author: PONDER, Judge.

text:
    EAST PARKER PROPERTIES, INC. v. PELICAN REALTY CO. et al.
    No. 10761.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied July 21, 1976.
    Writ Refused Oct. 27, 1976.

      E. Drew McKinnis and Martin C. Schroeder, Jr., Baton Rouge, for appellants.
    Donald S. Zuber and John W. L. Swan-ner, Baton Rouge, for plaintiff-appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff-appellee, East Parker Properties, Inc., (Parker) filed this suit for declaratory judgment against the original developer, Pelican Realty Company, and the Owners of lots in College Town Subdivision located in Baton Rouge, Louisiana, to have certain restrictions declared abandoned, so as to allow construction of an apartment complex on Lots 1 through 9 of Square 7 of that subdivision. Same of the defendants reconvened, averring: that Lot 3 of Square 7 was a servient estate owing a servitude of passage or other “real rights” to a cemetery and a park, both adjacent thereto; that the judgment in Suit No. 105,944 on the docket of the 19th Judicial District Court for the Parish of East Baton Rouge, entitled John S. Garrett and Thomas H. Garrett v. Pelican Realty, et al, “directing that recorded building restrictions in College Town Subdivision . . . shall not prohibit or prevent . . . construction] [of] multiple apartment buildings on Lots 6, 7, 8 and 9 of Square 7,” should be declared null because not all owners in the subdivision were joined as defendants; and.that all restrictions of College Town are still effective, not having been abandoned.

After trial, the judge below rendered judgment “in favor of plaintiff and defendant-in-reconvention, East Parker Properties, Inc. and against the defendants and plaintiffs-in-reconvention . . . decreeing that the building restrictions in College Town Subdivision have been waived and are null and void, insofar as they would prohibit the construction of apartment houses on Lots 1, 2, 3, 4, 5, 6, 7, 8, 9 of Square 7 . and further that the building restrictions ... as they relate to sideline restrictions, multi-residential use of lots, front and rear setback lines, building lines, garage location restrictions, and any and all other building restrictions are null, void, invalid and not applicable to Lots 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Square 7 . . .” and that the reconventional demand of the various plaintiffs-in-recon-vention be dismissed.

Some of the defendants and plaintiffs-in-reconvention have timely appealed the judgment of the lower court.

The developer obligated itself to put the following restrictions in all acts of sale:

“(1) The building line of the lot herein described is hereby fixed and shall not be less than thirty (30) feet back from and parallel with the front line of said lot, and no building of any kind shall ever be built nearer to the front of said lot than said thirty (30) feet building line, and no residence or garage shall be placed nearer than fifteen (15) feet to either side line of said lot, and no owner shall ever erect more than one residence on any one lot . . ., provided that when the same person . . . is the owner of more than a whole lot, he . may treat the whole property ... as one lot, and buil[d] accordingly, provided that under no circumstance shall more than one residence be built on any lot or piece of ground less than seventy (70) feet in width; and provided further that the front of no garage when built separate from a residence shall be more than forty (40) feet from the rear line of said lot.
“(2) [The owner shall not] ever use or permit the use of any house or houses erected on said lot or lots . . . either directly or indirectly for business purposes of any description, except Square 1, it being understood that the above described lot or lots are for residential purposes only.
“(3) That the above described lot or lots shall never be transferred by sale or donation or otherwise, or leased, to any negro or colored person or any negro or colored person permitted to occupy the same, except as servants and their immediate families domestic to any white family occupying same.”

College Town, in slightly over fifty years, developed into a quaint subdivision, reflecting considerable architectural variety. Most of the 196 lots in the subdivision have been beautifully landscaped with emphasis on flowering plants, such as camellias and azaleas. Many of the residents have recently expended large sums of money refurbishing their homes. One home was recently featured in “Better Homes and Gardens,” a national well-known magazine. Several large expensive homes have recently been built.

All witnesses testified that College Town is a nice place to live. It is considered a “professional” neighborhood, inhabited by a large number of college professors, doctors and lawyers. Its location next to campus makes it highly desirable and convenient.

ENTRANCE TO CEMETERY AND LOT

The dispute over the entrance to the cemetery and the park arises from a notation on the early maps of a corridor along the side of Lot 3 of Square 7 from University Boulevard (now East Parker Boulevard) to the cemetery and the park, indicated by a dotted line together with the word “Entrance” printed thereon. Any claim to this entrance has been negated by the appropriate authorities. There was no evidence that the “Entrance” was needed or being used in any manner in connection with the park or the cemetery. Both facilities have adequate access otherwise. The claim that the “Entrance” was a part of the cemetery and therefore inalienable is not supported by any evidence other than inference from the notation on the maps. We find that inconclusive. This portion of the reconventional demand should have been denied by the lower court rather than pre-termitted.

THE GARRETT SUIT

On March 24, 1965, John and Thomas Garrett, Parker’s predecessor in title, filed suit to have College Town’s building restrictions declared null “solely insofar as the restrictions affect Lots 6, 7, 8 and 9, of Square 7 . . .,” so as to “permit construction of apartment houses” on these lots. Nellie Mae Coerver, a property owner, was made a defendant. Gerard E. Kiefer, an attorney appointed to represent the non-resident defendants, filed answer for them. Elayn Hunt, who represented a majority of the numerous defendants, also filed an answer on behalf of Nellie Cahill Coerver. However, Mrs. Coerver had died on March 18, 1965, before the suit was filed. On April 20, 1965, Thomas Coerver was made testamentary executor of his mother’s estate. On May 3, 1965, Thomas together with three brothers and four sisters were put into possession of their mother’s estate, including the house at 4448 Oxford Avenue. The judgment in the Garrett suit was signed on November 23, 1965.

Mr. Kiefer testified that since he had the telephone numbers of both Thomas and Michael Coerver in his file he must have talked to them and advised them of the suit. The lower court held that “since the administrator of the estate had actual knowledge of the litigation, the general appearance by Mr. Kiefer completely cured any irregularities in service or citations.” We disagree.

Foregoing any questions as to the scope of Mr. Kiefer’s authority to represent the succession and the sufficiency of the proof of communication with Thomas and Michael Coerver, we find the representation ineffective. Actual knowledge of the pendency of suit does not obviate the necessity of citation and service of process. Mrs. Coerver was deceased at the time of the filing of suit; her succession was never made a party; the eight heirs had been put into possession shortly after Mr. Kiefer on April 27, 1965, filed an answer for the “absent defendants” and before the filing of answer by Miss Hunt on June 18, 1965, and months before the signing of the judgment on November 23, 1965. A judgment against a deceased person is a nullity. Gulfco Finance of Livingston, Inc. v. Lee, 224 So.2d 524 (La.App. 1st Cir.1969). Since neither the administrator, Thomas Coerver, nor any of the heirs, who were the actual owners of the College Town property at the time the Garrett judgment was signed, was served with process and none of them made a general appearance, they are now entitled to judgment decreeing the nullity of the Garrett judgment as it affects them. See C.C.P. Art. 2002.

RESTRICTIONS

Generally, the courts will enforce building restrictions imposed upon land according to the intent of the subdividers, provided they not be against public policy and not be abandoned.

It is not every violation that will lead to abandonment. We must look to the intention of those imposing and those seeking to continue the building restrictions. Insubstantial, technical or infrequent violations, not subversive of the general plan or scheme, are to be given little effect.

In deciding whether or not restrictions have been abandoned, we must first decide what the subdividers intended the plan and scheme of the subdivision to be; then we must inquire into each alleged violation to determine whether the intended plan and scheme are disrupted. It is our conclusion that the restrictions in this case taken as a whole evidence an intent to allow only one family per lot.

Whether there has been acqui-esence in violations of subdivision restrictions sufficient to defeat enforcement of the restrictions depends upon the circumstances of each case, including particularly the character, materiality and number of the violations and their proximity to the objecting residents. Guyton v. Yancey, 240 La. 794, 125 So.2d 365 (1960). Generally, where there have been frequent and substantial violations of the restrictions without objection, the restrictions are regarded as having been abandoned. Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (1941). However, for this rule to be applicable, the property owner against whom abandonment is asserted, must have known of the alleged violations or have had a duty to know. Also, there is no abandonment of subdivision restrictions unless violations have been such that there has been a subversion of the original scheme of the subdividers, resulting in a substantial change in the intended nature of the subdivision. Guyton, supra; Marquess v. Bamburg, La.App., 188 So.2d 721, Adair v. Chrysler, La.App., 212 So.2d 552. See also Plauche v. Albert, La.App., 42 So.2d 876. Melrose Civic Association v. Universal Builders, Inc., 289 So.2d 521 (La.App. 1st Cir. 1973), writ refused, La., 293 So.2d 171 (1974).

The building restriction against the erection of other than a single family residence is modified by the implied approval of living quarters for domestic servants. Since building restrictions are to be interpreted in favor of the unrestricted use of property, we find that the building of apartments for servants was not a violation. Salerno v. DeLucca, 211 La. 659, 30 So.2d 678 (1948). However, reasonably, because of the lapse of time, there was little evidence or any building for use as servants’ quarters. Furthermore, a restriction against the erection of a particular type of building is construed as prohibiting the conversion to that use. Therefore, even if a structure were built for servants’ quarters, a conversion to rental use would result in a violation.

MULTI-FAMILY RESTRICTION

Much of the renting in the subdivision occurred in Square 1, located in the extreme western corner of the subdivision.

The restrictions allow business uses in Square 1. Twelve of the lots there are 37(4 feet by 69 feet in size. The exception as to business use and the illogical effect of the imposition of a 30 foot building setback line and a 15 foot setback line on each side lead us to the conclusion that these restrictions were not intended to be imposed on Square 1. We will therefore disregard any evidence as to “violations” in that square.

Square 2, in the extreme southwest border of the subdivision, containing eighteen lots, was found to have three violations. Lot 1, owned for investment by a corporation, has been used as two apartments, with two street addresses. Its appearance of a single residence, its location at the edge and on Highland Road, and the absence of general knowledge of its use lead the court to believe that the violation is not subversive and has not been acquiesced in. The owner of Lot 4 admitted to renting rooms but not apartments. The house has the appearance of a single family residence. It is doubtful that there is a violation, but if there be one, it is technical and insubstantial. Neighbors testified that the rental was unknown to them prior to the trial. The proof as to violation on Lot 16 was inconclusive, consisting only of the fact, unexplained, that there were two names in the city directory at this address.

Lots 13 and 14 of Square 3 have two city addresses. The' owner testified that his mother-in-law lived in the garage apartment from 1963 to 1974, but that he has never rented it. This violation is technical and insubstantial. Lot 17 evidently was rented out in 1970 and 1971. However, the building appears to be a single family dwelling and only one person testified that he was aware it was being rented. Lot 20 has a violation. Several witnesses testified they knew of the violation; several were unaware. Lot 26 and the SW (4 of Lot 1 has a garage apartment that admittedly has been rented out. Square 3 lies in the southeastern border, fartherest from Square 7, involved in this litigation.

Square 4 contains no alleged multi-family violations.

Lot 8, Square 5, contains a violation.

Lot 7, Square 6 has a duplex apartment, admittedly a violation. Lot 9 has a garage apartment that evidently was last rented in 1955; the present owner testified he was not renting it. There was no evidence as to knowledge thereof being widespread.

Square 7 contains the lots involved in this litigation. There was no evidence of any violations.

The owner of Lot 4, Square 8 testified that he lived in the garage apartment while his home was being built. Thereafter it was rented off and on until May, 1973. Some residents knew of the violation; some did not.

The owner of Lot 3, Square 9, built a garage apartment for her son. After he moved out of the state she rented it off and on. Some residents knew of the violation; some did not. Lot 4 has had multi-family occupancy up to 1963. However, a neighbor testified he did not know of any tenants.

There were no alleged violations in Squares 10, 11, 12, 13 and 14. Squares 15 and 16 now contain College Lake.

Evidently, the owner of Lots 9 and 10, Square 17, rented out rooms as late as 1958 and 1959. As above, if the renting of rooms be a violation, it is technical and not subversive of the plan of the subdivision.

The owner of Lots 1 and 2, Square 18, testified that the garage apartment thereon was intended as servant’s quarters, but when that proved impractical he rented the quarters during the summer when he was away and needed someone to watch his home. The owner of Lot 4 admitted renting an apartment in the remote past. City directories indicate tenant occupancy in 1955 only. The only evidence of tenant occupancy on Lot 8 was a city directory listing in 1954. We find this to be insufficient to prove violation, much less acquiescence.

The only proof of tenant occupancy in Lot 2, Square 19, is a city directory listing in 1954. We find this inadequate proof of violation and acquiescence. The owner of Lots 8 and 9 admitted to a guest house that he occasionally rented out. City directories indicate tenant occupancy in 1959, 1961, 1962, 1966, 1968 and 1971.

We find only two flaggrant, apparent and widely known violations of the multifamily restriction; Lot 8 of Square 5 and Lot 7 of Square 6. The other violations were more technical, less substantial and not widely known. The lack of knowledge, perhaps, can be partly attributed to the beautiful foliage, the general landscaping and the sense of privacy and seclusion that help make up the charms of that subdivision. A number of the violations are on the perimeter of the subdivision.

We have come to the conclusion that there has been insufficient violations of a substantial nature to evidence abandonment of the plan for the subdivision, a subversion of the original scheme of the sub-dividers. Proof of acquiescence was insufficient. College Town for all intents and purposes, remains a single family neighborhood.

BUILDING SETBACK AND SIDELINE RESTRICTIONS

Again we disregard any evidence as to violations in Square 1 since we believe the building setback and sideline restrictions were not intended to apply to Lots 7 though 18.

The trial judge considered numerous instances where garages were within 15 feet of the sideline as indicative of abandonment of the 15 feet sideline restrictions as to houses. We note that the restrictions state that “no residence or garage shall be placed nearer than fifteen (15) feet to either sideline of said lot.” (Emphasis ours) We do not believe that a proven waiver of the prohibition of garages within 15 feet of the sideline necessarily results in a waiver of the prohibition against houses within 15 feet of the sideline because abandonment, or acquiescence, in the violation of one restriction does not amount to the abandonment of other separate and distinct restrictions. 26 C.J.S. Deeds § 169, at p. 1166; Olivier v. Berggren, 136 So.2d 325 (La.App. 4th Cir. 1962).

Furthermore, the different effect to be given to sideline restrictions violated by insubstantial structures such as garages as opposed to houses has been previously noted by this court. In Melrose Civic Association v. Universal Builders, Inc., 289 So.2d 521 (La.App. 1st Cir. 1973) writ refused, La., 293 So.2d 167 (1974), we held that although carports, boat sheds, storage sheds and other structures insubstantial in nature violated sideline restrictions, such violations did not support waiver of the right to prohibit construction of a house in violation of sideline restrictions. We, therefore, likewise find that although the sideline restrictions as to garages may have been abandoned, such abandonment cannot be used to support an allegation that the sideline restriction as to houses has also been abandoned.

One of plaintiff’s witnesses claimed to have personally “stepped off,” “eye-balled,” or measured with the view finder of his camera, numerous setback, rear line and sideline violations. He admitted that in practically all of the alleged violations he “measured,” he either assumed the sidewalk, street pavement, bushes, trees, or fences were the property lines. Because he was not qualified, offered, or accepted by the court as an expert, we are compelled to give most of his “conclusions” and “opinions” very little weight. However, we do note that the pictures offered into evidence in conjunction with his testimony do in fact show several sideline violations in Square 3.

These sideline violations are: Lot 2 (only seven feet from sideline); Lot 4 (only ten feet); Lot 6 (only six feet); Lot 7 (only three feet); and, Lot 20 (only three or four feet) . The testimony of R. L. Breaux, an expert land surveyor also established sideline violations at Lots 10, 11 and 12 of Square 7, ranging from houses being only eight to ten feet from the sideline.

We do not consider these violations so substantial as to warrant declaring the sideline restrictions as to Square 7 null and void, much less as to the entire subdivision. Square 3 is located on the perimeter of the subdivision. The other three sideline violations are insubstantial. They do not indicate a subversion of the original scheme of the subdivision or a substantial change in the neighborhood as required by Guyton, supra.

Parker contends that the photograph exhibits show numerous house setback violations. These alleged violations are: Lot 11 of Square 3, set back only twenty-four feet; Lot 1 of Square 6, only seven feet to sidewalk; Lots 7 and 8 of Square 9, set back only twenty-eight feet; Lots 4 and 5 of Square 17, set back only twenty feet; Lot 5 of Square 19, set back only twenty-two feet. We cannot determine by merely viewing the respective photographs that these lots are in violation of the setback restrictions. Nor can we give weight to the “measurements” with respect thereto.

The witness admitted that most of his measurements were from the hard-surfaced edge of the subdivision’s streets. He did not attempt to find the iron pipes marking the boundaries of the lots or streets. In addition, he actually went on only two of the lots to make accurate measurements. Because of the degree of certainty required in such measurements, because the photographs do not clearly establish violations and because it was admitted that the ¡measurements could be as much as two feet off, we find these alleged setback violations were not proven by a preponderance of the evidence.

Accordingly, we find that the trial judge erred in finding abandonment of the sideline and setback restrictions.

In view of our disposition of the case, we need not discuss appellee’s answer to the appeal praying that the costs be assessed against appellants.

For the above and foregoing reasons there will be judgment herein reversing the lower court and decreeing as follows:

1. That plaintiff’s suit be dismissed.

2. That the building restrictions in College Town are in effect and applicable to Lots 1 through 9, Square 7, College Town Subdivision.

3. That there is no dedication existing on Lot 3, Square 7, College Town subdivision.

4. That the judgment in Suit No. 105,-944, John S. Garrett and Thomas H. Garrett v. Pelican Realty Co., et al is null and void insofar as it applies to the Coerver heirs.

All costs both in this court and in the lower court are to be borne by the plaintiff.

REVERSED AND RENDERED.

      . Pelican Realty Company and the following other defendants in College Town did not appeal the decision of the lower court: Arlene D. Calcóte, Mary Harris, J. E. Clark, Virginia L. Gordon, George Robinson, Inez Robinson, Nancy J. Olive, Gene P. Simard, Sarah S. Simard, Elizabeth J. Carson, A. P. Tug-well, Sr., Xenon, Inc., Walton P. Halphen, Elmer C. Atkinson, Willis D. Morris, Louis E. L. Morris, Willis Dedric Morris, Richard Sanders Morris, Cornelius H. Traweek, Edwin Leland Richardson, Phillip C. Witter, Andrew J. Bullock, Vane Thomas Wilson, James C. Scofield, Nancy B. Scofield, Margaret Henrietta Jackson Carter, Edward B. Robert, L. Clyde Rushworth, Nell E. Rushworth, Marguerite P. Smith, Jessie Mae Gaston Hills, Wade O. Martin, Jr., Florrinell F. Morton, Edwin A. Davis, Tommie Loreece S. Moore, Anna V. Boxhill, Anna Banta, Binnie Jane Sanford, Elma Holmes Summers Champagne, Sylvia Sydney Champagne. As to these defendants, the judgment is therefore final.

      . In view of our holding, we do not find it necessary to consider the plea of res judicata filed by appellants.

      . 26 C.J.S. verbo Deeds § 169, p. 1167 “Abandonment in any particular case is a matter to be proved by acts consciously done; a right to object to a particular use of property is not waived in the absence of an intent to waive it; and a person cannot be held to have waived a violation of a restriction where he is not shown to have had knowledge or notice of such violation, or duty to know of it.”

        . Matthews v. Captain, 99 N.J.Eq. 636, 134 A. 359:
      “Building containing garage and living rooms, erected in rear of building, violated restriction limiting premises to single family dwellings.”
      26 C.J.S. verbo Deeds § 164(3), p. 1127:
      “ . . . the rental of a chauffeur’s quarters over a garage to an independent family not related to the owner who resides in a single-family dwelling house, has been held to violate a covenant against the erection of any building other than a single-family dwelling house and outhouses necessary and appropriate to the use thereof,” citing Kiernan v. Snowden, Sup., 123 N.Y.S.2d 895.

      . In Cunningham, v. Hall, 148 So.2d 808 (La. App. 4th Oir. 1963), it was held that the terms “one dwelling house” or “single houses” in subdivision restrictions prohibited the conversion of a single family home into three separate rental units.

      . We note in support of this position that the original subdivision plat did not indicate any building lines on Lots 7 through 18 of Square 1.

      . The residents who were questioned as to lack of objections to apartments in Square 1 testified that while they were not pleased they understood that the restrictions allowed apartments there.

      . The lower court excluded the expert testimony of Mrs. Eleanor Dent and evidently did not rely on the testimony of the expert witness for plaintiff as to the degradation of the neighborhood. We too find that testimony irrelevant. The lower court, however, was in error in excluding Mrs. Dent’s testimony on the ground she was a party to the suit. See Louisiana Power & Light Company, Inc. v. Hendee Homes, Inc., 275 So.2d 894 (La.App. 4th Cir. 1973).

      . As noted previously, one factor we must consider is that Square 3 is located farther-est from where Parker wants to build.

      . Each of these violations are perceptible from the photograph exhibits. The measurements are strictly estimates provided by Mr. Lanneau. These are the only violations apparent from the photographs.

      . The testimony of R. L. Breaux did establish setback violations on Lot 8 of Square 14 (only fifteen feet back) and Lot 10 of Square 7 (only 23.3 feet back). However, we do not feel that these two violations are sufficient to show a waiver of the setback restrictions.

      . Our review of the jurisprudence indicates that violations of subdivision restrictions have been so numerous and substantial as to indicate a subversion of the original scheme of the subdividers in only two out of eleven instances.
      In Edwards v. Wiseman, supra, where 23 out of 28 corner lots in a subdivision violated a restriction as to what street houses must front, the Supreme Court declared that restriction abandoned.
      In Finn v. Murphy, 72 So.2d 358 (La.App.Orl.1954), where 9 out of 16 corner lots in a subdivision violated a restriction as to the placement of fences no closer than twenty feet from the sideline, the restriction was declared abandoned.
      In all other cases we are aware of, the restriction was not considered as abandoned. In Ouachita Home Site & Realty Oo., Inc. v. Collie, 189 La. 521, 179 So. 841 (1938) the evidence was found insufficient to prove that a restriction against commercial use was abandoned.
      In Alfortish v. Wagner, 200 La. 198, 7 So. 2d 708 (1942), the court held that the fact that an area was rezoned for commercial use would not have the effect of nullifying the general plan of the original vendor; and that the plan of the neighborhood was not abandoned because the developer erroneously failed to include setback restrictions in six of its seventy lots.
      In Plauche v. Albert, 42 So.2d 876 (La.App. 1st Cir. 1949), although 3 out of 9 lots violate setback restrictions for garages and the adjacent area was overwhelmingly commercial, the court refused to declare the restrictions abandoned.
      In Sherrouse Realty Co. v. Marine, 46 So.2d 156 (La.App. 2nd Cir. 1950), the evidence was held to he insufficient to prove abandonment of a restriction against commercial use.
      In Rhodes v. Foti, 54 So.2d 534 (La.App. Orl.1955), ony one minor violation of the restriction against commercial use was not sufficient to show abandonment.
      In Guyton v. Yancey, La., 125 So.2d 365 (1960), evidence of 5 violations of eighty feet setback restrictions was deemed insufficient to show a waiver.
      In Marquess v. Bamburg, 188 So.2d 721 (La.App. 2nd Cir. 1966), nine violations of the restriction against commercial use out of seventy residences was not substantial enough.
      In Fisher v. Smith, 190 So.2d 105 (La.App. 4th Cir. 1966), 39 instances of violation of restriction against erecting fences in front of homes with 900 to 1000 homes in subdivision was not considered numerically sufficient to constitute abandonment.
      In Adair v. Chrysler, 212 So.2d 552 (La. App. 2nd Cir. 1968), the erection of a few fences and other minor violations was not considered sufficient for abandonment of restriction against fences in front of minimum setback line.
      In Melrose Civic Association v. Universal Builders, Ino., 289 So.2d 521 (La.App. 1st Cir. 1973), 5 to 14 violations out of 279 residences were considered insufficient to declare sideline restrictions abandoned.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    V-8 TAXI CAB SERVICE, INC. v. Helen McGEE.
    No. 7513 (Consolidated with No. 7514).
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.
    See also, La.App., 335 So.2d 477.
    Frank S. Bruno, New Orleans, for plaintiff-appellee.
    Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   GULOTTA, Judge.

Defendant, operator of three taxicabs, appeals from a judgment awarding plaintiff, owner of a taxicab franchise, damages in the sum of $848.25, representing accumulated weekly fees for the use of plaintiff’s cab emblem and other services. We affirm.

Plaintiff contends that in 1969, defendant agreed to pay a weekly fee of $7.25. According to plaintiff, from September 22, 1969 through September 28, 1971, defendant used the V-8 cab emblem, and was provided with other services at the agreed weekly fee. However, it is defendant’s position that during the period beginning January 25, 1971, the date defendant received a letter from City Hall notifying her of a dispute as to the ownership of the V-8 Taxi Cab franchise, defendant did not use any of the services provided by plaintiff, and after that date, no agreement existed for use of those services. According to defendant, the trial court erred in holding defendant responsible for the weekly charges. In support of this contention, defendant relies on the recent case of V-8 Taxi Cab Service, Inc. v. Hayes, 322 So.2d 442 (La.App. 4th Cir. 1975).

In the Hayes case, supra, based on a theory of quasi-contract, this court permitted V-8 recovery of an annual $18.00 fee for use of the cab emblem. The court found in Hayes that the cab drivers had been utilizing the V-8 emblem, but had not used any of the taxicab franchise’s other available services, i. e., office, telephone, cab stand, etc. In the instant case, unlike Hayes, the trial judge, in written reasons, found that plaintiff had entered into an agreement with defendant for use of the services provided by plaintiff, and further concluded that the services were “rendered by the corporation” to defendant. The record supports these conclusions.

McGee commenced operating three V-8 taxicabs on September 22, 1969. Defendant continued to pay the sum of $7.25 per week for the use of the cab office, cab stands and office telephone until January 25, 1971, the date defendant received the City Hall letter, notifying her of the ownership dispute.

It is not disputed that the V-8 cab emblem was located on defendant’s three cabs from September, 1969 until September 28, 1971, the date defendant discontinued operating on the V-8 line. In connection with the use of the services provided by V-8, McGee’s testimony is suspect. On the one hand, she denied using the services and on the other, • she admitted that if Johnson (the subsequently declared owner of V-8) owned the company, she owed the $7.25 weekly fee. Johnson testified the services were available and McGee had agreed to pay the fees. Considering the testimony of Johnson and McGee, we cannot say the trial judge erred in concluding that an agreement was entered into for the services which were rendered by the plaintiff corporation.

In arriving at the $848.25 award, the trial judge allowed $7.25 per week, for each of three taxicabs, for a 39-week period from January 28, 1971 to September 30, 1971. We find no error. The judgment is affirmed.

AFFIRMED.

      . Office telephone number, cab office and cab stand.


text:
    V-8 TAXI CAB SERVICE, INC. v. Elijah HILL.
    No. 7514 (Consolidated with No. 7513).
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.

      See also, La.App., 335 So.2d 476.
    Frank S. Bruno, New Orleans, for plaintiff-appellee.
    Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   GULOTTA, Judge.

Defendant, a taxicab operator, appeals from a judgment awarding plaintiff, owner of a taxicab franchise, damages in the sum of $1,019.25, representing accumulated weekly line fees for the use of plaintiff’s cab emblem and other services. We affirm.

Plaintiff contends that as far back as 1967, defendant was paying the agreed $7.-25 weekly fee. According to plaintiff, defendant used the V-8 cab emblem, and other services were available to defendant, at an agreed weekly fee of $7.25 per week from July 8, 1970 through January 30, 1972, and at an increased agreed weekly fee of $8.25 from January 30, 1972 through May 27, 1973. Plaintiff also seeks $8.25 for each week subsequent to May 27, 1973 that remained unpaid.

The crux of defendant’s position is that from January 25, 1971, the date defendant received a letter from City Hall notifying him of a dispute as to the ownership of the V-8 Taxi Cab franchise, defendant did not use any of the services provided by plaintiff, and after that date, no agreement existed for use of those services. According to defendant, the trial court erred in holding him responsible for weekly charges. In support of this contention, defendant relies on the recent case of V-8 Taxi Cab Service, Inc. v. Hayes, 322 So.2d 442 (La. App. 4th Cir. 1975).

In the Hayes case, supra, based on a theory of quasi-contract, this court permitted V-8 recovery of an annual $18.00 fee for use of the cab emblem. The court found in Hayes that the cab drivers had been utilizing the V-8 emblem, but had not used any of the taxicab franchise’s other available services, i. e., office, telephone, cab stand, etc. In the instant case, unlike Hayes, the trial judge, in written reasons, found that plaintiff had entered into an agreement with defendant for use of the services provided by plaintiff, and further concluded that the services were “rendered by the corporation” to defendant. The record supports these conclusions.

Hill commenced operating a cab on the V-8 Taxi Cab Line on September 10, 1967. He continued to pay the sum of $7.25 per week for the use of the cab office, cab stands and office telephone until January 25, 1971, the date defendant received the City Hall letter notifying him of the ownership dispute. It is not disputed that the V-8 cab emblem was located on defendant’s cab from September, 1967 until August 24, 1973, the date defendant discontinued operating on the V-8 Taxi Cab Line.

In connection with the disputed use of plaintiff’s services, defendant testified that if it were not for the receipt of the City-Hall letter, he would have continued paying the $7.25 weekly fee. Hill also stated that subsequent to January 25, 1971, he was aware that the V-8 cab stand located at Charity Hospital, cab office, cab telephone and V-8 operator were available for his use. Johnson (the president of V-8) testified the services were available and Hill had agreed to pay the weekly fees. When we consider the testimony of Hill and Johnson, we cannot say the trial judge erred in concluding that an agreement was entered into for the services which were rendered by the plaintiff corporation.

In arriving at the $1,019.25 award, the trial judge allowed $7.25 per week for 78 weeks beginning January 28, 1971, and ending January 30, 1972, for a total of $565.50. The trial judge further allowed $8.25 per week, the increased weekly fee, for the period from January 30, 1972 to August 24, 1973, for a total of $453.75.

We find no error. The judgment is affirmed.

AFFIRMED.

      . Office telephone number, cab office and cab stand.


author: COVINGTON, Judge:

text:
    Stanley L. HICKMAN and Eleanor McElveen Hickman v. Curtis SUMRALL et al.
    No. 10771.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Dale E. Branch, Bogalusa, for appellants.
    Donald M. Fendlason, Bogalusa, for ap-pellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is a tort suit arising out of a vehicular collision. The only issues are (1) causal connection between the accident and Mrs. Hickman’s condition and, (2) quantum. It was stipulated that the accident was caused by the negligence of Mrs. Sum-' rail and that State Farm Automobile Insurance Company was her liability insurer on the pertinent date. The trial court awarded $14,000.00 to Mrs. Hickman, $6,-696.34 to her husband, and taxed all costs against the defendants, Curtis Sumrall, Willie Mae Sumrall and said insurer, in solido, including the fees of the expert witnesses. The defendants are before this court on a suspensive appeal. We affirm.

On February 23, 1973, plaintiff, Eleanor McElveen Hickman, 33 years old, operating the family station wagon, was hit by a school bus operated by Willie Mae Sum-rail, the insured, the impact being to the left rear door and fender of the Hickman vehicle. Mrs. Hickman, who was transporting her children to school, proceeded on her mission following the accident. Later in the day, she began experiencing pain in her right jaw, and the intensity of it increased the next day. On the second day following the collision, she called her dentist, Dr. Warren E. Flynt, who examined her on February 26 and, being unable to find any abnormalitv referred her to her family physician, Dr. E. B. Scoggin. The latter saw her on the same day and found point tenderness of the right temporal mandibular (temporomandibular) joint. He placed her on an anti-inflammatory drug and an analgesic, upon being informed by Mrs. Hickman that the pain was unrelenting, Dr. Scoggin decided to refer her to an oral surgeon, Dr. Peter Salatich, Jr.

On March 7, 1973, Dr. Salatich saw her. He took her history and diagnosed her problem as traumatic occlusion, put her on a liquid and strained diet and diathermy and had her return to him in a week. At that time she mentioned the collision. Diathermy treatments were continued, and the diet was also continued for about six months. During this period of time, she experienced pain in the joint which reduced the function of it, particularly affecting her ability to chew foods.

In December of 1973, Dr. Salatich felt that he had accomplished all that he could and referred her back to her dentist. When asked about a causal connection between the accident and Mrs. Hickman’s condition, Dr. Salatich said that she was very cooperative, not feigning, suffered “very much pain”, that a great percentage of the TM joint problems are caused by trauma, with automobile accidents as contributing causes. He stated that persons could have occlusion problems, as Mrs. Hickman had prior to the trauma, without pain until after an outside force or aggravation is injected, when it becomes unbearable. A tortfeasor takes his victim as he finds him; Taylor v. Rome, 303 So.2d 844 (La.App., 1 Cir. 1974). His bill for services was $210.00.

Mrs. Hickman also saw Dr. Francis R. Abadie, a dentist and visiting lecturer at L.S.U. Dental School. Her first visit to him was on February 17, 1974; he also diagnosed her condition as temporomandi-bular joint dysfunction caused by severe occlusal slides and interferences, triggered by trauma. He put an interim treatment splint in her mouth to relax the muscles and joints. She wore this appliance from March 14, 1974, to June 24, 1974. In order to rebuild her occlusion artificially to correspond to the mandibular position dictated by the interim procedure, he capped virtually all of her teeth. This took 12 office visits, some being of four hours duration, using premedication and a local anesthetic. He completed this procedure on September 12, 1974, and by October 28, 1974, he considered Mrs. Hickman to be trouble free. His bill for treatment was in excess of $5,000.00.

After trial, in which the only testimony was that of the plaintiffs and the depositions of the treating doctors, the court found that the accident did in fact cause Mrs. Hickman’s subsequent problems, she having not had any mandibular pain until then. The judge, considering her pain and discomfort for a period of about 18 months, awarded her $14,000.00 for pain, suffering and disability. Mr. Hickman was awarded $6,696.34 for medical, dental, therapy and related travel expenses. This is the total sum to which he testified on direct examination. Although the cancelled checks and receipts, introduced as P-5 total $5,655.00, this does not include travel and some other items. The $6,696.34 was not disputed, and he was not cross-examined as to the correctness thereof. The expert witness fees were fixed at $50.00 for Doctor Flynt, $75.00 for Doctor Scoggins, and $200.00 each for Doctors Salatich, Abadie and Akin. These fees, together with the reporter’s charge for taking the depositions, were taxed as costs, and assessed against the defendants.

The trial judge, in his Reasons for Judgment, stated:

“The finding of Dr. Salatich, who saw Mrs. Hickman some 22 times, is entitled to great weight. The court is also impressed by Mrs. Hickman’s testimony and the fact that her main concern was to get relief and the relating of the accident to her difficulties was not made by her until her dentist began to explore for prior trauma. Consequently, the court finds that Mrs. Hickman’s injuries were causally related to the accident.”

Where there is evidence to support the trial court’s conclusions of facts, such conclusions will not be disturbed in the absence of manifest error; Spreen v. Gibbs, 305 So.2d 494 (La.1974); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The record, reviewed by this court, reveals abundant evidence to support the finding of the trial judge.

Under LSA-C.C. art. 1934(3), much discretion is left to the judge or jury in the assessment of damages in cases of offenses and quasi offenses, which discretion should not be disturbed upon appellate review in the absence of abuse. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Shepard v. Checker Cab Co., 230 So.2d 343 (La.App., 4 Cir. 1970). We cannot say that the trial judge abused such discretion.

For the reasons assigned, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.


author: SARTAIN, Judge.

text:
    LIVINGSTON STATE BANK & TRUST COMPANY, Plaintiff-Appellee, v. STEEL-TEK, INC., et al., Defendants-Appellants.
    No. 10809.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Martin C. Schroeder, Jr., Baton Rouge, for appellant.
    Charles W. Borde, Jr., Denham Springs, for appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Plaintiff, Livingston State Bank & Trust Company, instituted this suit against defendant, Cloy Construction Company, Inc., as an alleged guarantor, on a promissory note in the amount of $25,000.00 which plaintiff issued and held. The trial judge rendered judgment in favor of plaintiff for the principal amount as well as interest together with twenty-five percent of both principal and interest as attorney fees and all costs of this suit. We reverse for reasons stated herein.

Evidence adduced at trial indicates that on or about March 19, 1974, Steel-Tek, Inc., through its agents, Preston Ronald Ford and Gerald R. Dubois, contacted plaintiff seeking to obtain a loan of $25,000.00 with which to purchase materials for subcontracting work. During the course of the negotiations Ford secured a letter from defendant which was addressed and presented to plaintiff and which stated the following:

“March 15, 1974
“Livingston State Bank
Denham Springs, La.
Attention: Mr. Easterly-
Dear Mr. Easterly,
Mr. Ford has requested that we submit a joint check upon completion of contract on Piggly Wiggly to Livingston State Bank and Steel-Tek Inc.
The contract for this job is approximately $43,000.00. He has requested a joint check for $25,000.00. Upon completion of the contract, Charles C. Cloy will issue a joint check payable as stated for the amount of $25,000.00. The monies for this job should be paid upon completion of delivery to job site. This should be in less than six months.
We are also indebted to Steel-Tek Inc. for over $10,000.00 retainage on work completed. These monies are also forthcoming in the next 60 days.
Sincerely,
/s/ Ronnie Hughes
Ronnie Hughes”

Mr. Easterly, executive vice president of defendant bank, testified at trial that he considered this a “letter of credit” and upon the basis of this letter made a loan of $25,000.00 secured by a promissory note made and endorsed by Steel-Tek through its agents, Ford and Dubois, and by Ford and Dubois individually.

Subsequently, the makers defaulted on the note and judgment was entered against them for its amount. Plaintiff now seeks to hold defendant, Cloy Construction Company, liable as guarantor on the note on the basis of the letter set out hereinabove. Only defendant Cloy has sought review herein.

It is now settled in our law that a contract of guaranty in this state is equivalent to a contract of suretyship. Brock v. First State Bank & Trust Co., 187 La. 766, 175 So. 569 (1937). Suretyship is an accessory promise by which a person binds himself for another already bound and agrees with the guarantor to satisfy the obligation if the debtor does not. La.C.C. Art. 3035. Letters of credit manifesting the intention of one to be bound for the debts of another which are to be contracted in the future have been held to be valid contracts of suretyship. Continental Supply Company v. Tucker-Rose Oil Company, et al., 146 La. 671, 83 So. 892 (1920). See also, 13 T.L.R. 519 at p. 531.

However, suretyship can not be presumed. La.C.C. Art. 3039. While we feel that no technical form is required to be adhered to in the suretyship agreement, there still must be some clear manifestation of intent to act as surety. We find no such intention manifested in the letter upon which plaintiff alleges reliance herein or the abbreviated parole evidence offered at trial. The text of this letter merely indicates to us the extent to which defendant was bound to Steel-Tek and the extent to which it might be bound in the future when certain contracts were completed. It is true that defendant indicated it would make a check for $25,000.00 payable jointly to plaintiff and Steel-Tex upon completion of contract work. However, we can not construe this as a manifestation of intent to be bound for any debts of Steel-Tek. To do so would, in our opinion, stretch the bounds of reason and result in the presumption of a relationship in express contravention of our law.

We do not address ourselves to any other obligation to which defendant might be subjected as a result of this letter. Plaintiff instituted this action as a suit on a promissory note and alleged defendant to be guarantor thereon. This relationship was simply not established.

For the above and foregoing reasons, the judgment of the trial court is reversed and set aside and the same is hereby entered in favor of defendant dismissing plaintiff’s claim against it. All costs are assessed against plaintiff-appellee.

REVERSED AND RENDERED.


author: CHIASSON, Judge.

text:
    DIXIE ELECTRIC MEMBERSHIP CORPORATION v. Earl G. DUBOSE.
    No. 10810.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      James E. Kuhn, Denham Springs, for appellant.
    Cordell H. Haymon, Baton Rouge, for ap-pellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Dixie Electric Membership Corporation, plaintiff-appellant, brought suit to expropriate a 100 foot right of way for the purpose of erecting a 69KV transmission line across a 17.5 acre tract of land owned by Earl Dubose, defendant-appellee. The ap-pellee maintains oil storage pits on a portion of the property expropriated. In addition there is a servitude for the purposes of transmitting electricity in favor of Gulf States Utilities over part of the 17.5 acres. Because the appellant’s right of way crosses the GSU right of way, there is a .39 acre tract subject to the GSU servitude and to the Dixie Electric servitude.

In return for appellee’s stipulation as to the need and necessity for the expropriation of the servitude, the appellant stipulated that the appellee could continue to operate his oil pits and that the appellee would be held harmless with regard to any damages the appellant might suffer as a result of ap-pellee’s operation of the oil pits.

The issues before the Trial Court were:

1. The amount due the appellee as just compensation for the expropriation of the servitude;

2. Whether the appellee was entitled to severance damages, and if he was, the amount due as severance damages; and

3. Whether the appellee was entitled to recover attorney’s fees.

After a hearing on the merits the Trial Court rendered judgment in favor of the appellant and against the appellee, awarding the appellant the servitude it sought. The Trial Court also rendered judgment in favor of the appellee and against the appellant, awarding the appellee $6,577.86 as compensation for the servitude expropriated and $1,670.04 as severance damages to the portion of the appellee’s property lying south and east of the servitude. The Trial Court denied appellee’s claim for severance damages as to the remainder of the tract and also denied the appellee’s claim for attorney’s fees.

The errors specified by the appellant are:

“1. The lower court erred in concluding that the fee value of the land being expropriated was equivalent to the amount of $1,865.00 per acre.
“2. The lower court erred in granting to the defendant 80% of the fee value of the land being expropriated which also contained the oil pits of the defendant.
“3. The court erred in concluding that severance damages were due the defendant.
“4. The court erred in granting expert witness fees in the amount of $880.00 and taxing those fees as costs of court.”

The appellee contends that:

“1. He is aggrieved by the amount of damages awarded in the judgment.
“2. The court erred in failing to apply the Louisiana Constitution of 1974 and in failing to allow the defendant reasonable attorney’s fees.”

It is apparent that the Trial Court based its determination of the value of the appellee’s property, considering its highest and best use, on the most similar comparable offered into evidence. We find no error in the Trial Court’s conclusion that appel-lee’s property was worth $1,865.00 per acre and we will not disturb this finding.

The record contains evidence sufficient to support the Trial Court’s finding that the amount due as compensation for the servitude expropriated is 80% of the value of the property burdened by the servitude. There is no evidence in the record which would negate the Trial Court’s conclusion that the appellant’s servitude is as great a burden on the portion of the ap-pellee’s property containing the oil pits as on the other portions of the appellee’s property. The evidence also supports the Trial Court’s finding as to the compensation due for the increased burden the appellant’s servitude places on the .39 acre already subject to the GSU servitude.

An examination of the effect of the granting of the servitude establishes that the portion of the appellee’s property, south and east of - the servitude, has been damaged by the taking. The granting of this servitude has created a small, isolated, oddly shaped tract which will be impossible to develop. The uses to which this portion may be put are approximately the same as the uses to which the property burdened by the servitude may be put. Therefore, the Trial Court’s award of 80% of the value of this property as severance damages is correct. No severance damages were shown as to the remainder of the tract.

An examination of the testimony indicates that the expert witness fees awarded by the Trial Court were not excessive and were within the Trial Court’s discretion.

Under Article 14 Section 23 of the Louisiana Constitution of 1974 all suits existing on the effective date of this constitution continue unaffected. The appellant filed suit on November 27, 1974, prior to the effective date of the 1974 Constitution. Therefore, the Trial Court’s denial of appellee’s request for attorney’s fees was proper because this suit is governed by the Louisiana Constitution of 1921 which does not provide for attorney’s fees in expropriation suits.

For the above and foregoing reasons, the judgment of the Trial Court is affirmed. Cost to be paid by the appellant.

AFFIRMED.


author: EDWARDS, Judge.

text:
    June F. ROSHTO v. Mrs. Evelyn BAJON.
    No. 10789.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Arthur H. Andrews, Baton Rouge, for appellant.
    Jack T. Marionneaux, Plaquemine, for appellee.
    Before SARATIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This suit began as a relatively minor demand for the return of a $50.00 rental deposit, plus “damages” and attorney’s fees and ended up rather seriously in a judgment in favor of the defendant-landlord against the plaintiff-tenant for damages for the intentional infliction of emotional distress.

The factual background is somewhat interesting.

Plaintiff brought suit alleging that he entered into an oral contract of lease with defendant for a residence in White Castle, Louisiana, and that he was required to post a $50.00 advance security deposit. He further alleged that Mrs. Bajón failed to make the premises available in that a workman was doing remodeling work which impeded plaintiff’s use of the residence; and that about 2 weeks after the giving of the deposit he demanded the return of same which was refused by defendant.

Based upon the provisions of R.S. 9:3251-3254 plaintiff sued for the return of the $50.00, damages as provided by law in the amount of $200.00, and attorney’s fees of $250.00.

Defendant answered and reconvened for $1,000.00 as attorneys’ fees under R.S. 9:3252 plus $15,000.00 damages for “mental pain and suffering, anxiety and loss of dignity, past, present and future.”

The trial court rendered judgment denying plaintiffs’ demand; and in favor of defendant (plaintiff-in-reconvention) in the sum of $500.00 “for emotional upset, mental pain, anxiety, and loss of dignity” plus legal interest and costs.

Roshto has appealed from the judgment assigning three specifications of error:

1. The court erred in finding as a matter of fact that Mr. Roshto cursed Mrs. Bajón and said “If you were a man, I would beat the hell out of you” when he based such a finding upon the pleadings and closing argument of counsel, rather than upon the evidence presented at trial.
2. The court erred in finding that such an utterance in the context spoken was actionable.
3. Alternatively, the court erred in granting an excessive award for damages.

The appellee testified at trial that appellant cursed her and told her that “If you were a man, I would beat the hell out of you.” The evidence in the record thus supports the trial court’s finding of fact in this regard.

However, we agree with appellant that this utterance in the given context is not actionable.

Restatement, Torts, Second Edition, Section 46 reads:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from it.”

We hold in the instant context that the utterance “If you were a man, I would beat the hell out of you” is not that “extreme and outrageous- conduct” as set forth in Section 46.

Mrs. Bajón is in the rental business. Landlord-tenant disputes are not uncommon. While we do not condone anger and harsh words as proper conduct in such instances, neither will we condemn such statements, as spoken herein, as “extreme and outrageous.

Both appellant and appellee testified that appellant also used curse words, but neither would specify further the content. We note that the term “cursing” embraces a multitude of sins, from mild vulgarity to obscenity and blasphemy; the term alone means many things to many people. We cannot say that “curse words,” absent further amplification, are necessarily so outrageous as to constitute that conduct made actionable under Section 46, supra.

The decision of the trial court is reversed. Costs of the appeal are to be borne by appellee.

REVERSED AND RENDERED.


author: BLANCHE, Judge.

text:
    Myrtle PARKER and Henry Parker v. Vertis BREAUX and Southern University.
    No. 10766.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      James P. Doré, Baton Rouge, for Southern.
    Neil H. Mixon, Jr., Baton Rouge, for Myrtle and Henry Parker.
    Horace C. Lane, Baton Rouge, for 3rd Party Defendant — State Farm Mut. Auto. Ins. Co.
    Donald Carmouche, Donaldsonville, for Breaux.
    Edward V. Fetzer, Baton Rouge, for East Baton Rouge Parish.

      Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Defendant-appellant, the State of Louisiana, through the Department of Education and Southern University, appeals the trial court judgment which ordered it to pay $1,500 in damages to plaintiff-appellee, Myrtle Parker, and $212 in damages to plaintiff-appellee, Henry Parker. Both judgments were to bear interest from date of judicial demand until paid. We affirm.

On the night of October 9, 1971, Vertís Breaux attended a Southern University football game at Baton Rouge, Louisiana. Breaux left the game during the fourth quarter, returned to his automobile, and began to exit the campus by traveling in an easterly direction on Louisiana Highway 408 (Harding Boulevard) toward the point where Highway 408 intersects U.S. Highway 61 (Scenic Highway).

Just west of said intersection, an overpass takes Highway 408 across a group of railroad tracks. Routinely, in order to facilitate the orderly exit of traffic on football nights, all westbound (incoming) traffic is halted by the East Baton Rouge Parish Sheriff’s Department at the intersection of Highways 408 and 61. This allows the use of all four lanes of the overpass for eastbound (exiting) traffic.

As Breaux reached the foot of the overpass, he was directed to proceed into the oncoming traffic lane of the overpass behind two other automobiles. All three automobiles entered single file into the inside-oncoming lane, and as they approached the summit they were confronted head-on by plaintiff, Myrtle Parker, in her automobile, traveling in a westerly direction.

The first two automobiles were able to veer into the neutral zone between the eastbound and westbound lanes to avoid a collision. However, the presence of the first two automobiles prevented Breaux from seeing the plaintiff, and the crash which gave rise to this litigation occurred.

It is uncontroverted that the plaintiff was in her proper lane of travel at the time of the accident. Breaux was in the wrong lane due solely to the direction of the University’s security officers. The height of the overpass prevented the parties from observing one another until they approached the summit.

Myrtle Parker, individually, and her husband, Henry Parker, as head and master of the community existing between them, sued Breaux, the State, through the Department of Education and Southern University, the Parish of East Baton Rouge and various other defendants.

Breaux instituted a separate suit against the plaintiffs, their insurer, State Farm Mutual Automobile Insurance Company, and East Baton Rouge Parish.

The cases were consolidated for trial and resulted in the following findings by the trial judge:

“Under these conditions the Court finds that the employees of Southern University were negligent. They diverted the normal flow of traffic to a different pattern setting up a dangerous condition without taking measures to prevent someone from being hurt. The Court can find no negligence on the part of Vertís Breaux; he drove as he was directed to do by an officer and there is no evidence to show that he could have averted the accident. The question of Mrs. Parker’s negligence is more difficult. She had been a resident of the area for some time and knew of the practice of diverting the traffic. However, at the time she crossed Scenic Highway there were no barricades and the officers she saw made no effort to stop her. While her failure to see the two cars ahead of Breaux that were driven into the median to avert collision is unexplained, nevertheless, the Court finds that she was not negligent under the circumstances. The Court is not called upon to discuss any possible negligence on the part of the Sheriff’s office or of the deputies since no claim was made against them either in the main demand or in the third party petitions.” (Written Reasons for Judgment, Record, p. 122)

In view of the foregoing, judgment was rendered in favor of the plaintiffs, Myrtle and Henry Parker, and against the State, through the Department of Education and Southern University. All other claims were dismissed. Only the State has appealed, the sole issue being its liability.

The State argues that the University’s security officers were not negligent since it was their normal procedure after Southern University football games to divert exiting traffic into the oncoming lanes of the overpass. The State also suggests that even if the University were negligent, the failure of the Sheriff’s Department to halt the plaintiff at the intersection relieves the University of liability. Alternatively, the State argues that the plaintiff was contri^ utorily negligent and, therefore, barred from recovery.

The record reflects that at the end of each football game it was the responsibility of the East Baton Rouge Parish Sheriff’s Department to halt westbound traffic at the intersection of Highways 408 and 61. Thus, when football traffic began to exit, the University could safely utilize the oncoming lanes of the overpass. It could not be explained at the trial why the plaintiff was not halted by the Sheriff’s Department on the night in question. It was established, however, that there was no communication between the University’s security officers and the Sheriff’s Department regarding the exact moment that traffic would be halted at the intersection.

Lieutenant W. T. Bunch, of the East Baton Rouge Parish Sheriff’s Department, acknowledged that there was no set time to begin halting the westward flow of traffic onto the campus and that on the night in question there was no radio communication between his deputies and the University’s security officers on the opposite side of the overpass.

Lieutenant Bunch stated that his deputies ordinarily began halting westbound traffic when they could visually observe an increase in exiting traffic thereby signifying the close of the football game. Under this arrangement, he admitted that it was possible for some traffic to be caught between the intersection and the overpass at the moment that traffic was directed into the oncoming lane on the opposite side of the overpass.

The unrebutted testimony of the plaintiff established that there were no automobiles exiting in her lane of travel prior to Breaux and the other two vehicles directly ahead of him. It is also uncontroverted that no attempt was made to prevent the plaintiff from proceeding through the intersection and across the overpass.

DUTY

In view of the obvious danger of directing vehicles into the wrong lane of this or any other overpass, the University owed a duty to this plaintiff to take every precaution to insure that she was not traversing the overpass the moment that traffic was diverted into her lane. Stated another way, the risk of harm created by the procedure used to divert traffic across the overpass was so great that the University incurred a duty, under the circumstances, to ascertain whether or not all westbound traffic had cleared the overpass before allowing a wave of vehicles to ascend in the wrong lane.

BREACH

The University failed to prevent the plaintiff’s presence on the overpass at the time that they directed the use of all four lanes of travel on said overpass to expedite the departure of traffic from the football game. By so doing, the University breached its duty to the plaintiff.

RISK

The risk sought to be avoided by imposition of the aforementioned duty was the very risk that occurred herein, that is, that a motorist such as the plaintiff, might be injured by another motorist who had been instructed to drive across the overpass in the oncoming lane. Since the University breached a duty which was designed to protect the plaintiff against the very risk that occurred, the University must bear the responsibility for that breach.

There is no merit to the State’s argument that the failure of the Sheriff’s Department to halt the plaintiff at the intersection superseded its negligence and, therefore, relieved it of liability. The duty of the University’s security officers was different and distinct from that of the Sheriff’s deputies. The Sheriff’s Department was required to halt all traffic at the intersection, whereas the University, in view of the fact that it was unaware of the precise moment that incoming traffic would be halted, owed a duty to this particular motorist to ascertain whether or not she had cleared the overpass before directing the exiting traffic into her lane. When viewed in this light, the alleged negligence of the Sheriff’s Department would not relieve the University of liability.

The State argues that the plaintiff was contributorily negligent for proceeding across the overpass as she did, since she admittedly was aware of the change in traffic pattern at the end of each football game. However, as noted, there was no set time for the traffic change to take place. Therefore, since the plaintiff was not halted at the intersection by the Sheriff’s Department, she was entitled to assume that traffic was not yet being diverted into her lane of travel. It was not the plaintiff’s responsibility to ascertain whether or not it was safe to proceed across the overpass. We, therefore, find as did the trial judge, that the plaintiff was not con-tributorily negligent for proceeding across the overpass after no attempt was made to stop or warn her that it was unsafe.

In conclusion, we find that the University’s security officers, by failing to prevent plaintiff’s presence on the overpass at the time they directed the use of all four lanes of travel thereon, breached a duty to plaintiff and that breach resulted in the harm complained of.

For the above and foregoing reasons, the judgment of the trial court is affirmed. The State, as appellant, must bear all costs of this appeal as can legally be assessed against it.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Donaldson HAYWARD v. UNITED STATES FIDELITY AND GUARANTY COMPANY OF NEW YORK.
    No. 10780.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      John R. Olds, Lew H. Berggreen, Baton Rouge, for appellant.
    James A. George, Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit for damages under uninsured motorist coverage in an insurance policy issued by the defendant, United States Fidelity and Guaranty Company of New York (hereinafter sometimes referred to as USF&G). From a summary judgment in favor of the defendant-insurer, the plaintiff has appealed.

The plaintiff, Donaldson Hayward, was on March 30, 1974, employed by Capital City Press and operating a truck owned by his employer, when while stopped, was rear-ended by a vehicle operated by Simon F. Ford. It is alleged that Ford’s negligence caused the accident, that he was uninsured at the time of the accident, and that the defendant, USF&G, had issued to Capital City Press a public liability insurance policy containing uninsured motorist coverage.

USF&G moved for summary judgment dismissing the suit inasmuch as no uninsured motorist coverage was afforded in the insurance policy issued to Capital City Press as this coverage had been rejected by the insured. In support of the motion for summary judgment, USF&G filed an affidavit of its claims supervisor in its Baton Rouge office who had actual custody and access to all policy records relating to policies of insurance issued by USF&G in Louisiana. The claims supervisor attested to the fact that in a letter received by USF&G from the Comptroller of Capital City Press, Mr. Lawerence D. Guelfo, a copy of which letter was attached to the affidavit, and dated February 12, 1973, uninsured motorist coverage was rejected, and the affidavit specifically mentions two policies by number. The letter of Mr. Guelfo declined uninsured motorist coverage for the policy that was then in existence, as well as any subsequent renewals until coverage was later requested. In further support of the motion for summary judgment, an affidavit of Mr. Guelfo was also filed setting forth that he was the Comptroller of Capital City Press, that he was the author of the letter above referred to, that he had as Comptroller specifically rejected uninsured motorist coverage on the policy then in existence, and that this rejection of uninsured motorist coverage was within and pursuant to his authority as Comptroller of Capital City Press. Also attached to the motion for summary judgment was a copy of the insurance policy covering Capital City Press for the dates January 1, 1973, to January 1, 1974, showing no uninsured motorist coverage. There were no opposing affidavits filed by the plaintiff.

The plaintiff contends that there was not sufficient proof before the Trial Court that the named insured had rejected uninsured motorist coverage, and thus a genuine issue of material fact existed so as to prohibit the granting of the summary judgment. Plaintiff argues that since the uninsured motorist coverage was supposedly rejected by Mr. Guelfo, an agent of Capital City Press, that more proof other than the affidavit of the supposed agent is needed to establish his relationship with Capital City Press, and thus his authority to reject the uninsured motorist coverage. Patrick v. Patrick, 230 So.2d 759 (La.App. 2nd Cir. 1970).

The question, however, before this Court is whether there was sufficient evidence before the trier of fact to “show that there [was] no genuine issue as to material fact, and that mover [was] entitled to judgment as a matter of law.” LSA-C.C.P. art. 966. We are of the opinion that regardless of whether Mr. Guelfo could by his own statements prove his relationship to Capital City Press, that there was sufficient evidence before the trier of fact to justify a summary judgment. There is no question but that USF&G did not include uninsured motorist coverage in the insurance policy issued to Capital City Press, nor did they charge a premium for said coverage.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.

      . Capital City Press is a partnership made up of Charles P. Manship, Jr. and Douglas Manship.


author:
MARVIN, Judge.
      HALL, Judge BOLIN, Judge. MARVIN, Judge

text:
    Succession of Jack A. MARTIN, Sr.
    No. 12858.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    On Rehearing July 7, 1976.
    Writ Refused Oct. 1, 1976.

      Eatman & Hunter by Robert E. Eat-man, Shreveport, for opponent-appellant.
    Hamilton & Sermons by Joel M. Sermons, Shreveport, for plaintiff-appellee, Iris Matthews Martin.
    Jack & Jack by Wellborn Jack, Jr., Shreveport, for opponent-appellee, Jack Martin, Jr.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

Virginia Martin Nunn, opponent-appellant, appeals from a judgment of the district court sustaining in part and overruling in part her opposition to the tableau of distribution filed by Iris Matthews Martin, testamentary executrix of the Succession of Jack A. Martin, Sr. On appeal opponent contests the authorization by the district court of payment by the executrix of a $1,000 debt to Mrs. Láveme M. Smith, sister of the executrix, for a loan made to the decedent, and payment of $5,389.26 to Ralph M. Martin, son of the decedent, for services rendered and expenses incurred on behalf of the decedent. Appellant also contests the assessment of costs to her.

Jack A. Martin, Sr. died July 13, 1973. He was survived by his wife, Iris Matthews Martin, and two children born of his marriage to Mrs. Martin, namely Jack A. Martin, Jr. and Ralph M. Martin. The decedent was also survived by Virginia Martin Nunn, a daughter born of a prior marriage. He left a last will and testament by which he (1) left the usufruct of his entire estate to his wife, Iris Matthews Martin; (2) bequeathed his interest in the family home to his wife; (3) bequeathed to his daughter, Virginia Martin Nunn, her forced portion of his estate; (4) bequeathed to his sons, Jack A. Martin, Jr. and Ralph M. Martin, the remainder of his estate, subject to their mother’s usufruct-; (5) appointed his wife, Iris Matthews Martin, as executrix of the estate; and (6) requested that his daughter renounce the bequest to her in favor of the two sons on the belief that she would be well provided for by her husband.

A petition to probate the will was filed on October 4, 1973 and Mrs. Martin was confirmed as testamentary executrix. In due course, on February 12, 1974, the executrix filed a sworn detailed descriptive list of succession assets and liabilities. Among the debts listed were (1) $2,500 owed on a first mortgage note to Láveme M. Smith; and (2) $5,691.14 owed to Ralph M. Martin for renovation, remodeling and repair of several houses owned by the decedent.

On June 6, 1975, the executrix filed a petition for authority to pay debts and charges in the course of administration. Among the debts listed were (1) $1,000 due Láveme M. Smith on a first mortgage note; and (2) $5,691.14 due Ralph M. Martin for expenses and salary incurred in preservation of rental properties.

Oppositions to the proposed payment of debts and charges were filed by appellant, Virginia Martin Nunn, and by Jack A. Martin, Jr., contesting several of the items shown on the tableau of distribution filed by the executrix. After trial, pursuant to oral reasons transcribed in the record, the district court rendered judgment sustaining in part and overruling in part the oppositions to the proposed tableau of distribution. The oppositions were overruled as to the two specific items mentioned above and payment thereof was authorized. Virginia Martin Nunn appealed. Jack A. Martin, Jr. did not appeal.

In regard to the debt allegedly owed to Mrs. Smith, the trial court found that the debt was extinguished by voluntary remission prior to decedent’s death but remained a moral obligation and was reestablished when listed and acknowledged by the executrix in the proposed tableau of distribution. Appellant contends that the trial judge erred in finding that the debt was unpaid and merely extinguished by remission and further in holding that the executrix had authority to reestablish and pay an extinguished obligation.

In regard to the claim by Ralph M. Martin for services rendered and expenses incurred on behalf of the decedent, the trial court held the burden of proof is on the opponent to disprove a claim listed by the succession representative, which the opponent failed to do in this case. Appellant contends on appeal that the trial court erred in placing the burden of proof on the opponent, in holding the claimant had established his claim, in considering parol evidence in support of the claim, and in holding the debt was established without the testimony of a credible witness other than the claimant.

Burden of Proof

LSA-C.C.P. Art. 3244 provides:

“The inclusion of the claim of a creditor of the succession in the succession representative’s petition for authority to pay debts or in his tableau of distribution creates a prima facie presumption of the validity of the claim; and the burden of proving the invalidity thereof shall be upon the person opposing it.”

This Article of the Code of Civil Procedure is directly applicable to the situation in this litigation. The two claims in dispute were included in the executrix’s petition for authority to pay debts. The claims are prima facie presumed to be valid and the burden of proving the invalidity of the claims was on opponent-appellant.

Debt Allegedly Due Láveme M. Smith

The evidence discloses that in 1966 decedent and his wife executed a note for $2,500, payable to any future holder, secured by a mortgage on certain real estate. Duplicate payment books in the possession of Jack A. Martin, Jr. were filed into evidence at the trial. The payment books show that at the time the note and mortgage were executed Mrs. Smith loaned decedent and his wife $2,500. The payment books reflect regular monthly payments thereafter and álso additional loans from time to time. The books reflect a payment on principal of $4,000 on March 19, 1971, leaving a balance due of $982.35. The last entry in the books is dated May 24, 1971, and reads “paid in full” and is signed by “Laverne Smith.” Jack A. Martin, Jr. testified both payment books were delivered to him by his father.

Mrs. Smith testified the balance was not actually paid but she marked the books paid in full because of the Martins’ sickness and financial condition. She said she wanted to relieve them of worry and the agreement was that they would not make any more payments until they were able to do so.

The trial court believed Mrs. Smith’s testimony that the balance was not actually paid, but held there was a voluntary remission of the debt under LSA-C.C. Art. 2199. Voluntary remission is one of the methods by which obligations are extinguished. LSA-C.C. Art. 2130. The trial court held that the debt became a natural obligation, as defined by LSA-C.C. Arts. 1757 and 1758, and recognition of the debt by the executrix re-established the obligation in accordance with LSA-C.C. Art. 1759. Article 1759 provides that a natural obligation is a sufficient consideration for a new contract. Testimony of the several witnesses below showed that Mrs. Smith often advanced sizeable sums to the Martin family, including Mr. and Mrs. Martin, to whom she was related.

Under Art. 3198(2) La.C.C.P., a succession representative may “renew, or in any manner modify the terms of any obligation owed by” the succession, with court approval after notice. Because of the result reached below as to Mrs. Smith’s claim, it is apparent that the lower court would have authorized, over the opposition of appellant, payment by the executrix of the Smith claim as a natural obligation. We have no dispute with the trial court’s evaluation of the testimony below or assessment of credibility to the witnesses. We do not agree with the lower court’s conclusion that there was a voluntary remission under the facts as found by the trial court.

While the remission of a debt cannot be revoked by the creditor, La.C.C. Art. 2201, remission is never presumed unless it clearly appears that the creditor intended to do so. The burden of proving remission, whether express or tacit, is on those claiming remission. See Payton v. Jones, 38 So.2d 631 (La.App.Orl.1949); Doucet v. Dugas, 165 So. 754 (La.App. 1st Cir. 1936). Even the delivery to the debt- or of the act by which the obligation is created, does not of itself form a presumption of the release or remission of the debt. See Art. 2202, La.C.C. and Doucet, supra. Mrs. Martin, surviving widow and executrix, listed the debt to Mrs. Smith on the Tableaux. She otherwise supported and corroborated Mrs. Smith and we find that appellant has not met the burden of proving that the debt owed to Mrs. Smith was extinguished either by payment or by remission, express or tacit. The result below in this instance authorizing payment, was correct and appellant’s opposition was properly rejected.

Our conclusion that the debt was not gratuitously remitted by Mrs. Smith makes it unnecessary to consider whether the executrix should have sought and gained court approval to honor a natural obligation under La.C.C.P. Arts. 3198 and 3229.

Debt Allegedly Due Ralph M. Martin

As previously noted, LSA-C.C.P. Art. 3244 provides that the inclusion of the claim of a creditor in the succession representative’s petition for authority to pay debts creates a prima facie presumption of the validity of the claim and the burden of proving the invalidity thereof shall be on the person opposing it. The claim of Ralph M. Martin for services rendered to and expenses incurred on behalf of the decedent and his wife in the amount of $5,389.26 is presumed to be valid and the burden of proving the invalidity rested upon the opponent,_ Mrs. Nunn. Neither Mrs. Nunn nor the other opponent at the trial offered any evidence whatsoever to substantiate their opposition to the validity of this claim. Their testimony was that they did not have any particular reason for opposition other than they felt the claim was unsupported.

The mere filing of an opposition to the payment of a debt included in the succession representative’s petition for authority to pay debts does not rebut the presumption of validity nor meet the burden of proving invalidity thereof. The trial court correctly held that opponent did not bear her burden of proof and overruled her opposition to payment of this debt.

Appellant contends Ralph M. Martin’s testimony in support of the claim should not have been accepted or considered by the trial court because it was not supported by the testimony of another credible witness and other corroborating circumstances as • required by the Dead Man’s Statute, LSA-R.S. 13:3721 and 3722.

Since there is a presumption of validity of a claim included by the succession representative in the petition for authority to pay debts, and since the opponent offered no evidence to rebut the presumption or to sustain her burden of proving the invalidity of the claim, it was not necessary for the claimant to go forward with supporting proof under the standards of the Dead Man’s Statute. The statute may be applicable where the presumption of validity is rebutted by an opponent, but such is not the situation in this case.

Appellant also contends that the claim of Ralph M. Martin is not valid because his agreement with the decedent was entered into after the decedent was interdicted. The evidence is that Ralph M. Martin undertook the duties for which he seeks payment prior to the interdiction of his father. The subsequent interdiction of his father does not bar his recovery for services rendered and expenses incurred.

Costs

Appellant complains that the cost of these proceedings should be taxed against the executrix. The trial court has discretion in the taxing of costs and we find no abuse of that discretion in taxing the costs in the trial court against the opponent-appellant.

At appellant’s cost, judgment is

AFFIRMED.

HALL, J., dissents in part, with written reasons.

HALL, Judge

(dissenting in part).

I respectfully dissent from that part of the majority opinion affirming the trial court’s judgment overruling the opposition to payment of the debt allegedly due Laverne M. Smith. In my opinion, the opponent met the burden of proving the balance of the debt due Mrs. Smith was extinguished by either payment or remission.

Records of advances made by Mrs. Smith and payments made by the Martins were carefully kept and entered in the two payment books. One of the books was for Mrs. Smith’s records and one was for the Martins. In March, 1971, a $4,000 payment was made and entered in the books, leaving a balance of $982.35. In May, 1971, entries were made in both books showing “paid in full” and signed by Mrs. Smith. No further entries were made. Mr. Martin, the decedent, had possession of both books and delivered them to his son, Jack A. Martin, Jr. The son and Mrs. Numm both testified their father told them the debt was paid.

Without in any way questioning the credibility of Mrs. Smith’s testimony as to her motives and intentions in marking the books “paid in full”, that testimony is not sufficient to negate the affirmative, written statement by Mrs. Smith in her own handwriting that the balance was “paid in full.”

The trial court held there was a voluntary remission and the debt was reestablished by the executrix’s recognition of the debt when she listed it on the petition for authority to pay debts. Assuming arguen-do that there was a voluntary remission in this instance and that the debt became a natural obligation, the listing of the debt in the executrix’s petition for authority to pay debts cannot be considered as the making of a new contract. A succession representative has no authority to pay a natural obligation which cannot be enforced by action and has no authority to enter into a new contract for the payment thereof. Certainly a succession representative cannot enter into a new contract under any circumstances without obtaining court approval in the manner provided by the Code of Civil Procedure, which was not done here. It is doubtful that sound discretion would ever allow the court to approve the creation of a new obligation by a succession representative, based on a preexisting natural obligation which is unenforceable.

The opposition to payment of the claim of Mrs. Smith should be sustained.

Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ., En Banc.

ON REHEARING

BOLIN, Judge.

Rehearing was granted limited to reconsideration of the alleged debt due Laverne M. Smith, sister of the executrix, Iris Matthews Martin.

We now find that portion of our original opinion stating the succession was indebted to Laverne M. Smith was erroneous. We conclude the dissenting opinion was correct and for the reasons stated therein the claim is rejected.

Accordingly, that portion of the district court judgment overruling the opposition to the proposed payment of $1,000 to Laverne M. Smith is reversed and the opposition is now sustained. In all other respects the judgment is affirmed.

Cost of this appeal is assessed against Iris Matthews Martin, Executrix.

MARVIN, J., dissents with written reasons.

MARVIN, Judge

(dissenting).

Mrs. Laverne Smith is the sister to Mrs. Martin, the widow of the decedent. The record abundantly shows that Mrs. Smith served as the patron of the Martin family in business matters and was very close to the family.

Before and since 1966, Mrs. Smith was advancing funds to Mr. and Mrs. Martin for various purposes. In that year, Mr. and Mrs. Martin executed a $2,500 mortgage and mortgage note to Mrs. Smith, payable to future holder. The existence of the note is not disputed. The mortgage itself, by a certified copy, is in the record. The mortgage and note were given by Mr. and Mrs. Martin to Mrs. Smith to represent and secure loans as well as future advances.

After the 1966 mortgage was executed,. Mrs. Smith loaned other sums to the Martins. On March 19, 1971, the Martins paid Mrs. Smith $4,000, leaving a principal balance of $982.35, which is the amount in dispute here referred to in the testimony and by the trial judge sometimes as the mortgage indebtedness. This balance is reflected in the payment books mentioned, on which Mrs. Smith wrote “paid in full” on May 24, 1971. Mrs. Smith testified she wrote this because she wanted to relieve Mr. and Mrs. Martin of the worry over making payments during the illness of the decedent and that the agreement was the Martins would not make further payments until they were able to do so. Mrs. Martin, the executrix, listed the debt to Mrs. Smith in the tableau. It is Mrs. Martin’s lawyer who is attempting to uphold payment of the debt. The mortgage is yet in existence and the daughter of Mrs. Martin, who attacks the debt and appeals here, has not shown the mortgage note was marked paid or cancelled from the mortgage records. A son of Mrs. Martin, who also attacked the debt below did not appeal.

The trial court said:

“As to the $1,000.00 mortgage obligation . However, we do not think the debt was repaid and we accept Mrs. Smith’s version of what happened." (Emphasis Supplied)

The record fully supports the trial court’s factual conclusions.

Legally then, the question is the intent of Mrs. Smith to remit. The answer is obvious because remission is never presumed and is not to be declared unless it clearly appears that the creditor intended the remission. Mrs. Martin, who signed the note and mortgage, obviously agrees with Mrs. Smith’s version. The burden of proving remission is on those who claim benefit of it. Even the delivery to the debtor of the act by which the obligation is created does not of itself give rise to the presumption that remission was intended. See authorities cited in original opinion.

The majority now states the dissenting opinion was correct. The dissent does not mention the mortgage or mortgage note. The dissent says it does not in any way question Mrs. Smith’s credibility. The dissent only assumes arguendo there was a voluntary remission. The dissent is couched in terms of burden of proof on the creditor rather than on the debtor. No authority is given.

As I view the Civil Code, the thing mortgaged (here real estate) is security for the debt and it is also bound for payment of the debt. The creditor may elect to foreclose against the property and not to pursue the debtor personally to satisfy the debt. LSA-C.C. Art. 3278, Schexnailder v. Fontenot, 147 La. 467, 85 So. 207 (1920). Mrs. Smith could then in a legally permissible manner, elect not to personally pursue Mr. and Mrs. Martin during a family crisis, but at the same time elect to eventually look to either of them or to the property for satisfaction of the debt after the family crisis had abated.

I respectfully dissent.