfield Life Insurance Company, Russell Gahagan and Ben Johnson.

REVERSED AND REMANDED.

HOOD, J., concurs and assigns reasons.

HOOD, Judge

(concurring).

I disagree with some of the views expressed by my colleagues. I am yielding to and concurring with the majority, however, primarily because: (1) My refusal to concur would not prevent the case from being remanded; and (2) the majority recognizes that defendants, by means of a motion for summary judgment, may again raise the same issues which could have been disposed of here.

For these reasons, I concur in the result reached by the majority.


author: REDMANN, Judge

text:
    Mrs. Virgil Anne Dieck Winborne, wife of William Victor WINBORNE v. William Victor WINBORNE.
    No. 7752.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
   ORDER

Ex proprio motu, we noticed the untimely filing of an appeal bond. An order was issued by this court directed to appellant to show cause why the appeal should not be dismissed. Briefs were filed in response to the order.

The judgment was rendered on October 4, 1974. No notice of judgment was mailed or was necessary. See LSA-C.C.P. art. 1913. Further, no application for new trial was filed. The petition for appeal was filed on October 17, 1974, and the appeal bond was filed on November 26, 1974.

It is apparent that the appeal bond was not filed within 30 days of the expiration of the delay for applying for a new trial. See LSA-C.C.P. arts. 3942, 3943 and 1974. In such instance, the appeal will be dismissed. See Bardon v. Ledoux, 297 So.2d 219 (La.App. 3d Cir. 1974).

Accordingly, the appeal is dismissed.

REDMANN, Judge

(dissenting).

“Except as otherwise provided in this article [C.C.P. 2087] or by other law, [1] an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and [2] the security therefor [may be] furnished within ninety days . . . .” (Bracketed matter and emphasis added.)

C.C.P. 3943 provides “An appeal from a judgment awarding custody ... or alimony can be taken only within the delay [30 days] provided in Article 3942. Such an appeal shall not suspend the execution of the judgment . . . .” But C.C.P. 3943 does not add that the security for such an appeal can only be furnished within 30 days: therefore, as to the 90 days for furnishing security, C.C.P. 3943 does not “otherwise provide” than the provision of C.C.P. 2087, and C.C.P. 2087 therefore controls.

This court has already ruled that when a statute allows an appeal to be granted only within ten days, without similarly limiting the time for furnishing security, security may be furnished within the 90 days of C.C.P. 2087; Martin v. Martin, La.App. 1969, 228 So.2d 355 (ruling on appeals from city courts under C.C.P. 5002 prior to its 1970 amendment).

Malone v. Malone, La.1973, 282 So.2d 119, reaches a result opposite to that here espoused. However, Malone does not even hint at the argument we face from the literal meaning of C.C.P. 2087. Malone was concerned only with the argument that a judgment refusing to terminate alimony is not a “judgment awarding” alimony within C.C.P. 3943.

Particularly because we are a civil law jurisdiction, we should not be blind followers of the supreme court’s results when the wording of binding legislation dictates an opposite result, and that wording was not argued to the supreme court. Our supreme court is already heavy-burdened. We ought not unnecessarily to burden it further by an erroneous concept of following its results while forcing litigants with statutory rights to obtain them only by applying to the supreme court. Because Malone did not ask it, the supreme court did not decide the question we are asked. We should now do so, in favor of this appeal.


author: JONES, Judge.

text:
    Willie HARDIN, Plaintiff-Appellant, v. BARKER’S OF MONROE, INC., Defendant-Appellee.
    No. 12979.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.

      Joe D. Guerriero, Monroe, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh, by J. Michael Hart, Monroe, for defendant-appel-lee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff Hardin’s demands for damages arising out of a shoplifting charge on which he was acquitted were rejected by the lower court. He appeals. We reverse and award damages.

The incident occurred in December, 1974, when Hardin took his four children, ages two to ten, to defendant’s store in Monroe (Barker’s) to shop for shoes. Hardin assisted his children in trying on footwear from a large self-service display table for several minutes. His oldest daughter was also assisting the younger children. Hardin’s two sons removed their old shoes to try on cowboy boots. Hardin placed the old shoes in his pockets. He left the children to continue their quest, he says, with instructions to wait for his return from outside the store where he was going to get a chew of tobacco from his car.

An off-duty policeman, employed part-time by Barker’s as a security guard, observed Hardin and his children at the footwear display. The guard testified he saw Hardin remove price tags from and put cowboy boots on the two sons, pulling their pants legs over the boots. The guard also testified he saw Hardin put shoes into his pockets, not knowing at the time they were the old shoes the children had worn into the store. The guard followed Hardin out of the store and inquired about the shoes in Hardin’s pockets. Hardin told him about, and then or shortly afterward, showed him the old shoes. The childrens’ shoes are in evidence and obviously are old and well-worn.

At the guard’s insistence, Hardin accompanied him inside the store to the store office. There the guard attempted to search Hardin’s pockets but Hardin physically resisted and objected. The guard called other employees for help. Hardin’s resistance was overcome, he was thrown to the floor, handcuffed, and his pockets were searched. No merchandise was found on Hardin. Hardin’s billfold contained $24. The guard admits Hardin told him in the office that he intended to use the money to pay for footwear his children selected. The footwear ranged in price from $3 upward. Eventually the children were brought to the office but were not questioned by Barker’s employees.

Once Hardin was subdued, the guard called the Monroe police, took Hardin in a police car to jail, completed arrest reports and booked Hardin on a charge of shoplifting (theft). The children went with their father to the police station and were eventually returned to their mother. Hardin was in jail for about 48 hours before posting bond. He was later acquitted of the charge.

Code of Criminal Procedure Art. 215 authorizes a merchant’s employee to use “reasonable force” to detain a person on the merchant’s premises when the employee has “reasonable cause” to believe that person has committed theft of merchandise. Immunity from civil liability “will naturally follow.” Lasseigne v. Walgreen, 274 So.2d 480 (La.App. 1st Cir. 1973).

“. . . [WJhether liability attaches depends first upon whether defendant’s employees had reasonable cause to suspect plaintiff, and secondly, upon whether the subsequent inquiry or questioning of plaintiff was carried out in a reasonable manner. .” Id. at page 482.

In Stewart v. J. C. Penney Company, 267 So.2d 925 (La.App. 1st Cir. 1972), and in Brasher v. Gibson’s Products Co., Inc., 306 So.2d 842 (La.App. 2d Cir. 1975), it was recognized that reasonable cause under Code of Criminal Procedure Art. 215 may cease to exist and that the actions of the store employee thereafter may impose civil liability for the continued detention and questioning of the suspect. In those cases the suspect gave a reasonable explanation for his or her suspicious actions and the store employees continued to detain and question the suspect. In the Brasher case plaintiff was carried to the police station and formally charged with shoplifting (theft) with no attempt to verify his explanation. In each case damages were awarded against the store although reasonable cause for the initial detention and questioning was found or was conceded to exist.

In any event, here the guard admitted he found no merchandise on Hardin when he searched him, but found only the old worn shoes. He also admitted Hardin told him of his intent to use the money in his billfold to pay for the shoes the children selected. It should also be noted that the children made no attempt to leave the store before or after Hardin was detained.

Under the circumstances the security guard had reasonable cause to initially detain and question Hardin and was authorized to use reasonable force in overcoming Hardin’s physical resistance to the detention. Hardin did not commit a crime in taking his children’s shoes from the store. When the guard learned from his own inspection that the shoes he saw Hardin place in his pockets were the shoes of Hardin’s children and that Hardin had the funds with which to accomplish his stated purpose, the guard had a reasonable explanation for Hardin’s suspicious actions. Reasonable cause then ceased to exist and no immunity or legal protection against civil liability was thereafter afforded defendant for the actions of its employee. The lower court erred in concluding otherwise.

QUANTUM

Hardin’s children were aware of the detention and accusation of their father by defendant’s employee. They accompanied their father to the jail. Hardin remained in jail for 48 hours before obtaining his release by bond. He was later subjected to the expense and notoriety of defending a charge of shoplifting (theft). Hardin has not shown any loss of wages or any other pecuniary loss. For his embarrassment and humiliation arising out of the unreasonable detention, arrest and imprisonment, and the criminal trial, it is our opinion that a fair and just award would be $1,750.

Accordingly, the judgment of the lower court is reversed and it is ordered, adjudged and decreed that there be judgment in favor of Willie Hardin against Barker’s of Monroe, Inc., for $1,750, with legal interest from judicial demand and for all costs of these, proceedings including appeal costs.

Reversed and rendered.

      . “A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.

        “A peace officer may, without a warrant, arrest a person when he has reasonable ground to believe the person has committed theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.”

      . The lower court judgment noted that oral reasons were assigned. These reasons are not contained in the record.


author: PRICE, Judge.

text:
    J. W. PLAISANCE, Jr., Plaintiff-Appellee, v. Malcolm D. DUTTON, Defendant-Appellant.
    No. 12985.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    Hal V. Lyons, Shreveport, for defendant-appellant.
    Love, Rigby, Dehan & Love by Joseph P. Titone, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

Malcolm D. Dutton has appealed from the judgment awarding J. W. Plaisance, Jr. damages for the breach of a contract by the partnership of Dutton and Lee to construct a road for Plaisance.

Plaisance contends he made an oral agreement with Dutton’s partner, Billy Lee, for the partnership to build a 200 foot road and a 65 foot driveway to provide access from a public road to the site on which Plaisance intended to put a double wide mobile home on rural property in Caddo Parish. Prior to the filing of this suit, Lee dissolved partnership with Dutton and moved from the State of Louisiana. This action was brought solely against Dutton who makes no issue of his responsibility for the partnership indebtedness.

Plaisance contends that in addition to the clearing, grading, ditching, and culvert installation, Lee agreed to prepare the roadbed with six inches of iron ore to provide an all-weather road and driveway.

Plaisance contends Lee used iron ore on approximately 100 feet of the road and, contrary to the agreement, used a mixture of sand, clay, and pea gravel on the remainder, including the driveway. He contends that rainy weather began shortly after completion of the road and that the portion of the road without iron ore became impassable, causing him a delay of approximately ten months in moving the mobile home onto the site as intended.

Plaisance further contends he was charged $3,180.14 for the work which greatly exceeded the amount originally estimated by Lee of $1,605. He contends repeated demands were made on Dutton and Lee to correct the defective work, but no attempt was made by them to remedy the situation.

Plaisance demands damages consisting of the following items:

1) $3,180.00 as the return of the total price paid to Dutton and Lee for the defective work.
2) $1,005.00 for the amount paid to another contractor to remove the sand, clay, and gravel mix, and to resurface this portion of the road with cinders.
3) $1,400.00 for rent paid on a residence during the period the road was impassable.
4) $400.00 for storage cost of a portion of the furniture which could not be placed in the rented premises.
5)$1,000.00 for mental anguish and inconvenience caused by the delay in occupying the mobile home.

In answer to Plaisance’s demands, Dutton denied his firm had breached the agreement. He contends the agreement was to perform the work on a hourly cost basis plus material, and that iron ore was to be used only if it was available. He further contends a sufficient quantity of this material was not available at the time, and the sand, clay, and gravel mix was substituted with the knowledge and approval of Plai-sance.

The trial court found the parties contracted for an iron ore road, and that the failure of Dutton and Lee to use this material entitled Plaisance to a portion of the damages sued for. The court awarded the sum of $1,005 paid by Plaisance to make the road serviceable; $1,400 for house rent caused by the delay in completion; and $400 for furniture storage. The court rejected the demand for mental anguish and inconvenience as it concluded such damage is not recoverable for breach of .contract under the circumstances shown in this case.

Dutton contends the trial court erred in concluding the agreement was to provide an all-weather road of iron ore, and in finding Plaisance was entitled to the damages awarded. Plaisance answered the appeal asking that the judgment be increased to include the $1,000 sum for mental anguish which was rejected by the trial court. We are in accord with the conclusion of the trial judge and affirm the judgment appealed from.

The totality of the evidence shows Plai-sance contracted for an all-weather road to be constructed of iron ore, and the material used by Dutton and Lee was not suitable for this purpose. Following the first rain after completion, an electric power company vehicle became stuck in this part of the road, and deep ruts formed on subsequent attempts by vehicles to traverse the road. The evidence also shows Dutton and Lee failed to respond to demands made upon them to resurface the defective portion of the road, and it became necessary for Plai-sance to obtain the services of another contractor to perform this work.

Louisiana Civil Code Article 1934 provides the measure of damages for the breach of a contract. The provisions which are pertinent to the circumstances of this case are:

Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, . . ., under the following exceptions and modifications:
1. When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. By bad faith in this and the next rule, is not meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will.
# ‡ ‡ :fc Hi

Dutton is a debtor in good faith as defined in Article 1934, and is therefore liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract.

The cost of correction of defective work was clearly within the contemplation of the parties and the award of $1,005 for this purpose was proper. Dutton argues he should not have to pay for the 70 yards of cinders furnished by another contractor as his agreement was based on cost plus material furnished, and he would have charged Plaisance for any additional material used had he performed the remedial work. An owner is not obligated to pay the cost of work improperly performed on a cost plus contract. Kerner v. Gilt, 296 So.2d 428 (La.App. 4th Cir. 1974). Similarly, the owner should not be obligated for additional material furnished by the contractor to correct defective work.

Dutton next contends Plaisance should not have been awarded the sum of $1,400 for rent or the $400 amount for storage of furniture as Plaisance could have mitigated these damages by using the mobile home during the period of delay at some other location.

The evidence does not show with any degree of certainty how Plaisance could have reduced his damages by taking the course of action proposed by Dutton under the circumstances. He became aware of the condition of the road in November of 1974, just prior to the scheduled delivery of his mobile home from the factory. Plai-sance could have reasonably assumed the road would be corrected in a short period of time, and he was assured by Lee that something would be done as soon as the weather permitted. Under these circumstances it would not have been practical to have accepted delivery of the mobile home at a temporary site, and incur the additional expense of moving it after the remedial work was done on the road.

The evidence shows Plaisance was punctual in having the necessary repairs made to the road by a third party as soon as he understood Dutton and Lee were not making an effort to repair their work.

The additional damages caused by delay due to wet weather is a logical consequence of the failure of Dutton and Lee to use proper material in constructing an all-weather road as the agreement provided.

The sole purpose of the contract was to prepare accessibility to the proposed site for the mobile home prior to the anticipated delivery date in November, 1975. The failure to provide an accessible road by this date resulted in Plaisance incurring the additional living expenses sued for which were reasonably within the contemplation of the parties at the time of making the contract. The trial court was correct in making the award for rental expense and storage charge for furniture.

Plaisance contends he should be awarded damages for inconvenience and mental anguish caused by the improper performance of the contract. Article 1934(E) allows non-pecuniary damages resulting from breach of contract only where the object of the contract is an intellectual enjoyment. The circumstances presented here do not fall within this exception to the general rule. See Meador v. Toyota of Jefferson, Inc., et al., 332 So.2d 433 (La.1976).

The judgment appealed is affirmed. Costs of the appeal are assessed to appellant.


author: STOULIG, Judge. LEMMON, Judge GULOTTA, Judge LEMMON, Judge,

text:
    Lewis A. GIRAUD et al. v. LOUISIANA TAX COMMISSION et al.
    No. 7615.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 20, 1976.
    Concurring Opinion in the Denial of Rehearing Sept. 14, 1976.
    Writ Refused Dec. 1, 1976.

      Thomas L. Giraud, New Orleans, for Lewis A. Giraud, Mrs. Elvira Louise Wiener Giraud and Mrs. Corinne Rotge Panquerne, plaintiffs-appellees.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert L. Danner, Jr., Asst. Atty. Gen., for Louisiana Tax Commission, defendant-appellant.
    Philip S. Brooks, City Atty., Lee R. Miller, Jr., Jackson P. McNeely, Asst. City At-tys., for Orleans Parish Board of Review, defendant-appellant.
    Thomas L. Giraud and Nat G. Kiefer, New Orlenas, for Dr. Claude Mauberret, Jr., and William P. Cy Hickey, Jr., interve-nors-appellees.
    Charles A. Verderame, New Orleans, for Gerald L. Schroeder, intervenor-appellee.
    Sidney M. Bach, New Orleans, for Decatur Realty Corp., intervenor-appellee.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

This is an appeal from a judgment enjoining the Louisiana Tax Commission and its individual members from ordering the assessors of the Second Municipal District and the Third Municipal District of the City of New Orleans to amend the 1976 tax rolls to increase assessment^ on vacant property in conformity with values recommended by the Orleans Parish Board of Review.

This litigation was initiated by property owners who were advised their 1976 tax assessments on vacant properties within the Second and Third Districts were to be significantly increased as the result of a citywide property revaluation program. Petitions of intervention were filed by William P. Cy Hickey, Jr., and Dr. Claude Mauber-ret, assessors for the Second and Third Districts respectively, and several other property holders in the affected area, praying for the injunctive relief sought by the original plaintiffs.

Those challenging the validity of the proposed increase contend defendants either ignored or circumvented laws in establishing 1976 tax assessments on vacant property in the Second and Third Districts. We need not detail the multiple complaints of illegality advanced by plaintiffs-taxpayers because they are not entitled to injunctive relief even if any or all legal propositions advanced by them have merit.

L.R.S. 47:2110 prohibits any court of this State from enjoining (1) the collection of taxes or (2) the enforcement of any provision of the tax law. In addition it provides a legal remedy for any complaining taxpayer and sets forth the procedure to contest an unauthorized tax law or a levy based on an invalid enactment. We quote and emphasize that portion relating both to resisting payment and laws under which payment is demanded:

“No court of this state shall issue any process whatsoever to restrain the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution. Any person resisting the payment of any amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax and shall give the officer notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If suit is filed within such time for the recovery of the tax, such amount so segregated shall be further held pending the outcome of the suit. If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the rate of two per cen-tum per annum for the period from the date such funds were received by the officer to the date of such refund.” (Emphasis added.)

The reason for prohibiting the use of injunctive process to restrain the collection of taxes levied or any law in connection therewith is apparent. Were it within the province of taxpayers to enjoin taxing authorities, it is conceivable that there would be no funds to pay for government services.

Appellees contend L.R.S. 47:2110 is inapplicable because they are not attempting to enjoin the collection of a tax, rather they are attempting to prevent “ * * * an unconstitutional and illegal attempt to usurp the powers and duties of two assessors relative to the assessment of real property. No attack is being made on any ad valorem tax.”

Appellees argue their action is properly brought under L.R.S. 47:1998 and this law is not subject to the restrictions of L.R.S. 47:2110. L.R.S. 47:1998 provides in part:

“Any taxpayer in any instance where he shall be dissatisfied with the action of the parish board of reviewers in refusing to make a recommendation with respect to an actual cash valuation to the tax commission or with the tax commission upon its refusal to comply with such recommendation, or in regard to the actual cash valuation fixed by the tax commission, may resort to the district court for review of such action. Where the parish board of reviewers have opposed and appealed the valuation fixed by the tax commission upon any class of property and the tax commission has not altered the valuation in accordance with such appeal, any taxpayer of such class, whether or not he has filed an initial complaint with the parish board of reviewers or with the tax commission, may resort to the district court for review of such action. Complaining taxpayers shall have until the first day of November following the determination appealed from to resort to the district court for review after which they shall not have such right.
“Any taxpayer in the state, the parish of Orleans excepted, who has filed a sworn list or return of his property for taxation on or before the first day of April of any year, shall have the right to institute suit in the court having jurisdiction of the cause of action, for the purpose of contesting the correctness or legality of any assessment made against the property listed on such return. Any such suit or legal proceeding shall not be instituted before the assessment rolls are filed in the office of the clerk of court of the parish in which the property is situated as now provided by law, nor later than thirty days following the date of filing of the rolls, except suits to test the correctness of changes in assessments made under written instructions of the tax commission, pursuant to R.S. 47:1990, which suits must be instituted within thirty days after the date of the written instructions of the tax commission ordering the change. No other condition precedent than those specified herein shall be required of the taxpayer in order to permit him to exercise the right of action hereby granted.
“The assessor shall bring suit, when necessary, to protect the interest of the state, and shall also have the right of appeal and such proceedings shall be without cost to him or the state.
“In all suits relating to property taxes the judge shall hear and try such cases without delay, in chambers if necessary, without cost to the reviewers or the assessors.”

As we view it, this statute simply permits an aggrieved taxpayer to have a judicial review of what he considers an illegal assessment. Even were we to agree this procedure contemplates granting in-junctive relief under certain circumstances (and we do not), it would still be incumbent on plaintiffs to show irreparable injury before they could demand extraordinary relief. C.C.P. art. 3601 reads:

“An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.
“During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, in accordance with the provisions of this Chapter.
“Except as otherwise provided by law, an application for injunctive relief shall be by petition.”

Appellees argue they have made a sufficient showing for injunctive relief. In brief it is submitted:

“As to the use of injunction, Article 3601 of the Louisiana Code of Civil Procedure provides that an injunction shall issue in cases where irreparable injury, loss, or damages may otherwise result to the applicant . . . . Irreparable injury is not the only basis for the issuance of an injunction. Loss or damages to the applicant are also independent bases for the issuance of an injunction.”

We think the adjective “irreparable” modifies the nouns “damage” and'“loss” as well as “injury” and therefore cannot subscribe to appellees’ theory that the complaining taxpayers suffer a loss because they are deprived of the use of their money if they follow the procedure of payment under protest. While we recognize this deprivation during the pendency of the suit, we cannot subscribe to a theory that this is a sufficient showing to warrant issuance of an injunction or to conclude that the litigant prevailing will suffer irreparable damage or loss during the pendency of this suit. The deprivation of money has not historically been construed as an irreparable damage or loss. Accordingly we find that the taxpayers have not established irreparable damage or loss—a prerequisite for the extraordinary remedy of injunctive relief.

In L.R.S. 47-1998, three separate actions are granted. Paragraph 1 permits the taxpayer to have his assessment judicially reviewed after exhausting his administrative remedies. Paragraph 2 permits all Louisiana residents, other than those residing in the Parish of Orleans, to file suit to contest the correctness or legality of any assessment. Paragraph 3 permits the assessor to file any suit necessary to protect the interest of the State.

Thus under this statute the assessors may only file suit to protect the State’s interest. Parenthetically we note the continued nonuniform system of taxation which the City has attempted to remedy. In 1972 the City inaugurated a tax equalization program to reappraise property throughout the City. In Probst v. City of New Orleans, 325 So.2d 665, (La.App. 4th Cir. 1976), we held the plan unconstitutional because the equalization program was launched without comprehensive planning and scheduling for revaluation of various classes of property in a given period. The Supreme Court granted writs, the matter is now pending there and because of the present status of Probst, we will not base our result on our holding in that case. In any event, the properties selected for revaluation in 1975 were vacant lots within the Second and Third Districts. Both intervenors initially agreed to adopt as their own the new valuations fixed by appraisers hired by the Board of Review. In fact they verbally made a commitment to the Commission to assess on the basis of the valuations of which they now complain and requested the Commission issue a letter so directing them. Their posture in this suit in no way can be construed as an action to protect the interest of the State. Accordingly they have not met the requisites of L.R.S. 47-1998 necessary to state a cause of action.

For the reasons assigned, the judgment granting a preliminary injunction is annulled. Appellees are to pay all costs of this litigation.

ANNULLED.

LEMMON, J., concurs with written reasons.

GULOTTA, J., dissents with written reasons.

LEMMON, Judge

(concurring).

The judgment appealed from indirectly enjoins collection of ad valorem taxes assessed to plaintiff taxpayers, in violation of R.S. 47-2110, and must be reversed.

Notice and hearing were afforded to all taxpayers whose assessments were increased in accordance with valuations estimated for purposes of equalization by independent appraisers employed by the Board of Review. R.S. 47-2110 obviously prohibited these taxpayers from directly enjoining collection of taxes in the amount increased by the Tax Commission order. The fact that plaintiff taxpayers deftly attempted to circumvent the prohibition by seeking restraint of the order does not change the reality that they are actually attacking the result of the order (collection of their taxes) in an injunction proceeding. The judgment decreeing the preliminary injunction resulted in restraint of collection of ad valorem taxes and effectively granted plaintiff taxpayers the prohibited result they were ultimately seeking.

Inasmuch as we have decided that injunc-tive relief to plaintiff taxpayers cannot be permitted, we did not consider the merits of their attack on the validity of the Commission order. Nothing in this judgment, however, prevents payment under protest and subsequent suit for recovery based on arguments advanced in this suit or on other grounds.

The assessors perhaps could have sought to restrain the order (or certainly could have sought declaratory relief) after filing their rolls, either with or without the ordered changes. However, their failure to file their rolls resulted in stifling the process of government to a far greater extent than possibly would have been caused by the prohibited injunctive relief to several individual taxpayers. Under these circumstances the court should not entertain the assessors’ intervention, even if they otherwise stated a cause of action.

GULOTTA, Judge

(dissenting).

I dissent from the conclusion reached by the majority that injunctive relief is not the proper remedy in the instant case. It is clear, as pointed out by the majority, that courts cannot restrain the collection of ad valorem taxes. See LSA-R.S. 47-2110. However, plaintiffs do not seek to restrain collection of property taxes. Plaintiffs seek to restrain the Tax Commission and its members from “ordering and compelling” the assessors of the Second and Third Municipal Districts of the City of New Orleans to “alter or change” the tax assessment rolls for 1976 to “reflect the increases in tax assessments recommended by the Orleans Parish Board of Review”. The trial judge issued a preliminary injunction in conformity with plaintiffs’ demand. The City has not been enjoined from doing that which is necessary under the statutes to further the collection of taxes based up¿n assessments made by the assessors on the 1976 assessment rolls.

Furthermore, no contest exists as to the 1976 assessment on improved property in the Second and Third Municipal Districts. No impediment exists to the collection of property taxes by the City on improved property in the Second and Third Municipal Districts based on the assessments made by the assessors on the 1976 assessment rolls.

As pointed out in the majority opinion, the purpose of LSA — R.S. 47-2110, which prohibits the use of injunctive process to restrain the collection of taxes, is apparent. However, as pointed out hereinabove, neither the suit nor the judgment enjoins the collection of taxes.

Arguably, if plaintiffs had filed suit to mandamus the city to assess taxes based on the assessment rolls as determined by the tax assessors, the mandamus suit would not be subject to the prohibition against injunc-tive relief as set forth in LSA-R.S. 47-2110, because the suit would neither seek injunc-tive relief nor restrain the collection of taxes. Logically, if mandamus were not an objectionable action, a suit for injunctive relief, seeking, in effect, a similar result, would not be objectionable. This is not to say that procedural safeguards can be set aside to obtain a given end. Nevertheless, courts cannot permit an interpretation of procedural statutes to unnecessarily defeat an adjudication of a matter on its merits. Bolding v. Eason Oil Company, 170 So.2d 883 (La.App. 4th Cir. 1965). To do so would be to revert to the archaic common law writ system. Such a result is untenable.

I find no merit further to the argument that plaintiffs will suffer no irreparable injury. The Commission and the Board correctly point out that the amount of the increased assessment can be measured by pecuniary standards. Nevertheless, irreparable injury may result. A taxpayer may be irreparably injured if an unreasonably high assessment is placed on his property, resulting in the taxpayer’s inability to pay taxes based on this high assessment. Conceivably, the taxpayer may simply not be able to pay the tax. Furthermore, in the event that the erroneous assessment is collected by the City, the number of manpower hours expended by City employees in,, refunding the erroneous assessments would result in untold cost to the City and to the taxpayer property owners.

I am of the opinion that this matter should be considered by us on the merits. Accordingly, I respectfully dissent.

LEMMON, Judge,

concurring in the denial of application for rehearing.

On application for rehearing plaintiffs argue that our decision resurrects the “theory of the case” doctrine. I personally abhor this doctrine and would not participate in its resurrection.

At the beginning of the hearing the trial court clearly announced that only the rule for preliminary injunction was being tried. Therefore, we could not, on appellate review of the judgment on that rule, consider the merits of the case with regard to other possible relief.

      .Suit was originally filed in the 19th Judicial District Court for the Parish of Baton Rouge, the domicile of the Louisiana Tax Commission, but was transferred to the Civil District Court for the Parish of Orleans because it was a more convenient forum for all the litigants.

      . Lewis A. Giraud, Mrs. Elvira Louise Wiener Giraud and Mrs. Corinne Rotge Panquerne.

      . G. L. Schroeder and Decatur Realty Corporation.

      . There is no contention that the increased rate of taxation was confiscatory, which was the critical contention in Churchill Farms, Inc. v. Louisiana Tax Commission, 249 So.2d 594 (La.App. 4th Cir. 1971).

      . Significantly, plaintiff taxpayers did not seek equalization of the entire system, as did the plaintiffs in Bussie v. Long, 257 La. 623, 243 So.2d 776 (1971). They instead sought in effect to perpetuate the obviously unconstitutional existing system, which places the vast majority of the cost of government on those taxpayers who own recently transferred property and which unequally favors long-time owners of immovable property.