author: LANDRY, Judge.

text:
    LOUISIANA TELEVISION BROADCASTING CORP. et al. v. TOTAL C.A.T.V.
    No. 11001.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.
    W. Luther Wilson, Baton Rouge, of counsel, for plaintiff LA Television Broadcasting Corp. appellant.

      Stan O. Bardwell, Jr., Baton Rouge, of counsel, for plaintiff Guaranty Broadcasting Corp. appellant.
    James S. Holliday, Jr., Baton Rouge, of counsel, for plaintiff Rush Broadcasting Corp. appellant.
    Hugh Holderith, Baton Rouge, of counsel, for plaintiff Surety Aetna Casualty Co. appellant.
    John White, Jr., Baton Rouge, of counsel, for defendant Total C.A.T.V., Inc. appellee.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Plaintiffs, Louisiana Television Broadcasting Corp., operator of VHF Television Channel 2; Guaranty Broadcasting Corp., operator VHF Television Channel 9; and Rush Broadcasting Corp., operator of UHF Television Channel 33, (Appellants) appeal from judgment dismissing their suit for declaratory judgment seeking interpretation of a franchise held by defendant, Total C.A. T.V., (Appellee), for the furnishing of cable television service in the Baton Rouge, Louisiana, area. The franchise provision in dispute deals with Appellee’s alleged obligation to furnish a certain type of television installation to Appellee’s subscribers. More precisely, Appellants contend the provision in question imposes upon Appellee the mandatory duty of uniformly installing switching connections to Appellee’s subscribers so as to permit non-cable television reception. The trial court held the franchise provision in question is couched in conditional, not mandatory terms. We affirm.

Appellants initially filed pleadings requesting summary judgment in their favor coupled with an injunction mandating Ap-pellee to uniformly install connections to subscribers’ sets allowing non-cable television reception. Appellee concedes it does not uniformly make such connections and provides such connections only upon subscriber request. In addition to filing numerous peremptory exceptions, Appellee moved for summary judgment dismissing Appellants’ demands. In subsequent pleadings, and by mutual consent, the parties converted the action into one in which both seek declaratory judgment in their favor.

It is agreed that no dispute exists to any issue of material fact involved herein. The sole issue presented is the application and interpretation of Section 8.1, Paragraph 2, of the 1972 East Baton Rouge Parish Ordinance 3833 and City of Baton Rouge Ordinance 2889, as amended by 1974 City and Parish Ordinances 3213 and 4266, respectively, which pertinently provide:

“Grantee shall make connections to subscriber outlets with switching capability to permit non-cable television reception should the subscriber desire and request such reception. The necessary switching capability shall be simple and safe to operate.”

Appellee’s franchise for the Community Antenna Television System for the City of Baton Rouge and Parish of East Baton Rouge, was granted pursuant to the above mentioned ordinances and is admittedly controlled thereby.

Regulations of the Federal Communications Commission permit Appellee to receive the signals of Television Channels 2,9, 27 and 33 in Baton Rouge; Channel 26 in New Orleans; and Channel 39 in Houston, Texas. Signals from the mentioned channels are received via a “headend” system composed of a group of high antennae and a signal processing bank consisting of amplifiers, modulators and other apparata. The amplified signals are then distributed over coaxial cables known as trunk lines which are designed to maintain signal strength and which are strung upon telephone poles and sometimes underground. These trunk lines in turn transmit the signals to “feeder lines” from which connections to subscribers’ sets are made by means of “tap offs” and “house drops”. Feeder lines are also strung along telephone poles and underground. A cable the size of a telephone line wire is run from a feeder line to the subscriber’s television set and is installed on the set where the VHF antenna screws are located. In addition to the six channels above mentioned, Appellee has added to its system six channels of Appel-lee’s choice.

Appellee concedes it does not uniformly install on every subscriber’s set the switching capability mentioned in Section 8.1, Paragraph 2, above. When a request is made by a subscriber for such a switching capability, however, Appellee furnishes the service by installing what is known as an A-B switch. To effect such a switching capability, Appellee attaches the subscriber’s antenna to the A side of the A-B switch and attaches Appellee’s cable to the B side of the switch. By depressing the A side of the switch, the subscriber’s set receives direct VHF television signals only. On the other hand, by depressing the B side of the switch the subscriber’s set receives signals from Appellee’s cable system only. Because Appellee’s cable is connected directly to the subscriber’s VHF antenna screws, the A-B switch does not affect reception of signals from local Channel 33 which is a UHF channel. By affidavit of record, Appellee’s President, Robert M. Clark, acknowledges that as of January 5, 1976, Appellee had installed a total of only 247 A-B switches on subscribers’ sets. The affidavit specifically recites Appellee’s contention that the disputed franchise provision does not impose a mandatory obligation on Appellee. Clark’s affidavit avers that when a subscriber request is received for a switching capability covered in Section 8.1 of Paragraph 2, above, such an installation is made by Appellee.

Appellants contend the proper interpretation of the language of the ordinances, the intent of the enacting bodies, the grammatical structure of the provision in question, and public policy dictate that the ordinances must be construed to mean that a uniform installation of an A-B switch on every subscriber’s set is mandatory.

Statutory rules of construction of laws are as applicable to municipal and parish ordinances as they are to state statutes. Liller v. Louisiana Board of Alcoholic Beverage Control, 59 So.2d 222 (La.App. Orleans 1952).

When a law is clear and free from ambiguity its letter is not to be disregarded under the pretext of pursuing its spirit. LSA-C.C. Article 13.

The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words. LSA-C.C. Article 14.

When a law is clear and free from all ambiguity, it must be given effect as written. Hebbler v. New Orleans Fire Department, 310 So.2d 113 (La.1975).

Every word in a statute must be given meaning, if possible; no word, clause, phrase or sentence of a statute shall be deemed meaningless or surplusage if a construction can be legitimately found which will give force to and preserve every word of the statute. State v. Fontenot, 112 La. 628, 36 So. 630 (1904); State v. Dozier, 258 La. 323, 246 So.2d 187 (1971).

In construing a statute, legislative aim and design may be inquired into by the courts for the purpose of determining legislative intent, only when a statute is ambiguous or subject to two reasonable interpretations. Fire Department, above; State v. McCulloch, 126 So.2d 191 (La.App. 4th Cir. 1961).

We agree with Appellants’ contention that the ordinances mandate a connection to the subscriber’s set with switching capability which allows non-cable television reception. We also agree that the phrase “should the subscriber desire and request such reception” refers to non-cable television reception which, in turn modifies or qualifies “connections”. We do not agree, however, that the words “and request” refers to “the person to whom the request is made to turn on the switch” as is contended by Appellants.

The trial court found that the concluding phrase “should the subscriber desire and request such reception”, is a conditional phrase which gives rise to the mandate to perform. He concluded, therefore, that in the absence of a subscriber request for a connection which permits non-cable reception, Appellee is not obligated to provide such a connection. We agree.

Applying the interpretative presumption that every word in a statute is presumed to have meaning and serve a useful purpose, and that no statutory language may be deemed unnecessary or superfluous, we find the words “and request” can be given meaning only if they are considered to modify the phrase “shall make connections”. We are fortified in this conclusion by the fact that “request” is couched in the conditional “should the subscriber desire and request _”.

We deem it obvious that the primary concern of a subscriber is reception — not connections. The subscriber is interested in connections and other operational apparata only to the extent such devices enable the quality and type of reception he desires. We believe it reasonable to suppose, therefore, that if a subscriber desires a type of reception other than that which Appellee offers, the subscriber would request a connection capable of allowing such other reception.

Additionally, we are of the view that to hold subject paragraph to be mandatory irrespective of a subscriber request, would in effect utterly delete the verb “request” from the ordinances. Had the enacting bodies intended the provision to be compulsory, inclusion of the conditional phrase “should the subscriber desire and request ...” would be completely unnecessary.

We find that our interpretation gives meaning, intent and purpose to every word in the ordinances, which we are required to do. State v. Dozier, 258 La. 323, 246 So.2d 187 (1971).

The judgment is affirmed at Appellants’ cost.

Affirmed.


source: Caselaw Access Project

author: CLAIBORNE, Judge.

license: Public Domain

text:
    Mary Rebecca HEMPHILL v. Elaine STRAIN et al.
    No. 11002.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 25, 1977.

      Bernard S. Smith, Covington, for plaintiff.
    France W. Watts, III, Franklinton, for defendants Elaine Strain, and Travelers Ins. Co.
    Dale E. Branch, Bogalusa, for defendants Patty Loyd, and State Farm Ins. Co.
    Before LANDRY, C. J., and COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

This appeal is taken from a judgment granting and sustaining a motion for summary judgment and an exception of res judicata and dismissing the plaintiff’s suit and the intervention, all based on a purported signed receipt and release.

The cause of action arose out of a rear-end collision. Plaintiff, alleging that she was a guest passenger in the lead vehicle, filed suit against Elaine Strain (her host driver), Travelers Insurance Company (Strain’s insurer), Patty Loyd (driver of the following vehicle), and State Farm Mutual Automobile Insurance Company (Loyd’s insurer), for personal injuries and medical expenses. All defendants answered and filed motions for summary judgment based on an alleged release signed by the plaintiff and intervenor Rose Billiot.

Plaintiff’s daughter, Rose Billiot, also an alleged guest passenger in the Strain vehicle, and her husband intervened for their damages. All defendants subsequently filed exceptions of res judicata grounded on the purported releases.

After a hearing, the trial judge granted the motions for summary judgment, maintained the exceptions, and dismissed the plaintiff’s and intervenors’ suits with prejudice.

Plaintiff and intervenors appealed. Appellants contend the trial judge erred in rendering such judgment, and alternatively they contend it was error to maintain the exception of res judicata as to Elaine Strain and Travelers, to whom no releases were given.

The motions for summary judgment were resisted by the filing of opposing affidavits, and the hearing on the motions was consolidated with the hearing on the exceptions of res judicata during which oral testimony was received. The trial judge granted the motions at the conclusion of the testimony apparently based upon findings made therefrom. Under the provisions of LSA-C.C.P. art. 966, trial of such motions must be on the pleadings, affidavits, depositions and admissions on file. Oral testimony should not be received or considered even with the consent of counsel because “to sanction such procedure can have no practical effect save the fostering and encouragement of piecemeal trials and appeals.” Wilkinson v. Husser, 154 So.2d 490 (La.App. 1st Cir. 1963); Boothe v. Fidelity & Cas. Co. of New York, 161 So.2d 293 (La.App. 2nd Cir. 1964). The issue of credibility is not properly before the court on a motion for summary judgment. Lachney v. Employers Casualty Company, 281 So.2d 761 (La.App. 3rd Cir. 1973). Furthermore, the likelihood that a party will be unable to prove his allegations upon trial on the merits does not constitute a basis for rendering a summary judgment. Quina v. Orleans Parish School Board, 224 So.2d 835 (La.App. 4th Cir. 1969).

A motion for summary judgment is properly granted only where there is a clear showing that there is no genuine issue of material fact, LSA-C.C.P. art. 966; Thomas v. Signal Insurance Company, 236 So.2d 874 (La.App. 3rd Cir. 1970).

In the instant case, affidavits of both Mrs. Hemphill and Mrs. Billiot allege that the printed forms were represented to them by Haindel as mere authorizations for payment of medical expenses rather than releases, that they did not understand them, that the forms were not completed when signed, that Mrs. Hemphill was unable to see to read, and that Mr. Haindel repeatedly assured them they were not signing a release. Therefore, a trial on the issue was necessary to determine the validity of the releases. Thomas, supra; Magie v. Patio Motel, Inc., 301 So.2d 381 (La.App. 4th Cir. 1971).

The Court in Magie, supra, stated:

“As our jurisprudence has developed, summary judgments authorized by LSA-C.C.P. art. 966 are granted sparingly. The purpose of this procedural device is to expeditiously dispose of cases involving only issues of law; therefore, the mover for summary judgment must prove there is no genuine issue of material fact. In determining the genuineness of the issue, the courts should not consider the merits of the fact at issue or whether the party alleging the fact will be able to sustain the burden of proving it. Nor should the summary judgment procedure be substituted for a trial on the merits.
Thus, as in this case, when the release upon which defendant-insurer bases its motion for summary judgment is alleged by plaintiff to have been obtained through misrepresentation, a trial on the merits must be had to resolve this material factual dispute that strikes at the very heart of the release.” (Emphasis added.)

The motion for summary judgment should not have been granted.

Turning to a consideration of the exception of res judicata, we note that appellants contend that the releases were vitiated for several reasons: fraud in the procurement, undue advantage taken by State Farm, error, no disputed claim, and lack of consideration.

Article 3078 of the Civil Code provides that voluntary compromise agreements have the force of a definitive judgment. However, under Article 3079, such transactions may be rescinded where there exists an error in the person or in the matter in dispute, or fraud. Error as to the matter in dispute has been found sufficient to allow recision where the releasing party is at a relative disadvantage and does not fully understand the nature of the transaction. Lawery v. Anderson, 265 So.2d 644 (La.App. 2nd Cir. 1972); Harris v. Stockman, 197 So.2d 365 (La.App. 2nd Cir. 1967).

According to the testimony adduced on trial of the exception, Mrs. Hemphill and Mrs. Billiot went to the office of State Farm after the accident for the purpose of making a claim. Mr. Haindel, the claims adjustor, testified at the hearing that they each had medical bills in the amount of $60.00. He said he explained to them two types of releases: a general release, printed on blue paper, which closed out all future liability of State Farm, and an open end release, printed on yellow paper, which allowed them to claim up to $2,000.00 in medical expenses incurred within 180 days of the agreement.

He then gave each of the claimants an open end release. They signed the releases, and each received a check from State Farm for $260.00.

Tommy Seabaugh, claims manager for State Farm, who was in his office some 3 to 4 feet away during the discussions, testified that he heard Haindel explain the release forms to the two ladies.

Mrs. Hemphill testified that she could not read the release because she had broken her glasses in the accident. She told Haindel that she did not understand the form, but that it looked like a release to her. She stated that he said it was not a release, that a release was printed on blue paper, and that all that mattered on the form was that portion outlined in a box or square containing the schedule of benefits for medical expenses. She carried the check in her purse for several days without cashing it because she suspected that she may have signed a settlement with State Farm.

Rose Billiot also testified that Haindel told them the form was not a release. She stated that she thought she was signing a claim for medical expenses. Mrs. Billiot cashed the check and has incurred other medical expenses which State Farm has paid.

The record before us does not reflect that appellants were of limited or below average intelligence; both were literate. Mrs. Hemphill did testify that she could not read the release because her glasses were broken and she had been having trouble with her eyes since the accident. However, Mr. Haindel testified that he explained the effects of the release and read it to the appellants before they signed. Ultimately, the determination of the issues, including the intent and understanding of the parties to the agreement is factual and rests on the credibility of the witnesses. This is an evaluation which the trial court is in a better position to make. We find no error.

Appellants next argue that the release must fall because of lack of a disputed claim and lack of consideration. Mrs. Hemphill contends that she always presumed State Farm liable and took the draft as an advance on her medical expenses. As noted before, the circumstances and intent concerning the payment by State Farm resolved to a matter of credibility. In any case, the existence of a dispute sufficient to support a compromise agreement can be inferred from the circumstances, and the fact that there was no haggling over the amount is not fatal to the release. Linda Mercantile Corporation v. Bowers, 230 So.2d 302 (La.App. 1st Cir. 1969). Mrs. Hemp-hill’s contention that there was no consideration because she did not cash the draft is likewise without merit. See Tooke v. Houston Fire and Casualty Insurance Company, 122 So.2d 109 (La.App. 2nd Cir. 1960).

Finally appellants contend that the trial court erred in maintaining the exception of res judicata as to Travelers Insurance Company and Elaine Strain. The unrestricted release of one joint tort-feasor without reservation of rights against the others discharges all tort-feasors from liability. LSA — C.C. art. 2203; Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964). There was no evidence adduced at the hearing on the question of liability. The allegations of negligence and solidary liability in plaintiff’s petition are made for the purpose of permitting the court to ascertain which defendant was negligent. Such allegations are not tantamount to a judicial confession, and they are insufficient to establish the solidarity of obligations without proof. Naquin v. Baton Rouge Coca-Cola Bottling Company, 182 So.2d 691 (La.App. 1st Cir. 1966). If on trial of the case it should appear that Loyd was not .guilty of any negligence proximately causing or contributing to the accident, solidary obligation will not have been established. The burden of proof will be on those claiming to be released with Loyd and State Farm to establish that Loyd was at least a joint tort-fea-sor (see Naquin, supra).

For the foregoing reasons, the judgment of the trial court is affirmed insofar as it maintained the exception of res judicata as to State Farm and its insured Patty Loyd and is reversed insofar as it maintained the exception of res judicata as to Travelers and its insured Elaine Strain. The judgment of the trial court granting the motion for summary judgment is likewise reversed. Costs of this appeal will await final disposition of the case.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


text:
    Virginia HAMILTON v. LOUISIANA HEALTH & HUMAN RESOURCES ADMINISTRATION et al.
    No. 11004.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused April 6, 1977.

      Daniel E. Broussard, Jr., Alexandria, for Virginia Hamilton.
    Robert L. Raborn, Baton Rouge, for ap-pellees.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment of the Louisiana Civil Service Commission (Commission), upholding Appellant’s dismissal, for insubordination, from the classified position of Nurse’s Aide II, at Pincrest State School (School), an institution for the care of mentally retarded persons. We affirm.

The following issues are presented for resolution: (1) Whether the Commission’s appointment of a referee to hold the hearing and take the evidence on plaintiff’s appeal violated plaintiff’s due process rights under La.Const.1974, Article 1, Sections 2 and 22; (2) Whether the Commission erred in concluding that the evidence produced by Appellant’s Appointing Authority established legal cause for disciplinary action and whether the Appointing Authority bore the burden of proof required; (3) Whether dismissal was too harsh and severe a disciplinary measure in view of the misconduct charged; and, (4) Whether Appellant’s dismissal was predicated upon bias and discrimination rather than upon a rules infraction by Appellant.

Prior to Appellant’s dismissal, pursuant to a letter by Coates Stuckey, School Superintendent, dated June 16, 1975, Appellant had been employed at the School for approximately four years and had attained the rating of Nurse’s Aide II. On the morning of June 5, 1975, Appellant refused to obey a direct order of her superior to bag linens for laundry pick up that day.

Stuckey’s letter of dismissal pertinently recited:

“You are being separated for the following reasons:
On June 5, 1975, at about 6:30 a. m. while on duty in Tots House, you failed to perform your duties after being directed by two different supervisors. Mrs. Rae Deville, Mental Retardation Therapist II, your immediate supervisor, directed you to put the bedspreads from Unit B into a laundry bag. When you refused to perform this task, Mrs. Deville reported your refusal to Mrs. Jane L. Juneau, Practical Nurse III, your next higher supervisor. Subsequently, Mrs. Juneau directed you to put the bedspreads from Unit B in the laundry bag, and you again refused.
Mrs. Hamilton, your failure to perform your duties is a serious offense, your subsequent refusal to recognize the authority of your supervisors is an even more serious offense. Your conduct in this incident is contrary to the rules of Pinecrest State School, and Blue Book Directive, Supt. 38-1-5-72.”

In conformity with Commission Rule 13.-20, the Commission appointed Harold E. Forbes, Director, State Department of Civil Service, as referee to hold a hearing and take the testimony on appeal. Forbes delegated the duty to his subordinate, George T. Hamner, Jr., Assistant Director of the State Department of Civil Service. Hamner held the hearing subject to Appellant’s objections on the grounds: (1) Hamner was not a duly appointed referee because Hamner was appointed by Forbes rather than the Commission; (2) The hearing should be held before the Commission or at least a member of the Commission who could see and hear the witnesses and assess their credibility; and, (3) Hamner indicated at the start of the hearing that he would merely receive the testimony and evidence and would make no report, finding, or recommendation to the Commission. It is conceded that Hamner only took the testimony and that he declined to make a report, recommendation, or finding.

The law is settled to the effect that in the absence of legislation to the contrary, governmental employment may be terminated at the will of the appointing officer. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). Where, however, there are constitutional restraints on the federal government or a state with respect to persons subject to their supervision, the parties affected have a constitutional right to notice and hearing before removal. Cafeteria And Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961).

The procedure by which rights may be enforced and wrongs remedied is subject to state regulation and control, and no one has a vested right to any given mode of procedure, provided constitutional requirements of due process (due notice and opportunity to be heard) are observed. Hardware Dealers Mutual Fire Insurance Co. v. Glidden, 284 U.S. 151, 52 S.Ct. 69, 76 L.Ed. 214 (1931); Wall v. Close, 201 La. 986, 10 So.2d 779 (1942).

Procedural due process, in its application to the field of administrative law, is generally regarded as being of greater flexibility than it is in its applicability and relevancy before a strictly judicial tribunal. See a discussion of this issue in 16A C.J.S. Constitutional Law § 628, Page 851, et seq.

Cafeteria Workers, above, interprets Federal due process as follows:

“The Fifth Amendment does not require a trial-type hearing in every conceivable case of government impairment of private interest. ‘For though “due process of law” generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, . . . yet, this is not universally true.’ (Cases cited) The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. (Cases cited) ‘ “Due process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ It is ‘compounded by history, reason, the past course of decisions . .’ (C)onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action.”

From the foregoing, it is clear that due process does not necessarily mean a full trial in every instance. Where the constitutional requirements of notice and opportunity to be heard are afforded, due process may be achieved short of a full blown trial in the generally accepted sense.

La.Const.1974, Article 10, Section 10(A), vests the Commission with broad general rule making power for the administration and regulation of the state Civil Service System. The rules adopted and promulgated by the Commission are accorded the force and effect of law. La.Const.1974, Article 10, Section 10(A)(4). Moreover, La. Const.1974, Article 10, Section 12, vests the Commission with exclusive power to hear and decide disciplinary and removal cases and grants the Commission authority to appoint a referee to take testimony, issue subpoenas and administer oaths to witnesses.

While we concede that hearing witnesses before the trier of fact does afford an opportunity for the determiner of fact to assess witness credibility, we do not concede such opportunity is an indispensable prerequisite to due process, at least in an administrative hearing. So long as the party involved is afforded ample opportunity to confront and cross examine the witnesses against him and to present his own case in full, due process may be satisfied. We note that, in this instance, hearing before a referee is expressly authorized by our own state constitution. To hold that a regular trial is required in matters of this nature would completely negate the referee provision of Article 10, Section 12, above.

As regards the contention that a recommendation, finding or report by an officer holding an administrative hearing is essential to due process, we note Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936) and Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938), wherein it was held that, while it might be a matter of good practice for an administrative hearing officer to make a report, finding, or recommendation to the deciding authority, such a procedure is not essential to due process. We conclude that the appointment of a referee in this instance satisfies the constitutional requirement of due process.

Concerning the validity of Hamner’s appointment by Forbes, we note Commission Rule 13.20 which states:

“The Commission may refer the taking of testimony of any one or more witnesses to one or more of its members, or to the Director, or to any employee of the Department of Civil Service, who shall proceed in accordance with, and shall have the authority vested in referees by Part I of Article X of the Constitution of this State.”

We do not concede that the Commission’s rules are to be strictly construed as a general rule. Since these rules have the force and effect of law, we are of the view they are to be construed in the light of the rules of interpretation relative to legislation in general. We note that La.Const.''-1974, Article 10, Section 12 does not purport to prescribe the manner in which the Commission shall appoint a referee when the Commission chooses to do so. Rule 13.20, above, provides that the Commission may appoint as referee, one or more of its members, or the Director of any employee of the Department of Civil Service. In this instance the Director, pursuant to appointment by the Commission, delegated the duty to his assistant. We find this action is not in keeping with Commission Rule 13.20 which does not authorize a referee appointed by the Commission to delegate this duty to another. If the referee appointed by the Commission cannot serve, the Commission alone is authorized to appoint someone else who is qualified under the rule. We find, however, that the error in this regard is harmless. The record is clear that Appellant received a full hearing and was afforded ample opportunity to present her cause.

Appellant’s contention that the Appointing Authority did not bear the burden of proving legal cause for Appellant’s dismissal and that the Commission erred in deciding otherwise, is not supported by the record. Appellant was employed in April, 1971, as an Attendant. After a six months training period, Appellant was given the rating of Nurse’s Aide II. The School houses approximately 1,800 inmates of both sexes, whose ages range from one to eighty-five years. On June 5, 1975, Appellant was assigned to the Tots House as an “extra” to the “relief” or “charge”, whose duties include making beds, putting out and washing clothes, sacking linens and assisting in the care of children if the need arose and if requested to do so.

At about 6:30 A.M., shortly after Appellant arrived for work, Appellant was walking down a hall toward the day room where children were attended during daytime hours. As Appellant passed a room in which Mrs. Rae Deville, Mental Retardee Trainer II (Appellant’s immediate superior) was present, Mrs. Deville asked Appellant to pick up the soiled bedspreads and bag them for laundry pick up later that morning. Appellant replied that she was not “relief” that day and asked who was “charge” meaning which nursing aide was responsible for laundry that day. Mrs. De-ville replied that Mrs. Clark was charge but was busy with other duties at that time and could not bag the laundry in time for pick up. Appellant did not bag the laundry. Instead, Appellant proceeded to the day room and returned later, leading a child by the hand. Upon passing Mrs. Deville, Appellant remarked that in the time it took Deville to ask Appellant to bag the laundry, Deville could have done the chore herself. Appellant also stated she would not take orders from Mrs. Deville. Appellant then proceeded to wipe the child’s mouth and lead the child away.

The incident was reported by Mrs. Deville to her superior Jane Juneau, a Licensed Practical Nurse, who instructed Appellant to follow Deville’s orders just as she, Mrs. Juneau, was obliged to obey the orders of her superiors. Contrary to the allegation in the letter of dismissal, Mrs. Juneau testified she did not instruct Appellant to bag the spreads because Mrs. Deville had already done so. Mrs. Juneau reported the occurrence to her superior, Mrs. Linda Gaspard, a Registered Nurse IV.

Mrs. Gaspard summoned Appellant to her office and requested an explanation. When none was offered by Appellant, Mrs. Gas-pard sent for Mrs. Juneau and Mrs. Deville. In Appellant’s presence Mrs. Deville again recited what occurred and Appellant still offered no explanation or excuse. Mrs. Gaspard testified that instead of offering an explanation, Appellant told her “Do you think I am going to do everything anybody tells me”.

The testimony of Mrs. Gaspard, Mrs. Juneau and Mrs. Deville establishes that it was Appellant’s duty to bag the linen and convinces us of Appellant’s adamant and steadfast refusal to do so. Mrs. Gaspard further testified that Appellant’s attitude left no recourse except to report the incident to Mr. Coates Stuckey, Superintendent. Mrs. Gaspard also testified she suggested a reprimand with the notation that any further such incident on Appellant’s part would merit disciplinary action.

Mr. Stuckey’s testimony is to the effect that when the matter was reported he felt an investigation was in order and directed that an investigation and report be made to him. Based on the report received, he was satisfied that the incident had occurred and that dismissal was warranted. He explained that one recalcitrant employee can corrupt others and disrupt an entire organization. He considered Appellant’s refusal to obey a direct order a threat to the efficient operation of the School. For this reason, and to maintain discipline and authority of chain of command, he deemed it necessary to dismiss Appellant. Stuckey stated that he alone made the decision to dismiss, which determination was motivated solely by the need to maintain respect for authority.

In effect Appellant contends she did not refuse to obey the order because she never told Mrs. Deville in so many words that Appellant would not bag the linens as requested. She also maintains she did not refuse because she was then engaged in performing a more important duty, namely, caring for a child. Additionally, Appellant contends that bagging linen was not one of her duties on the day in question.

We deem Appellant’s conduct a refusal because Appellant did not bag the laundry as requested. Mrs. Deville herself performed the chore. The testimony of Mesdames Deville, Juneau and Gaspard, corroborated by Stuckey, indicates that it was indeed Appellant’s duty to bag the laundry on the day in question and that it was not Appellant’s duty to care for children unless Appellant were requested or instructed to do so. Appellant has not shown such a request or instruction.

We find Appellant was discharged for cause, meaning conduct which impairs the efficiency of a public service and which bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Hamlett v. Division of Mental Health, 325 So.2d 696 (La.App. 1st Cir. 1976).

We also find that the Appointing Authority has discharged the burden incumbent .upon it pursuant to La.Const.1974, Ar-tide 10, Section 8, of proving cause for disciplinary action against a classified employee.

We are in agreement with the premise that respect for one’s superiors and obedience to lawful orders and directives of those in charge, is essential to the efficient operation of a public institution. Appellant’s refusal to obey the order in question was deliberate and intentional. Such an adamant, unjustified and unwarranted refusal constitutes ground for dismissal.

Appellant has failed utterly to establish that her dismissal was discriminatory in that it was in retaliation for Appellant having made complaints to Mr. Stuckey and Mrs. Gaspard regarding irregularities which Appellant allegedly noted at the School. Mrs. Juneau and Mrs. Deville denied having any animosity toward Appellant and also denied being aware of any reports of misconduct having been made by Appellant to either Deville or Stuckey. Mrs. Gaspard likewise denied having feelings of animosity toward Appellant. In this regard we find it significant that Appellant’s refusal to obey Mrs. Deville’s order, resulted in the recommendation by Mrs. Gaspard of a reprimand only. Had Mrs. Gaspard been biased, as Appellant suggests, it would seem Mrs. Gas-pard would have seized upon Appellant’s refusal of an order as an opportunity to recommend Appellant’s dismissal. Moreover, Mrs. Gaspard testified that the only prior difficulty she had with Appellant concerned Appellant’s absence from work.

Concerning Appellant’s reporting to Stuckey the absence of a nurse, Mr. Stuck-ey testified he received such an anonymous phone call one Saturday morning. He checked with the School and learned that the report was accurate. He then took measures to secure the presence of a nurse. He investigated and found that the duty nurse for that day had a legitimate excuse for being absent and therefore took no disciplinary action against her. He stated further that he never did learn who made the call. Mesdames Gaspard, Juneau and De-ville all testified that they were unaware, until the time of the hearing, that Appellant reported the nurse’s absence. We find that Appellant has failed to establish her claim that her dismissal was the result of bias, prejudice, or discrimination.

The decision of the Commission is affirmed at Appellant’s cost.

Affirmed.


text:
    James J. GRAHAM, Jr. v. ALLIED CHEMICAL CORPORATION et al.
    No. 11006.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writs Refused March 25, 1977.

      James A. George, Baton Rouge, for plaintiff-appellant.
    Daniel R. Atkinson, of Dale, Owen, Richardson, Taylor & Mathews, Eugene R. Groves, Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defendant-appellant-appellee.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

On a finding of contributory negligence, the district court granted judgment dismissing the plaintiff’s suit for damages resulting from an industrial accident in which he was seriously injured. The Workmen’s Compensation insurer’s intervention was likewise dismissed. Plaintiff and the inter-venor appeal.

The arguments made are:

First, the cause of action results from defendant’s strict liability (fault without negligence) to which contributory negligence is not a defense, because
a) defendant was allegedly engaged in an ultrahazardous activity, or alternatively
b) defendant’s employees were so grossly negligent that their conduct can only be considered as defective or deficient in the sense contemplated by the Supreme Court in Loescher v. Parr, 324 So.2d 441 (La.1975).
Second, if contributory negligence is a recognizable defense in this suit, the court nevertheless erred in its determination that contributory negligence was proved.

Plaintiff, James J. Graham, Jr., a boiler inspector employed by Hartford Steam Boiler Inspection and Insurance Company, was injured while inspecting the mud drum of a boiler owned by defendant Allied Chemical Corporation and located at the latter’s plant in Baton Rouge. Sometime prior to the date of the accident, Graham had been called by employees of Allied to arrange for the annual internal inspection of the boiler. Allied’s maintenance engineer, Jules J. Noel III, met Graham on his arrival, and accompanied him on his inspection. Graham and Noel entered the mud drum which measured 36 inches in diameter by a length of approximately twenty feet, through an access hole 12 inches by 16 inches in the end of the cylindrical drum or boiler. According to Mr. Graham there were two such “manways”, one on each end of the vessel. Eight to ten minutes later, Leon Jackson, one of Allied’s operators “blew out” an adjacent boiler causing steam and hot water to enter the chamber which Graham and Noel were inspecting. Noel was close to the exit, and escaped uninjured, while Graham had to crawl about sixteen feet through steam and hot water to reach safety.

Suit was filed against Allied and its insu-ror, The Travelers Insurance Company; Noel; Jackson; Albert Farris and W. H. Davis, two of Allied’s maintenance supervisors; Thurmun Dumus, one of Allied’s operating supervisors; and Lawrence E. Raba-lais, Allied’s safety supervisor. Aetna Casualty and Surety Co. intervened to recover workmen’s compensation payments made on behalf of plaintiff’s employer.

Allied had in effect at the time of the accident a safe entry permit program which required a step-by-step safety procedure for securing a boiler for safe entry and inspection. The procedure required tagging all valves in the pipes entering the drum with a conspicuous tag which reads “Danger. Do Not Operate ” on one side and “Danger. Do Not Remove this tag. See other side ” on the other. In addition a “blind” or circular metal plate with a handle must be introduced in each pipe leading into the boiler at the flange nearest the boiler. The blind is bolted in place and effectively blocks the pipe so as to prevent the passage of extraneous gases and liquids. The handle or “tail” on the blind serves only as visual evidence of its presence in the line. After the check list is completed the safety procedures require that a safe entry permit be signed by a safety supervisor, maintenance supervisor and the operating supervisor of the current shift (7 — 3, 3 — 11, or 11 — 7), and that the permit be displayed in a prominent place near the entrance to the boiler. The entry permit states above the signatures, “I have checked the defined area and am satisfied that the precautions taken and to be observed will permit the work to be done without due hazard to persons or property.” Completion of the procedures was a prerequisite to entry.

In this case the entry was made prior to completion of the safety procedures. No tags were displayed; no “blinds” were in place, and no entry permit had been signed.

The district court found that Noel was negligent in disregarding the safety procedures, and consequently attributed such negligence to his employer, Allied. The court also exonerated all other Allied employees from any negligence on the following findings with which we agree:

“The check list was being made, the work was in progress and the signatures on the form would have been affixed when the work was completed and the boiler made safe. There is no evidence of knowledge on the part of any other employee that the boiler inspection was imminent and that Graham and Noel would enter the boiler until the procedure was completed, the tags displayed and the entry permit was secured.”

In concluding that Mr. Graham was barred from recovery by virtue of his own contributory negligence, the court said:

“Plaintiff, an experienced boiler inspector had been inspecting this boiler for some 17 years. He knew of the procedure in effect at the plant. He was well aware of the dangers involved and of the importance of the ‘blinds’, the tags and the entry permit. He did not ascertain the issuance of the permit, did not look for the tags and did not make sure of the ‘blinding’ of the inlets. Certainly this constitutes negligence on the part of one of his experience and one of his trade, or occupation to whom safety is a matter of everyday concern.”

Plaintiff relies heavily upon the case of Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1975), and the principle it reiterates that contributory negligence is not a defense in a case where strict liability is imposed because of an ul-trahazardous activity. He also argues that the number of activities which are so inherently dangerous as to constitute ultrahaz-ardous activities and damage from which results in strict liability has been expanded to include the storage of lethal gas, Lan-glois, supra; blasting, Holland v. Keaveney, 306 So.2d 838 (La.App. 4th Cir. 1975); pile driving, D’Albora v. Tulane University, 274 So.2d 825 (La.App. 4th Cir. 1973); and crop spraying with insecticides, Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957). While these cases, including Langlois, generally depend upon rules of vicinage as expressed in Articles 667, 669 and others in the Civil Code chapter on servitudes imposed by law, it is clear from the Langlois ease as prior jurisprudence is reviewed therein, that liability for injury suffered. from dangerous activities is not limited to adjoining landowners, and the trend has been to an expansion of the classes of those who may recover as well as the classes of those from whom recovery may be obtained. We must therefore consider whether the defendant’s activities must be classified as ultrahazardous in the light of the available definition of this term by the Supreme Court.

In the Langlois case the court refers to “. . . an activity which, even when conducted with the greatest of care and prudence, could cause damage to others in the neighborhood. It was an ultra-hazardous activity, and the possible consequences of . . harm were known or should have been known.” (Emphasis added.) The Court in the same case speaks of “. . . activities which create a foreseeable harm to those in the neighborhood, even when conducted with the greatest of prudence and care . . (Emphasis added.)

It appears from these statements that in order for an activity to be classified as ultrahazardous two elements must appear: 1) that harm is a possible consequence even when the activities are conducted with the greatest care and prudence, and 2) that such possible harm is foreseeable (see e. g., Holland, supra).

Plaintiff contends that an activity requiring entry of a boiler for inspection with the risk of “being literally boiled alive in a cask of steam and scalding water” must be viewed as ultrahazardous. We can pretermit the defendants’ response that boiler inspection was not Allied’s activity but that of plaintiff and his employer. We need only consider whether the activity was in fact ultrahazardous. We find it was not. It is clear from the evidence that with the exercise of simple ordinary care and prudence the danger of harm would have been eliminated. If Allied’s employee Noel (deferring for the moment consideration of plaintiff’s own responsibilities) had followed the established safety procedures or ascertained that they had been followed before entry, the damage could not have occurred.

Plaintiff also argues that an employer’s liability for the torts of its employees is strict liability when the employees’ conduct is grossly negligent so that such employees must be considered defective or deficient. Plaintiff reasons by analogy from the case of Loescher v. Parr, 324 So.2d 441 (La.1975), the case of an apparently healthy but 90% rotted magnolia tree that fell and demolished a Cadillac.

The Supreme Court in that case, while discussing damage caused by the vice of a thing, held that when harm results from “conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible . for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved.” (Emphasis added.) The creation of an unreasonable risk of harm to others is equated with negligence in the following language:

“Likewise, under Article 2320 it has long been settled that a master (employer) is liable for the harm caused through his servant’s (employee’s) unreasonable creation of risk of injury to others (negligence), despite the freedom from personal negligence of the master thus vicariously held liable. * * *
“Further, as noted, we have previously adopted the concept of legal fault without personal negligence of a parent for the deficient act of his child (Article 2318), of an employer for the deficient act of his employee (Article 2320), of an owner for the damage caused through the deficient act of his animal (Article 2321), and of an owner for the damage caused by the defect of his building (Article 2322).” (Emphasis added.)

It would be incorrect to infer from the foregoing language that in all these cases liability is based on fault without imputed negligence, or that such liability is not amenable to a defense of contributory negligence. The Supreme Court in Loescher recognizes there is no liability where the “owner or guardian responsible for the person or thing” proves “the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.” Contributory negligence remains a defense recognized in our law in cases grounded on the employer’s liability for the torts of his employees. That such torts may be imputed to the employer in a derivative or vicarious manner without a finding of personal negligence on the employer’s part, does not affect the availability of the defense.

Plaintiff was a boiler inspector with 28 years experience. He was fully aware of the dangers of entering an un-blinded boiler. He was familiar with the particular boiler, the surrounding premises, and Allied’s safety procedures. As a business invitee he assumed all the normally observable or ordinary risks attendant upon the use of the premises, and the owner is not liable to such an invitee for injury resulting from a readily observable danger or one which he should reasonably have appreciated before exposing himself to it.

Plaintiff’s contributory negligence as found by the district court was supported by the evidence.

In resisting the finding of contributory negligence appellant also forcefully argues that the case of Morgan v. Liberty Mutual Insurance Company, 323 So.2d 855 (La.App. 4th Cir. 1975), expresses the law applicable to this case by setting forth the standard of care required of a worker to protect himself from the danger of job related accidents. Plaintiff in that case was seriously injured when a load being hoisted by a crane fell on him from a height of 160 feet. Negligence was undisputed. It was argued that Morgan was eontributorily negligent in violating a basic safety rule known to all experienced construction workers against standing beneath a load of material being moved. The court found that when Morgan was injured he was in an area where his duties required him to be. It is argued that Graham also was where duty required, but the determining fact in Morgan which distinguishes it from the present case is that according to the established safety procedures silence and absence of warning were the assurance of safety, while in the present case the absence of visual assurances of safety was itself a warning of danger and a prohibition against entry into the place of danger.

The safety rule in the Morgan case provided:

“The following procedure shall be followed when cranes are working in an area where other activities are being conducted. The contractor operating the crane shall assign a man to warn all craftsmen in the area when a load is about to pass overhead. After being warned, it is the responsibility of those in the danger area to move to a safe spot until the load has passed. There will be no exceptions to this procedure and neither party can shift his portion of the responsibility to the other party.”

The court said:

“Thus Morgan could reasonably assume the safety rule would be obeyed on the construction site and that he could safely stand near the boiler where his crew worked. Absent a warning to the contrary, Morgan should have reasonably been able to assume he was not endangered by objects being moved through the air.”

In the case at bar the failure of the appellant to observe danger tags on the valves, his failure to observe a “blind” in the proper place, and his failure to notice a posted entry permit (all of which were in fact missing) should have warned him that the boiler was not safe for entry. Under the safety rules in effect, all persons familiar therewith were warned of danger in the absence of very specific assurances to the contrary, and in the absence of such warnings duty prohibited entry. The fact that Graham noticed other boilers had been made safe and that he saw blinds and tags in other areas did not justify his assumption that the mud drum he entered would be safe. Such a conclusion was clearly shown to be unreasonable, since he knew that boilers were shut down for inspection in turn rather than all at the same time.

The judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.


author: COLE, Judge.

text:
    SUCCESSION of George H. SPINKS v. Tommie SMOTHERS.
    No. 11007.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 25, 1977.

      Clint Adcock, of Hebert & Moss, Baton Rouge, for plaintiff-appellant.
    Paul G. Borron III, Borron & Delahaye, Plaquemine, for defendant-appellee.
    Before LANDRY, C. J., and COLE and CLAIBORNE, JJ.
   COLE, Judge.

Andrew L. Spinks, as administrator for the Succession of George H. Spinks, filed suit against Tommie Smothers for the alleged nonpayment of the purchase price of a motor vehicle. The plaintiff-appellant appeals from a judgment of the trial court maintaining the defendant’s exception of “no cause or right of action.”

Appellant’s petition sets forth the following facts: George Spinks purchased a motor vehicle in 1973 for which he borrowed part of the purchase price and executed a promissory note in favor of Capital Bank and Trust Company for $2,163.60, payable in thirty-six monthly installments of $60.10 each. On September 22, 1975, Spinks sold the vehicle to Tommie Smothers for $1,000 of which $150 was to be paid in cash and the remainder was to be paid by satisfying the obligation on the note. The note was to be paid off by Smothers with money to be obtained from his own sources. Smothers paid $150 in cash, and since he was unable to pay off the total amount due on the note as agreed, Spinks gave him the payment book. Smothers paid the installment of $60.10 due on October 5, 1975, and paid the interest of $8.41 due on November 5, 1975, in order to get an extension.

On November 14, 1975, Spinks died. At the time he borrowed the money from Capital Bank, he elected to take out a credit life policy to pay off the note in the event of his death. After his death, the insurer paid off the amount due on the note to Capital Bank. Smothers refused to pay Spinks’ estate the remainder of the purchase price.

Plaintiff’s cause of action in the instant case is predicated upon the nonpayment of the purchase price for the vehicle by the purchaser. The appellee contends that he was relieved of his obligation to pay the purchase price because the insurer paid the amount of the note, and therefore, the seller got what he sought.

It is well settled that when ruling on an exception of no cause of action all well-pleaded allegations of fact in the petition are to be accepted as true. If the petition sets forth a cause of action, the exception must be overruled. Burns v. Genovese, 254 La. 237, 223 So.2d 160, 164 (1969), and cases cited therein; Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878, 881 (La.App. 3rd Cir. 1975).

One method by which an obligation may be extinguished is by payment. La.C.C. arts. 2130, 2131. The principal obligation of the buyer is to pay the purchase price, under La. Civil Code Article 2549. It appears from the facts as pleaded by the plaintiff that the defendant did not pay the purchase price of the vehicle as was his obligation under the contract of sale. The payment of the note by the insurer does not satisfy the purchaser’s obligation to pay the purchase price, unless it was contemplated by the parties that the purchaser would receive the benefit of the credit life policy. Brown v. Johnson, 325 So.2d 829 (La.App. 1st Cir. 1976).

It is evident that the payment of the note by the insurer creates a windfall for one of the parties. At issue is who will benefit from the policy proceeds. Credit life insurance is designed to protect the estate of a debtor from liability by paying off the obligation should the debtor die. The fact that Spinks protected his heirs by contracting with the insurer to take out credit life insurance does not affect the purchaser’s obligation to pay the price of the vehicle as agreed to by the parties. As long as the note to Capital Bank remained unpaid, Spinks or his estate was liable on that note absent any agreement by Capital Bank that they would be released. Therefore, Spinks still had an insurable interest in maintaining the credit life policy because of his liability on the note. The agreement by Smothers to pay off the note as a method of payment for the vehicle did not release Spinks or his heirs from their obligation on the note.

It is not contended by the appellee, nor can it be seriously contended, that the succession is not the proper party plaintiff to assert the decedent’s cause of action for the nonpayment of the purchase price.

For the foregoing reasons, we find that the plaintiff’s petition sets forth a right and a cause of action, and, therefore, defendant’s exception is dismissed. The judgment of the trial court is reversed and the cause remanded for proceedings consistent with this opinion. The costs of this appeal are assessed to the appellee.

REVERSED AND REMANDED.


text:
    Earl E. WALKER v. STATE PARKS AND RECREATION COMMISSION.
    No. 11012.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused April 20, 1977.
    Michael Maneille, Jerry Dirk, Lake Charles, for appellant Earl E. Walker.
    Frank Trosclair, Jr., Opelousas, for appel-lee.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   COLE, Judge.

This is an appeal by Earl E. Walker from a ruling by the Louisiana Civil Service Commission which affirmed his dismissal by the Louisiana State Parks and Recreation Commission.

This case has been before us previously; see State Parks and Recreation Commission v. Walker, 315 So.2d 905 (La.App. 1st Cir. 1975). There, we granted the appellant’s motion to remand for the purpose of taking again the testimony of five witnesses because the transcript of the original hearing as it pertained to those persons contained omissions. That order was complied with on April 21, 1976, and the matter is now here for decision. We affirm the action of the State Civil Service Commission.

The letter of dismissal dated January 30, 1974, to the appellant who had held the position of Park Superintendent III contained these reasons for that action:

“You are being separated because of the following specific offenses:
“1. Failure to comply with Division of Administration Fiscal Policy and Procedures Memorandum # 49, dated November 1, 1972, and reviewed with you at our Superintendents’ Meeting in September 1973, requiring a written report of accidents, major and minor, involving State-owned vehicles. The 1972 vehicle assigned you incurred an estimated $250.00 damage which you failed to report, but came to our attention when its inspection was due.
“2. Apparent careless and/or reckless driving on December 10, 1973, resulting in your vehicle running off the road and into a ditch. Wrecker service cost to the agency was $15.45.
“3. Apparent careless and/or reckless driving on January 23, 1974, resulting in your 1973 vehicle running off the road, damaging a utility pole, and an estimated damage to your vehicle of $400.00 plus a $20.00 wrecker service charge.
“4. Failure to submit accurate daily mileage records on your assigned vehicle.
“5. Repeated failure to submit accurate records regarding payroll worksheets and requisition forms, requiring constant individual supervision and attention.
“6. An apparent inability to properly supervise personnel at the park for its efficient operation and maintenance, resulting in confusion, dissention [sic] and serious morale problems.” (Record, p. 2)

That termination was appealed and a hearing was thereafter conducted by the Civil Service Commission. In the course of that proceeding, charges four, five and six were dismissed by the Commission for vagueness; it further found, however, that there was evidence to support charges one, two and three and that the appellant had failed to carry the burden upon him to refute them.

As this dismissal took place on the date previously indicated, our scope of review is governed by Article 14, Section 16(0 )(1) of the Louisiana Constitution of 1921, which provides, in pertinent part:

“There is vested in the State Civil Service Commission and in the appropriate Civil Service Commissions for the several cities respectively the exclusive right to hear and decide all appeals and the legality of all removal and disciplinary cases. The decision of the appropriate Civil Service Commission shall be final on the facts * * (Emphasis added)

Our courts have adhered strictly to this mandate and have stated consistently that only where the record is barren of evidence to support the Commission’s ruling does a question of law arise. Guillory v. State Dept. of Institutions, La.St.Pen., 234 So.2d 442 (La.App. 1st Cir. 1970). In proceedings of this nature, Article 14, Section 15(N)(1) of that Constitution also imposes the burden of proof as to the facts upon the employee.

Charge number one here dealt with the violation by Walker of a Division of Administration memorandum which required that all accidents involving State-owned vehicles under his control were to be reported by him in writing. At the original hearing, the appellant willingly and at length responded to that allegation and was obviously quite aware of its substance and thrust. Later, after extensive testimony had been taken, an objection was raised on his behalf that this charge was also not specific enough to be properly defended. We construe the charge as not lacking in specificity. It is noted that a great deal of the subject matter giving rise to the.charge was peculiarly within the knowledge of appellant and generally unavailable to the appellee. In any event, this objection was not timely made and was, therefore, waived. Foster v. Department of Public Welfare, 159 So.2d 515 (La.App. 1st Cir. 1963).

With further respect to charge number one, Walker admitted that the truck was damaged to some extent, that he was familiar with the regulation in question, and that he filed no written reports at all on that vehicle. His explanation for not doing so was that he called the proper office in Baton Rouge and was told by Wiley Harvey, a superior, to fix the vehicle at the park if possible and that his verbal report was sufficient. However, Harvey was not subpoenaed for, or present at, the hearing. In regard to that allegation, the Commission found as a fact:

“2. During the spring of 1973 appellant was involved in at least three accidents which caused some physical damage to the 1972 State vehicle. None of these accidents was reported in writing to Baton Rouge even though appellant was aware of the regulation requiring they be reported.” (Record, p. 32)

Charges two and three are concerned with two incidents of carelessness and/or reckless driving. The first of these alleges that on December 10, 1973, Walker ran off the road and into a ditch in his State vehicle which had to be removed by a wrecker at his employer’s expense. Charge three pertained to an incident on January 23, 1974, which his truck also left the road and struck a utility pole which did damage to the truck and the pole and which also caused another wrecker expense.

The appellant related that in each instance he was forced off the road by a vehicle which encroached on his lane of travel. In the earlier incident, he stated that a garbage truck had caused him to go into the ditch which was obscured by the grass around it; in the latter case, an automobile had crossed the yellow center line and come into his lane, causing him to take evasive action.

No witnesses who had seen either of these incidents were called to substantiate Walker’s explanation. However, Trooper James Hall of the Louisiana State Police, who investigated the latter mishap, positively established that there were no center line markings of any type on the road in the vicinity of that accident; further, that although it appeared that the appellant was going at a very low rate of speed, that after going off the road, he traveled some sixty feet and crossed a private driveway before his truck was stopped by the pole.

That both incidents occurred was admitted by Walker. To carry the burden of proof incumbent upon him, he offered only his own denial of recklessness or careless conduct. The written opinion of the Commission reflects that they considered the cumulative effect of all of his actions and concluded that the evidence was insufficient to refute those charges, particularly in view of the number of similar occurrences in which he was involved within a relatively short time.

We are not at liberty to substitute our interpretation of the facts for those of the Civil Service Commission or to weigh the testimony presented before them. The record contains sufficient information to support all findings made by them here and we are bound by those conclusions.

The proceedings on remand complied with our prior orders and a proper record was made of that testimony. Therefore, there are no present grounds for an additional remand or a trial de novo.

The decision of the Civil Service Commission will, therefore, be affirmed, the appellant to pay all costs of this appeal.

AFFIRMED.


text:
    Keith L. DUMEZ v. HOUMA MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD et al.
    No. 11016.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Keith M. Whipple, Houma, for plaintiff-appellee.
    Eddie N. Pullaro, Houma, for defendants-appellees.
    James Lightfoot, III, Charley J. Schrader, Jr., Houma, for Thomas Abrams, deponent-appellant.
    Before LANDRY, C. J., and COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Thomas A. Abrams, (Appellant), a newspaper reporter sought to be deposed by plaintiff herein, Keith L. Dumez, (Appel-lee), to determine the propriety of Appel-lee’s dismissal as a civil service police officer of the City of Houma, appeals from judgment ordering Appellant to disclose the source of certain information allegedly germane to Appellee’s cause. We reverse.

The sole issue presented by this appeal is the application of LSA-R.S. 45:1451 et seq., which grants newspaper reporters a conditional privilege from compulsory disclosure of informant or source. The statute in question pertinently provides:

LSA-R.S. 45:1451. Definitions
“Reporter” shall mean any person regularly engaged in the business of collecting, writing or editing news for publication through a news media. The term reporter shall include all persons who were previously connected with any news media as aforesaid as to the information obtained while so connected.
LSA-R.S. 45:1452. Conditional privilege from compulsory disclosure of informant or source
Except as hereinafter provided, no reporter shall be compelled to disclose in any administrative, judicial or legislative proceedings or anywhere else the identity of any informant or any source of information obtained by him from another person while acting as a reporter.
LSA-R.S. 45:1453. Revocation of privilege; procedure
In any case where the reporter claims the privilege conferred by this Part, the persons or parties seeking the information may apply to the district court of the parish in which the reporter resides for an order to revoke the privilege.
The application for such an order shall set forth in writing the reason why the disclosure is essential to the protection of the public interest and service of such application shall be made upon the reporter. The order shall be granted only when the court, after hearing the parties, shall find that the disclosure is essential to the public interest.

Dumez, a civil service employee of the Houma Police Department, was terminated from said position by his appointing authority, the Honorable Lora Rhodes, Chief, Hou-ma Police Department, on December 5, 1975. An appeal by Dumez to the Houma Municipal Fire and Police Civil Service Board (Board) resulted in an affirmation of his termination by a Board ruling issued February 25, 1976, subsequent to a hearing. Dumez appealed the Board’s ruling to the district court. In the course of the proceedings before the trial court, Dumez took Appellant’s deposition on March 11, 1976. In the process, Appellant was asked whether Roland Acosta, Board Chairman, had informed Appellant as to the probable outcome of the Board’s February 25,1976 hearing, prior to said hearing date. It appears Dumez desired this information in proof of his contention that his hearing before the Board was not fair and impartial but that rather, the Board had in fact made a decision before the hearing.

In response to the query, Appellant, a reporter for the Houma Daily Courier, a newspaper published in Houma, Louisiana, responded that Appellant discussed with Mr. Acosta certain aspects of Dumez’ case which were reported in the newspaper. Appellant also acknowledged that he privately spoke “off the record” with several individuals who expressed personal opinions regarding the probable outcome of the Board hearing, which information was communicated to Appellant in his capacity as newspaper reporter. Appellant declined to divulge the source of the several opinions thus received on the ground that the identities of the informants and the sources of such information were privileged and not subject to compulsory disclosure.

Appellee’s motion for an order to compel Appellant to answer the questions posed, was heard on March 26, 1976, and on March 30, 1976, judgment was rendered directing Appellant to answer the questions propounded in the March 11, 1976 deposition.

As a general rule, communications to a news reporter do not enjoy a privilege against use as evidence and the reporter may be compelled to reveal information received in his professional capacity. Garland v. Torre (CA2 N.Y.1958) 259 F.2d 545; People v. Durrant, 116 Cal. 179, 48 P. 75 (1897); Clein v. State, 52 So.2d 117 (Fla.1950); Pledger v. State, 77 Ga. 242, 3 S.E. 320. See also Privilege of Newspaper or Magazine and Persons Connected Therewith, 7 A.L.R.3d p. 591 and other authorities therein cited.

In enacting LSA-R.S. 45:1451, et seq., our own legislature has partially modified the above stated general rule by providing that newspaper reporters are not required to disclose in any administrative, judicial or legislative proceeding or anywhere else, the identity of any informant or any source of information obtained by him from another person while acting as a reporter. The obvious statutory intent is to encourage the divulgence of news by informants who might otherwise hesitate to disclose matters of public import for fear of unfavorable publicity or the possibility of retribution resulting from their being revealed as the source of a particular news item. In so providing, our statute supports the basic right of the public to be informed by permitting a newspaper reporter to maintain the confidentiality of his news sources.

Moreover, our statute accords with the holding in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626, which held that the United States Supreme Court lacked authority to prevent state courts from construing their respective constitutions so as to recognize a newsman’s privilege, either qualified or absolute, and from further declaring that within the limitations of the First Amendment of the United States Constitution, state legislatures are free to establish their own standards governing the relationships between law enforcement officials and the press.

We note that while some states have statutorily extended the newsman’s privilege to information received, as well as its source and the identity of the informant, our statute grants the privilege only as to the identity of the informant and the source of the information, and not to the information itself.

In this instance the trial court concluded the source of the information was known and that Appellee was seeking only the information itself, which is not privileged under our statute. This conclusion is based on an erroneous assumption or finding. In so holding the trial court overlooked Appellant’s deposing to the effect that Appellant had talked privately with several persons regarding the probable outcome of the Board’s scheduled hearing and that Appellant refused to divulge the identities of his informants. We cite from the deposition the following pertinent interrogatories and responses:

Q. “. . . isn’t it a fact that Acosta told you some time before the hearing that in all probability Ernie Rhodes would get a suspension without pay and Dumez would get fired?
A. No. That’s not correct. Several persons indicated to me that in their opinion, in their personal opinion, this particular outcome of the case would—
Q. Was Acosta one of those people that so indicated?
A. I can’t say any specific people. I can say several persons.
Q. Are you telling me that you don’t remember whether Acosta told you that, or are you telling me that you are not answering in order to protect your source?
A. The latter.”

Admittedly Appellee was seeking to obtain from Appellant testimony which would establish Appellee’s contention he was not given a fair hearing before the Board. That Appellant did not report or publish the information in question is a matter of no moment. While the statute limits the privilege to the identity of informants and the source of information, it does not restrict the privilege to identity of informants and sources of information published. On the contrary the privilege is extended to the identity of all informants and sources of information. We find that in this respect the statute is explicitly clear.

The question posed Appellant required an answer which disclosed not only information but also whether a particular individual was the source of the information sought. While the information requested was not privileged, the source thereof and the identity of the informant comes within statutory privilege insofar as such information was communicated to Appellant in his capacity as reporter by any person whomsoever.

The only exception to the established confidentiality of informant and source, obtains where a proper showing is made that disclosure of informant identity and source is essential to the protection of public policy. No such showing has been made in this instance. Having failed to make such a showing, Appellee is not entitled to revocation of the privilege.

It is ordered, adjudged and decreed that the judgment of the trial court ordering Appellant to answer the questions propounded is annulled, reversed and set aside and judgment rendered herein declaring the information as to the identity and source of the information requested is privileged pursuant to LSA-R.S. 45:1451 et seq.

It is further ordered, adjudged and decreed that this matter be remanded to the trial court for further proceedings consistent with the views herein expressed, Appel-lee Keith L. Dumez to pay all costs of this appeal.

Reversed and remanded.


text:
    SUCCESSION of Dock Albert CUTRER and Otto P. Cutrer v. John T. CURTIS, Sr.
    No. 11017.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 25, 1977.

      Stuart A. McClendon, William H. McClendon, Jr., of McClendon & Denkman, Metairie, for succession of Dock Albert Cutrer and Otto P. Cutrer, plaintiffs-appel-lees.
    Hugh G. Oliver, Westwego, for John T. Curtis, Sr., defendant-appellant, Homer D. Cutrer, intervenor-appellant, and Dixie Corine Cutrer Wild, third party defendant-appellant.
    Perrin C. Butler of Wiedemann & Fran-sen, New Orleans, for St. Paul Fire & Marine Ins. Co., third party defendant-appel-lee.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

This is a possessory action in which the plaintiffs seek to be maintained in possession of a 100-acre tract of land and to enjoin the defendant from registering documents purporting to evidence defendant’s ownership of the property and from otherwise disturbing plaintiffs’ possession. Plaintiffs also demand damages and attorney’s fees. The alleged disturbance in their possession was a disturbance in law as defined in LSA-C.C.P. Art. 3659. The succession is represented in this law suit by the testamentary executor, Otto P. Cutrer, who as a legatee purportedly appears individually as well as in his representative capacity. (The validity of the decedent’s will, attacked by defendant, has been sustained by the Civil District Court for the Parish of Orleans and the Court of Appeal, Fourth Circuit. Succession of Cutrer, 297 So.2d 543 (La.App. 4th Cir. 1974).)

The property had been inherited in 1943 from Preston Pond Cutrer and Amanda Mary Cutrer by eleven heirs, John R. Cutrer, Homer D. Cutrer, Otto P. Cutrer, Dock A. Cutrer, Ethelene Florence Cutrer Lewis, Fannie May Cutrer Fitzpatrick, Dixie Corine Cutrer Wild, Ida Lee Cutrer Lewis, Dollie Martha Cutrer Booty, Ivy Marshall Cutrer, and Annie Cutrer Mixon, in equal shares. In 1953 the decedent acquired seven undivided one-eleventh interests from seven of his co-heirs, John R. Cutrer, Homer D. Cutrer, Otto P. Cutrer, Ethelene Cutrer Lewis, Fannie Cutrer Fitzpatrick, Dixie Cutrer Wild, and Dollie Cutrer Booty. Three years later he acquired the entire property including the three one-eleventh outstanding interests in a judicial partition by licitation. In 1972 and 1973 defendant purportedly acquired by acts of sale from six of the original vendors named in the 1953 sale, all of their interest in the property, and caused the sales to be recorded, as a result of which alleged disturbance in law this litigation ensued.

The issues in this case are as follows:

1) Whether the defendant had a cause of action against the plaintiffs and their attorney for allegedly libelous remarks in the petition;

2) Whether the court erred in refusing to receive evidence of an alleged compromise;

3) Whether a deceased notary’s files are public records which defendant had a right to examine;

4) Whether the succession had a right to undisturbed possession of the property by virtue of the 1953 sale and the adjudication in the partition sale;

5) Whether the court erred in ordering cancellation of a sale made after probate of the will to defendant by one of the two universal legatees;

6) Whether the court erred in rejecting the plaintiffs’ demands for damages; and

7) Whether this appeal is frivolous.

Defendant filed a third party demand seeking joinder of the surviving heirs of the original ancestors in title, alleging that the 1953 sale to the decedent was a simulation made only for convenience, and that the decedent was acting as agent (apparently undisclosed) for all his co-heirs in various timber sales and mineral leases and as plaintiff and adjudicatee in the partition suit. Incorporated with the third party demand is a reconventional demand praying for nullification and cancellation of the 1953 sale to decedent, declaration that a succession bank account (allegedly containing the proceeds of timber sales and oil leases) is the joint property of eight of the eleven original co-owners (it being apparently conceded that the other three lost their rights in the partition suit), and for $100,000 damages for allegedly libelous statements in the plaintiffs’ petition.

Homer D. Cutrer intervened in support of defendant’s contentions. Dixie Corine Cutrer Wild answered the third party demand in the form of a general admission.

Through numerous amendments to the pleadings defendant also demanded that all acts of any nature performed by decedent, Dock Cutrer, with respect to the property be declared to have been done in decedent’s capacity as agent for the seven persons from whom he purchased in 1953 except with respect to decedent’s own Vs share. He demanded damages against plaintiffs’ attorney in the amount of $3,006,000 for the allegedly libelous words of the petition, and later joined St. Paul Fire & Marine Insurance Company the attorney’s professional liability insurer. He further pleaded a compromise, praying that plaintiffs be ordered to sell defendant all interest in the property in accordance with the alleged compromise.

St. Paul and plaintiffs’ attorney filed dilatory exceptions to the third party demands against them on the ground that the third party plaintiff was seeking to improperly cumulate actions beyond the scope of those actions which may be so cumulated under the provisions of LSA-C.C.P. Art. 1111.

St. Paul, plaintiffs’ attorney, and plaintiff Otto Cutrer, also filed peremptory exceptions of no cause and no right of action against the third party demands, contending that the remarks of the petition were not libelous per se or in context, that as to the attorney they were privileged, that the third party demands contained no allegation of actual or implied malice in their utterance, that no cause of action could arise until termination of this lawsuit, and finally repeating the contentions made in their dilatory exceptions with regard to cumulation.

Defendant filed peremptory exceptions of no cause and no right of action on three grounds, the only one of which presently urged is that subsequent to decedent’s death, the probate of his will, and the qualification of the executor, Homer D. Cutrer, legatee of one-half interest in the succession, sold all his interest in the property to defendant.

After a hearing on all exceptions, the district court sustained the peremptory exceptions of third party defendants (Cutrer, St. Paul and the attorney), dismissing as of nonsuit the claims for damages as a result of the allegedly libelous language of the petition. The dilatory exceptions were declared moot and maintained. The exceptions of no right and no cause of action filed by defendant were referred to the merits.

Defendant appealed. While the record was in preparation, trial on the merits was held. After trial on the merits, the court rendered judgment in favor of the plaintiffs and against the defendant, recognizing the succession’s right to ownership of the property and maintaining it in possession. The defendant was restrained from registering documents claiming ownership to the property and from otherwise disturbing such possession. The court further ordered cancellation of the inscriptions of the sales which defendant had caused to be recorded, including the sale made subsequent to the probate of decedent’s will.

All other demands of the plaintiffs and all other demands of the defendant were rejected. Defendant, intervenor and third party defendant Dixie Wild appealed.

Plaintiffs answered the appeal seeking reversal of the judgment insofar as it rejected the claim for attorney’s fees incurred in connection with clearing the succession’s title to the property. Plaintiffs further urge that the appeal be declared frivolous and ask for attorney’s fees. All appeals are simultaneously before us.

The district court sustained the exceptions of no cause of action and dismissed the third party demands and reconventional demands as of non-suit on the grounds that the cause of action for libel would not mature until the final disposition of the law suit in which the allegedly libelous statements are made.

In Marionneaux v. King, 331 So.2d 180 (La.App. 1st Cir. 1976), this court held that an exception of no cause of action is proper when a defendant brings suit for defamation in connection with allegations made against him in a pending suit. (See the comprehensive review of the jurisprudence in that case.) A reconventional demand for damages for an alleged libel set forth by the pleadings in a pending civil suit is subject to a peremptory exception of no cause of action at any stage of the proceedings. Thomas v. Mobley, 118 So.2d 476 (La.App. 1st Cir. 1960).

Counsel argues that this is not a case of malicious prosecution or libel, but a case of abuse of process, which may be brought prior to termination of the proceeding on which the action is based. Counsel cites Gonsouland v. Rosomano, 176 F. 481 (U.S. CCA 5th Cir. 1910) a diversity of citizenship case from Louisiana. The court there held that according to the law of Louisiana, the action of malicious prosecution is founded on the same principles and subject to the same defenses as have been established by the common law prevailing in the other states, and that there is no reason under Civil Code article 2315 why the same would not be true to an action for abuse of process. No Louisiana case has been cited except Kearney v. Holmes, 6 La.Ann. 373 (1851), a case involving the filing and re-filing of a series of law suits on the same matter.

In Gonsouland, the court, classifying the case as “abuse of process”, as distinguished from “malicious use of process”, i. e. “malicious prosecution”, held that the plaintiff was not required to allege and prove the three essentials of malicious prosecution, to wit: (1) the proceeding was instituted with malice and (2) without probable cause; and (3) that the proceeding upon which the action is based has been terminated. These requirements are distinguishable and distinguished in the common law from the essential elements of “abuse of process” which are: (1) the existence of an ulterior purpose; (2) a wilful act in the use of the process not proper in the regular prosecution of the proceeding. Ledford v. Smith, 212 N.C. 447, 193 S.E. 722; Moffett v. Commerce Trust Company, 283 S.W.2d 591 (Mo.).

In Gonsouland the plaintiff obtained a judgment for the balance of the purchase price of certain property or alternatively the rescission and cancellation of the sale. While the suit was pending the defendant brought two suits against the plaintiff, one for possession of the property he purchased and the other for rent. In the latter he caused a seizure of stock and fixtures belonging to plaintiff in another house, which were not liable to seizure under the writ. Defendant then by summary process had the plaintiff evicted under a writ of ejectment and seized all the furniture, beds, bedding and personal wearing apparel of plaintiff and his family. After obtaining possession of the property he destroyed one of the buildings, and plaintiff’s clothing and other personal effects were never returned. Obviously there was a stated cause of action in Gonsouland. In other states it would be classified as “abuse of process”. In the case of Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276, 162 A.L.R. 793, the court explained the difference among, three similar torts as follows:

“One who uses legal process to compel a person to do some collateral act not within the scope of the process or for the purpose of oppression or annoyance is liable to damages in a common law action for abuse of process.
So then, while false imprisonment is the arrest and imprisonment without legal process and malicious prosecution is the prosecution with malice and without probable cause, abuse of process is the misuse of legal process for an ulterior purpose. It consists in the malicious misuse or misapplication of that process after issuance to accomplish some purpose not warranted or commanded by the writ. It is malicious perversion of a legally issued process whereby a result not lawfully or properly obtainable under it is attempted to be secured.”

Assuming for sake of argument that the common law tort, together with its attendant applicable rules are a part of Louisiana law under Article 2315 as suggested in Gonsouland, neither that case nor Kearney v. Holmes involved allegedly libelous statements in the pleadings, and both cases are distinguishable on their facts. (It should be noted also that in Kearney the defendant in the principal action filed a separate suit for damages alleging “malicious prosecution”. It is not an “abuse of process” case. The separate action was consolidated with plaintiff’s suit by consent and tried as a reconvention, and the fact that it was heard despite the pendency of the original action can only be attributed to the consented consolidation.)

The exceptions of no cause of action were correctly sustained.

Defendant contends there was a compromise of the matters at issue here and prays for specific performance. During the pendency of the litigation in opposition to the probated will in the Civil District Court of Orleans, a notation was made on the margin of a copy of one of the pleadings in that suit, which reads: “Settled for $3,773.00 cash plus bank account”. It carries the initials W.H.M. and H.G.O. and the date February 9 [1973].

The district court refused to admit evidence of the compromise on the ground that it was, if anything, a compromise of another law suit antecedent to the present litigation. The evidence was taken as an offer of proof. Considering that on March 2, 1973, almost one month after entering into the so-called compromise, the parties went to trial, and after trial and judgment the matter was appealed, it is apparent that the parties either did not consider they had a binding compromise agreement or it was not pleaded in bar of judgment in that case, or upon consideration of the matter the court did not give effect to it. (It is highly likely that the court would not find it to be a writing complete in itself and independent of explanatory parol evidence. See Bugg v. State Farm Mut. Auto Ins. Co., 295 So.2d 194 [La.App. 4th Cir. 1974]; Trask v. Lewis, 258 So.2d 603 [La.App. 1st Cir. 1972].)

In any case the trial court was correct in refusing to consider or reconsider the compromise purportedly entered into during the pendency of prior litigation as to the subject matter of such litigation.

Defendant contends the 1953 sale to decedent was a simulation and that the decedent acted for himself and as agent for some of his co-heirs in acquiring the outstanding interest of three co-heirs by partition sale.

We agree with the district court. There is no evidence whatsoever in support of the contention. Mrs. Wild testified while she did not deny signing the 1953 notarial act she could not remember doing so and does not know why she signed it. She and Homer Cutrer testified they thought they owned an interest in the property when they sold to John Curtis. The court refused to admit hearsay testimony or parol evidence. A counter letter would have been admissible to vary the purport of the notarial act, but none was produced. (Franton v. Rusca, 187 La. 578, 175 So. 66 (1937).

This leads us to a consideration of the defendant’s complaint that the trial court refused defendant’s attorney the right to see the records and files of the late Mary Purser, attorney and notary, who allegedly handled the Cutrer legal business during the time the 1973 sale took place. He speculated that a counter letter might be found among those records. He cites State ex rel. Garland v. Theard, 45 La.Ann. 680, 12 So. 892 (1893) for the proposition that a deceased notary’s records are public records which must be delivered to the Clerk of Court upon the notary’s death for convenience of the public. The Garland case arose in Orleans Parish under Act 147 of 1867 which provided special procedures for disposition of original notarial records in that parish. That law and its successors were not intended to apply to records of notaries commissioned in any other parish, and Mary Purser was not an Orleans Parish notary. Counsel for the defendant could have gained access to any of such records, except any which might be privileged, by timely issuance of a subpoena duces tecum. He failed to file a timely request. Plaintiff’s attorney stated to the court that although papers left by the notary were located in a back room in his law office, he was not familiar with the records nor was he their custodian, and some had been removed from time to time by the notary’s son.

The court in its discretion properly refused to interrupt the proceedings to permit counsel to have a subpoena issued to the owner or custodian of the records and then to rummage through copies of notarial acts and files of records of a deceased lawyer in hopes of finding a document of whose existence he had not the slightest intimation. Thorough investigation in preparation for trial may have justified such a course, but the time for investigation had passed.

In the absence of legal proof that the decedent was not in fact the owner of the property as indicated by the public record, it must be concluded that the succession representative is entitled to be maintained in the enjoyment of his right to possession. See Estate of Rice v. Deville, 240 So.2d 379 (La.App. 3rd Cir. 1970). The trial court was correct in ordering cancellation of the inscriptions of the purported sales to John T. Curtis, Sr. prior to decedent’s death.

It is suggested that the court erred in ordering cancellation of the sale from Homer D. Cutrer, a legatee, to John T. Curtis, Sr. dated after decedent’s death and after the executor had qualified.

In Fortson v. Lake, Inc., 176 So.2d 703 (La.App. 4th Cir. 1965) the court said:

“Under the maxim [“le mort saisit le vif”] the heir, or in the absence of a forced heir, the universal legatee acquires seizin and ownership of right from the moment of the decedent’s death. But where there is an administration of the estate of the decedent, the administrator or executor, subject to the supervision and control of the court, has actual possession of the estate’s property during the administration, the administrator or executor acquires seizin in fact, while the heir or, in the absence of a forced heir, the universal legatee acquires seizin of right.”

It is settled that an heir or universal legatee may sell his entire interest in a succession subject to the charges with which that interest is burdened, and a sale of an heir’s interest in a particular piece of property belonging to a succession which owes debts or is under administration is an absolute nullity. Griffin’s Succession v. Davidson, 125 So.2d 30 (La.App. 2nd Cir. 1960); Van der Karr v. Stead, 21 So.2d 111 (La.App. 1st Cir. 1945); Fortson v. Lake, Inc., supra. The seller was a universal legatee of one-half of the succession.

The purchaser, John T. Curtis, Sr., and the seller, Homer D. Cutrer, were the opponents to the olographic will in the litigation to which reference is made. Having failed to prevail in that litigation, Curtis relied on the deeds previously recorded adversely to decedent’s title, and now alternatively seeks confirmation of his purchase of all of Homer Cutrer’s one-half interest. The sale in question purports to transfer all of vendor’s right, title and interest in the Estate of Preston Pond Cutrer and Amanda Mary Cutrer, “more fully described as follows: . (Here follows a description of the 100-acre tract in question.)” It also contains the following clauses:

“Sale includes all movables including seller’s share in The Hibernia Bank Savings Account No. 8672.
“Also included are all rights in family tombs in New Orleans and elsewhere.”
“Included in this sale are all rights of any nature, type, or form; and all property of any nature, type, or form that may come to seller in the litigation styled Succession of Dock Albert Cutrer, Civil District Court—Parish of Orleans, No. 543-809, Div. E.”

It is conceded that the succession owns no other real estate.

The foregoing words, although lacking in desirable clarity, when read together purport to transfer all of Homer Cutrer’s interest in decedent’s estate. Homer Cutrer concedes it does. This sale therefore effectively conveys one-half of all the property depending on the Succession of Dock Albert Cutrer together with all debts and charges against said succession to defendant who now stands in lieu of Homer Cutrer with respect to the succession. The rights of the executor are paramount, and if it becomes necessary to sell the property to pay debts of the succession—it is alleged that there is insufficient cash on deposit to pay funeral expenses and law charges—the sale from Homer Cutrer to Curtis will neither be an impediment nor will it affect the purchaser’s title. It merely entitled Curtis to one-half of the residue of the succession upon final accounting. The judgment of the trial court must be amended to delete references to the cancellation of the inscription of the deed dated March 3, 1973 from Homer D. Cutrer to John F. (sic) Curtis, Sr., registered in Conveyance Office Book 378, Page 218, of the public records of Tan-gipahoa Parish.

The court denied plaintiffs’ claims for damages for the slander of title. The attorney’s fees incurred in connection with this litigation to restore the executor’s right to possession are advanced as damages. They are not recoverable. Roge v. Kuhlman, 136 So.2d 819 (La.App. 3rd Cir. 1962). See also Yiannopoulos, Louisiana Civil Law of Property, Sec. 138, note 251.

The final question before us is whether appellees are entitled to damages for a frivolous appeal. Such damages are not allowable unless it appears that the appeal is taken solely for delay or that counsel is not sincere in his view of the facts as he appreciates them or of the law he advocates even though the court is of the opinion that such view is not meritorious. Hodson v. Hodson, 292 So.2d 831 (La.App. 2d Cir. 1974); Johnson v. Iowa Rice Dryer, Inc., 226 So.2d 194 (La.App. 3rd Cir. 1969). Where the appellee obtains a modification of the judgment, damages for a frivolous appeal cannot be awarded. Ornelas v. Silvan Newburger & Co., 139 La. 832, 72 So. 372 (1916). Our modification of the judgment in the respect discussed hereinabove forecloses the issue of damages for a frivolous appeal.

The judgment of the district court will be amended, and as amended, affirmed. All costs will be paid by the appellants.

AMENDED AND AFFIRMED.