author: COVINGTON, Judge.

text:
    Mrs. Francis F. CHEN v. HOSPITAL AFFILIATES OF BATON ROUGE, INC., d/b/a Doctors’ Memorial Hospital.
    No. 12234.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 31, 1978.
    Donald S. Zuber, Baton Rouge, for defendant-relator.
    Curtis A. Calloway, Baton Rouge, for plaintiff-respondent.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This matter came on pursuant to an alternative writ of mandamus issued herein commanding the trial judge to grant the defendant’s motion for trial by jury, conditioned as the law directs; or, in the alternative to show cause by briefs why the writ should not be made peremptory. After considering the record and the briefs, we hereby make the writ of mandamus peremptory.

As shown by the record, suit was brought by Mrs. Francis F. Chen, the plaintiff, alleging that she fractured her arm on December 8, 1976, while a patient at Doctors Memorial Hospital, through the negligence of the hospital’s employees. The defendant denied the claim, and affirmatively pleaded contributory negligence and assumption of risk. In due course, a pre-trial conference was held on May 17, 1978. At the conference, the pre-trial order was changed under the “additional matters” paragraph to show: “Defendant plans to amend pleadings and to ask for trial by jury.” The trial judge then inserted at the end of the order: “The court will not permit any further amendments at this stage of the proceedings and sets the matter for trial on August 8th, 1978 at 9:30 A.M.” Nevertheless, the trial judge signed an order on May 18,1978, permitting the defendant to file a supplemental and amending answer, which had the effect of asserting an alternative defense that the plaintiff was on temporary leave from the hospital and had accepted full responsibility for her own welfare during her leave from the hospital. The trial judge, however, denied the defendant’s request for a jury trial.

We believe that the trial judge erred in refusing to grant the request for trial by jury, since the Code of Civil Procedure specifically allows either plaintiff or defendant to demand a trial by jury if such demand is made “not later than ten days after the service of the last pleading directed to such issue.” LSA-C.C.P. art. 1732. Under the holding of our Supreme Court in Barberito v. Green, 275 So.2d 407 (La.1973), once an amendment to the pleadings of a party is granted, the trial judge has no discretion to refuse a trial by jury. Barberito v. Green, supra, is dispositive of this matter. We distinguish Arbmahla High Corporation v. North American Co., 345 So.2d 1291 (La. App. 3 Cir. 1977), cited by relator, because in that case the trial court had specifically held in its refusal to grant a jury trial that “the defendant’s second amended answer added nothing new to the pleadings and was filed solely for the purpose of circumventing the provisions of LSA-C.C.P. art. 1732,” and the Court of Appeal had thus found no abuse of the trial court’s discretion. In the instant case there is no finding by the trial court that the amending answer was filed for the purpose of circumventing the time limitations of Article 1732 of the Code of Civil Procedure, and the record reflects no such motive.

We also believe that this ruling is consistent with the idea that the right to trial by jury is fundamental and the presumption is against waiver of that right. Hicks v. Board of Supervisors of Louisiana State University, 166 So.2d 279 (La.App. 1 Cir. 1964).

Accordingly, it is hereby ordered, adjudged and decreed that the alternative writs of mandamus, prohibition and certio-rari issued herein on the 8th day of June, 1978, directed to the Honorable Melvin A. Shortess, Judge, Division D, Nineteenth Judicial District Court, shall be and the same are made peremptory, and this cause remanded to the trial court to be reassigned for trial by jury.

WRITS MADE PEREMPTORY; REMANDED FOR FURTHER PROCEEDINGS.


source: Caselaw Access Project

author: BLANCHE, Judge.

license: Public Domain

text:
    Richard M. LAWRENCE v. Guion N. JONES, d/b/a Jones Construction Company.
    No. 12012.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 5, 1978.
    Clint Adcock, Baton Rouge, of counsel, for plaintiff-appellant Richard M. Lawrence.
    Phil P. Breaux, St. Gabriel, of counsel, for defendant-appellee Guión N. Jones, dba Jones Construction Co.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff is appealing a trial court judgment denying penalties and attorney’s fees under LSA-R.S. 23:632.

Since the lodging of this appeal, the Louisiana Supreme Court has rendered its opinion in Mason v. Norton, 360 So.2d 178 (1978). The Mason case is directly in point. The Supreme Court has reversed, in part, this Court’s decision in Mason and has held that the phrase “by the day, week or month” contained in LSA-R.S. 23:631 is properly construed as describing the pay period rather than the method of calculating wages.

Accordingly, plaintiff-appellant’s employment falls within the purview of the foregoing article and he is, therefore, entitled to penalties and attorney’s fees as provided by the statute.

For these reasons, the judgment of the trial court is amended so as to award plaintiff penalties and attorney’s fees, and in all other respects the judgment is affirmed. All costs of this appeal are assessed to defendant-appellee.

AMENDED AND AS AMENDED AFFIRMED.


author: BOUTALL, Judge. SCHOTT, Judge,

text:
    Betty Cheramie, wife of/and Paul ORGERON v. Louis E. SWEATMAN and Orkin Exterminating Co., Inc.
    No. 9451.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1978.

      Kenneth J. Hurst, Marrero, counsel for Betty Cheramie, w/o and Paul Orgeron, plaintiffs-appellees.
    Montgomery, Barnett, Brown & Read; Charles A. Boggs and Sylvia Landry, New Orleans, counsel for Orkin Exterminating Co., Inc., defendant-appellant.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Orkin Exterminating Co., Inc. has appealed from a judgment in favor of plaintiffs for damages arising out of an accident between a truck owned by Orkin and operated by its employee, Louis E. Sweatman, and an automobile operated by plaintiff, Mrs. Or-geron. The accident occurred at the intersection of Avenue A and U. S. Highway 90 (Westbank Expressway) in Marrero, Jefferson Parish.

The testimony of Mrs. Orgeron and a disinterested witness, James Antoine, established that she had stopped on Avenue A in obedience to a red semaphore signal and a few moments after it turned green she started to cross the outside lane of Highway 90. After entering the second lane of the highway, her left front door was struck by the truck. Antoine was operating a public transit bus coming from the other direction on Avenue A and stated unequivocally that Sweatman entered the intersection against a red light. This evidence amply supports the trial judge’s conclusion that Sweat-man’s negligence was the proximate cause of the accident.

After considering the issue of negligence, the trial judge then found that Sweatman was on his employer’s business and that there was vicarious liability on the part of his employer Orkin. Although Sweatman was a party defendant, he was not served with citation and was unavailable at the trial. The situation gave rise to the real issue on this appeal, that is, the liability of Orkin for Sweatman’s tort under the circumstances of this case.

Louisiana Civil Code Article 2320 provides that employers are answerable for the damages occasioned by their servants in the exercise of the functions in which they are employed. As stated in the case of Babineaux v. Lavergne, 321 So.2d 401 (La. App. 3rd Cir. 1975) at page 404:

“Whether an employee was acting within the course and scope of his employment must be decided on the facts of each case. Sweet v. Trahan, 159 So.2d 782 (La.App. 3 Cir. 1964). The test to be applied is whether the employee is performing some function for his employer and for which he was employed. (Citations omitted).”

In applying that test, we note that Orkin admits that Sweatman was employed as a route man and that he was furnished with a truck in which he drove about a particular geographic area servicing such customers as needed Orkin’s services. The manager testified that the company had experienced a rash of thefts of articles from its vehicles, such as batteries and tires, so a policy was instituted which permitted the route man to take the truck home after working hours and use it to return to work the next day, thus lessening the risk of theft. The employee was instructed that he was not to use the vehicle for any other purpose except transportation to and from work. This accident happened after normal working hours at a location within the boundaries of Sweatman’s territory, but outside of the area between Orkin’s office and Sweat-man’s house.

There is in the record no direct explanation of why Sweatman was driving in this place at that time. He was not available as ■ a witness to explain the event. It is Orkin’s contention that Sweatman had checked out at Orkin’s office in Gretna at 6:00 P. M. and was not engaged in any business of Orkin’s. Instead, it contends that Sweatman was. using the truck for his own purposes, and that he had been on a trip to Avondale, some miles west of Gretna in order to do his laundry at his son’s home, and was returning to his home at Marrero (located between Gretna and Avondale), when the accident occurred. As opposed to this, the plaintiffs contend that Sweatman was using the truck during this time to get to a telephone in order to call several customers of Orkin’s and arrange his route for the next day.

In support of these contentions, each party has offered hearsay evidence to explain Sweatman’s actions. Both parties raised issues as to the admissibility of this evidence and the probative value of it. Indeed, it is upon these narrow issues that the resolution of this case rests.

The evidence in this case is somewhat balanced as recognized by the trial judge who concluded that he was satisfied that Sweatman was on his employer’s business. The time and place of the accident, together with the direction in which Sweatman was proceeding, would all show that he was not in the usual course of Orkin’s business. However this is balanced by the testimony of Orkin’s manager that one of Sweatman’s duties was to call his customers in order to arrange his route for the next day. Ordinarily this was done from the office, but the manager testified that sometimes, because of the length of time in finishing the route, or because the customers were not home, the employee would make such calls on his own after hours. The evidence reflects that Sweatman checked out at 6:00 o’clock P. M. and further that Sweatman had no telephone at his home. From this evidence, one could just as reasonably conclude that Sweatman was engaged in the company’s business as conclude that he was using the truck for his own purposes.

In an effort to prove the purpose of Sweatman’s use of the truck, Orkin offered into evidence the statement of its manager that after the accident, Sweatman told him that he was using the truck to take his laundry to his son’s house and was returning when the accident happened. This is clearly hearsay evidence, but it was not objected to by the opposing party, and was indeed elicited again on cross examination by that party. Under these circumstances, it is permissible in evidence and may properly be considered and given probative value. Coleman v. Victor, 326 So.2d 344 (La. 1976). To offset this testimony, the plaintiff offered into evidence statements of Sweatman made under oath while testifying in a criminal trial as a defendant charged with a traffic offense from this same accident. That testimony was to the effect that Sweatman was using the vehicle to make telephone calls to his employer’s customers for servicing the next day. Timely objection was made to this evidence and indeed, such evidence is ordinarily ruled out as hearsay. However in this instance the evidence was offered “for purposes of showing possibly what Mr. Sweatman was doing and for contradictory purposes”. The court ruled: “For the limited purpose I am going to permit it to be offered into evidence.”

We agree with the court’s ruling. Although the evidence would ordinarily be excluded, its introduction is permissible to serve as a contradictory statement to offset the hearsay statement as to activities previously entered into evidence. Since the defendant offered the original hearsay statement as proof of Sweatman’s purpose, it cannot be heard to complain of the use by its opponent of similar evidence of Sweat-man’s purpose. See for example Thompson v. Goodman, 126 So. 527 (La.App. 1st Cir. 1930); Security Discount Company, Inc. v. Carter, 11 So.2d 650 (La.App.Orl.1943). Under these circumstances, it would be eminently unfair and prejudicial to plaintiff for the court to consider the hearsay offered by defendant, and not consider the hearsay offered by plaintiff.

In summary then, there is some evidence upon which the trial judge could make a finding that the driver Sweatman was doing one of the duties for which he was employed. It is further noted that the hearsay evidence offered by Orkin is based entirely upon the credibility of Orkin’s manager that Sweatman made such a statement to him, whereas the hearsay offered by plaintiffs is a sworn statement of Sweat-man himself, made in court. It is axiomatic that a reviewing court on appeal should accord great weight to the credibility decisions of the trial court, and should not overrule his findings of fact unless manifestly erroneous.

However there is an additional factor which leads us to affirm the decision of the trial court. It is not disputed that Sweatman’s duty as the route man involved the driving of the company truck and that he was driving within the geographical limits of his route. In the case of Windham v. Security Insurance Company of Hartford, 337 So.2d 577 (La.App. 4th Cir. 1976), we stated at page 579:

“The jurisprudence establishes that when an employee is driving his employer’s vehicle at the time of an accident he is presumed to be acting in the course and scope of his employment, and his employer will be responsible for damages sustained by third parties as a result of the employee’s negligence; this presumption is rebuttable by the employer, but only strong and convincing evidence will be sufficient to overcome the presumption.”

We have discussed the evidence offered above, and say that it does not meet the test of strong and convincing evidence sufficient to overcome the presumption. The evidence did not convince the trial judge who found as a fact that Sweatman was on his employer’s business at the time of the accident, and it certainly does not convince us that the trial judge was manifestly erroneous.

For the reasons assigned, the judgment is affirmed.

AFFIRMED.

SCHOTT, J., dissented and filed opinion.

SCHOTT, Judge,

dissenting:

The only legal basis for holding Orkin liable to plaintiffs would be if Sweatman was in the exercise of the functions of his employment at the time of the accident. LSA-C.C. Art. 2320. Liability does not arise simply from the fact of ownership of the vehicle or general employment of the person who drives it but depends on whether the driver was in the exercise of the functions for which he was employed. James v. J. S. Williams & Son, 177 La. 1033, 150 So. 9 (1933); Babineaux v. Lavergne, 321 So.2d 401 (La.App. 3rd Cir. 1975); Laird v. Travelers Indemnity Company, 236 So.2d 561 (La.App. 4th Cir. 1970); Wills v. Correge, 148 So.2d 822 (La.App. 4th Cir. 1963), writ refused 150 So.2d 768.

Since the burden of proof was on plaintiffs to prove every essential element of the claim as in any civil case, plaintiffs had to prove that Sweatman was in the exercise of the function for which he was employed by Orkin. In my opinion, they not only failed to prove this element but they failed to offer one scintilla of evidence to prove the issue.

Sweatman’s testimony at his trial in traffic court was clearly inadmissible as the rankest form of hearsay. There is no authority to consider this evidence to prove what Sweatman was doing with the truck, and once the evidence is disregarded for this purpose there remains no basis for the statement in the majority opinion that “there is some evidence upon which the trial judge could make a finding that the driver Sweatman was doing one of the duties for which he was employed.”

The only legitimate use of Sweatman’s testimony in traffic court was to impeach the testimony of Orkin’s manager, also hearsay, that Sweatman told him he was using the truck to go to his son’s house in Avondale to do his (Sweatman’s) laundry. Since this statement was not objected to it was properly before the court, but since Sweatman’s testimony in traffic court was timely objected to it was clearly inadmissible except for the limited purpose of impeachment.

Therefore, the trial judge could ignore the manager’s testimony if he considered it impeached, but there is still no evidence to prove that Sweatman’s use of the truck was job related and the judgment against Orkin is without support.

Finally, I submit that Windham v. Security Insurance Company of Hartford, 337 So.2d 577 (La.App. 4th Cir. 1976), does not have the effect of relieving plaintiff of the burden of proof in this case. In Windham, the employee started out using his employer’s car in the middle of a working day to discharge a specific duty assigned him, i. e., to return the car to a garage for repair. Finding the garage closed he proceeded in the ear to another garage around the corner where his own car was being repaired, but that garage was also closed. He then proceeded to his home in the employer’s car and an accident occurred on the way. He testified that he was faced with only two alternatives, either leaving the automobile at the closed garage or driving it home, and he chose the latter.

In my opinion, the language from Wind-ham cannot be quoted out of the full context of the decision and without regard to the circumstances of the ease. If the language is literally true all plaintiffs had to do was establish Orkin’s ownership of the vehicle and rest. Thereafter it became Or-kin’s burden to prove a negative with respect to the activities of the absent Sweat-man when he was driving the truck. This represents a radical departure from the simple rule that a plaintiff has the burden of proof and I do not believe that the court intended this result in the Windham case.

I submit that the Windham court intended to say that plaintiff had produced sufficient evidence to shift the burden of proof to defendant. Considering the time of day, the location of the accident, and all of the reasons for the employee’s use of the car which included his judgment not to leave the car at the closed garage, the burden properly shifted to defendant.

As opposed to these facts, we have Sweatman using the truck long after working hours at a location beyond his home in relation to the Orkin office and under circumstances where there was no conceivable connection between his work and the use of the truck.

I would reverse the judgment of the trial court.


author: SAMUEL, Judge.

text:
    Lurry D. LACOUR v. Alvin B. CRAIS.
    No. 9744.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Writ Refused March 16, 1979.

      Hurley, McNulty & Stakelum, John J. Brennan, III, New Orleans, for plaintiff and defendant-appellee in reconvention.
    Jack R. Crais, Destrehan, for defendant and plaintiff-appellant in reconvention.
    Before SAMUEL, GULOTTA and BEER, JJ.
   SAMUEL, Judge.

Plaintiff, Lurry D. Lacour, filed a posses-sory action against defendant, Alvin B. Crais, alleging the continued existence in the Jefferson Parish conveyance records of a sale by Ford Investment Corporation to defendant of five lots of ground in Kenner, Louisiana constituted a disturbance in law of plaintiff’s possession of the property. The lots in suit are designated as Nos. 44, 45, 46, 47 and 48 of Square No. 40 in Highway Park Subdivision, Kenner, Louisiana. Defendant answered, denied plaintiff’s allegations, and reconvened alleging 10 year acquisitive prescription in his favor and praying for judgment declaring him the actual and legal owner of the property in question. Plaintiff answered the reconven-tional demand and affirmatively asserted res judicata and judicial estoppel.

After a trial on the merits, judgment was rendered overruling Lacour’s exceptions but nevertheless declaring him the owner of the property. From that judgment, defendant appealed.

In 1954 plaintiff and George D. Williams acquired from Pierre Laroux certain immovable property, including the lots in suit, in Highway Park Subdivision, Kenner, Louisiana. On August 7, 1956 plaintiff and Williams sold this property by act of credit sale to Ford Investment Corporation. The consideration for the sale was $10,000 cash, together with a promissory note for $40,000 secured by mortgage on the property. The note was held by plaintiff.

In March, 1957 representatives of Ford Investment Corporation asked plaintiff to execute a partial release of mortgage covering some of the lots (including the lots in suit) secured by the $40,000 mortgage. The stated purpose for the partial release was to allow Ford Investment Corporation to sell those lots to a third person.

At the appointed time, plaintiff appeared before a notary and two witnesses and executed, in triplicate, that partial release of mortgage. The alleged purchaser did not appear for the closing and plaintiff departed from the office where the closing was to take place to attend another meeting. Plaintiff left the executed releases in the possession of an officer of Ford Investment Corporation. Before leaving the area, he telephoned the office and was advised the purchasers had not yet arrived. Plaintiff did not then go to the office and retrieve the executed partial releases.

Later, plaintiff contacted Ford’s officer regarding the passage of the act of sale, and eventually requested return of his partial release. Approximately one week after the release was executed, one of Ford’s representatives delivered to plaintiff a sealed envelope, which plaintiff believed contained the three executed copies of the partial release of mortgage. Plaintiff did not open the envelope, but instead placed it in his safe. He stated he assumed the proposed sale had never taken place, since he did not receive any compensation for executing the act of partial release and did not present Ford’s promissory note to be paraphed for identification therewith.

On April 3,1957, Ford Investment Corporation sold the property in suit to defendant by act of credit sale before the same notary who had passed the act of partial release. Plaintiff had no knowledge of this sale. On May 23,1958, Ford also sold the other lots it had acquired from plaintiff and Williams (other than the property now in dispute) to American Cigarette Service. That sale was passed by one of Ford’s corporate officers. The certificates attached to this sale did not show plaintiff’s mortgage because shortly before the certificates were dated the partial mortgage release was filed with the Clerk of Court evidencing plaintiff’s release of his mortgage on the lots sold to American Cigarette Service and the lots in suit.

Several months after plaintiff received the envelope purportedly containing his partial release, he discovered construction in progress on lots he and Williams had sold to Ford on which he had not executed a release. Examination of the public records by his attorney revealed his mortgage had been cancelled in part.

On January 3, 1961, plaintiff filed a petition for executory process against Ford Investment Corporation, seeking to foreclose on the mortgage securing the promissory note given him as partial consideration for the sale to Ford. An order directing the issuance of executory process was signed by the court, and a notice of seizure was recorded in the public records of Jefferson Parish on July 17, 1961. Subsequently, plaintiff obtained court authority to annex to the original petition for executory process the resolution of the board of directors of Ford Investment Corporation authorizing the mortgage sought to be foreclosed. Plaintiff also obtained court permission to serve notice of demand and seizure on the Secretary of State because service could not be made on Ford’s registered agents and the whereabouts of that corporation and its officers were otherwise unknown.

Plaintiff’s attorneys advised the court they would not sell any of the property subject to the order of executory process until all interested parties had an opportunity to intervene and be heard. Subsequently, numerous interventions were filed in the foreclosure proceeding by various persons. Some intervenors alleged plaintiff’s mortgage had been cancelled and extinguished as to the property owned by them, and others alleged the property was subject to their own mortgages.

In addition, the trial judge determined certain property owners whose title would be affected by plaintiff’s foreclosure proceeding had not appeared to assert their rights in the property and, accordingly, he appointed an attorney to represent their interests as curator ad hoc. The curator filed a petition of intervention on behalf of all owners whose property might be subject to the plaintiff’s vendor’s lien and mortgage except those property owners who otherwise appeared in person or through counsel. The curator attached to his intervention, as an exhibit, a list of the names of the various owners who appeared to own property subject to the foreclosure proceeding, together with the acquisition date for each such owner. Defendant and his acquisition were listed in this exhibit. Plaintiff did not furnish defendant’s address to the curator because, while he had previously met defendant, defendant’s whereabouts were unknown to him. Moreover, defendant was not listed in the telephone directory for either Orleans or Jefferson Parishes.

On August 31, 1963, a hearing was held to determine whether injunctive relief should be granted intervenors. During the course of this proceeding plaintiff agreed to amend his pleading in return for certain consideration, and to dismiss the foreclosure as to those lots on which a claim had been asserted by intervenors. During this same proceeding the curator advised the court the property at issue in this proceeding was still affected by the executory process and further stated he did not know the whereabouts or existence of Mr. “Craig”. On January 25, 1965, another hearing was held on the claims asserted by intervention not previously compromised. In due course, the court ruled in favor of the intervenors, and plaintiff appealed to this court.

This court reversed the trial judge’s decision and, only as to lots fraudulently added to the release after its execution, held persons purchasing immovable property on which a mortgage had been fraudulently released were not entitled to rely on the public records. The Supreme Court granted writs but the matter was compromised.

On April 29, 1969 plaintiff filed a supplemental petition seeking executory process on the lots which had not been affected by compromise. A judicial sale of the lots in suit, together with other lots, was ordered and a notice of seizure was issued and recorded in the public records. A judicial advertisement of the property sold pursuant to the court’s order was published in the official parish journal on March 2, 1972 and April 6,1972. Plaintiff purchased the property at the judicial sale, and the sheriff’s deed to plaintiff was recorded.

Plaintiff then filed this suit against defendant to have the recordation of his acquisition from Ford Investment Corporation cancelled from the public records.

The parties devote substantial argument to the question of the burden of proof in this case. Plaintiff’s petition was framed in the language of a possessory action, but defendant’s reconventional demand prayed for judgment declaring him the actual and legal owner of the property. The codal rule is that if a defendant in a possessory action asserts title in himself, in the alternative or otherwise, he converts the suit into a petito-ry action and judicially confesses the possession of the plaintiff in the possessory action. The district court concluded that Crais’ answer, which included a claim of ownership by 10 years acquisitive prescription, converted the action into a petitory action, thereby confessing the possession of Lacour. Under Article 3653(1) of the Code of Civil Procedure the plaintiff in the peti-tory action must make out his title against a defendant in possession of the property, and it is not sufficient for him merely to prove “a better title” to the property than that held by the defendant in the petitory action. The trial court concluded that, while defendant confessed plaintiff’s possession in the reconventional demand, nevertheless, the confession had been revoked or superceded by mutual agreement because the parties stipulated that neither had assumed actual physical or corporeal possession of the property. The result of the trial court’s finding is that defendant only had to prove “a better title” than that of the plaintiff. Even though the trial court held in favor of plaintiff, plaintiff takes strenuous issue with the trial court’s finding on the basis that a judicial confession is “full proof” against the party who makes it and that defendant’s attorney did not introduce into evidence the stipulation upon which the trial court relied. We hold, irrespective of any conclusion regarding this finding by the trial court, that defendant made out his title to the property.

The validity of defendant’s title ultimately hinges on the legal effect of the release of mortgage executed by plaintiff and later altered without his consent. This document without question originally was intended to release the particular lots later purchased by defendant. Its legal effect is contested by plaintiff because (1) the alteration of the document by addition of other lots rendered the entire release null and void, even as to the lots which he intended to release, and (2) he received no consideration for it. Plaintiff further contends the nullity of the release of mortgage resulted in defendant holding as a “third possessor” who took the property “subject to” his mortgage, and the foreclosure by executory process was sufficient to terminate all rights of defendant in the property.

Plaintiff’s first attack on the partial release of mortgage is futile. He relies primarily on the Supreme Court’s opinion on rehearing in American Guaranty Co. v. Sunset Realty & Planting Co. to support his argument that the entire partial release was rendered null, even as it affected the lots plaintiff actually intended to release, by its subsequent alteration to include lots he did not intend to release.

In American Guaranty a deed was approved by a corporation’s board of directors, but between the time of approval and its signature by corporate officers, both the deed and the minutes of the directors’ meeting were fraudulently altered by the addition of an unauthorized clause. Testimony not considered by the court was introduced to prove which parts of the altered document were identical to the original and which parts were added through fraud. The court declared the entire document null, and declined to recognize the argument that only the altered portions were invalid. In so holding, the court distinguished Munn v. Hoyt, and McGinty v. McGinty which gave effect to valid portions of altered documents, because they involved fraudulent alterations of an original document after it was executed. The document in these cases was not destroyed, and the evidence of the parties’ actual intent was not put out of existence, thereby requiring resort to unreliable testimony to establish the true intent of the parties. In Munn, the court enforced a mineral lease on a tract actually leased but refused to enforce the lease on acreage later added to it. In McGinty, a deed was declared null only as to an extra 110 acres fraudulently added to it.

The case before us presents the operative facts of the Munn-McGinty line. The original document is in existence and was altered only after it was signed. No doubt exists concerning what was consented to or what was actually done by the release before the alteration. There is consequently no reason to destroy the legal effect of the known will of the parties, and we conclude the partial release is valid insofar as it affects the lots actually released.

With regard to plaintiff’s second argument, the record is somewhat vague as to when the partial release was recorded. From the stipulations in the record it appears the release was displayed to defendant at the time of his purchase and it was not actually placed in the mortgage records until May, 1978 in connection with another sale by Ford to a separate purchaser. However, the exact time the release was recorded is not material to defendant’s rights thereunder because he acted reasonably and in good faith in believing it was or would shortly bé part of the public records and because it was in fact made part of the public records before any attack on his title was made by plaintiff or anyone else.

The Louisiana public records doctrine provides that third persons dealing with immovable property may rely on the face of the public records and need not go beyond or behind those records to ascertain the validity of the title which they acquire. While jurisprudence indicates the public records doctrine might not protect a purchaser from dispossession when his ancestor in title acquired by fraud, mere equity by the prior owners of the property not of record when the purchaser acquires on the strength of the public records does not affect the purchaser’s ownership rights.

Defendant was clearly entitled to rely on the public records showing the existence of only plaintiff’s mortgage bearing against the property he purchased. He was likewise entitled to rely on the partial release of that mortgage on the very lots purchased by him. The closing notary was able to display the partial release to defendant because, of plaintiff’s own inaction in not opening the envelope purportedly containing all multiple originals of the release to verify their presence. By failing to retrieve the multiple originals for which he received no consideration, plaintiff made possible Ford’s use of the document which on its face and before alteration had shown plaintiff had released, for consideration, the actual lots purchased by defendant. Plaintiff is unable to attack the sale from Ford to defendant free of his mortgage because of his own negligence and because of the strength of the public records doctrine. Defendant has the same rights as if the partial release had been recorded simultaneously with the registration of the act of sale by which he acquired the lots in suit.

Having concluded defendant acquired valid title from Ford Investment Corporation to property free from plaintiff’s mortgage, the sole remaining issue is whether defendant’s title was taken from him by plaintiff’s foreclosure by executory process. Plaintiff contends defendant was merely a third possessor who took subject to his mortgage and whose title was destroyed by the sheriff’s deed adjudicating the property to plaintiff when sold under his writ of seizure and sale.

A third possessor is one who (1) acquires property (2) subject to a mortgage (3) without binding himself personally for its satisfaction. A mortgage may be enforced against property so owned by such person by executory process without making him a party to the proceeding. The previous discussion in this opinion reveals, however, that defendant was not a third possessor under plaintiff’s mortgage from Ford because a release of plaintiff’s mortgage, as it affected the lots acquired by defendant, was in the public records at the time plaintiff foreclosed by executory process. Defendant did not on the face of the records acquire subject to plaintiff’s mortgage and defendant could not then, and cannot now, be classified as a third possessor. Because defendant was not a third possessor, he was at a minimum entitled to be made a party to the executory process proceeding. Since defendant was not a party, the sale of the property to plaintiff by the sheriff could not divest defendant of the title he acquired from Ford Investment Corporation.

The appointment of a curator did not cure the defect in the executory process proceeding. Article 2674(1) Code of Civil Procedure, provides for an absentee to be represented by a curator, but the wording of this article clearly presupposes the defendant’s right to be made a party to the proceeding has been satisfied at the time the curator is appointed. Moreover, the property registered in defendant’s name was sold in the executory process proceeding long after the curator had resigned. Even if defendant had been made a party, he was not represented by a curator pursuant to Article 2674(1) from the date of the curator’s resignation on September 9, 1963 until the property was sold on April 12, 1972. In the interim period between the resignation of the curator and the sale of the property owned by defendant, plaintiff filed a supplemental petition for executory process in which defendant could have been made a party. Plaintiff did not make defendant a party in that proceeding, an attorney was not appointed to represent him as an absentee, and the proceeding was not sufficient to divest title from defendant.

For the reasons assigned, the judgment appealed from is reversed, and judgment is hereby rendered in favor of Alvin V. Crais, defendant and plaintiff in reconvention, and against Lurry D. Lacour, plaintiff and defendant in reconvention, declaring the said Alvin V. Crais to be the owner of the following described immovable property:

“FIVE CERTAIN LOTS OF GROUND, together with all the buildings and improvements thereon, and all of the rights, ways, privileges, servitudes, advantages and appurtenances thereunto belonging or in anywise appertaining, situated in the City of Kenner, Parish of Jefferson, State of Louisiana, in that part thereof known as HIGHWAY PARK SUBDIVISION, in Square No. Forty (40) thereof, bounded by Florida Avenue, Twenty-Fourth Street, Williams Boulevard and Lake Avenue; which said lots are designated as Nos. 44, 45, 46, 47 and 48, on a survey by Adloe Orr, Jr. & Associates, Consulting Engineers, dated March 6,1954, a copy of which is annexed to an act before Edward J. Stoulig, Notary Public, dated April 23, 1954.”

Plaintiff and defendant in reconvention is to pay all costs of this proceeding.

REVERSED.

      . Plaintiff answered defendant’s appeal complaining that the trial court should have maintained exceptions of res judicata and judicial estoppel and reserved the right to raise or assert errors in the trial court’s reasoning, including the trial court’s finding that an alleged judicial confession by defendant of plaintiffs possession was revoked by stipulation.

      . Lacour v. Ford Investment Corporation, La.App., 183 So.2d 463.

      . LSA-C.C.P. Art. 3657.

      . 208 La. 772, 23 So.2d 409, at 445.

      . 150 La. 729, 91 So. 169.

      . 195 La. 328, 196 So. 548.

      . In construing the identical partial release of mortgage, this court previously left this question open for decision. See Lacour v. Ford Investment Corporation, supra, note 2.

      . Westwego Canal & Terminal Co. v. Pizanie, 174 La. 1068, 142 So. 691; Coyle v. Allen, 168 La. 504, 122 So. 596; Parent v. First Nat. Bank, 135 La. 254, 65 So. 233; Brewster Development Company, Inc. v. Fielder, La.App., 271 So.2d 299.

      . Lacour v. Ford Investment Corporation, supra, note 2.

      . Parent v. First Nat. Bank, supra, note 8 (unrecorded counter letter); Boudreaux v. Shadyside Company, La.App., Ill So.2d 891; Jackson v. Golson, La.App., 91 So.2d 394.

      . Federal Land Bank v. Cook, 179 La. 857, 155 So. 249; Thompson v. Levy, 50 La.Ann. 751, 23 So. 913; Boissac v. Downs, 16 La.Ann. 187; Twichel v. Andry, 6 Rob. 407; Duncan v. Elam, 1 Rob. 135.

      . LSA-C.C.P. Art. 2701. He must, however, receive notice of seizure. LSA-C.C.P. Art. 3742.

      . We do not decide if such proceeding was appropriate under these facts or whether a real action should have been instituted against defendant in lieu of the executory process proceeding against his property.

      .“The court shall appoint an attorney at law . to represent the unrepresented defendant in an executory proceeding under the following circumstances:
      (1) When the defendant is an absentee;” (Emphasis ours).


text:
    Everette P. HEBERT v. DIAMOND M. COMPANY et al.
    No. 12463.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1978.

      Joseph L. Waitz, Houma, for plaintiff.
    Christopher B. Siegrist, Houma, Raymond Morgan Allen, Lafayette, for defendants.
    John J. Weigel, New Orleans, for third-party defendant.
    J. Mark Graham, Houma, for intervenor.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This is an action for damages for injuries which occurred when plaintiff, Everette P. Hebert, was being transferred from the crew boat, “Master Jody,” to a tender barge serving an offshore platform.

Plaintiff alleges that the crane lifting the personnel carrier in which he was riding malfunctioned during the transfer, causing him to be dropped and sustain serious injuries. In his petition plaintiff alleges the claim is one cognizable in admiralty, that he is entitled to bring the action in state court under the “Savings to Suitors” clause, and that the applicable substantive law is the general federal maritime law, including but not limited to the Doctrine of Unseaworthiness.

Defendants, Diamond M. Company and Joseph Hawks (the company’s safety director), answered the petition, prayed for a jury trial, and subsequently filed a Motion to Fix Bond for Jury Trial. The trial judge denied the motion, noting briefly that the “lawsuit involves a claim under the General Maritime Law in which plaintiff has invoked the admiralty jurisdiction of the court, and since in federal law such a claim does not give right to trial by jury, the motion * * * is denied.”

On defendants’ application to this Court, we issued an alternative writ of mandamus directing the trial judge to grant a jury trial or, in the alternative, directing the trial judge and the respondent Hebert to show cause in this Court why the writ should not be made peremptory. The trial judge elected the alternative and filed a brief in support of his decision. No brief was filed by Hebert. After careful consideration, this Court has determined that the writ should be made peremptory.

In his brief, the trial judge advanced three bases to support his decision:

1. “[T]he granting of defendants’ request for trial by jury would immediately lead to other litigants making the same request and thereby creating a court docket condition where all litigants seeking recourse to the courts will be denied their right to a speedy trial”;
2. “[T]he granting of a jury trial in this case would be an unnecessary and unreasonable burden and imposition upon the citizens of this parish who will be called at personal sacrifice to serve on the jury”; and
3. “[TJrial by jury in a general maritime tort action such as this case is prohibited.”

We find that the first two grounds asserted by the trial judge are totally unpersuasive. While it is unfortunate that our lower courts’ dockets may suffer overcrowding, and it is no doubt an inconvenience may be occasioned to citizens who must serve on juries, civil or criminal, these reasons should not be sufficient to deny a litigant a jury trial to which he may otherwise be entitled.

The trial judge’s third claim, that a trial by jury in a general maritime tort action is prohibited, while deserving of more careful consideration, is likewise without merit. Two recent Louisiana cases were cited in support of that proposition: Benoit v. Fireman’s Fund Insurance Company, 347 So.2d 269 (La.App. 3rd Cir. 1977); and Lavergne v. Western Company of North America, Inc., 363 So.2d 1243 (La.App. 4th Cir. 1978).

Benoit v. Fireman's Fund Insurance Company, supra, involved an action by a wife and three children for the wrongful death of the husband which occurred when he drowned while working on the defendant’s crew boat. Recovery was sought under the Jones Act, the Death on the High Seas Act (DOHSA) and the general maritime law. Trial was by jury. The Court noted in dicta:

“ * * * When joined with a Jones Act claim, a DOHSA action may be tried by a jury; however, by itself it does not afford such a right. See Green v. Boss, 481 F.2d 102 (C.A. 5th Cir. 1972).” (Be-noit v. Fireman’s Fund Insurance Company, 347 So.2d at 272)

In Green v. Ross, supra, an action for wrongful death under the general maritime law was brought in federal district court based upon Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). The U. S. Fifth Circuit Court of Appeals affirmed the trial court’s denial of a jury trial. However, the important factor in Green, supra, as it relates to Benoit and the instant case is that in Green the plaintiff invoked the admiralty jurisdiction of the federal district court. In federal procedural parlance prior to 1966, the action was brought “on the admiralty side” of the court where trial is without a jury; and this is, in our opinion, what prompted the Fifth Circuit Court of Appeals to say:

“ * * * Historically, actions for personal injury brought in the federal admiralty jurisdiction under general maritime law have not entitled the injured plaintiff to a jury trial, unless he establishes an independent jurisdictional basis for such a trial.” [Citations omitted] (Green v. Ross, 481 F.2d at 103 — Emphasis added)

Since Green involved a claim on the admiralty side of federal court, it cannot possibly be authority for the proposition that a party who asserts a general maritime or DOH-SA claim in state court under the savings to suitors clause does not have a right to a jury trial. On the contrary, the court clearly states that a litigant would have a right to jury trial on the “law side” of federal court if he were able to establish an “independent jurisdictional basis” for the admiralty claim. Hence, the dicta in Benoit relied upon by the trial judge in his brief does not support his judgment that a litigant in a maritime tort action brought in state court is not entitled to a jury trial.

The second case relied upon by the trial judge is the case of Laver gne v. Western Company of North America, Inc., supra. There, in an action for injuries which occurred while appellant was an equipment operator on a barge owned by the defendant-appellee, the Fourth Circuit Court of Appeal refused to reverse the judgment of the trial court granting defendant’s motion to strike plaintiff-appellant’s prayer for a jury trial. The Court reasoned, by analogy, as follows:

“Since there is no uniformity in Louisiana regarding the application of procedural rules of the forum in admiralty matters, * * * we base our decision on a more fundamental concept. The rule is generally recognized that even though this court possesses the right of review of both law and fact, in maritime matters the admiralty law prevails and this court is powerless to redetermine facts found by the jury even though it may reach a different conclusion or be of the opinion that a contrary result is more reasonable. [Citing Guilbeau v. Calzada, 240 So.2d 104 (La.App. 4th Cir. 1970), and Ferdinandtsen v. Delta Marine Drilling Company, 235 So.2d 641 (La.App. 4th Cir. 1970)] The clear import of these decisions is that federal maritime procedure is controlling, at least in procedural matters which go to the heart of the nature of the ultimate factual determination. A jury trial, like the scope of appellate review, is also a procedural matter which goes to the heart of the nature of the ultimate factual determination. Therefore, we are of the opinion the maritime law, which here would not permit trial by jury, should prevail with regard to a litigant’s right to trial by jury in our state courts under the savings to suitors clause. * * * ” (363 So.2d at 1246)

We find this analogy by the Fourth Circuit unpersuasive for two reasons. First, this Court is not convinced that in a general maritime action brought under the savings to suitors clause it is required to apply a federal rule regarding review of jury ver-diets. The cases relied upon by the Fourth Circuit to reach this conclusion are easily distinguishable and do not support that proposition. Second, the analogy itself is self-contradictory in that the basic premise includes the possibility of a jury trial.

Ferdinandtsen v. Delta Marine Drilling Company, supra, is easily distinguishable from the case at bar since it involves a Jones Act claim. There, the Fourth Circuit relied upon Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1956), a case involving a claim under the Federal Employers Liability Act (FELA), in holding that it was severely limited in its scope of review of the factual findings of the jury. In Rogers the United States Supreme Court held that to allow lower federal and state courts to “deprive litigants of their right to a jury determination” by substituting their own judgment for that of the jury’s would frustrate the congressional intent, since Congress had expressly stipulated that FELA claimants had a right to a jury trial. The Louisiana Supreme Court, in Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971), a case involving a claim under the Jones Act, followed Ferdinandtsen, supra, noting that Congress made the Federal Employers Liability Act applicable to seamen when it enacted the Jones Act, and held that a limited scope of review was mandated by Rogers. Therefore, Ferdinandtsen does not stand for the proposition that a Louisiana court cannot review facts in an action brought under the general maritime law since the underlying reasoning of that case is based upon statutory construction of congressional intent regarding specific congressional acts and has little to do with general admiralty or maritime principles.

Neither can Guilbeau v. Calzada, supra, be relied upon in support of the above proposition, for the single authority upon which it relied was its own opinion in Ferdinandtsen. Guilbeau did involve a general maritime tort claim under the savings to suitors clause, but the claim was tried before a judge and the court merely noted its previous opinion and stated:

“In cases of this type our method of review must correspond to that of the federal appellate courts. * * * ” (240 So.2d at 109)

Our research reveals that Guilbeau stands alone in Louisiana jurisprudence. This Court is, therefore, inclined to discount its validity.

We, therefore, find that the basic premise upon which the Court in Lavergne reached its conclusion, i. e., that a state court is severely limited in its scope of review of jury verdicts in general admiralty and maritime claims, is at best uncertain, and at worst, not supported by the jurisprudence. As a result, we believe the Lavergne analogy cannot be dispositive of the instant case.

Further, if, in fact, “federal maritime procedure is controlling, at least in procedural matters which go to the heart of the nature of the ultimate factual determination” (Lavergne, supra, 363 So.2d at 1246), and a state court may not grant a jury trial in actions based upon general maritime law, nor review the findings of that jury, the same rule must necessarily apply to an admiralty claim brought on the civil side of federal court. This is because both claims are brought under the savings to suitors clause. However, it is well established that a plaintiff who brings his admiralty claim on the civil side of federal court has a right to a jury trial since this is one of the remedies saved to suitors under 28 U.S. C.A. § 1333. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962); Romero v. Bethlehem Steel, 515 F.2d 1249 (5th Cir. 1975); Ballard v. Moore-McCormack Lines, Inc., 285 F.Supp. 290, 292 (S.D.N.Y.1968); cf. Fitzgerald v. United States Lines Company, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963); Carlisle Packing Company v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 60 L.Ed. 927 (1922).

We, therefore, find that none of the reasons or authorities set forth by the trial judge in his brief compel this Court to hold that a litigant in an admiralty or general maritime action brought under the savings to suitors clause is unable to obtain a jury trial. We believe the question is resolved by a careful examination of the history and function of the “savings to suitors” clause of 28 U.S.C.A. § 1333.

Federal district courts have exclusive jurisdiction over all claims cognizable in admiralty and maritime law (Article III, § 2, U. S. Constitution, 28 U.S.C.A. § 1333), “saving to suitors in all other cases all other remedies to which they are otherwise entitled.” 28 U.S.C.A. § 1333. When a claim is cognizable in admiralty, a litigant has several choices.

First, he may bring his claim in federal district court based upon the admiralty jurisdiction granted by Article III, § 2 of the Constitution and 28 U.S.C.A. § 1333. Prior to 1966, the federal court was divided into sides: the “admiralty” side and the “law” or “civil” side. When an admiralty suit was filed, it was placed on a separate docket with separate rules of procedure peculiar to admiralty cases. In 1966 the two sides were merged. According to Gilmore & Black:

“* * * [T]he admiralty ‘suit’ became a regular ‘civil action’, and the Federal Rules of Civil Procedure were made generally applicable, with some special rules for certain cases heard under the ‘admiralty’ jurisdictional grant. * * ” (Gilmore & Black, The Law of Admiralty, 2d ed. 1975, p. 2)

Today, a litigant wishing to invoke the admiralty jurisdiction of the federal court, when there exists on the face of his complaint other independent grounds for federal jurisdiction, does so by designating his claim as one in admiralty under Rule 9(h) of the Federal Rules of Civil Procedure. The benefit of having the claim heard on the “admiralty side” arises from various procedural rules and remedies peculiar to the admiralty court.

Although 28 U.S.C.A. § 1333 grants federal courts exclusive jurisdiction over admiralty and maritime claims, a litigant may also bring such claims, if they are in personam, on the “civil” side of federal court or in state courts under the “savings to suitors” clause. Atlantic & Gulf Stevedores, Inc. v. EUerman Lines, supra; Garrett v. Moore-McCormack Company, 317 U.S. 239, 243, 244, 63 S.Ct. 246, 249, 250, 87 L.Ed. 239 (1942); Carlisle Packing Company v. Sandanger, supra; Seas Shipping Company v. Sieracki, 328 U.S. 85, 88, 66 S.Ct. 872, 874, 90 L.Ed. 1099 (1946). However, regardless of which court, or which side of federal court, the action may be brought, the federal substantive admiralty or maritime law applies if the claim is one cognizable in admiralty. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Atlantic & Gulf Stevedores, Inc. v. Ellerman, supra; Garrett v. Moore-McCormack Company, supra; Seas Shipping Company v. Sieracki, supra. This is due to the great need for uniformity and the problems which would be created by contradicting local rules applying to navigable waterways and those who use them.

What is saved under the “savings to suitors” clause, therefore, is not a remedy at common law, but a common law remedy. In The Moses Taylor, 4 Wall. 411, 431, 18 L.Ed. 397; Chelentis v. Luckenbach S. S. Company, 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). Therefore, a maritime or admiralty action in a non-admiralty court is still controlled by federal substantive law, but the remedy is regulated by the lex fori. Chelentis v. Luckenbach S. S. Company, supra. In Chelentis, the Supreme Court, in explaining this difficult concept, pointed out:

“The distinction between rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury. Bouvier’s Law Dictionary. Plainly, we think, under the saving clause a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law; but we find nothing therein which reveals an intention to give the complaining party an election to determine whether the defendant’s liability shall be measured by common-law standards rather than those of the maritime law. * * * ” (38 S.Ct. at 504-Emphasis supplied)

Therefore, if a remedy is available on the “law side” of federal court, or in state court, an admiralty claimant who meets the jurisdictional requirements of the court in which he brings his action is entitled to that remedy, provided it does not alter or conflict with the substantive rights of the parties under the admiralty or maritime laws.

Thus, the criteria to determine whether a particular remedy is available to an admiralty litigant in a non-admiralty court are as follows: (1) The remedy must be one to which the litigant would otherwise be entitled under the law of the forum; and (2) notwithstanding (1) above, the remedy must not alter or conflict with the maritime or admiralty law which establishes the substantive rights of the parties.

In a civil action brought in federal court, litigants are guaranteed (by the Seventh Amendment to the United States Constitution) the right to trial by jury in all actions where the amount in controversy exceeds $20.00. In Louisiana, the right to trial by jury is recognized by Article 1731 of the Louisiana Code of Civil Procedure, subject to certain limitations contained in Article 1733. It is clear, therefore, that in both the civil side of federal court and a state court in Louisiana, a jury trial is a remedy to which a litigant is “otherwise entitled.” 28 U.S.C.A. § 1333.

The only remaining question is whether a jury trial alters or conflicts with the substantive admiralty or maritime rights of the parties. Initially, we note that the United States Supreme Court held in Fitzgerald v. United States Lines Company, supra:

“While this Court has held that the Seventh Amendment does not require jury trials in admiralty cases, * * * neither that Amendment nor any other provision of the Constitution forbids them. * * * Nor does any statute of Congress or Rule of Procedure, Civil or Admiralty, forbid jury trials in maritime cases. * * * ” (83 S.Ct. at 1650)

To hold that a litigant has a right to a jury trial, therefore, would not conflict with any express substantive rights under admiralty law. Lister v. Texaco, Inc., 361 So.2d 290 (La.App. 1st Cir. 1978). We are unable to see how substituting one fact finder for another would in any way alter the substantive rights of the parties. A jury trial is simply a method of enforcing substantive rights. As such, it is purely remedial; and where it is available in civil actions, it is one of the remedies to which a suitor is “otherwise entitled,” 28 U.S.C.A. § 1333, saved to him under the savings clause.

We believe the above conclusion is borne out by the federal jurisprudence which has recognized the jury trial right of admiralty and maritime litigants in an action on the civil side of federal court under the savings to suitors clause. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, supra; Romero v. Bethlehem Steel, supra; Ballard v. Moore-McCormack Lines, Inc., supra; cf. Carlisle Packing Company v. Sandanger, supra; Fitzgerald v. United States, supra. Further, regarding the above principles, there is no apparent conceptual distinction between an admiralty claim brought under the savings to suitors clause as a civil action in federal court and one brought as a civil action in state court. We conclude, therefore, that since trial by jury is a remedy recognized in this state, this remedy is available to a litigant in a maritime or admiralty claim the same as it would be to any other civil litigant before our courts.

For the above and foregoing reasons, the alternative writ issued herein is made peremptory, and it is ordered that relator be granted a jury trial.

WRIT MADE PEREMPTORY.

      . The jurisprudence since Rogers has generally stated that in Jones Acts and FELA actions a jury trial is part of the substantive right. Therefore, for an appellate court to substitute its judgment for that of the jury would be to deny that right.

      . As originally enacted, the clause read, “Saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.” It has generally been held that the 1946 Amendment did little, if anything, substantively to change the prior law.

      . A claimant can invoke the jurisdiction of the federal court to hear the claim under 28 U.S. C.A. § 1332 provided the requisite diversity and jurisdictional amount are met. However, the Supreme Court of the United States held in Romero v. International Terminal Operating Company, 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), that a claim in admiralty was not one “arising under” the constitution, statutes or laws of the United States for the purposes of federal question jurisdiction under 28 U.S.C.A. § 1331. Hence absent diversity, an in person-am admiralty claim may only be brought on the admiralty side of federal court (§ 1333) or in state court under the savings to suitors clause.

      . Also considered part of the applicable substantive federal law are certain remedies or procedures which are so inextricably tied to the substantive right as to be part of it, e. g., comparative negligence applies to admiralty claims rather than contributory negligence; the doctrine of laches replaces the state’s prescriptive laws.

      . There exists no admiralty “side” or “jurisdiction” in state court; all admiralty actions brought in state court must be brought under the savings to suitors clause.


author: LOTTINGER, Judge.

text:
    MORGAN CITY BANK & TRUST COMPANY, Plaintiff and Appellee, v. JAMBOIS O & M MACHINE SHOP, INC., Sidney Jambois and Luana T. Jambois, Defendant and Appellant.
    No. 12558.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1978.
    Writ Refused Feb. 9, 1979.
    James R. McClelland, Aycock, Horne, Caldwell, Coleman & Duncan, Franklin, La., for plaintiff and appellee.
    Luana Thiel Jambois, in pro per.
   ON MOTION TO DISMISS

Before ELLIS, BLANCHE and LOT-TINGER, JJ.

LOTTINGER, Judge.

This matter is before us on motion by plaintiff-appellee to dismiss the appeal of defendant for not being perfected timely.

The record points out that the judgment was signed on June 13, 1978, that notice of judgment was mailed on June 15th, and that a motion for a new trial was filed on June 19,1978. The motion for the new trial was denied on June 22,1978, and the record is void of any written request for notice of the denial of the new trial as provided by La.C.C.P. art. 1914.

The motion for appeal was mailed on August 20th, and received and filed by the trial court clerk on August 23, 1978.

In the absence of a written request for notice of the refusal to grant a new trial, the delay for appealing commenced to run from June 22, 1978, the date the motion for the new trial was denied. La.C.C.P. art. 1914, Doolan v. Doolan, 349 So.2d 980 (La. App. 3rd Cir. 1977).

By our calculations, the motion for appeal was filed on the sixty-second day after the new trial had been denied and thus it was untimely and must be dismissed. La.C.C.P. art. 2087.

Therefore, for the above and foregoing reasons this appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.


author: GULOTTA, Judge.

text:
    Susyn Weil CAIN & Byron M. Cain v. HANDY CITY, INC., Southland Mower Co., Inc., Briggs & Stratton Engine Co., and XYZ Insurance Company.
    No. 9686.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1979.
    Rehearing Denied March 14, 1979.

      Gerard J. Hansen, Michael M. Ogden, New Orleans, for plaintiffs-appellants.
    Deutsch, Kerrigan & Stiles, Robert E. Kerrigan, Jr., New Orleans, for defendants-appellees (Handy City, Inc. & CNA Ins. Co.).
    Dillon, Cambre & Marshall, David M. Cambre, New Orleans, for defendant-appel-lee (Southland Mower Co., Inc.).
    Before SAMUEL, REDMANN and GU-LOTTA, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from the dismissal of their claim against a manufacturer of a gasoline powered lawnmower, the seller, and the manufacturer of the lawnmower engine , for injuries sustained July 29,1975 when Mrs. Susyn Cain was operating the mower. We affirm.

We are confronted primarily with the burden of proof required by a plaintiff in a products liability case.

At the outset, we find no merit to plaintiffs’ procedural argument that the trial judge erred in refusing plaintiff the right to file a supplemental and amended petition eleven days before trial. In the original petition plaintiffs allege that the plastic blade guard was defective. Plaintiffs sought to additionally allege (in an amended petition) that the lawnmower’s handle was defective. If we were to conclude that the trial judge had abused his discretion in not granting plaintiff leave to file the supplemental and amended petition, the trial judge nevertheless cured the error when he permitted plaintiff to offer evidence (over defendants’ objection) on the possible defect of the lawnmower handle. We conclude, under the circumstances, plaintiffs suffered no prejudice as a result of the trial court’s failure to permit the filing of the amended petition.

While mowing the lawn at her home, Mrs. Cain suffered the amputation of a toe and partial amputation of another toe, when her foot became caught in the lawnmower blade. According to her testimony, the lawnmower was being used in a normal manner, on a dry day and on a level lawn, when the forward motion of the mower slowed (because of thicker grass) and as she pushed, Mrs. Cain’s foot went through the rear mower guard and came into contact with the rotating blade.

In connection with the central issue, i. e., the burden of proof question, the trial judge, at the conclusion of the trial, in oral reasons, stated:

“ . . . I have heard no evidence which establishes a faulty design or manufacture in the product which allegedly caused the accident . The entire ease is on the basis of faulty design of one alleged part of this machine and its [sic] it is apparent to me that it had nothing to do with the accident.”

In Weber v. Fidelity & Casualty Company of N.Y., 259 La. 599, 250 So.2d 754 (1971) the Louisiana Supreme Court stated that a plaintiff claiming injury in a products liability case has the “burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.” The Weber court went on to say that if the product is proven defective by reason of its hazard to normal use, plaintiff need not prove any particular negligence because the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of those vices.

In the comparatively recent case of Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (1978), the Supreme Court applied the “unreasonably dangerous to normal use” test in a case involving an eye injury sustained from a hammer chip where evidence established that an earlier chipped hammer becomes unreasonably dangerous to normal use. Plaintiff recovered in Chappuis when a chip from a hammer struck plaintiff’s eye while the hammer was being used in a normal manner. Because of the manufacturer’s knowledge that a chipped hammer is likely to chip again in normal use, the Chap-puis court concluded that the manufacturer had the duty to place a warning label on the hammer such as “discard this hammer if it becomes chipped”, or “if this hammer chips, return to seller.”

Because the lawnmower handle is not firmly anchored to the chassis, plaintiffs claim that the upward motion of the handle to a vertical position when forward motion is impeded, allows the operator to move dangerously close to the mower chassis and blade. According to plaintiffs, this defect makes the lawnmower unreasonably dangerous to normal use. We find no merit to this contention. Virtually no evidence was offered to show that the lawnmower handle was defective or how the upward or downward movement of the handle contributed to this unfortunate accident. No expert evidence was submitted by plaintiffs to support this argument. Plaintiffs theorize that the five foot, three and one-half inch operator could have been injured when her foot came into contact with the blade as the handle moved forward to a vertical position. This argument is speculative and unconvincing.

Plaintiffs’ other attack centers around a defective guard which broke on one side when struck by the force of plaintiff’s foot, causing the foot to be lodged in the lawnmower blade. In this connection, plaintiff and her husband testified that prior to the use of the mower on the day of the accident, the rear mower guard was intact. After the accident, plaintiffs noticed that the guard “ . . . was moved to the left hand side and the right side was broken free and it was laying on an angle.” The husband described the guard as “broken off.” The lawnmower had been purchased approximately seventeen months prior to the accident and Mr. & Mrs. Cain had used the mower in excess of thirty times without incident. According to Mrs. Cain’s recollection, after the accident, she noticed the left side of the guard was attached, but not the right side.

Harold Myers, a mechanical engineer who examined the mower after the accident, stated that it met the National American Standards for safety, however, the mower had been poorly maintained. According to this expert, the purpose of the guard is to prevent projectiles from being thrown from beneath the machine and causing injury or damage. His inspection indicated that the guard had been “cut through” and this damage could have occurred only by a “terrible impact”, such as a rotating blade. The guard was described by Myers as a hard and stiff “fibrous like material”. In a demonstration to the court, this expert witness indicated that it is “impossible” for the operator of this type of mower to get his foot caught underneath the mower without the rear guard coming “completely off”. Myers further indicated that this mower is not any more dangerous than any other.

The evidence considered, we conclude plaintiff failed to carry the burden of proof required to show that the mower was unreasonably dangerous to normal use. See Weber and Chappuis cases, supra. As was stated in Gauthier v. Sperry Rand, Inc., 252 So.2d 129 (La.App. 3rd Cir. 1971), writs denied, 259 La. 940, 253 So.2d 382 (1971), in a products liability case; “the law does not require that the manufacturer make the product ‘fool proof’ or ‘accident proof’.”

The judgment is affirmed.

AFFIRMED.

      . Southland Moore Company, Inc.

      . Handy City, Inc.

      . Briggs and Stratton Engine Company.

      . Harold Myers, a consulting engineer, testified that the guard was fifteen and one-quarter inches wide, attached by two metal clips to one-eighth inch slots on the mower. The guard was attached on the left and right rear sides of the mower.


author: PRICE, Judge.

text:
    Etoyle Yvonne Sandel BALLARD, Plaintiff-Appellant, v. Leon McGraw BALLARD, Defendant-Appellee.
    No. 13750.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.

      Love, Rigby, Dehan, Love & McDaniel, Shreveport by Kenneth Rigby, for plaintiff-appellant.
    L. Edwin Greer and Law Offices of James A. Van Hook by James A. Van Hook, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

The appeal taken by plaintiff, Etoyle Yvonne Sandel Ballard, is concerned primarily with the validity of various corporate transactions of Ballard’s, Inc., a commonly owned corporation now under the control of her divorced husband, Leon McGraw Ballard, and the injunctive relief requested by each party against the other relating to the corporate affairs.

A second issue raised by L. M. Ballard’s answer to plaintiff’s appeal is whether he is entitled to a reduction in the permanent alimony previously awarded plaintiff so that it will not exceed one-third of his income.

Plaintiff contends that the election of directors by the stockholders of Ballard’s, Inc., on January 25, 1977, was invalid because at that time, which was prior to dissolution of the community by her divorce from defendant, there was an equal number of shares registered in the names of plaintiff and defendant. Therefore, her negative vote at the meeting prevented a legal election of the directors nominated by defendant. She contends that because of the foregoing circumstances the actions of those directors on February 15, 1977, in electing officers and adopting resolutions authorizing signatures on checking accounts were also invalid. She further contends the resolutions adopted at a meeting on April 25, 1977, authorizing a chattel mortgage and assignments of accounts to York Division of Borg-Warner were invalid.

Conceding that plaintiff is correct that the election of directors on January 25 was illegal, the corporate matters transacted at the subsequent board meetings of February 15 and April 25 would nevertheless be valid. Plaintiff was a director prior to January 25 along with defendant and the corporate attorney, James Van Hook. Defendant and Van Hook were therefore members of both the existing and newly elected boards. As plaintiff was present at these meetings and cast a vote, although negative, there was valid action taken by the former board on these matters in the event the January 25 election was improper.

Plaintiff next contends that after the dissolution of the community by the March 24, 1977, divorce decree, defendant illegally issued 108 shares of stock to himself to give him a voting majority. She contends that upon dissolution of the community she and defendant became co-owners of all stock in the corporation, and any stock issued after that date should have been issued equally to the parties. She also contends his action in so doing was in violation of the injunction issued in the divorce decree to refrain from alienating property belonging to the community. On this basis she contends the stockholders’ meeting of May 31, 1977, removing existing directors and naming their successors was illegal.

The trial judge concisely outlined the chronology of events leading up to the issuance of this additional stock to defendant in his reasons for judgment. The conclusions reached by him based on the facts found are in accord with our view of the law and we adopt them in affirming the court on this issue.

Some years ago, Mr. Jack D. Frizzell bought a number of shares of stock in the corporation thereby causing the corporation to have a total of three stockholders, i. e., Mr. Frizzell, Mr. Ballard, and Mrs. Ballard. The shares of stock purchased by Mr. Frizzell were purchased from Mr. Ballard. This purchase of stock was a credit transaction with Mr. Frizzell executing a promissory note for the purchase price of the stock and securing the payment of the note by pledging his stock to Mr. Ballard.
At about the same time, the attorney for the corporation prepared a stock purchase agreement. The shares of stock which were issued to Mr. Frizzell specified that those shares of stock were subject to the stock purchase agreement. However, the evidence showed that the stock certificates were issued on the 29th day of September, 1971 and the note to Mr. Ballard and the pledge agreement pledging those shares as securities therefor, were also executed on September 29, 1971. The stock purchase agreement was executed the following date, namely, September 30, 1971.
The purpose of that arrangement was to insure that the shares of stock which were sold by Mr. Ballard to Mr. Frizzell would be subject to return to Mr. Ballard under the pledge agreement, should Mr. Frizzell default on his obligation. We believe that the notation on the shares of stock that they were subject to a stock purchase agreement which was not even entered into until the day after the issuance of the stock certificate, was intended to insure that should Mr. Frizzell later desire to leave the corporation, with the idea of selling his stock to someone other than the corporation or Mr. and Mrs. Ballard, he would be prohibited from doing so by the stock purchase agreement. The intent was to retain total control and ownership in the Ballards.
When Mr. Frizzell defaulted on his obligation, the shares of stock reverted to Mr. Ballard and he was and is entitled to vote those shares of stock in Ballard’s, Inc., so long, however, as he does not act in fraud of the rights of his former wife.
Accordingly, the corporate actions taken by Ballards, Inc., particularly the execution of the chattel mortgage in favor of York Division of Borg Warner was legally correct. We might add, not only was that action legally correct, but was a necessity, brought about by Mrs. Ballard’s inquiries of York as to the solvency of Ballards, Inc., a step which caused much concern on the part of York/Borg Warner and, for a time, placed Ballards, Inc. in a very difficult business position with that company.

The record also supports the issuance of the injunction to restrict plaintiff’s access and inspection of the books and records of the corporation except at such times and under such conditions as the court orders or as is allowed under the Business Corporation Law. Plaintiff’s unannounced appearances at the business demanding immediate access to various records have been shown to have a detrimental effect on the business and the morale of the employees. Plaintiff has ample protection of her rights under the corporation laws, and the defendant, his agents, and employees continue to be under the injunction issued in the March 24 divorce judgment not to alienate community property except in the normal course of the corporation’s business. We therefore find no error in the granting of the injunction pending settlement of the community.

It should be noted that there is pending on the same docket of this court an appeal from the judgment rendered in a separate proceeding ordering a partition of the community formerly existing between the parties, including the stock of the corporation.

Defendant contends the trial court erred in concluding that the prior award of permanent alimony in the sum of $1,800 per month in the divorce decree of March 24, 1977, does not exceed one-third of his income in contravention of La.C.C. Art. 160. The trial judge rejected defendant’s request for a reduction because of its determination that defendant had a sufficient gross income in 1977, including salary, rent, and other personal benefits received by him from Ballard’s Inc., to justify the continuation of the award without violation of the one-third rule of La.C.C. Art. 160. Defendant contends the trial court miscalculated the amount of fringe and personal benefits received by him in making its determination of his gross income.

The principal complaint by defendant is that in determining the value of personal benefits defendant received from the corporation over and above his salary, the trial court substantially relied on the schedules and summaries prepared by an accountant who was related to plaintiff and whose analysis of the corporate financial records was improper. The exhibits prepared by the accountant purported to show the “effective income” of defendant by listing expenditures made by the corporation which the accountant claims would be classified as income to defendant under Internal Revenue regulations. We do not find that the trial court gave the statements of the accountant the weight contended by defendant. The court analyzed this evidence as follows:

. Mrs. Ballard’s accountant has testified as to sums which the accountant asserted should be included in the “effective income” of Mr. Ballard. (See Exhibit AD 1 through AD 9). The “statements of effective income” were devised by Mrs. Ballard’s accountant using tax principles. That method sheds light on the manner in which the business is operated and upon assets available to Mr. Ballard. Nevertheless, we do not believe that all of these computations, which might be used in a tax case, can be literally applied in a case of this kind.
If the Court accepts the “statements of effective income” set forth in Exhibits AD 1 through AD 9, the Court would have to conclude that Mr. Ballard’s gross income was in excess of $90,000 per year. Although it will be shown hereafter that Mr. Ballard has a substantial income, we cannot accept this figure.

The trial court simply found that defendant had not borne his burden of proving that he was not receiving the additional personal benefits which the corporate records indicate are inuring to him above his salary of approximately $50,000 for the fiscal year ending in September 1977. We are of the view that the trial court could properly consider such additional benefits in determining defendant’s gross income for the purpose of relating the alimony award to the one-third restriction of La.C.C. Art. 160. The extent of this additional income is a question of fact that in this case depends on the weight and credibility of the testimony of defendant and plaintiff’s accounting witness. As there is sufficient evidence in the record, if believed, to support the findings of the trial judge, we should not disturb the discretion accorded him under the jurisprudence.

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed equally to appellant and appellee.

      . Ballard’s, Inc., is a wholesale air conditioning supply business distributing York products in Shreveport and Monroe.


text:
    Leon McGraw BALLARD, Plaintiff-Appellee, v. Etoyle Yvonne Sandel BALLARD, Defendant-Appellant.
    No. 13751.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.

      Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for defendant-appellant.
    L. Edwin Greer and James A. Van Hook, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

Leon McGraw Ballard filed suit against his divorced wife, Etoyle Yvonne Sandel Ballard, for a partition of community property. A notary was appointed and an inventory of community assets was filed by him showing the values assigned to each asset by the parties. Motions to traverse the inventory were filed by each party. Prior to trial defendant filed a motion requesting the trial court to require a minimum bid in the event any of the assets were ordered partitioned by licitation.

On trial of the matter plaintiff took the position that most of the assets, and particularly the corporate stock in Ballard’s, Inc., should be partitioned by licitation.

The trial court, insofar as pertinent to this appeal, ordered the partition by licitation without minimum bids of the shares of stock in Ballard’s, Inc., the commercial building which is leased to Ballard’s, Inc., the residence, and the household furnishings and personal property.

Defendant has appealed assigning these errors:

1) In holding it lacked authority to require minimum bids in a partition by licitation.
2) In holding that the shares of stock of the corporation were not divisible in kind and should be partitioned by lici-tation.
3) In holding that the household furnishings and fixtures were not divisible in kind and must be sold to partition.

Plaintiff has answered the appeal asking for damages for frivolous appeal.

We reverse the judgment insofar as it orders the corporate stock be partitioned by licitation, and otherwise affirm.

We shall discuss the issues in the order presented in defendant’s assignments of error.

Defendant first contends the trial court was in error in holding it did not have authority to fix minimum bid amounts for the properties ordered partitioned by public sale. Defendant argues that the evidence shows she does not have equal financial ability to compete with plaintiff in bidding on their commonly owned properties, and in the absence of third parties offering bids, plaintiff could buy in the properties at a fraction of market value, thus causing her substantial loss. We do not find it necessary to rule on the authority of the court to direct minimum bids because there has not been sufficient evidence presented on which the trial court could have determined the value of the properties in order to fix minimum bids. This request of the court was made by defendant in a motion prior to trial, but no evidence was offered to establish the market value of the various properties. The values shown by the inventory were merely the estimates of value given to the notary by either party. The parties have already been through extensive litigation in the trial court, and it would not be in their best interest to delay final resolution by remanding for the taking of further evidence on this issue.

The second and primary question on this appeal is whether the trial court was correct in ordering the shares of stock in Ballard’s, Inc., partitioned by licitation. It is conceded that the stock is susceptible to division in kind and that partitions in kind are favored by law under La.C.C.P. Art. 4606. Plaintiff contended at trial that if the stock is divided equally between himself and defendant it would no longer have the per share market value as compared to the value per share if 100 percent of the stock is exposed to sale to a single buyer. In support of this position plaintiff offered the testimony of two bank officials, a certified public accountant, and a business man who has bought and sold interests in several closely held corporations. These witnesses testified that if the stock of Ballard’s, Inc., is divided 50 percent to either party, then the sum total of the two parcels of stock would be less than the present value of all or 100 percent of the stock. The principal reason for this conclusion is the lack of control in the management of such a corporation where the stock is owned on a fifty-fifty basis.

The trial court also permitted the introduction into evidence of the record in a companion suit between these parties in which each sought injunctive relief against the other regarding the operation of the corporation. An opinion on the appeal in that action has been handed down on this date in 367 So.2d 1220. After hearing the testimony of plaintiff’s expert witnesses, and in view of the friction shown between the parties as co-owners of stock in the companion litigation, the trial judge concluded a partition in kind of the stock in Ballard’s, Inc., would result in a diminution in value of the stock and a loss and inconvenience to the parties. For this reason, under the authority of La.C.C. Arts. 1290, 1339, and 1340, the court ordered partition of the stock by licitation.

Under the circumstances shown we find the trial court erred in ordering the corporate stock in question sold by licitation. The evidence offered by plaintiff to show a diminution in value, if divided equally, is not sufficient to overcome the apparent detriment which could result to defendant by public sale because of an unequal bidding power and the strong policy of the law favoring a division in kind when the nature of the property permits. While plaintiff’s witnesses have established that as a general rule 100 percent of the stock of a close corporation owned by one person has a greater value than the same stock owned 50 percent each by two persons, this testimony is not convincing that both parties in this instance will realize a greater benefit from public sale of the stock. Plaintiff’s witness, Will H. Jackson, a Shreveport banker, admitted in his testimony that there is really no market for the stock of a close corporation such as here involved. It would therefore be reasonable to assume that only the parties or their representatives would appear at public auction to bid on the stock to the extent of their respective abilities to protect their interests. In such a circumstance the evidence shows defendant would be at a serious disadvantage. Unequal bidding power of the parties is an important consideration in determining whether there has been a showing made that partition by licitation is necessary to prevent a diminution in value. See National Amer. Bank of New Orleans v. Cleveland, 273 So.2d 848 (La.App. 4th Cir. 1973), writ denied 276 So.2d 701 (La.1973).

We recognize that a partition in kind of the corporate stock will in a practical sense leave the parties in substantially the same situation as now exists. However, it will afford them the rights and remedies offered by the Business Corporation Law. The parties can exercise their rights as shareholders to either continue the business as it now exists, sell the business, sell the stock, have a receiver appointed, or dissolve the corporation. This method is more in keeping with the spirit of the law and will more probably assure that each will receive his or her fair share of the reasonable market value of the corporate stock.

Although defendant has also complained of the trial court judgment failing to order a partition in kind of the household furniture and fixtures, we find no error in the court’s conclusion that these items were not susceptible to division in kind.

Plaintiff has asked for damages for a frivolous appeal. As defendant has obtained part of the relief requested there is obviously no merit to plaintiff’s claim that the appeal is frivolous, and his demand for damages is denied.

For the foregoing reasons the judgment appealed is reversed insofar as it orders the partition by licitation of the corporate stock of Ballard’s, Inc., and the judgment is amended to order the partition in kind of the shares of stock as described in paragraph 8(b) of the judgment. In all other respects the judgment is affirmed and the case is remanded for further proceedings in accordance with law. Costs of this appeal are assessed to plaintiff.

      . Art. 1290. All the rules, established in the present chapter, with the exception of that which relates to the collations, are applicable to partitions between coproprietors of the same thing when among the coproprietors any are absent, minors, or interdicted, or when the co-proprietors of age and present can not agree on the partition and on the manner of making it.
      But in these kinds of partitions the action must be brought before the judge of the place where the property to be divided is situated, wherever the parties interested may be domicil-iated.

      . Art. 1339. When the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed.

      . Art. 1340. It is said that a thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.