author: BLANCHE, Judge.

text:
    In the Matter of the BULK SALES AGREEMENT B & B SUPPLY, INC., TO W. D. LLOYD, Jr.
    No. 12302.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      John E. Seago, Stephen K. Peters, Baton Rouge, of counsel, for petitioner-appellant Brister Corp.
    Sharon E. May, Baton Rouge, of counsel, for respondent-appellee Xerox Corp.
    James A. Wood, Baton Rouge, of counsel, for respondent-appellee Termini Tile Sales Co.
    Curtis K. Stafford, Jr., Baton Rouge, of counsel, for respondent-appellee Bolick Distributors.
    Caryl H. Vesy, New Orleans, of counsel, for respondent-appellee TereseV Top Works.
    Samuel R. Cicero, Baton Rouge, of counsel, for respondent-appellee Southern Elec. Supply.
    John B. Williams, Baton Rouge, of counsel, for respondent-appellee Woodard Wright Big Three, Inc.
    Percy J. Landry, Jr., Baton Rouge, of counsel, for respondent-appellee Louisiana Office Supply Co.
    Kenneth A. Rains, Baton Rouge, of counsel, for respondent-appellee George H. Leh-leinter & Co., Inc., Stratton-Baldwin Company, Inc., W. W. Grainger, Inc., Tulane Hardwood Lumber Co.
    E. Clark Gaudin, Baton Rouge, of counsel, for respondent-appellee Borg-Warner Acceptance Corp.
    A. Michael Dufilho, Baton Rouge, of counsel, for respondent-appellee State-Times & Morning Advocate Capital City Press.
    Joseph P. Brantley, IV, Baton Rouge, of counsel, for respondent-appellee Miracle Marble Co.
    W. Frank Gladney, Baton Rouge, of counsel, for respondent-appellee Ames Metal Corp. d/b/a Southern Molding & Hardware Co., Coburn Co. of Baton Rouge, Inc., R. H. “Buddy” Vernon d/b/a Buddy’s Promotional Advertising, United Cabinet' Division of Beatrice Foods, Inc., Huttig Sash & Door Co., Consolidated Marketing Inc.
    Clarence F. Favret, Jr., New Orleans, of counsel, for intervenor-appellee Georgia-Pacific Corp.

      Gerard E. Kiefer, George P. Bevan, Baton Rouge, of counsel, for respondent-appel-lee Capital Bank & Trust Co. of Baton Rouge.
    M. Aubrey McCleary, Jr., Baton Rouge, of counsel, for respondent-appellee W. D. Lloyd, Jr.
    Wilson R. Ramshur, St. Francisville, of counsel, for respondent-appellee Jefferson Door Co.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This appeal challenges, in part, the distribution of funds in a concursus proceeding brought under LSA-R.S. 9:2963.

On May 11,1976, W. D. Lloyd, Jr., filed a petition that presented to the court an agreement between B & B Supply, Inc. (hereinafter referred to as “B & B”), and Lloyd to sell in bulk the merchandise and inventory of B & B. The requisite notices to creditors informing them of the pending bulk sale were sent out requesting the creditors to come forward and assert any claims they may have had against B & B.

Borg Warner Acceptance Corporation (hereinafter referred to as “Borg-Warner”), which was financing the purchases of merchandise and inventory of B & B under a floor plan arrangement, was recognized as a preferred creditor and was awarded the full principal amount of its claim of $9,696.04. All of the other thirty creditors to respond to the proceeding shared in the distribution on a pro rata basis.

Appellant, Brister Corporation (hereinafter referred to as “Brister”), appeals the trial judge’s finding that the chattel mortgages held by Borg-Warner entitled them to preferred status. We affirm.

Appellant assigns as error the trial judge’s not finding:

(1) That a chattel mortgage creditor lost his preferred status as a result of the bulk sale to which he consents (citing R.S. 9:5354 as authority therefor).
(2) That Brister held a vendor’s lien and that said vendor’s lien primed Borg-Warner’s chattel mortgages.
(3) That granting of the floor plan chattel mortgage violated the Bulk Sales Act and hence was invalid.
(4) That the mortgage was ineffective for want of adequate description and improper form.

We find appellant’s first assignment of error to be wholly without merit. LSA-R.S. 9:5354 reads in its entirety:

“Every such mortgage shall be effective as against third persons from the time of filing in the proper offices, and the filing shall be notice to all parties of the existence of the mortgage, which shall be superior in rank to any privilege or preference arising subsequently thereto.
“Provided, however, that the holders of chattel mortgages on motor vehicles, chattels, property or merchandise of any nature or kind who expressly or impliedly consent to such chattels being placed on sale by the owner thereof in the state of Louisiana and in the usual course of business shall be precluded from asserting said mortgage or the lien created by it against bona fide retail purchasers in actual good faith of said motor vehicles, chattels, merchandise or property. Holders of such chattel mortgages shall be deemed to have impliedly consented to sales of the mortgaged property free and clear of such mortgages to bona fide retail purchasers in actual good faith whenever the mortgagor is a wholesaler, retailer or dealer duly licensed to sell the type of chattel or merchandise covered by the mortgage. Such consent may not be negatived or withheld by any express provision in the act or mortgage when the mortgagor holds such an occupational license. For purposes of this Section a bona fide retail purchaser in actual good faith shall be deemed to be any person, firm, partnership or corporation purchasing a motor vehicle, chattel or merchandise for individual or business use and not for resale from a licensed dealer, wholesaler or retailer, who does not in fact know of a chattel mortgage existing upon the property purchased; provided, however, that the holders of chattel mortgages on motor vehicles, chattels, property or merchandise of any nature or kind who expressly or impliedly consent to such chattels being placed on sale by the owner thereof in the usual course of business shall not be precluded from asserting said mortgage or the lien created by it against group or bulk purchasers whether said purchaser is in good faith or not. As amended Acts 1954, No. 481, § 1.” (Emphasis added)

The clear import of the above provision is to allow a retailer or wholesaler to obtain financing to purchase inventory, and then to be able to sell that inventory in the ordinary course of business free and clear of the mortgage. The last sentence makes it clear that the holder of a chattel mortgage does not lose the privilege when items are sold in bulk. We, therefore, reject appellant’s assignment of error number one.

Appellant next claims a vendor’s privilege and that said privilege primes the chattel mortgage of Borg-Warner. We need not reach the second assertion since we conclude from the record that Brister has no vendor’s privilege. The evidence shows that Brister advanced to B & B from January 1976 till March 1976 $28,000 in consideration for future purchases which Brister would make. Brister only purchased from B & B a total of $14,254.64 in goods, leaving a credit balance of $13,745.36 in its favor, the amount claimed in the proceedings below. By doing business in this fashion, Brister was able to secure discounts on its purchases.

The above facts do not entitle Brister to a vendor’s privilege since it never sold any goods to B & B. We, therefore, find appellant’s assignment of error number two to be without merit.

Appellant also claims that the granting of the floor plan chattel mortgage itself violated the Bulk Sales Act and, therefore, is invalid. Appellant cites Fidelity Credit Company v. Winkle, 251 La. 1, 202 So.2d 280 (1967), in support of this proposition. This claim is also without merit since Winkle was statutorily overruled by Act 110 of 1968 amending R.S. 9:2965 to read as follows:

“§ 2965. Transfers to which law applicable
“Transfers under this Part include transfers in payment of debt, in whole or in part, sales, exchanges and assignments, whether for cash or on credit or in exchange for certificates of stock, bonds or other obligations of a corporation, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the transferor, but nothing contained in this Part applies to transfers made by executors, administrators, receivers or assignees under voluntary assignments for the benefit of creditors, trustees in bankruptcy or sales under judicial process; and nothing contained in this Part applies to any mortgage, pledge, privilege, assignment or other security interests, made to give security for the performance of an obligation nor shall anything contained in this Part apply to transfers in settlement or payment in full, or in part of a mortgage, pledge, privilege, assignment or other security interests. Amended by Acts 1968, No. 110, § 1, eff. July 17, 1968, at 1:45 P.M.” (Emphasis added)

We, therefore, reject appellant’s assignment of error number three.

Lastly, appellant claims the mortgage was ineffective as to third parties for want of adequate description and improper form. The floor plan chattel mortgages submitted into evidence by Borg-Warner are valid on their face. The trial judge implicitly found that there was no fatal irregularity in their confection. Appellant has shown no error in this finding and, therefore, it will not be disturbed.

Regarding the descriptions, the place where the mortgaged goods were to be kept was specifically identified by street and number. No other creditor held a floor plan mortgage or a chattel mortgage of any kind upon the inventory and merchandise of B & B. While there was a general floor plan mortgage in effect, items subject to the mortgage were listed by model and serial number as purchases were made with financing supplied by Borg-Warner. As best we can tell from the record, there was $9,696.04 worth of merchandise remaining on the premises of B & B which had been financed by Borg-Warner and which had been identified by model and serial number in the mortgage agreements.

We, therefore, find the descriptions contained in the mortgage agreements to be adequate to support a valid mortgage and reject appellant’s assignment of error number four.

For the above and foregoing reasons, the judgment of the trial court is affirmed, appellant to bear all costs of this appeal.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Wilfred GREENE, Plaintiff and Appellee, v. Dale WRIGHT, James Gustafson, A. J. Boutte, Edwin Holeman and Commercial Union Insurance Co., Defendants and Appellants.
    No. 12311.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      William D. Hunter, Morgan City, for plaintiff and appellee.
    W. Arthur Abercrombie, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, for Dale Wright, James Gustafson, A. J. Boutte and Edwin Holeman.
    John M. Duhe, Jr., Caffery, Duhe, Oubre & Gibbens, New Iberia, for Commercial Union Ins. Co. and Edward Holeman.
    Thomas K. Kirkpatrick, Kirkpatrick, Keyser & Kirkpatrick, Baton Rouge, for James Gustafson.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is an “executive officer” suit brought by the injured employee, Wilfred “Chip” Greene, against four supervisors, Thomas Edward Holeman, the mine superintendent, James W. Gustafson, assistant mine superintendent-safety director, Dale Wright, maintenance foreman, A. J. Boutte, mine production foreman, and the company’s liability insurer. The four supervisors brought a third party action against Cargill, Inc.’s liability insurer, Commercial Union Insurance Company (Commercial), to determine whether the policy extends coverage to them as “executive officers.” On October 28, 1977, summary judgment was rendered in favor of the four supervisors determining that Commercial’s policy with Car-gill, Inc. included coverage for executive officers; however, the status of the four supervisors as executive officers was left in abeyance until the trial on the merits.

The jury found all four supervisors to be executive officers and awarded the plaintiff $902,000.00 for injuries caused by their negligence. The trial judge, based on the defendants’ third party demand, awarded those supervisors not defended by Commercial, indemnification for the attorneys’ fees expended in defending the suit.

Commercial and one of the ■ defendants, Thomas Edward Holeman, have suspensively appealed. The other three defendant supervisors, James W. Gustafson, Dale Wright and A. J. Boutte, have devolutively appealed. Plaintiff, Wilfred Greene, has neither appealed nor answered the appeal, nor has the workmen’s compensation employer, Cargill, Inc., intervened.

In deciding whether the jury verdict is in accordance with the record, this court makes the following findings of fact.

On December 24, 1975, Wilfred “Chip” Greene was working in the Cargill Salt Mine, Belle Isle, Louisiana. Mr. Greene was employed as a mechanic to do repairs on various specialized mining equipment.

The mine itself is located approximately 1,200 feet below the surface and consists of two levels. Prom the map introduced by the defendants, it appears that the mine is a maze of corridors and rooms from which salt has been extracted with smaller bored corridors to allow air to enter. Directions in the mine are given by numerical delineation of the corridors along with a compass direction.

On the morning of the accident, Mr. Gus-tafson was using a roof-bolter “Scott” truck to implant dynamite in the ceiling of One Main South by Five Main East near an upper level air entry in order to blow a “berm hole” which would allow more air to reach the second level of the mine. A “Scott” truck has an extension arm which is designed to lift a man in a bucket approximately 25 feet. While the arm was extended with Mr. Gustafson in the bucket, the truck developed a hydraulic oil leak which resulted in Mr. Gustafson being unable to lower the arm.

Gustafson climbed down the arm and notified Wright that the “Scott” truck was inoperable and in need of repair. Between 9:30 and 10:00 A.M. Wright sent Raymond Abatte and Merlin Boutte to repair the broken hose from which the hydraulic oil had escaped, but they were unable to replace the oil.

Around 12:40 P.M. Mr. Greene was requested to proceed to the lower level of the mine in order to fill the “Scott” truck with the hydraulic oil. There is contradictory testimony as to just what location was given to Mr. Greene in order to find the “Scott” truck. Mr. Greene proceeded in a service truck to secure a drum of oil to place in the “Scott” truck in order to lower its arm and remove the truck from its location.

At approximately that same point in time, Mr. Gustafson was communicating with Mr. Boutte on the chances of blasting some of the charged holes before the end of the shift. Since this was Christmas Eve, the shift was to be ending two hours earlier, at 1:30 P.M. instead of 3:30 P.M. It was common procedure to blast the charged holes in the mine before the end of the day’s shift. During that conversation, Mr. Boutte informed Mr. Gustafson that Mr. Greene was on the lower level of the mine.

In order to speed up the repairs, Gustaf-son next communicated with Dale Wright who in turn instructed plaintiff to only secure 15 to 20 gallons of oil in order to accelerate hi: emoval of the truck. Greene re-requested directions to the truck in order to determine its location.

At this point in time Mr. Boutte decided to send two men to locate Greene and to see how the repairs were progressing. It was subsequently reported to Mr. Boutte by these two men that they had seen service truck tracks around where the “Scott” truck was to be repaired, and it appeared that the wrong tank had been filled with oil. The truck had not been removed, and they were unable to locate Greene. They assumed that Greene had been there and left.

Meanwhile, Greene had again called to request directions from Dale Wright. The call was placed on the hallo-phone system which existed between the different levels of the mine. A hallo-phone system is the old type crank system which usually contains a lot of static.

Prior to the incident resulting in injury to his right hand, Mr. Greene was injured by hot slag in his ear which resulted in a hearing loss. The hearing loss was caused by a work related accident and was known by his supervisor, Dale Wright.

Mr. Wright testifies that on the third request from Mr. Greene he informed him that the “Scott” truck was located at “First Main South, the air entry by Fifth Main East.” The purpose of the “berm hole” was to allow air from the air entry located on the upper level to feed air to the lower level. There was no air entry on the lower level at First Main South, Fifth Main East.

According to plaintiff’s witness, Mr. Raymond Abatte, an employee in the maintenance department, he overheard the conversation between Greene and Wright as to the location of the truck. He claims that Wright told Greene to “go back and pass where you worked on that machine a couple of days before.” Apparently there was some possible confusion over which machine was referred to, if in fact that statement was made. Approximately two weeks before the accident Greene had worked on machinery in the blast area. After the third time Greene was given directions to the truck, Mr. Wright decided to join Greene and commenced running to the manlift, a device used to raise and lower men into the mine.

Within several minutes, based on the erroneous assumption that Mr. Greene had improperly repaired the truck and was now presumably in a safe location, Mr. Gustaf-son ordered the charged holes fired.

The blast occurred between 1:10 and 1:20 P.M. in Fourth Main East and Fifth Main East, room five. Mr. Greene was approximately 160 yards from the blast area. He attempted to use his right hand to shield his face from the blast.

Mr. Greene was located in the manlift following the accident with a severely mangled right hand. He was immediately rushed to Franklin Foundation Hospital and later transferred to Our Lady of Lourdes Hospital in Lafayette.

The appellants assign the following specifications of error alleged to have been committed by the jury:

I. Errors assigned by Commercial Union Insurance and Thomas Edward Holeman.
“(1) Finding defendants Boutte, Wright and Gustafson to be executive officers of Cargill, Inc.
(2) Finding defendants Boutte, Wright, Gustafson and Holeman to have been guilty of negligence which was a proximate cause of plaintiff’s injury.
(3) Failing to find plaintiff guilty of contributory negligence which was a proximate cause of his own injury.
(4) Allowing the witness M. R. Jacobson to express his opinion of the meaning and intent of MESA regulations.
(5) Excluding from evidence the amount of workmen’s compensation benefits paid to plaintiff by Commercial Union Insurance Company.
(6) Awarding plaintiff any amount of damages whatever and, in the alternative, an excessive amount of damages.”

“II. Errors assigned by James Gustaf-son.

“(1) Finding defendants Boutte, Wright, Gustafson and Holeman to have been guilty of negligence which was a proximate cause of plaintiffs injury.
(2) Failing to find plaintiff guilty of contributory negligence which was a proxmate [sic] cause of his own injury.
(3) Allowing the witness M. R. Jacobson to express his opinion of the meaning and intent of MESA regulations.
(4) Excluding from evidence the amount of workmen’s compensation benefits paid to plaintiff by Commercial Union Insurance Company.
(5) Awarding plaintiff any amount of damages whatever and, in the alternative, an excessive amount of damages.”

III. Errors assigned by Dale Wright and A. J. Boutte.

“1) In finding Dale Wright and A. J. Boutte to have been guilty of negligence which was a proximate cause of plaintiff’s injuries;
2) Failing to find plaintiff guilty of contributory negligence which was a proximate cause of his own injuries;
3) Failing to find that plaintiff assumed the risk of his injuries; and
4)Awarding plaintiff any amount of damages whatever and, in the alternative, an excessive amount of damages.”

In order to comprehensively examine the errors presented by all the appellants, this court considers there to be four main issues which need be discussed:

(1) the status of the three individually named defendants denied coverage by Commercial as not being executive officers;
(2) the negligence on the part of the four individually named defendants;
(3) the possible contributory negligence and/or the assumption of risk on the part of the plaintiff; and
(4) the quantum awarded by the jury.

As to the errors presented concerning the admission on rebuttal of that part of the deposition of M. R. Jacobson which contained opinion testimony, appellants contend that the admission of a non-expert’s opinion on the application of Mining Enforcement and Safety Administration (MESA) regulations prejudiced their case and thus caused reversible error.

Opinion testimony of lay witnesses as a general rule is excluded. Taylor v. Roach, 302 So.2d 327 (La.App. 1st Cir. 1974). In Taylor, supra, this court found the witness did not possess “sufficient facts to properly draw a conclusion as to defendant’s intention.”

The facts presented in our case reveal that although the opinion testimony was given by a non-qualified expert, M. R. Jacobson was in fact the person in charge of enforcing those regulations referred to in the rebuttal testimony. Jacobson, the mine inspector who had previously cited Cargill mines for various violations, perhaps erroneously failed to cite Cargill for not having barricades on the lower level in compliance with MESA regulations 57.6-103 and 57.6-175; however, the inspector’s failure to issue a citation for a violation of the regulations in no way relieves Cargill, Inc. and its employees from the duty to conform to those regulations.

Therefore, we find no harm or prejudice sufficient to mandate a reversal resulting from the admission of the opinion testimony offered as rebuttal to the defense witnesses.

Further, it is contended by the insurer that evidence as to the workmen’s compensation payments in mitigation of loss income to the date of trial was erroneously excluded by the trial judge. We can find no ruling in the record by the trial judge excluding such evidence, nor any proffer of such as allowed by La.C.C.P. art. 1636. Since the insurer failed to make an offer of proof, it cannot now complain on appeal. Carroll v. Guillot, 337 So.2d 310 (La.App. 3rd Cir. 1976) and Nettles v. Evans, 303 So.2d 306 (La.App. 1st Cir. 1974).

ISSUE NO. 1

It is argued that there is nothing in the record to show that three of the defendants, Gustafson, Boutte and Wright, held employment status constituting managerial positions, citing Hadrick v. Diaz, 302 So.2d 345 (La.App. 1st Cir. 1974).

This court in Hadrick, supra, stated that: “Further considering Thibodeaux, above, we do not view that decision as holding that managerial responsibility for the affairs of a corporation generally is an indispensable prerequisite to the status of corporate executive. Said element is but one of the numerous factors to be considered in such a determination.”

We went on to list other factors determining executive status; however, there was no implication that this was an exclusive list, and that other factors were not determinative.

The Third Circuit grasped the proper application of Hadrick, supra, when in Coco v. Winston Industries, Inc., 330 So.2d 649, 660 (La.App. 3rd Cir. 1975) reversed on other grounds 341 So.2d 332 (La.1976), while speaking of the term “executive officer” held:

“No precise definition or hard and fast rule has ever been laid down. It appears that the question must be resolved by considering many factors on a case-by-case basis. It is noted that the problem is essentially one of contract interpretation. Any indefiniteness in the expression must be construed against the insurer. In Ha-drick v. Diaz, 302 So.2d 345 (La.App. 1st Cir. 1974), several factors to be considered in this determination were listed. We do not think the list is exclusive. There may be other considerations. It is a question of the party’s intention. This executive-officer coverage is apparently designed to hold key employees. We think other important considerations would be the value of the employee’s services to the employer, the ease with which the employee could be replaced, the importance of the employee’s functions to the employer and the extent to which the employee’s ordinary functions tend to expose him to liability.”

Appellant’s argument seems to center around the immense size of Cargill, Inc. and the relative insignificance of these three supervisors vis-a-vis the corporate structure. The issue which the jury decided affirmatively was whether these three supervisors were in an executive position at the time of the accident.

JAMES W. GUSTAFSON, as the assistant mine superintendent and a salaried employee, was the second in command, with no other superior at the mine except Ed Holeman. In the absence of Mr. Holeman, the mine superintendent, he was in charge of the mine and could appropriate necessary funds to the same extent as the superintendent. Though Holeman was the mine superintendent, Gustafson was basically in charge of the day to day operations of the mine. He was in charge of safety for the entire mine, and could discipline for failure to follow safety rules. Additionally, he had the authority to discharge personnel and review applications for employment. He could reroute barges used in the shipment of the salt. Finally, he helped formulate the budget for the mine. His vast range of responsibility made him an important employee, and the decisions which he was called upon to make continuously exposed him to the possibility of liability. There is no doubt that Mr. Gustafson was in all senses of the word “an executive officer.”

A. J. BOUTTE, a salaried employee, was the production foreman with responsibility for all production in the mine. His job was to get the right type salt mined at the right time. Only Holeman and Gustaf-son were above him in the chain of command at the mine. He was responsible for fourteen pieces of very valuable equipment, had eleven men under his supervision, and could fire any of them. In the morning and afternoon, he met with Holeman and others to help formulate mine policy. Though he could initiate hiring, he could not complete it. When tools were needed, he could spend company money. We find him to be a key employee, exposed to liability, and thus an executive officer.

DALE WRIGHT was the shop foreman and a salaried employee at the time of this accident. He had twelve or thirteen people under him, any of whom he could fire. Additionally, he could initiate hiring a new employee. His department was responsible for the maintenance and repair of between 35 and 40 pieces of equipment, and his duties consisted of planning and scheduling repairs and maintenance, as well as the supervision thereof. He was responsible only to Preston Romero and Holeman. Mr. Wright attended morning meetings to establish mine policy, and he could suggest changes in company policies. In the furtherance of his responsibilities, he could spend company funds for parts and repairs. Lastly, as did all supervisory personnel, he could enforce safety rules. Therefore, we find Dale Wright to be a key employee, exposed to liability, and thus an executive officer.

We, therefore, find no error on the part of the jury in holding these three employees to be executive officers.

ISSUE NO. 2

In order to determine negligence, the jury must find that based on the facts presented (1) Cargill owed a duty to the plaintiff, the breach of which caused damages for which he seeks recovery, (2) the duty was delegated by Cargill to the four executive officers, and (3) the defendants breached the duty through their own personal fault. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

La.R.S. 23:13 along with Cargill’s own company policy requires that the employer render to the plaintiff a safe place to work. Along with the statute and Cargill’s own policy, the MESA regulations, cited supra, obligate Cargill to display some sort of alert system designed to prevent accidents in the mine which cause injury to persons who are in the area of blasting either intentionally or accidently.

Although the violation of a MESA regulation does not give rise to civil liability, the Louisiana Supreme Court has deemed the use of a national safety code appropriate in Burley v. Louisiana Power & Light Co., 319 So.2d 334, 338 (La.1975), holding:

“Thus, where evidence of the contents of a publication is admissible under our law (La.R.S. 13:3713), and relevant and material information contained therein should be made available to the trier of facts, and the publication is one which reasonable minds would agree is trustworthy, there appears to be no sound reason why such evidence should not be given such probative weight as it warrants in the court’s judgment.”

It is apparent that the regulations were designed to prevent injury to persons from blasting, and thus “while statutory violations are not in and of themselves definitive of civil liability, they may be guidelines for the court in determining standards of negligence by which civil liability is determined.” Smolinski v. Taulli, 276 So.2d 286, 289 (La.1973).

The general tort principle obviously applicable to this case is that “those who use or handle dangerous agencies, substances or instrumentalities such as explosives, electricity, firearms, combustibles and fireworks, which might endanger persons or property, are held to a high degree or extraordinary degree of care.” Gregory v. Guarisco, 320 So.2d 354, 356 (La.App. 2nd Cir. 1975).

Cargill has delegated its responsibility in maintaining safe working conditions to its mine superintendent, Ed Hole-man, who in turn has delegated that responsibility to his safety director, Gustaf-son, and the foremen in charge, Boutte and Wright. This court finds that Cargill, Inc. and its executive officers had a personal duty not to breach the high degree of care established by general tort principles, La. R.S. 22:13, the Cargill policy, and the MESA regulations with regard to the maintenance of a safe place to work and the proper standard for handling and using dynamite.

After a thorough and exhaustive review of the record, we are convinced, as was apparently the trial jury, that Gustaf-son, Wright and Boutte each had personal knowledge that plaintiff had been sent down to the lower level of the mine, and that he was confused as to where he was to go. They did not know where he was, and still, without apprehension or refusal pulled the trigger on 700 pounds of dynamite. The high or extraordinary degree of care required of those handling explosives imposed on these supervisors the duty of knowing the whereabouts of plaintiff before blasting. Their actions fall far below the standard required, thus constituting a breach of duty.

As to Ed Holeman, it is strenuously argued that he was not personally involved in the decision made to blast, and thus should not be held liable.

“If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.” (Footnote omitted.) Canter v. Koehring Company, supra, at 721.

In Canter, supra, the plant construction engineer was absolved of personal negligence contributing to the plaintiff’s injury, to wit:

“Spalding [Pittsburgh’s plant construction engineer] is shown to have committed no affirmative act contributing to the accident. There is no showing, for instance, that Spalding delegated his responsibility to an incompetent subordinate, so as to share personal fault for the subordinate’s act, nor that he should by the exercise of reasonable care have known of the breach of duty by the subordinate Pittsburgh engineers and had nevertheless failed to act within a reasonable time under the circumstances.” 283 So.2d 727

Under the facts presented in this case the defendant, Ed Holeman, had personal knowledge that warning signals were not being used on the lower levels of the mine. Although it is argued that the inspector failed to cite Cargill for not having warning devices on the lower level, it is clear that the need for warning devices, in light of the high degree of care required in the handling of explosives was designed to protect this plaintiff, and thus, the failure of Ed Hole-man to order adequate warning devices constitutes a breach of duty resulting in personal liability for his omission.

We find no error on the part of the jury in holding all four defendants liable based on the duty imposed and the breach which resulted in injury to the plaintiff.

ISSUE NO. 3

The factors to consider in determining whether the plaintiff was contributorily negligent and/or assumed the risk are:

***** (q) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.” Miller v. Employers Mutual Liability Ins. Co., 349 So.2d 1353, 1362 (La.App. 2nd Cir. 1977), writ denied 352 So.2d 235 (La.1977).

Assuming that plaintiff knew of the possibility of blasting at the end of the shift, defendants had the burden of proving that plaintiff knew of the danger and voluntarily assumed the risk, or that he acted negligently in executing the task he was requested to perform.

Appellants rely on the fact that plaintiff used an unorthodox route which resulted in his presence in the blast area. Though the route might have been unusual, this court fails to see how that in and of itself constitutes contributory negligence or assumption of the risk.

The determination of contributory negligence and assumption of the risk is to be made in the light of the facts presented in each case. We have found no facts in this record which would lead this court to believe that plaintiff was either contributorily negligent or assumed the risk.

ISSUE NO. 4

The most difficult issue in this case is the quantum awarded the plaintiff, $902,000.00.

Appellants argue that the award is grossly excessive based on the injury, and the expected loss of future income which they contend was incorrectly determined by plaintiff’s economic expert.

In Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976), the Louisiana Supreme Court said:

“ * * * that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. * * * Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. * * * It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

Again in Schexnayder v. Carpenter, 346 So.2d 196,198 (La.1977), the Supreme Court said, “since the jury does have, under the law, much discretion in fixing damages, the appropriate procedure for testing whether the jury abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury.”

This court in Grasso v. Hebert, 342 So.2d 1178, 1180 (La.App. 1st Cir. 1977) said, “appellate review of an award for general damages, especially for personal injuries, is limited to determining whether the trial court or jury abused its discretion, and the adequacy or inadequacy of such an award is determined on the basis of the facts peculiar to each case. Such an award is not to be disturbed on appeal save in a case of clear and manifest error.”

This court in the shadow of Coco v. Winston Industries, Inc., supra, and its progeny is of the opinion that the facts presented more than justify the award made by the trial jury.

Dr. Cromwell, a plastic surgeon, performed a total of 12 surgical procedures in an attempt to save as much of Mr. Greene’s right hand as possible. The plaintiff was left with no mobility in the right wrist and thumb, along with the amputation of his little finger due to severe pain. A nerve was severed in order to relieve some of the pain; however, this in turn caused a droop in his right eyelid and blurred vision.

Mr. Greene suffers pain in his hand, and under the direction of Dr. Laborde, he is using a TENS, transcutaneous electrical nerve stimulator, designed to block the pain at certain nerve points in his right shoulder and back. The TENS is an electrical battery operated device which sends an electrical shock to the nerve points in order to interrupt and short circuit the chronic, persistent pain. The TENS has in this case relieved some of the more excruciating pain, but plaintiff still suffers a lower more tolerable degree of pain. This device is worn by Mr. Greene daily in order to relieve his pain.

Plaintiff has also undergone vocational and psychological testing by Dr. David Clark who testified as to Greene’s limited intelligence and his attempts to cope with the results of the accident. Mr. Greene is presently under the psychiatric care of Dr. William Cloyd.

In summation, this court is in concurrence with the listing in plaintiff-appellee’s brief that the physical and psychological injuries suffered by Mr. Greene are:

—Convergence and accommodation insufficiency resulting from eye trouble, especially when doing close work for a prolonged period of time;
—He has incurred 13 surgical procedures on his arm, hand, neck and spine;
—He has incurred a cervical sympathec-tomy — a surgical procedure where the sympathetic nerves leaving the spine to the right arm are severed;
—Drooping eyelid caused by the cervical sympathectomy;
—Loss of some temperature differentiation to right side of his face;
—Loss of right peripheral vision known as “hysterical visual field loss” caused by emotional trauma;
—Severe psychoneurotic depressive reaction;
—Phantom pain at the amputation site of the little finger;
—Permanent scars from bone and skin grafts:
a. At the hip;
b. Left arm;
c. Left thigh;
—Numbness where skin was grafted to the hand;
—Substantial weight loss;
—Hair turning gray at age 31;
—Chronic inability to sleep;
—Permanent disfigurement of right hand;
—Nodular type mass in right shoulder referred to as a “pain trigger point”; —Chronic pain in his back, right shoulder, and arm;
—Suicidal tendencies;
—Irritation and itching of TENS electrode attachment sites on his back;
—Claustrophobia, fear of going into small places;
—Right hand turning blue and painful in cold weather.

A thorough examination of the record convinces us that the evidence presented by the plaintiff is sufficient to justify a substantial award for pain and suffering. In addition to his own testimony, the plaintiff’s qualified expert physicians testified that in their opinion Mr. Greene’s pain is genuine, and that he is neither a faker nor a malingerer. Along with the physical loss of the plaintiff’s effective use of his right hand, the mental anguish suffered by the plaintiff and the loss of his self-esteem, plaintiff faces the real possibility of the amputation of his entire right hand. The doctors agree, however, that the amputation of the right hand would probably not eliminate the pain which in all likelihood would persist psychologically, it having left a mental imprint on him.

Since this was an in globo award, there is no indication as to what part of the award is attributable to the pain and suffering of the plaintiff. Further, evidence of the plaintiff’s loss of past and future income totaling $652,958.35 was presented to the jury by plaintiff’s expert in the field of economics, Dr. Seymour Goodman.

Appellants argue that Dr. Goodman in making his computations of plaintiff’s loss of future income used inaccurate factors, i. e. a productivity increase of 3 per cent, gross income rather than take home pay, and a discount rate of 6Vs per cent rather than 8 per cent. No expert witness was presented by defendants to dispute the factors used by Dr. Goodman, even though it is argued by appellants that by using an 8 per cent discount rate plaintiff’s award for future income would be between $350,-000.00 and $400,000.00. We find no error in the use of these factors, nor do we find them inaccurate. See Johnson v. International Ins. Co., 347 So.2d 1279 (La.App. 1st Cir. 1977), writ denied 350 So.2d 1225 (La. 1977) for a full discussion by this court of the use of such factors.

Defendants would have this court believe that the jury awarded approximately $31,000.00 for the loss of past earnings, $250,000.00 for pain and suffering, and $621,000.00 for the loss of future earnings. Such a supposition cannot be unequivocally drawn from an in globo award. The pain and suffering which plaintiff must endure is not only excruciating, but there is the distinct probability that he may have to suffer pain for the rest of his life. The jury could have just as easily awarded more for pain and suffering and less for loss of future earnings.

Additionally, this court is of the opinion that the trial court jury could have within its discretion, based on the facts in this case, awarded between $450,000.00 and $500,000.00 for pain and suffering and a like amount for loss of future earnings, thus resulting in an award of over $1,000,-000.00. Necessarily then, we find no error in the award made by the jury.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this proceeding are to be paid by Commercial Union Insurance Company.

AFFIRMED.

      . Thomas Edward Holeman was herein cited and served as Edwin Holeman, and answered the petition as Edwin Holeman.

      . Commercial admits executive status on the part of Thomas Edward (Edwin) Holeman.

      .There is nothing in the record to reflect whether Cargill, Inc., as the employer of the plaintiff, was notified of the tort action instigated by the plaintiff. La.R.S. 23:1102.

      . Mr. Jacobson is a mine inspector with the Mining Enforcement and Safety Administration, United States Department of the Interior.

      . “57.6-103 Mandatory. Areas in which charged holes are awaiting firing shall be guarded, or barricaded and posted, or flagged against unauthorized entry.”
      “57.6-175 Mandatory. Ample warning shall be given before blasts are fired. All persons shall be cleared and removed from areas endangered by the blast. Clear access to exists shall be provided for personnel firing the rounds.”

      . This court’s decision in Thibodeaux v. Parks Equipment Company, 185 So.2d 232 (La.App. 1st Cir. 1965) writ refused 249 La. 193, 194, 186 So.2d 157 (La. 1966) as to the strict standard applicable to determine executive officer status no longer reflects the position of this court nor is it in line with our later decisions in Cain v. Witco Chemical Corporation, 341 So.2d 1220 (La.App. 1st Cir. 1976) writ denied 343 So.2d 1078, 1079 (La.1977) and Hadrick v. Diaz, supra.

      . In dealing with “executive officer” status this court in Hadrick, supra, held the following factors relevant:
      (1)Whether the employee’s position was created by corporate charter;
      (2) Whether the employee was formally elected or designated to his office or position by the Board of Directors, the officers or stockholders;
      (3) Did the employee have authority, discretion and managerial responsibility covering the divergent affairs of the corporation;
      (4) Did the employee have duties or authority outside his particular department;
      (5) Was the employee involved in shaping company policy;
      (6) Did the employee possess authority to alter contract terms or conditions or to change specified company procedure;
      (7) Whether the employee had several department heads under his supervision;
      (8) Whether the employee had a large number of employees under his direction and control, and
      (9) Did the employee have authority to hire and fire other employees?

      . La.R.S. 23:13 provides:
      “Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.”

      . Belle Isle Salt Mine Safety Code Provides:
      “Responsibility: The Mine Superintendent is responsible for the safe operation of the mine and surface facilities. He may delegate authority and responsibility to ‘key’ men, but all points not covered in this safety code must be approved by him. .
      “GENERAL SAFETY RULES

      “2. No employee shall ever be in the mine by himself.”

      .Metal and Nonmetallic Mine Safety Act, 30 U.S.C. § 738(c) provides:
      “Nothing in this chapter shall be construed or held to supersede or in any manner affect the workmen’s compensation laws of any State or territory, or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under State or territorial laws in respect of injuries, occupational or other diseases, or death of employees arising out of, or in the course of, employment. Pub.L. 89-577, § 19, Sept. 16, 1966, 80 Stat. 784” repealed, Pub.L. 95-164, Title III, § 306(a) Nov. 9, 1977, 91 Stat. 1322.

      . The total loss of past income is $31,719.96 and the estimated loss of future income is $621,238.39.


author: ELLIS, Judge:

text:
    Sandra HAYS v. James O. HAYS
    No. 12318.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    John B. Williams, Baton Rouge, for ap-pellee.
    Kenneth L. Riche, Baton Rouge, for appellant.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a custody case, in which James 0. Hays is attempting to gain custody of Jamie Carol Hays, age 12 and James O. Hays, Jr., age 9, from his former wife, Sandra Hays. After trial on the merits, judgment was rendered awarding custody to Mr. Hays, and Mrs. Hays has appealed.

Mrs. Hays was first awarded custody by stipulation of the parties on January 15, 1976. This custody award was maintained, also by stipulation, in the judgment of separation on March 12,1976, and the judgment of divorce on June 17, 1977. This custody rule was filed by Mr. Hays on January 16, 1978.

The prayer for change in custody is based on various allegations of misconduct on the part of Mrs. Hays and her former fiance; of infliction of unduly severe punishment on the children by the fiance; of a fear that the fiance might use drugs around the children; and that Mrs. Hays is careless in the handling and storage of drugs. None of these allegations was proven. After hearing the evidence, the trial judge found that neither of the parties to the rule had led exemplary lives, but that their misconduct was not such as to render either of them unfit to have custody of the children. Without detailing the evidence, we find no error in his conclusion.

The record also reveals that Mrs. Hays is a licensed practical nurse, and is employed at Lane Memorial Hospital in Zachary, Louisiana. She works the night shift, from 11:00 p. m. until 7:00 a. m. For that reason, she has had to provide sitters for the children at night, while she is at work. At the time of trial, she was taking the children to the home of a Mrs. Leet in Zachary, where they would sleep, and receive breakfast in the morning. Mrs. Hays would pick them up after she got off work, and take them to their home in Baton Rouge, where they could catch the bus to school.

Mr. Hays had married, shortly before the rule was filed, a woman with whom he had been living for some six months. After his marriage, he bought a four-bedroom home, where he proposed to keep the children. At the time of trial, the second wife testified that she was working full time, but that arrangements could be made to see the children off to school in the morning, and to have someone in the house when the children were at home.

In Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), the court set forth the following principles governing custody awards:

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958) and jurisprudence therein cited; see also Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.
“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958); Boatner v. Boatner, 235 La. 1, 102 So.2d 472 (1958); Tullier v. Tullier, 140 So.2d 916 (La.App.1962) (citing numerous decisions of this court to such effect). “(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952); Nugent v. Nugent, 232 So.2d 521 (La.App. 1970) (citing numerous court of appeal decisions to such effect).
“(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952).”

Since the rendition of the opinion in the Fulco case, supra, the maternal preference rule has been seriously eroded, not only by a number of judicial decisions, such as Welch v. Welch, 307 So.2d 737 (La.App. 2nd Cir. 1975), and Caraway v. Caraway, 321 So.2d 405 (La.App. 2nd Cir. 1975); but by the 1977 amendment of Article 157 of the Civil Code, which now provides:

“Art. 157. A. In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children. Such custody hearing shall be held in private chambers of the judge. In no event shall the pendente lite custody rights presently existing be affected by this Act. The party under whose care the child or children is placed, or to whose care the child or children has been entrusted, shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died.”

The Supreme Court has, however, reaffirmed its rule that a party seeking a change of custody bears a heavier burden of proof if there has been a considered custody decree previously rendered in the case. Monsour v. Monsour, 347 So.2d 203 (La. 1977).

In this case, there has been no “considered decree”, since the mother received custody initially as a result of stipulations made by her husband and herself. The test to be applied in this case, therefore, is what is in the best interest of the children. However, we think that certain guidelines must be considered, including the experience of the children while in the custody of the mother, and the rebuttable presumption that “the interest of a child will be better served by placing him in custody of the mother.” Welch v. Welch, supra. Under the Welch and Caraway cases, the father must produce “convincing evidence that the greater advantage of the child will be served by entrusting' his care to the father” if he is to prevail.

In this case, the trial judge found no difference between these parents insofar as their moral fitness to have the custody of the children is concerned. He awarded custody to the father because he did not believe it was in the best interest of the children to have to sleep at a sitter’s house every night while their mother worked, and thought the father could offer a more stable environment. We find that in so doing, he abused the great discretion accorded him in custody cases.

These two children have been with their mother since the initial separation, a period of over two years. During this time, they have been well cared for and appear to be well adjusted and happy children. The younger child has a reading disability, and his mother has provided special tutoring for him to correct the condition. The circumstances of the mother’s employment have been the same during this time, and the husband was willing to stipulate, on the occasions of the separation and the divorce, that the mother was a proper custodian for the children. The only change in the circumstances of these parties has been the marriage of the husband to his paramour, and his purchase of a house.

We think that this record shows that the mother has proven that she can care for her children properly, despite difficulties caused by her working conditions. We do not believe that the father has furnished “convincing evidence that the greater advantage of the child will be served” by granting him custody.

The judgment appealed from is therefore reversed, and there will be judgment in favor of Sandra Hays and against James 0. Hays, dismissing the custody rule, at his cost.

REVERSED AND RENDERED.


text:
    CAPITAL BANK & TRUST COMPANY OF BATON ROUGE v. Maurice J. PRIMEAUX, Jr., Individually, and as head and master of the community of acquets and gains existing between Maurice J. Primeaux, Jr. and Mary Josephine Buquoi Primeaux and Mary Josephine Buquoi Primeaux, Individually.
    No. 12432.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    A. Clay Pierce, Jr., Baton Rouge, for appellant.
    Gerard E. Kiefer, Baton Rouge, for ap-pellee!
   ON MOTION TO DISMISS

Before ELLIS, BLANCHE and LOT-TINGER, JJ.

LOTTINGER, Judge.

This is a suit by Capital Bank & Trust Company of Baton Rouge against Maurice J. Primeaux, Jr., individually, and as head and master of the community of acquets and gains existing between Maurice J. Pri-meaux, Jr. and Mary Josephine Buquoi Pri-meaux and Mary Josephine Buquoi Pri-meaux, individually, for debts allegedly owed the plaintiff by the defendants.

Suit was filed on August 28, 1978, and judgment was rendered on August 29,1978, “in favor of petitioner, Capital Bank & Trust Company of Baton Rouge, and against defendants, Maurice J. Primeaux, Jr., individually and as head and master of the community of acquets and gainst [sic] formerly existing between the said Maurice J. Primeaux, Jr. and Mary Josephine Bu-quoi Primeaux,” pursuant to a consent to judgment executed on August 25, 1978, by the defendant, Maurice J. Primeaux, Jr., individually and as head and master of the community of acquets and gains formerly existing between Maurice J. Primeaux, Jr. and Mary Josephine Buquoi Primeaux. The defendant, Mary Josephine Buquoi Pri-meaux, has suspensively appealed from this judgment.

Plaintiff has moved to dismiss this appeal on the theory that this is a consent judgment, La.C.C.P. art. 2085, and that appellant does not have an individual right to appeal a judgment against her former husband, nor does she have a right to appeal the judgment rendered against the former community of acquets and gains.

Appellant disputes the amount of the indebtedness owed the plaintiff. She is a party to this suit and affected by this judgment. La.C.C.P. art. 2082. Even if she had not been made a party defendant, since her interests in the formerly existing community of acquets and gains may be affected by this suit and judgment, she could have intervened, and as such has the right to appeal. La.C.C.P. art. 2086 and Balis v. Mitchell, 48 So.2d 691 (La.App. 1st Cir. 1950).

Therefore, for the above and foregoing reasons the motion to dismiss is denied at appellee’s costs.

MOTION DENIED.

      . By judgment dated June 14, 1978, Maurice J. Primeaux, Jr. and Mary Josephine Buquoi Pri-meaux were divorced in a suit entitled “Maurice J. Primeaux, Jr. versus Mary Josephine Buquoi Primeaux,” Number 42,094 on the docket of the Family Court, in and for the Parish of East Baton Rouge, Louisiana.


author: EDWARDS, Judge.

text:
    E. C. CHAPPELLE, Jr. v. The GREATER BATON ROUGE AIRPORT DISTRICT, et al.
    No. 10621.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Herschel C. Adcock, Baton Rouge, for appellant.
    Joseph F. Keogh, City Parish Atty., and Edward J. Fetzer, Asst. City Parish Atty., Baton Rouge, for appellees.
    Before SARTAIN, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

On October 10, 1978, the Louisiana Supreme Court remanded this case to us for a reconsideration of the court costs issue in light of their holding in Segura v. Louisiana Architects Selection Board, 362 So.2d 498 (La.1978). Chappelle v. Greater Baton Rouge Airport District, 363 So.2d 909 (La. 1978).

In Segura, supra, the Supreme Court held that Article 12, Section 10(A) of the Constitution of 1974, which declared that the State shall not be immune “from suit and liability in contract or for injury to person or property”, superseded the exemption from payment of costs granted the State by LSA-R.S. 13:4521.

This same issue is presented in the instant case. Chappelle, therefore, is entitled to a judgment for the costs advanced and incurred in the state as well as the federal courts.

We do not view the Supreme Court’s writ as mandating that we change the views expressed in our opinion of March 20, 1978 on the other issues presented and in particular with regard to the issue of damages.

For the above reasons, this matter is remanded to the district court for (1) the purpose of issuing the appropriate injunction directed to the members of the Parish Council of the Parish of East Baton Rouge ordering and directing them to appoint E. C. Chappelle, Jr. to the first available position on the Board of Commissioners of the Greater Baton Rouge Airport District, and (2) for a determination and assessment of the costs advanced by Chappelle in both the state and federal courts.

REVERSED AND REMANDED.


text:
    Edward DALBY (Amended 9-14-77) Eula Mae Guidry Dalby, Plaintiff and Appellant, v. UNITED STATES FIDELITY & GUARANTY CO. and Aetna Life and Casualty Insurance Company (Amended 9-4-77—Eastman Central, a division of U. S. Brass Corp. and the Travelers Insurance Co.) Defendants, Eastman Central D., Travelers Insurance Co., the City of Morgan City and United States Fidelity & Guaranty Co., Appellees.
    No. 12265.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      Roy A. Maughan, Baton Rouge, for plaintiff and appellant.
    Michael J. McNulty, III, Bauer, Darnall, McNulty & Boudreaux, Franklin, for USF & G and City of Morgan City.
    Wendell H. Gauthier, Gauthier & Murphy, Kenner, for Aetna Cas. & Sur. Ins. Co. and Jordan’s Electrical Supplies, Inc.
    Jerry A. Oubre, Caffery, Duhe, Oubre & Gibbens, New Iberia, for Eastman Central & Travelers Ins. Co.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Plaintiffs, Edward Dalby and Eula Mae Guidry Dalby, appeal a judgment of the trial court which sustained exceptions of “no right and no cause of action” to the claim of Edward Dalby, sustained an exception of prescription to the claim of Eula Mae Guidry Dalby, and dismissed plaintiffs’ suit.

On June 1, 1976, Edward Dalby filed this suit, alleging that he had sustained property damage and loss of business revenue as a result of a natural gas explosion at the Jordan Electric Company on January 11, 1976. The damage sustained included damage to a 1968 Sapphire Mobile Home, loss of rent from the mobile home, property damage to the business known as the “Star Bar”, and loss of profits from the business.

On September 14, 1977, more than one year after the date of the explosion, Eula Mae Guidry Dalby filed a motion and obtained an order to be substituted as party plaintiff, contending that she had acquired from Edward Dalby, by virtue of a written property settlement, all of his interest in the claim for damages in the instant suit. An amended petition, filed the same day, listed the plaintiffs as “Edward Dalby and/or Eula Mae Guidry Dalby, and Peggy Guillory,” but did not state in what capacity each was proceeding. Hence, Eula Mae Guidry Dalby could be asserting a right of action on her own behalf as well as one based on an assignment from Dalby.

The deposition of Eula Mae Guidry Dalby was taken on August 30, 1977, and is contained in the record. In this deposition, Eula Mae Guidry Dalby testified that she was already married to Elgee McGee, from whom she had not been divorced, at the time she married Dalby. She further testified that both she and Dalby were, at all times, aware of the fact that she was still married to McGee. She stated that she was still married to McGee at the time of the explosion. Regarding the items damaged by the explosion, she testified that both the mobile home and the business (the Star Bar) had been acquired by her prior to her marriage to Dalby, and that Dalby had no interest in either the mobile home or the business.

Based on this testimony, the defendants filed peremptory exceptions raising the objections of no cause of action, no right of action and prescription. The first two objections were raised against the claim of Edward Dalby contending that he did not own or have an interest in the damaged property. The third objection was urged against the claim asserted by Eula Mae Guidry Dalby on her own behalf because this claim was not filed within one year of the date of the explosion.

Plaintiffs argue that the trial court erred in sustaining these exceptions and dismissing their suit.

No Cause of Action

The petition filed in this suit clearly states a cause of action under LSA-C.C. art. 2315. It is equally clear that the defendants are not seriously attacking the existence of a grievance for which the law affords a remedy (no cause of action), rather they are questioning the plaintiffs’ interest in the subject matter of the litigation (no right of action). The objection of no cause of action, therefore, should have been overruled.

No Right of Action

The record indicates that Eula Mae Gui-dry Dalby, rather than Edward Dalby, owned the mobile home and business damaged by the explosion, and therefore she was the proper party plaintiff. Nonetheless, plaintiffs contend that Edward Dalby had an interest in the subject matter of this litigation by virtue of: 1) the existence of a putative community property regime with Eula Mae Guidry Dalby; or 2) the existence of a partnership or joint venture with Eula Mae Guidry Dalby as a result of living together for seven (7) years.

The unrefuted evidence in the record discloses an absence of good faith on the parts of both Edward Dalby and Eula Mae Guidry Dalby in the bigamous marriage. Edward Dalby was aware of the fact that Eula Mae Guidry Dalby was married to Elgee McGee, and that this marriage had not been terminated by divorce or death. Consequently, the bigamous marriage produced no civil effects in favor of either party. LSA-C.C. arts. 117 and 118. No putative community property regime was established. Tucker v. Joseph, 292 So.2d 357 (La.App.1st Cir. 1974).

Concerning plaintiffs’ second contention, we find, assuming arguendo the existence of a partnership or joint venture (a fact which was not proved and which we need not reach), that Edward Dalby would still not possess a right of action to bring this suit.

In Louisiana the partnership (a joint venture is governed by the same rules and principles applicable to partnerships, see Villarrubia v. Roy, 162 So.2d 86 (La.App.4th Cir. 1964) and cases cited therein) is the proper party plaintiff to maintain an action for damage to partnership property. LSA-C.C.P. art. 688. A suit on such a claim brought individually in the name of a partner fails to disclose a right of action or interest in the plaintiff to institute the suit. Bradley v. Lemoine, 278 So.2d 148 (La. App.1st Cir. 1973), and Apex Sales Co., Inc. v. Abraham, 201 So.2d 184 (La.App.4th Cir. 1967).

We find that the trial court correctly sustained the exception of no right of action to the claim of Edward Dalby.

Prescription

Plaintiffs rely on two contentions to show that the trial court erred in sustaining the exception of prescription to the claim of Eula Mae Guidry Dalby.

First, plaintiffs argue that the trial judge did not properly rule on the exception of prescription (despite the written judgment to the contrary) because the court’s extract of minutes do not reflect any disposition of the exception of prescription. Plaintiffs cite no authority in support of this position.

Our examination of the judgment shows affirmatively that the trial judge sustained the exception of prescription to the claim of Eula Mae Guidry Dalby. Such a fact, apparent on the face of a signed judgment, must prevail over a minute entry. See National Surety Co. v. Crescent City Mfg. Co., 12 Orleans App. 255 (1915).

Second, plaintiffs argue that the original petition filed by Edward Dalby interrupted prescription in favor of the claim asserted by Eula Mae Guidry Dalby in the amended petition filed more than a year after the explosion. We agree.

Our Supreme Court stated in Nini v. Sanford Brothers, Inc., 276 So.2d 262 at pp. 264-265 (La.1973):

“In Louisiana, the essence of interruption of prescription by suit has been notice to the defendant of the legal proceeding based on the claim involved.” (footnote omitted).
Additionally, LSA-R.S. 9:5801 provides: “All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.” (emphasis supplied).

This Court in Nettles v. Great American Insurance Company, 155 So.2d 87 (La. App.1st Cir. 1963), writ refused, 244 La. 1024, 156 So.2d 227 (1963), was confronted with this same issue and, after reviewing the pertinent cases dealing with interruption of prescription, concluded that a petition, which sets forth a valid cause of action, filed timely by a plaintiff who had no right of action, nevertheless, interrupted the running of the one year prescriptive period in favor of the proper party plaintiff.

Such is the situation in this instance. We find that every element essential for a legal interruption is present in this case: the petition states a cause of action; it is filed in a court of competent jurisdiction and venue; and it informs the defendants that judicial demand is made for damages in tort arising out of a specific incident. Nini, supra. Accordingly, the original petition interrupted prescription in favor of the later claim asserted by Eula Mae Guidry Dal-by in the amended petition.

For the above reasons, the judgment of the trial court is affirmed insofar as it sustained the exception of no right of action to the claim of Edward Dalby, reversed insofar as it sustained the exception of no cause of action, reversed insofar as it sustained the exception of prescription to the claim of Eula Mae Guidry Dalby, and remanded for further proceedings as to the claim of Eula Mae Guidry Dalby. Costs to await a final disposition of the case.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . The claim of Peggy Guillory is not involved in this appeal and is not before us.

      . Defendants also filed motions for summary judgment and/or to strike substitution of party plaintiff. The trial court did not rule on either of these motions. Accordingly, we do not address appellants’, apparently erroneous, fourth specification of error which complains that the trial court granted these motions.

      . For a discussion of the distinction between no cause of action and no right of action, and the “mongrelization” of the two concepts see Bamher Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App.lst Cir. 1977).


author: CHIASSON, Judge.

text:
    Spencer G. WALL, Appellant, v. COMMUNITY IMPROVEMENT AGENCY, Appellee.
    No. 12272.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      Kermit Frymire, New Orleans, for appellant.
    William H. Forman, Jr., New Orleans, for appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

This is an appeal by Spencer G. Wall (Wall) from an opinion of the State Civil Service Commission (Commission) which affirmed his unsatisfactory service rating and his discharge from the Community Improvement Agency of the City of New Orleans (Agency) as a rehabilitation counselor.

Wall was given an unsatisfactory service rating by the Agency for the period ending March 31, 1977. The reasons assigned for this rating were:

“1. On January 20, 1977, you were scheduled for an inspection appointment at the residence of Mrs. Emma Smith, 2234 Valence Street and you did not keep the appointment.
“2. On January 28, 1977, you were scheduled for an inspection appointment at the residence of Mrs. Pearl Carter, 2409-11 Upperline and you did not keep the appointment.
“3. On February 18, 1977, you were scheduled for an inspection appointment at the residence of Mrs. Carrie M. Williamson, 1611 Delachaise Street and you did not keep the appointment.
“4. On February 19, 1977, you signed out of the office at 9:30 a. m. to go to the main office to review the time sheets and to 1611 Delachaise Street. You did not return to the office until 4:00 p. m.
When questioned by me about your not keeping the appointment you denied that you did not keep the appointment. You were then ordered to produce the inspection report to prove that you kept the appointment. You produced the attached memorandum. Item I
You later changed your story as shown on the attached weekly report to going to the wrong house. Item II
“5. On February 21, 1977, you were scheduled for a 10:30 a. m. inspection at the residence of Mrs. Vera Anderson, 2521-2lV2-23-23y2 Eagle Street and you arrived at 11:40 a. m. You did not complete the inspection on this date and arranged with the property owner to return on February 23, 1977 to complete the inspection. You did not keep the appointment nor did you call the property owner to advise that you were unable to keep the appointment.
On February 24, 1977, the property owner came into the office and advised Bobby Ellsworth that you had not kept your appointment with her. You were called into Bobby Ells-worth’s office and after some discussion the appointment was rescheduled by you for Friday, February 25, 1977. After returning to your desk you came back into Bobby Ells-worth’s office and changed the appointment to Monday, February 28, 1977, at 9:30 a. m.
On Monday, February 28, 1977, Mrs. Anderson called at approximately 10:40 a. m. and advised me that you did not keep your appointment.
“6. Low Work Production
You have been assigned 23 regular inspections, and 6 section 8 inspections for the period January 5, 1977 through February 28, 1977. Your record shows 5 completions, 12 in-completions, 3 failures to keep appointments, 3 owners refused inspections.”

On April 26, 1977, Wall appealed this rating to the Commission (State Civil Service Commission, Docket No. 1671).

Wall was discharged by letter dated April 15, 1977, effective as of that date. The following reasons were given for the discharge:

“1. Unsatisfactory service rating, dated March 31,1975, which has been sustained by the Louisiana State Civil Service Commission and the Louisiana State Court of Appeal for the First Circuit.
“2. Unsatisfactory service rating, dated March 30, 1977, which was based on the following:
(a) On February 18, 1977, you were scheduled for an inspection appointment at the residence of Mrs. Carrie M. Williamson, 1611 Delachaise Street. You did not return to the office until 4:00 p. m.
When questioned by your supervisor, Jesse A. Dupart, about your not keeping the appointment you denied that you did not keep the appointment. You were then ordered to produce the inspection report to prove that you kept the appointment. You produced the attached memorandum — see attachment 1. You later stated on the attached weekly report that you went to the wrong house, thereby changing your story — see attachment 2.
(b) On February 21, 1977, you were scheduled for a 10:30 a. m. inspection at the residence of Mrs. Vera Anderson, 2521-211/2-23-231/2 Eagle Street and you arrived at 11:40 a. m. You did not complete the inspection on this date and instead agreed with Mrs. Anderson to return on February 23,1977, to complete the inspection. You did not keep the appointment nor did you call her to advise her that you were unable to keep the appointment.
On February 24,1977, Mrs. Anderson came into the office and advised Bobby L. Ellsworth that you had not kept your appointment with her. You were called into Mr. Ellsworth’s office and after some discussion the appointment was rescheduled by you for Friday, February 25, 1977. After returning to your desk you came back into Mr. Ells-worth’s office and changed the appointment to Monday, February 28, 1977, at 9:30 a. m.
On Monday, February 28, 1977, Mrs. Anderson called at approximately 10:40 a. m. and advised Mr. Dupart that you did not keep your appointment.
“8. From April 13-15, 1977, you have been absent from duty without approved leave.”

On May 12, 1977, Wall appealed the discharge to the Commission (State Civil Service Commission, Docket No. 1679). The Commission consolidated the appeals and referred them to a referee for the taking of evidence. A hearing was held on November 2, 1977 and the transcript was submitted to the Commission for disposition. On April 10, 1978, the Commission found the evidence supported the disciplinary action taken and denied the appeals.

The decision of the Commission reads in pertinent part as follows:

“The Commission does not deem the unsatisfactory service rating of 1975 to be a ground for appellant’s discharge. Not only had more than two (2) years intervened since the rendition of that report, but apparently appellant had ameliorated that situation by receiving, between the 1975 and 1977 unsatisfactory reports, a satisfactory one. Nonetheless, it is appropriate for the appointing authority to make reference to this prior report as a matter of historical fact.
“With regard to the matter contained in the unsatisfactory service rating of 1977, and the derelictions of duty which are recited therein, there was ample evidence at the hearing to make proof of the facts. Appellant’s shortcomings demonstrated by these recitations were sufficient to justify the action taken by the appointing authority. Appellant’s explanation for his absence from his post of duty from April 13 through 15 was that he was ill, but he did not establish as a fact that he was not physically able to notify his superiors of this illness, nor did he establish it with satisfactory evidence.”

In reviewing the record we find that the record contains no evidence as to items 1, 2 and 6 of the unsatisfactory service rating of March 30, 1977. Therefore, the Commission erred in its holding that there was ample evidence to support these items. We find there were no findings of fact as to these items nor was any ruling made as to whether or not these three items were considered as part of the reasons for affirming the unsatisfactory service rating.

As to items 3, 4 and 5 of the unsatisfactory service rating and items 2(a) and (b) of the discharge, we find that there are no findings of fact as to these items by the Commission. The Commission’s statement that “there was ample evidence at the hearing to make proof of the facts” without identifying the facts is a conclusion on its part, and not a finding of fact as contemplated by its own rules.

The Louisiana Constitution of 1974, Article 10 § 10(A)(1) grants broad and general rule making powers to civil service commissions; and La.Const. Art. 10 § 10(A)(4) mandates that such rules shall have the effect of law.

Civil Service Rule 13.28(a) provides:

“After hearing of an appeal, the Commission shall make a written decision containing its findings of facts and conclusions, which shall be filed with the Director. The decision of the Commission shall be final on the day that it is filed with the Director.” (Emphasis supplied).

As to item number 1 of the discharge letter we affirm the Commission’s holding that the 1975 unsatisfactory service rating cannot be used as a ground for appellant’s discharge. The record reveals that between the 1975 and 1977 unsatisfactory service ratings, appellant received two satisfactory service ratings.

Item number 3 of the discharge letter requires the Agency to prove that appellant was absent from work without leave. The testimony indicates: 1) that the Agency made a prima facie case as to this item, 2) that Wall had a defense of illness [medical appointments], 3) that it was the customary procedure of the Agency for an employee to call in to notify the Agency of illness, and 4) that the Agency could almost not refuse an employee time off for a medical appointment. This testimony would establish a valid excuse for appellant’s absence and would shift the burden of proof to the Agency to prove that its employees are required to return to work after a medical appointment or advise the Agency that they are not returning to work that day if they are physically able to do so.

It is incumbent on the Commission to determine from the evidence whether or not the burden of proof has been carried by the Agency. Louisiana Constitution of 1974, Article 10 § 8.

For the reasons stated above, we are of the opinion that the interest of justice would best be served by remanding the ease to the Commission for a full consideration of the legal and factual issues presented by the record and a determination of findings of fact and conclusions thereon. No new hearing is required, unless in the discretion of the Commission, it would like to hear additional evidence.

The case is therefore remanded to the Commission for further consideration in accordance with this opinion and in accordance with law. Taxing of all costs will await the final determination of the matter on the merits.

REMANDED.


text:
    John FULFORD v. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.
    No. 12273.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    John Fulford, in pro. per.
    William J. Guste, Jr., Atty. Gen., Richard Rudolph, Staff Atty., Baton Rouge, counsel for defendant-appellee, C. Paul Phelps et al.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

John Fulford, appellant, on August 1, 1977 filed suit against C. Paul Phelps, Secretary, Louisiana Department of Corrections (Department) asking that he be released from Close Cell Restriction (CCR) where he has been confined since June of 1976. Appellant was already confined in CCR when he was brought before a disciplinary board for a rule violation on June 21, 1976, which related to an escape plan that Fulford was alleged to be involved in. The information concerning the alleged escape plan was received from both inmate informers and a report by an FBI agent.

The disciplinary board’s decision of July 9, 1976 states that, “The Board took no punitive action' on the report except to send him back to his quarters which he now has.” Fulford appealed the disciplinary board’s decision to the Secretary of the Department of Corrections. On September 27, 1976, C. Paul Phelps, Secretary, granted the appeal in part, requiring that Fulford be given a new incident report and that a new hearing be held within ten days.

A new disciplinary board hearing on Ful-ford’s case was held and on October 8,1976, Fulford was sentenced to CCR by the disciplinary board. Fulford again appealed to the Secretary who denied the appeal on December 31, 1976.

Fulford, by his suit dated August 1, 1977, sought a judicial review of all of these proceedings and specifically asserts that he is being confined in CCR on an anonymous inmate informer’s word and an unverified FBI agent’s report.

The case was tried on December 6, 1977 and on December 21, 1977 the trial court ruled in Fulford’s favor and ordered that he be transferred from CCR to the general population of Louisiana State Penitentiary. However, on December 21, 1977 the trial court granted the appellee’s (Department’s) motion for new trial.

On January 16,1978 a new trial was held. On February 8, 1978 the trial court gave written reasons for judgment and on April 17, 1978 the trial court signed a judgment dismissing Fulford’s suit. The trial court denied two motions by Fulford for a new trial, one on March 8,1978 and the other on April 17,1978. From the judgment dismissing his suit, Fulford has taken a devolutive appeal.

The Louisiana Supreme Court in its recent decision of October 10, 1978, In Re: Armistead, Jr. v. Phelps, Secretary, Department of Corrections, 365 So.2d 468, clarified the proper procedure and the standard of review for applications for review of administrative proceedings held under the Louisiana Department of Corrections’ “Adult Rules, Regulations and Disciplinary Procedures” (January, 1977).

The correct procedure, as specified in the Armistead case, has been substantially complied with in the instant case.

We adopt as our own the finding of facts and reasons for judgment of the trial court, as follows:

“John Fulford, inmate at Louisiana State Penitentiary, seeks his release from Close Cell Restriction (CCR) at Angola, where he has been confined since June of 1976. “The facts indicate that Fulford was placed in CCR following information received from inmate informers that Ful-ford and others were involved in an escape plot. This information was verified by Mr. Phil Petley, an FBI agent, who contacted prison officials and apparently described in detail the alleged escape plot. Fulford complains that he continues to be held in CCR solely on an anonymous inmate informer’s word. Defendant says that the inmate informer’s word is only a small part of the reason Fulford remains in CCR.
“Department of Corrections administrative procedures are involved in this case. Fulford’s case is reviewed every ninety days; however, it has not been recommended that he be returned to the general prison population. The prison officials obviously are taking into consideration many factors. Fulford’s prison record indicates that he had a prior history of escape from the Florida State Penitentiary. The record further indicates that on numerous occasions Fulford has been caught with various amounts, sometimes substantial, of contraband cash.
“All prison officials testified that they still feel Fulford is a serious escape risk. “Close Cell Restriction is not necessarily punitive segregation. It is maximum security detention. Plaintiff is treated the same as all others confined to CCR in the same category. He receives one hour per day away from his cell to exercise and attend to his hygiene and other personal needs.
“The law in this area is quite clear. Absent a violation of some constitutional right of equal protection or due process, the courts may not interfere in a Department of Correction’s classification procedures. Prison authorities are and should be responsible for maintaining internal order and discipline and securing their institutions against escape. These administrators must have a great deal of discretion in accomplishing their purpose within constitutionally refined parameters. Fulford’s detention in CCR does not violate any of his constitutional rights. His record, both criminal and penitentiary, together with repeated instances of possession of contraband cash, and the information that the penal authorities received relative to the alleged escape plan clearly indicate to this court that no violation of administrative discretion is involved in this matter and plaintiff’s suit is dismissed.”

The appellant also complains that the trial court erred in denying his motions for a new trial. Finding no abuse of discretion by the trial court, the denial of a new trial on discretionary grounds is affirmed. See C.C.P. art. 1973 and City of Baton Rouge v. Downtown Investment Corp., 290 So.2d 748 (La.App. 1st Cir. 1974).

Appellant also urged a peremptory ground for a new trial. Appellant contended that he had discovered, since trial, new evidence which he could not, with due diligence, have obtained before or during trial. Considering the length of time this case has been pending and the nature of the new evidence, we hold that appellant has failed to make the requisite showing of vigilance in obtaining the new evidence.

For these reason, the trial court’s decision is affirmed.

AFFIRMED.


author: SARTAIN, Judge.

text:
    CODESCO, INC. v. COLLECTOR OF REVENUE.
    No. 12276.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      Robert L. Roland, Baton Rouge, for plaintiff-appellee Codesco, Inc.
    Edwin M. Callaway, Baton Rouge, for defendant-appellant Collector of Revenue.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

The Collector of Revenue, presently known as the Secretary of the Department of Revenue and Taxation (Collector), appeals from a judgment of the district court sustaining a decision of the Louisiana Board of Tax Appeals (Board) which vacated the assessment of an occupational license tax imposed on Codesco, Inc. (Codesco) for the years 1973-1976.

The tax was levied against Codesco under the provisions of R.S. 47:341 and 353, which provide, in pertinent part, as follows:

“§ 341. Imposition of tax
In addition to all other license and excise taxes imposed in other chapters of this Title or in other laws, there is hereby levied an annual license tax upon each person pursuing any trade, profession, vocation, calling or business in this state . . . ”
“§ 353. Retail dealers; restaurants; operators of coin vending and weighing machines
For every business of selling merchandise, ... at retail; . whether the business be conducted as principal, agent on commission or otherwise, the license shall be based on the gross sales . . . ”

The above statutes are to be considered in connection with the provisions of R.S. 47:396(E) which reads as follows:

“E. Manufacturers. Manufacturers shall be exempted from any provisions of this chapter, provided that manufacturers who sell their manufactured articles at retail shall be subject to the payment of a license tax on such retail sales as fixed by this chapter.”

The issue presented turns on the question of whether any portion of Codesco’s business involves sales at retail. The Board and the district judge found that none did and we agree.

According to the uncontradicated evidence presented to the Board, Codesco is a dental laboratory which manufactures dental plates, bridges, and other similar products. All of its work is done for dentists who provide the laboratory with precise measurements and specifications so that the devices they order will fit the needs of particular patients whom they have previously examined and measured. After Co-desco has filled an order and delivered its product to the dentist, the dentist places the device in the mouth of the patient and does what is necessary to secure it. The dentist does very little to alter the product before passing it on to the patient for whom it was designed. Usually all the dentist must do is cement the device in place after checking to see that the fit is proper. Any major modification is done by the laboratory.

There is no definition of “retail sale” in the occupational license tax statute. The Collector of Revenue urges us to follow the definition found at R.S. 47:301(10) but this definition is found in the sales tax statute and its applicability is expressly limited to that chapter.

Our Civil Code on the subject of the interpretation of law states:

“Art. 14. The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.” “Art. 17. Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.”

The commonly accepted meaning of “retail” is the selling of commodities or goods in small quantities to ultimate consumers. See Webster’s Third World International Dictionary. The occupational license tax chapter defines “wholesale dealer” as “any person who sells to other dealers who in turn resell.” Since laws in pari materia are to be construed together, we might find some guidance from this definition, especially as it is used to distinguish wholesale dealers from retail dealers for purposes of the occupational license tax.

In the case of American Creosote Works, Inc. v. Collector of Revenue, 101 So.2d 245 (La.App.Or1.Cir.1958), writ denied April 21, 1958, the issue was the same as that with which we are now faced. That court, at p. 248, adopted the definition of “retail sale” formulated by the trial court: “any sale by one regularly engaged in the business of selling to customers who buy for their consumption or use, and not for resale to others.”

From the above definitions, it is clear that the classification of Codesco’s sales depends upon the character of the disposition of the dental device made by the dentist who buys it — is the purchasing dentist a consumer or does he buy as a dealer for reconveyance to his patients?

The Collector urges that our decision on this matter is dictated by State v. J. Watts Kearny & Sons, 181 La. 554, 160 So. 77 (1934) and' American Creosote Works, Inc. v. Collector of Revenue, supra, two cases holding that sales by suppliers of building materials to construction contractors are retail sales. In these cases the businesses involved construction material sold in large quantity to building contractors and government agencies. The issue before the courts was whether these sales were at retail within the meaning of the occupational license tax statute. The determination that these were retail sales was based on the finding that the purchasing building contractors were consumers of building materials rather than dealers.

“A contractor who buys building material is not one who buys and sells — a trader. He is not a ‘dealer,’ or one who habitually and constantly, as a business, deals in and sells any given commodity. He does not sell lime and cement and nails and lumber. His undertaking is to deliver to his obligee some work or edifice or structure, the construction of which requires the application of skill and labor to these materials so that, when he finishes his task, the materials purchased are no longer to be distinguished, but something different has been wrought from their use and union. The contractor has not resold but has consumed the materials. Sales to contractors are sales to consumers, * * State v. J. Watts Kearny & Sons, supra at 78-9.

Also see State v. Owin, 191 La. 617, 186 So. 46 (1938).

We distinguish the above cases on their facts. Unlike building contractors, dentists who purchase Codesco’s products do not significantly modify the devices before passing them on to their patients. The dentist in no way consumes the dental plate or bridge before conveying it. He simply installs it with a little cement or wire. While it might seem strange to think of a dentist as a dealer in dental devices, one should remember that the public can secure such products only through dentists.

Accordingly, for the above reasons, the judgment of the district court is affirmed. All such costs as are permitted by law are assessed against the appellant — the Department of Revenue and Taxation.

AFFIRMED.

      . “§ 301. Definitions
      As used in this Chapter the following words, terms, and phrases have the meaning ascribed to them in this Section, except where the context clearly indicates a different meaning: * * *
      (10) ‘Retail sale,’ or ‘sale at retail,’ means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property . . ” (Emphasis ours)