text:
    William E. FELDER, III v. Marjorie TERRY, wife of/and William McMullin.
    No. 8620.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.
    Paul F. Rogyom, Kenner, for plaintiff-appellant.
    George C. Stringer, Jr., Harahan, for defendants-appellees.
    Before REDMANN, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

On November 17, 1975, plaintiff agreed to purchase real estate from defendants for $42,000 cash, the sale to be passed on or before March 30,1976. The agreement was conditioned upon the ability of the purchaser to make a mortgage loan on the property in the amount of $33,600 according to certain terms. It then provided:

“Should the loan stipulated above be unobtainable by the purchaser, seller or agent within 90 days from date of acceptance hereof, this contract shall then become null and void, and the agent is hereby authorized to return the purchaser’s deposit in full.”

In January plaintiff and his father-in-law met with defendant and informed him that plaintiff would not make a loan but would pay all cash for the property. On February 17 defendant returned the deposit to plaintiff and on the 20th advised plaintiff that in view of plaintiff’s failure to obtain a loan in accordance with the contract within 90 days from date of acceptance the agreement was null and void.

On March 23, 1976, plaintiff appeared before a notary public where he tendered the full amount of the purchase price in cash and defendants were put in default, having been notified that the sale was scheduled for that time and place.

Plaintiff’s suit for a specific performance was dismissed by the trial judge who reasoned that the sellers had no assurance that the sale would be consummated simply on the word of the plaintiff that he would pay cash instead of making a mortgage loan.

The provision conditioning the sale on the purchaser’s ability to make a mortgage loan is a suspensive condition for the sole benefit of the purchaser who may waive the provision. The sellers are interested only in getting the purchase price regardless of the source. Morrison v. Mioton, 163 La. 1065, 113 So. 456 (1927), Garlete v. Rodriguez, 126 So.2d 182 (La.App. 4th Cir. 1961).

The jurisprudence is replete with cases where under these circumstances a purchaser was found to be in default and held to the contract because he had failed to make a good faith effort to obtain the loan. For instance, Aubert v. Bourg, 259 So.2d 103 (La.App. 4th Cir. 1972), Brewster v. Yockey, 153 So.2d 489 (La.App. 4th Cir. 1963). Under these eases, plaintiff was bound by the contract whether he obtained the loan or not in the absence of good faith on his part. It would be quite inconsistent to hold that defendants may now escape their obligation simply because plaintiff has decided not to obtain a mortgage loan. The contract confers rights on the sellers but reciprocal obligations as well.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of plaintiff, William E. Felder, III, and against defendants, Marjorie Terry, wife of/and William McMullin, decreeing specific performance of the contract dated November 17, 1975, to sell for the price of $42,000 cash the following described property, to wit:

THAT CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and improvements thereon, and all of the rights, ways, privileges, servi-tudes, advantages and appurtenances thereunto belonging or in anywise appertaining, situated in the Township 12 South, Range 10 East, Southeastern Land District of Louisiana, east of the Mississippi River, in Jefferson Parish, Louisiana, in Section F, Square 1, bounded by Walter Road, 15th Street, Orchard Road and Soniat Canal, Highland Acres Subdivision, and according to a survey of re-subdivision of W. F. Calongne, C. E., dated July 30, 1957, annexed to Ordinance Number 3557 of the Police Jury of Jefferson Parish, dated September 11, 1957, registered in COB 432, folio 337, said parcel or portion of ground is situated in Plot F of said Highland Acres Subdivision and is designated as portion of Lot X, which measures as follows:
Said portion of Lot X commences at a distance of 390 feet from the intersection of 15th Street and Walter Road, commencing at a point marked “A” on said survey, and measures 109.40 feet front on Walter Road to a point marked “B”, with a width in the rear of 230.19 feet and a depth on the sideline nearest 15th Street of 199.05 feet, and a depth on the opposite sideline nearest the Soniat Canal of 239 feet.
Improvements bear House No. 374 Walter Road, River Ridge, Louisiana 70123.

Accordingly, judgment is rendered ordering defendants to appear at the office of a notary public designated by plaintiff within the Parish of Jefferson at 11:00 AM on the second Monday following finality of this judgment, or at an earlier date and time agreed upon by the parties, and then and there pass the Act of Sale of the above described property in accordance with the provisions of the above contract. All costs of these proceedings are assessed against defendants.

REVERSED AND RENDERED.

      . There was no real estate agent involved in this matter.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Frances BAUDOIN v. Wayne LAUVE.
    No. 8655.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    Charles S. Lagarde, Jr., Luling, for defendant-appellee.
    Before REDMANN, SCHOTT and BEER, JJ.
   REDMANN, Judge.

Plaintiff builder appeals from a judgment which awarded him $1,785, the unpaid part of a construction contract price but awarded interest only “from date”. Plaintiff asks interest from date of completion (or at least from judicial demand). Defendant by answer seeks a reduction of principal by $606.81 as a cost of proper completion of the contract. We amend to so reduce principal and to award interest from judicial demand.

There are several instances of un-workmanlike work in the house. An independent inspector-appraiser for a bank testified, as plaintiff’s own witness, that the front columns were “somewhat off” according to a tape measure (he didn’t recall how much “in specific inches”); the threshold was out of line; the slab at the front had some unremedied “honeycombing”; the fireplace was “a little off” according to a “tradesman’s level” (though not noticeable “on sight”). Plaintiff agreed, but thought proper, that the kitchen stove hood vented into the attic (rather than through the roof to outside). We pretermit describing other less notable items. As to most of these defects, however, defendant did not establish the cost of proper completion and the trial judge might on that basis have reasonably rejected the claim for those items.

Defendant did, however, establish at $800 to $850 the cost of correcting questionable electrical work (although he had sought only $606.81 in his pleading). Defendant’s expert testified that two-thirds of the electrical outlets (including outside and garage outlets) were ungrounded; junction boxes were overcrowded with too many connections; and each of the 16 circuits for 110-volt service (theoretically two-wire, even without a ground wire) was in fact half of one of eight three-wire 220-volt circuits, the consequence of which is that (ignoring the ground wire problem) instead of 32 wires 24 have to carry the load, and every 110-volt circuit shares one of its wires with another thus overloading that common wire. This testimony is virtually uncontra-dicted, although plaintiff does assert that no electrical code relative to grounding applied to this rural construction in 1969. Even ignoring the grounding problem (even on outside outlets), we see the overloading of all 16 circuits by doubling the load on one wire of each as making those 16 no better than the eight common wires that served them, as the chain is no stronger than its weakest link. The net result is that defendant got the safe service capacity of only eight circuits instead of 16. It was error to reject this evidence, in the absence of some counter-evidence or at least internal inconsistency. If some non-grounding of circuits might have been acceptablé as workmanlike, the other electric complaints are not so answered and do not seem to be so answerable. We conclude that defendant has established as more probable than not that the electrical work requires repairing. We therefore allow the $606.81 pleaded by defendant (apparently from an earlier estimate).

But we also allow interest on plaintiff’s award from judicial demand, as prayed in the petition, rather than from due date as might have been awarded under C.C. 1938 if prayed for; C.C.P. 1921.

The judgment is amended to $1,178.19 with interest from judicial demand; plaintiff is to bear the costs of this appeal.


author: SCHOTT, Judge.

text:
    Morris Lee JAVERS, Jr., Dennis Reed and Genevieve Cole v. COUNCIL OF the CITY OF NEW ORLEANS, Hon. Philip C. Ciaccio, Hon. A. L. Davis, Jr., Hon. Joseph V. DiRosa, Hon. Clarence O. Dupuy, Hon. Frank A. Friedler, Jr., Hon. John D. Lambert, Jr., Hon. James A. Moreau.
    No. 8803.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.

      Charles Patrick Amato, Jr., Jack Mark Stolier and Guy M. Huard, New Orleans, for plaintiffs-appellees.
    Arthur L. Ballin, New Orleans, for inter-venors-appellants.
    Philip S. Brooks, City Atty., and Jacob Taranto, III, Deputy City Atty., for defendants-appellants (Council of the City of New Orleans).
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

The members of the Council of the City of New Orleans have appealed from a judgment which made peremptory a writ of mandamus compelling the council to submit to the electorate of the City a proposed amendment to the home rule Charter of the City of New Orleans.

The charter contains the following provisions relative to amendments:

“Section 9-201. Method of Amendment. This Charter may be amended or replaced only by the affirmative vote of a majority of the qualified electors of the City voting upon such amendments or proposed Charters. Proposals to ¿mend or replace this Charter may originate only in the following manner:
(a) By ordinance of the Council.
(b) By petition of not less than ten thousand of the duly qualified registered voters of the City filed with the Council, setting forth the proposed amendments or substitute home rule Charter.”
“Section 9-202. Calling of an Election. (2) Within sixty days of the receipt of a petition proposing an amendment to the Charter or a substitute charter, the Council shall provide by ordinance that the proposed amendment or substitute charter shall be published at length in the official journal not less than sixty days prior to the election, and shall be submitted to the electors of the City at the next Congressional election if the date of such election is not less than ninety days after the effective date of such ordinance, or when the petition so demands, at a special election called for the purpose, the date of which shall be fixed at not less than ninety nor more than one hundred twenty days after the effective date of such ordinance.”

The requisite number of voters signed a petition for an amendment which would establish a tenant-landlord relations commission in order to deal with a “serious public emergency” existing because of housing conditions in the city. When the Council refused to submit the proposal to a referendum this action followed.

The proposal would confer on the tenant-landlord relations commission the power to set maximum rents and to roll back rents to a base amount, and generally to control rents within the City. It would have numerous requirements with respect to the contents of a lease between a landlord and a tenant and would require a copy of any type of lease used by any landlord to be filed with the commission. It would require the registration with the City of any rental facility. It would prevent the commencement of eviction proceedings in court unless the commission or its administrator first provided to the landlord a certificate of eviction. These provisions along with others would fly in the face of the laws of the State of Louisiana as found in the Civil Code, Revised Statutes, and Code of Civil Procedure pertaining to freedom of contract, property rights in general and relations between landlord and tenant in particular. Key provisions of the proposal interfere drastically with the right of citizens to use the courts as set forth in the Civil Code and the Code of Civil Procedure. As such these provisions would be unconstitutional in that the home rule Charter of the City of New Orleans which is sought to be amended by incorporation of these provisions can only be amended within the perimeters of Art. 14, § 22, of the Constitution of 1921 which provides:

“The city of New Orleans shall, however, not exercise any power or authority which is inconsistent or in conflict with any general law.”

Furthermore, Art. 6, § 9, of the Constitution of 1974 entitled “Limitation of Local Governmental Subdivisions” provides as follows:

“(A) Limitations. No local governmental subdivision shall (1) define and provide for the punishment of a felony; or (2) except as provided by law, enact an ordinance governing private or civil relationships.”

Although there is a severability clause in the proposal, appellees admitted in oral argument that the proposal would be meaningless if stripped of those sections mentioned above which are vulnerable to constitutional attack.

The issue becomes whether the Council had any discretion to submit or not to submit such a proposal to a referendum. Is its duty only ministerial so that it must submit a proposal which has been made by ten thousand electors no matter how clear-cut its invalidity may be? Appellees answer in the affirmative, but we disagree.

There must be a rule of reason or reasonableness in the implementation of this Charter provision which would save the City the needless expense of conducting a referendum concerning a proposal which, if adopted, would be invalid. We believe that reason requires the Council to exercise some discretion in such a situation. Appellees argue that this would permit the Council to frustrate the plain wording of the Charter but surely that wording should not be construed to produce absurd consequences.

This view is not to be interpreted to mean that the Council can refuse to submit any proposal which it might think unconstitutional because in the final analysis the court, and not the Council, will be the arbiter as to the reasonableness of their decision. If there were any doubt that the substance of this proposal might be valid the Council could not decline to submit the matter to a referendum, but in this case no such doubt exists.

The jurisprudence supports this view. In State ex rel. Bussie v. Fant, 216 La. 58, 43 So.2d 217, 219 (1949), the Supreme Court said:

“As a general proposition of law, the validity or constitutionality of an ordinance will not be determined or passed on by a court until the ordinance is adopted. In the instant case, however, relators seek by mandamus the right to have submitted to the electors an ordinance which, if adopted, would be invalid. Under these circumstances, the validity of the ordinance should be determined by the court, and, if it is found to be illegal or unconstitutional, the right to the writ of mandamus should be denied. This is the better and sounder doctrine, and has been recognized by textwriters and the courts of this country.”

The trial judge in this case found a distinction with the Bussie case in that the proposition there was to be submitted to the voters in such a way that its adoption would necessarily be invalid. The trial judge reasoned: “Because of the manner of calling the election the ordinance would be invalid.” We fail to perceive a substantial difference in the instant case. If the amendment before us is passed, it will be invalid and whether its invalidity is caused by substance or form the same result obtains. The City will be spending money and needless effort to conduct a referendum concerning a proposal which will be nullified by the courts if passed.

The Court of Appeal, First Circuit, in Ware v. Cannon, 248 So.2d 19 (1971) reached the same result. Appellees concede that their position is inconsistent with Ware and would have us go a different way, but we have resolved to follow the same reasoning as did the court in the Ware case.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendant, Council of the City of New Orleans, and against the plaintiffs, dismissing their suit and recalling the writ of mandamus at the cost of the plaintiffs.

REVERSED AND RENDERED.

      . This provision survives pursuant to Art. 6, § 4, of the Constitution of 1974.


text:
    Harry CONNICK v. The Honorable Charles WARD et al.
    No. 8819.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.

      William F. Wessel, New Orleans, Brian G. Meissner, Asst. Dist. Atty., on the brief, for plaintiff-appellant.
    Donald V. Organ, John V. Baus, David W. Oestreicher, II, Jones, Walker, Waech-ter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   REDMANN, Judge.

Louisiana law provides that all “fines and forfeitures” collected in Orleans criminal cases shall be paid to the district attorney. La.R.S. 15:571.11(D). Plaintiff district attorney alleges that defendant judges (not all of the judges) of the Criminal District Court have imposed, as part of a criminal sentence or as a condition of probation, payments into the “Appellate Process (Support) Fund” (created by a divided court en banc to meet certain expenses of the court). Defendant sheriff -collects those payments and “has been ordered by the defendant judges to pay the proceeds” to defendant judicial administrator of the Criminal District Court.

Plaintiff seeks to enjoin defendant judges from continuing to impose “special fines under the guise of” payments to the Appellate Process Fund; to enjoin defendant judicial administrator to deliver the funds he holds to plaintiff (or, alternatively, to the state treasurer); and to enjoin defendant sheriff to deliver to plaintiff (as part of “fines and forfeitures” within R.S. 15:471.-11(D)) any payments to the Appellate Process (Support) Fund imposed upon criminal defendants and collected by the sheriff. Alternatively, plaintiff asked a declaratory judgment that defendant judges’ “imposing a special fine, or a payment of money as a condition of probation in criminal cases, to be paid to the Appellate Process (Support) Fund, or related funds, [is] illegal.”

The Civil District Court dismissed for want of jurisdiction. We affirm as to the defendant judges and reverse as to defendant sheriff and judicial administrator.

The Criminal District Court judges’ sentences or conditions of probation in individual criminal cases are not subject to control by the Civil District Court. Nor can the Civil District Court oblige the judges of the Criminal District Court to defend their sentencing or probation practices. Those acts are the acts of the court. It matters not that a fine or a probation payment is insufficient or excessive as a penalty for the crime involved, within the limits of the law or not, payable to the sheriff or to the judge personally, for some described purpose or not: the sentence or the probation condition is the act of the court and not of the judge as an individual citizen in an unofficial capacity.

The Civil District Court has no appellate jurisdiction except in certain cases from the City Courts of New Orleans; R.S. 13:1137. It therefore has no authority to review acts of the Criminal District Court. Arthurs v. Villere, 1891, 43 La.Ann. 414, 9 So. 126. The Civil District Court may not order the business of the Criminal District Court; Maryland Nat. Ins. Co. v. Garrison, La.App., 4 Cir. 1970, 233 So.2d 32, writ refused 256 La. 251, 236 So.2d 30. Indeed the only jurisdiction that the Civil District Court has is civil, R.S. 13:1137, and for that reason also the Civil District Court has no power to adjudicate, not even in a declaratory judgment, the propriety of criminal sentencing practices. We therefore affirm the judgment rejecting any pretense to jurisdiction over the judges of the Criminal District Court in their exercise (proper or not) of the exclusive jurisdiction of their court (R.S. 13:1336) over criminal offenses. It is on that basis that the judgment dismissing the judges is correct, and not — as plaintiff has suggested — because of any misplaced theory of judicial immunity.

The only similar obstacle to the Civil District Court’s jurisdiction over the sheriff and the judicial administrator of the Criminal District Court is the limitation of the Civil District Court’s jurisdiction to civil matters. The merits of the present matter involve the question whether the payments to the Appellate Process (Support) Fund are fines or forfeitures within R.S. 15:571.11(D) (a question decided by State v. Rugon, La. 1977). This question arises as a sequel to criminal cases in which the payments have been imposed, but that circumstance does not place the question beyond the jurisdiction of a civil court. (Even the housing of prisoners has been treated as a civil matter; Pounds v. Theard, La.App., 4 Cir. 1970, 230 So.2d 861.) While such a question might arise in a criminal case against the sheriff or judicial administrator for malfeasance in office (R.S. 14:134), it may also arise in a civil suit to enjoin those officers to deliver such payments to the district attorney. The case here against the sheriff and the judicial administrator— whatever its merits — is a civil suit, seeking civil remedy. The Civil District Court has jurisdiction over the demands against these defendants.

Affirmed as to defendant judges; reversed as to defendant sheriff and judicial administrator.


author: FORET, Judge.

text:
    David R. WHEELER, Plaintiff-Appellant, v. WESTERN KRAFT, INC., Defendant-Appellee.
    No. 6342.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 14, 1977.
    Larry P. Boudreaux, Thibodeaux, and Brittain & Williams, Jack O. Brittain, Natchitoches, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   MOTION TO DISMISS

FORET, Judge.

On September 14, 1977, we issued an order to the plaintiff-appellant, David R. Wheeler, to show cause, by brief only, on or before September 30, 1977, why his appeal in the above captioned suit should not be dismissed due to his failure to timely file his appeal bond. The appellant has not answered the order.

The appellant’s appeal is therefore dismissed due to his failure to timely file his appeal bond.

APPEAL DISMISSED.


author: STOKER, Judge.

text:
    Irby HEBERT et al., Plaintiffs-Appellees, v. Kenneth M. STANSBURY et al., Defendants-Appellants.
    No. 5922.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.

      John A. Bivens of Mouton, Roy, Car-mouche & Hailey, Lafayette, for defendants-appellants.
    Cooper & Sonnier, by Silas B. Cooper, Jr., Abbeville, for plaintiff-appellees.
    Before HOOD, CULPEPPER and STOKER, JJ.
   STOKER, Judge.

This is a quo warranto proceeding brought by plaintiff-appellees to determine by what authority defendant-appellants are acting as officers of a corporation, Lafayette Distributors, Inc. The issues grow out of a struggle for control of this corporation. Questions pertaining to directorships of the corporation were considered by this court in Hebert v. Stansbury, 248 So.2d 873 (La.App.3rd Cir. 1971), writ denied 259 La. 793, 253 So.2d 61 (1971).

Plaintiffs allege that despite this court’s ruling in the case just cited Kenneth M. Stansbury, Marie Prank Elmer, and Joan M. Mouton are in fact acting as directors, and officers of Lafayette Distributors, Inc. Additionally plaintiffs assert that the above named parties have no authority to act as such. Finally, it is alleged that Beulah Stansbury (president) and Kenneth M. Stansbury (secretary) are the only duly elected office holders. The lower court affirmed plaintiff’s position. From this ruling defendants have appealed. We affirm.

A brief statement of the facts is necessary to set forth the positions of the respective parties to this struggle for corporate control. Lafayette Distributors, Inc. was incorporated in the late 1950’s. The stockholders were Landry Stansbury, Paul Elmer, and Kenneth Stansbury. Mr. Landry Stansbury died, and his 50 out of 100 shares of the corporation devolved to his wife, Beulah Stansbury (8Vs shares) and his children, Randy Stansbury and Deborah Stans-bury (41% shares). The remaining 50 shares were owned 16% and 33V3 by Kenneth M. Stansbury and Paul Elmer respectively. Following Landry Stansbury’s death the directors of the corporation were Beulah Stansbury, Kenneth M. Stansbury and Paul Elmer. The officers of the corporation were Beulah Stansbury (president), Paul Elmer (vice-president) and Kenneth M. Stansbury (secretary). The corporate situation was reasonably harmonious until early 1970. At this time Mr. Elmer became ill, and the cohesiveness of the corporation began to dissolve. Mr. Elmer died in August 1970 and his shares were inherited by his wife, Marie Frank Elmer, and daughter, Joan M. Mouton.

The two factions in this case had aligned themselves by June 1970 with each having the intent of taking control of the corporation. On July 16, 1970 a director’s meeting was called for the purpose of electing new officers to the corporation. The meeting was called by Kenneth Stansbury in his capacity as secretary of the corporation. Present were Kenneth M. Stansbury, director and Marie Frank Elmer acting on behalf of Paul Elmer a director. Absent was the third director, Beulah Stansbury. At this meeting the officers elected were Kenneth Stansbury president, Marie Frank Elmer, vice-president, and Joan M. Mouton secretary.

In August, 1970 a meeting of shareholders to elect directors was conducted. The result of this meeting formed the subject of our discussion in the Hebert case, reported in 248 So.2d 873 mentioned above. As stated in our prior decision in that case, the meeting was hopelessly deadlocked and no new directors were elected.

Following this meeting but prior to the rendition of judgment in 248 So.2d 873, Kenneth Stansbury called another shareholder’s meeting to elect directors in January, 1971. This meeting, so defendants contend, resulted in the election of Kenneth Stansbury, Marie Frank Elmer and Joan M. Mouton to the board of directors. Immediately following this meeting another election officers was held by the “new” directors. Elected were Kenneth Stansbury president, Marie Frank Elmer vice-president, Joan Mouton, secretary. Additionally, retroactive approval was given for the acts of the three new officers for prior execution of duties connected with their respective offices.

Due to some doubt as to the validity of the prior meetings wherein members of the faction led by Kenneth Stansbury were elected as officers and directors of Lafayette Distributors, Inc., another meeting of shareholders for elections was called for June 15, 1971. Notice of the meeting was given by Kenneth Stansbury and mailed on May 5,1971. Prior to this on May 27,1971, a voting trust of 50 shares was established by the Beulah Stansbury faction. On June 4, 1971 Beulah Stansbury mailed her own notice of a shareholders meeting. On June 14, 1971 the Beulah Stansbury faction filed a petition for a writ of quo warranto and requested a temporary restraining order. (Suit No. 49,848 on the docket of the Fifteenth Judicial District Court). The temporary restraining order was granted, enjoining Kenneth Stansbury, Marie Frank Elmer, and Joan M. Mouton from “holding” a shareholders meeting on June 15, 1971.

Despite the restraining order the Kenneth Stansbury faction convened their meeting and adjourned it from day to day. Additionally, defendants moved to dissolve the restraining order. Eventually the temporary restraining order was dissolved on June 19, 1971 and the meeting was held on June 22, 1971. The holding of this meeting was protested by the Hebert faction. The Kenneth Stansbury faction purported to elect directors through casting the fifty votes of their voting trust. Irby Hebert, although acting under protest, cast the Hebert trust’s fifty votes against such directors. The result of this meeting was the election of the Kenneth Stansbury faction or another deadlock depending on which party’s allegations are relied on. The crux of the dispute is the record date and thus the effect of the voting trust filed May 27, 1971.

The only other action taken in this suit (No. 49848) was the filing of a rule for contempt against the Kenneth Stansbury group. This rule was disposed of in September, 1971 and no further action has been taken in that case.

On April 27, 1976 the Beulah Stansbury group filed the present quo warranto proceeding against the Kenneth Stansbury faction demanding that they be required to show under what authority they are acting as directors and officers of the corporation. This suit was tried on October 13,1976, and judgment was rendered recognizing Beulah Stansbury, president and director, and Kenneth Stansbury, secretary and director. No other parties were recognized as officers or directors by the judgment rendered October 25, 1976. Suspensive appeal was timely taken by defendants Kenneth Stansbury, Marie Frank Elmer, and Joan M. Mouton.

Defendant-appellants urge that the trial court erred in four particulars:

(1) In disregarding the effect of the July 16, 1970 meeting of directors which resulted in the election to offices of the corporation Kenneth Stansbury, Marie Frank Elmer, Joan M. Mouton.
(2) In disregarding the effect of the January 16, 1971 shareholders meeting which resulted in the election of a new board of directors composed of the Kenneth Stansbury faction to the offices of the corporation on January 22, 1971.
(3) In ruling that the temporary restraining order held in abeyance any “meeting” of June 15, 1971 due to the failure to post bond by the Beulah Stansbury faction.
(4) In ruling that defendants had not timely filed exceptions and failing to sustain either the exceptions of res judicata, lis pendens or the plea of laches.

Each of defendant-appellants’ contentions will be discussed in the order that they are listed above.

MEETING OF JULY 16, 1970

Defendants contend that the trial court erred in not holding the meeting and election of July 16, 1970, to be valid. This meeting was attended by Kenneth Stans-bury and Marie Frank Elmer. According to defendants a majority vote of directors was cast at this meeting in an election which resulted in the election of Kenneth Stans-bury, Marie Frank Elmer and Joan M. Mouton as officers of the corporation. We do not agree that this was a valid meeting of the board of directors. Under Article VIII of the Articles of Incorporation, as amended December 18, 1962 (See plaintiff’s exhibit, P-7, Tr. 29-30), the authority to call meetings of the board of directors is granted to the president of the board of directors. At a meeting of the shareholders and directors held on December 18, 1962, Beulah Stans-bury was elected president of the board of directors (Tr. 29 and 30). The meeting of the board of directors held on July 16,1970, was called by Kenneth Stansbury as secretary of the board of directors in direct contravention of the then existing provisions of the articles of incorporation. Therefore, the trial court correctly disregarded the election held at this illegally called meeting.

MEETING OF JANUARY 16, 1971

Defendants’ second contention of error by the trial court is that the trial court erred in disregarding the shareholders meeting on January 16, 1971, and in turn, the vote of the “new” directors meeting later that January. We disagree. Such meeting was improperly called by notice of Kenneth Stansbury acting as president. As we hold in the preceding paragraph, no officers were elected at the meeting of July 16, 1970. Therefore the officers were the same as prior to July 16, 1970; Beulah Hebert Stansbury, president, Paul Elmer, vice-president (now deceased), and Kenneth M. Stansbury, secretary. R.S. 12:73A and B provide the method and authority for calling shareholders meetings. Subdivision A is inapplicable in that a shareholders meeting had been held within 18 months of this meeting. See Hebert v. Stansbury, supra. Subdivision B is likewise inapplicable for authority because Kenneth M. Stansbury could only act in his capacity as secretary and not as president of the board of directors. Additionally, the notice given does not purport to be one by the secretary as authorized by 20% of the voting power. This defect in the notice was properly objected to by the Beulah Stansbury faction at the meeting. Notice being objected to and defective, the proceedings were invalid. R.S. 12:73. The election of “directors” on January 16, 1971 being invalid, any subsequent action by the “directors” could in no' way affect the standing of the officers.

BOND POSTED IN CONNECTION WITH TEMPORARY RESTRAINING ORDER

Defendant’s third contention of error is predicated on two points: (1) that the bond given for the temporary restraining order was no bond at all and therefore the order was never effective, and (2) that the order being defective, the notice of May 5,1971 was proper and the meeting of June 15, 1971 was properly called to order. The defect complained of in the bond is that Irby Hebert, a party to the action, signed as surety. The bond was signed by Beulah Hebert Stansbury as principal. The bond is valid on its face and purports to hold two parties liable as principal and surety. Any defect in the sufficiency or validity of a surety should be tested by motion in the trial court which required the bond. LSA-C.C.P. Art. 5123 et seq. Therefore, we hold there was a bond.

The second predicate of defendant’s contention must also fail. The notice was again issued at the behest of Kenneth Stansbury and authorized by no other. It is concluded that such notice is not effective to establish a proper record date or a meeting properly called when lack of notice is objected to. R.S. 12:73A, B, and R.S. 12:77(B). Holding this original notice invalid, the peripheral issue is raised as to the effect of the notice given by Beulah Stans-bury on June 4, 1971. Admittedly, as the last duly elected president of the corporation, Beulah Stansbury could call such a “meeting.” R.S. 12:73B. Thus, the record date would be June 3, 1971. R.S. 12:77B. The voting trust would be effective as filed May 27, 1971. However, as the trial court concluded, no “meeting” could be called on June 15, 1971 due to the temporary restraining order. The dissolution of the temporary restraining order on June 19, 1971 merely placed the opposing parties back in the position they were in originally, that is, each side could re-issue notice and conduct a shareholders meeting in accord with corporate law. See Schmidt v. F. E. Foucher, 37 La.Ann. 174 (La.1885); State ex rel. Bell v. Houston, 36 La.Ann. 886 (La.1884). Thus, as the trial court pointed out, re-issuance of notice on June 21 for a meeting on June 22, 1971 would be insufficient for the purposes of establishing a valid “meeting”. R.S. 12:73B and 77B.

EXCEPTIONS OF RES JUDICATA AND LIS PENDENS AND PLEA OF LACHES

Defendant’s final allegation of error is that the trial court erroneously overruled their exceptions as untimely filed or waived. The comments under LSA-C.C.P. Art. 2593 dealing with summary proceedings are to the effect that, because answer in such proceedings is not required, exceptions may be lodged at anytime prior to the commencement of the summary trial. The trial court nevertheless gave written reasons for the denial of all exceptions raised by the defendant.

LIS PENDENS

The plea of lis pendens was properly denied. Plaintiffs did not pursue their original writ of quo warranto filed June 14, 1971. However defendants filed formal notices before the court to take depositions on November 4, 1971. This action then must be considered as “the last steps in the prosecution or defense” of suit number 49,848. See Robertson v. Sightler, 304 So.2d 875 (La.App.2d Cir. 1974). Therefore it must be concluded that suit number 49,848 was still pending on April 27,1976 when this present suit was filed. Nevertheless, we conclude that this was not precisely the same suit. In a quo warranto proceeding the purpose is to challenge an unlawful usurpation of power. In the instant suit the many corporate activities carried on by the parties since the “last step” in suit number 49,848 could have constituted unlawful usurpation of authority. The original suit prayed for a showing of authority for action prior to 1971. The second suit filed April 27, 1976 prayed for a showing of authority for action prior to 1976. Moreover, as shown by the issues raised by defendants in defense to the present action and in support of their authority to hold and exercise the corporate offices, this action does not completely parallel the previous quo warranto action. Therefore, the actions are different.

RES JUDICATA AND LACHES

The other exceptions and pleas of defendants, res judicata and laches, are not well taken. The trial court pointed out that, as to the plea of res judicata, this court’s opinion in Hebert v. Stansbury, supra, dealt only with one meeting and one election in August of 1970. Additionally, the suit bearing the trial docket number 49,848 was never pursued to final judgment and therefore may not form a basis for a plea of res judicata. LSA-C.C. Art. 2286. The plea of laches must also be denied; the evidence adduced at the trial court shows no acquiescence in the activities of the defendants by the plaintiffs. To the contrary, the evidence shows persistent attempts to oppose the defendants or to settle the differences of management of this corporation.

No error being found in the trial court’s ruling that Beulah Stansbury and Kenneth M. Stansbury were the last duly-elected directors and officers (president and secretary respectively), the lower court’s judgment is affirmed. Costs of this appeal are taxed to defendant-appellants.

AFFIRMED.

      . If May 5, 1971, was the proper date of notice, then the voting trust of the Beulah Stansbury faction would not be effective on the record date of the meeting.


author: DOMENGEAUX, Judge. HOOD, Judge

text:
    A. G. ALIZZI and June McNeely Alizzi, Plaintiffs-Appellants, v. EMPLOYERS INSURANCE OF WAUSAU and Kenneth DuBose, Defendants-Appellees.
    No. 6085.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearings Denied Nov. 10, 1977.
    Writs Refused Jan. 11, 1978.

      Hodge O’Neal, III, Alexandria, for plaintiffs-appellants.
    Jack O. Brittain, Natchitoches, for defendants-appellees.
    Before HOOD, CULPEPPER, DOMEN-GEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Mr. and Mrs. A. G. Alizzi instituted this suit for damages for the death of their minor son, Warren Lee Alizzi. Alternatively, they demand workmen’s compensation benefits. The defendants are Kenneth Du-Bose and his liability and workmen’s compensation insurer, Employers Insurance of Wausau. The trial court rendered judgment for defendants. Plaintiffs appealed. We reverse.

The issue presented is whether the surviving parents of a minor child, who was employed without their knowledge or consent and was killed in the course of his employment, are restricted exclusively to a claim for workmen’s compensation benefits as against the decedent’s employer, when they did not have an opportunity to elect against workmen’s compensation coverage on behalf of the minor.

Plaintiff’s 12-year-old son, Warren Lee Alizzi, was killed almost instantly as the result of a motor vehicle accident which occurred on July 13, 1973. The accident occurred in the course of the decedent’s employment by defendant DuBose.

Young Alizzi was employed by DuBose to “catch chickens” in connection with the latter’s business, and he worked at that employment for two days, on July 11 and July 13, 1973. The accident occurred in the afternoon of the last mentioned date, while Warren was being transported from the place of his employment to his parent’s home. He was riding in a pickup truck owned by DuBose and being driven by one of the latter’s employees. The driver of the truck, like Warren, was acting in the course of his employment when the mishap occurred. The parties stipulated that the accident resulted solely and proximately from the negligence of the driver of the truck.

Mr. and Mrs. Alizzi did not know that Warren was working for DuBose on the day the accident occurred, and they did not consent to the employment. Late in the afternoon of July 11, Warren told his mother that he had worked for defendant that day, and immediately after he gave her that information Mrs. Alizzi instructed her son “never to go out again” or “not to do it anymore”. She did not tell her husband that Warren had worked for DuBose that day. Mrs. Alizzi had to leave her home for a while on the morning of July 13, and shortly after she left Warren returned to work for defendant, contrary to his mother’s instructions. She did not know that he had returned to work for DuBose on July 13, until after the accident occurred.

Some time prior to July 11 Mr. Alizzi told Warren that he could not work for DuBose, and he was not aware of the fact that his son nevertheless had worked for defendant on July 11 and July 13, until after the accident.

Neither Mr. Alizzi nor Mrs. Alizzi told DuBose, or any of the latter’s employees, that they had instructed their son not to work for DuBose before the date of the accident. Neither of them, in fact, had contacted DuBose for any purpose prior to the accident, and there thus was no agreement of any kind between the parties relating to the employment.

Mr. and Mrs. Alizzi were not dependent on their son, Warren, at the time of the accident.

After the death of the child, the defendant insurer (also known as Employers Mutual Liability Insurance Company of Wisconsin) paid the sum of $1,000.00 by check to Warren Meadows Funeral Home, to apply on the funeral expenses of the decedent. The check was negotiated by the funeral home.

This suit was instituted on June 27, 1974. Plaintiffs contend that they are entitled to recover in tort against defendants, since their son’s injuries and death resulted from the negligence of an employee of DuBose. Defendants resist, contending that plaintiffs’ remedy is exclusively under the workmen’s compensation law, and that defendants have discharged their full obligation under that law by paying $1,000.00 to apply on the funeral expenses of the decedent.

Judgment was rendered by the trial court rejecting plaintiffs’ demands. Plaintiffs appealed, and that appeal is before us now.

The law provides that every contract of hiring between an employee and an employer engaged in a hazardous business shall be presumed to have been made subject to the provisions of the workmen’s compensation act, unless the contract contains an express statement in writing, or unless written notice is given by one party to the other, that the provisions of that act are not to apply. LSA-R.S. 23:1039. The law also provides that the right of election, termination or waiver shall be exercised on behalf of an employee under the age of eighteen by his father, mother or tutor, or in default of them, by the court. LSA-R.S. 23:1041.

Adults must make their choice thirty days prior to injury. LSA-R.S. 23:1040. However, it is arguable that the provisions giving the choice for minors to their parents or tutors sets out no such limitation.

Plaintiffs contend that they have the right to elect now, after the death of their son, whether the employment should or should not have been subject to the provisions of the workmen’s compensation act at the time of the accident. Their argument is that the law gives them the right to make that election in behalf of their son, that they did not have an opportunity to make such an election prior to the death of the boy because they were unaware of the employment, and that they should be permitted to make the election after the accident occurred, since that is the first knowledge they had of the employment and the first opportunity they had to make the election provided in LSA-R.S. 23:1039. We agree.

Defendant cites Bourgeois v. J. W. Crawford Construction Company, 213 La. 992, 36 So.2d 13 (1948), for the proposition that the presumption of an election binds all employees, even minors working without the knowledge or consent of their parents, and that the recourse of the surviving parents is exclusively under the Workmen’s Compensation Act. This is true when the parents desire coverage, as was the case in Bourgeois. In a sense, the parent in that case was confirming the presumption of coverage after the accident occurred.

In the instant case, the parents are attempting to elect against coverage. The Supreme Court in Bourgeois expressly pre-termitted any discussion of the issue of making an election for a minor after the accident occurred. Therefore, the only controlling decision we have can be distinguished factually as well as legally.

We suggest that the appellate court decisions since Bourgeois have erroneously held that a parent cannot elect against coverage after the accident, calling the above noted presumption a “conclusive” one. See e. g. Matthews v. Buff Hottle Shows, 109 So.2d 261 (La.App. 1st Cir. 1959). We feel that these decisions misinterpreted both Bourgeois and the Act. Nowhere in the Act is there language making the presumption conclusive. In any event, in those cases it is not clear whether the parents knew their child was employed, or whether they were ignorant of the fact, as in the present case. Therefore, we are not persuaded by them.

There is no way that parents could make an election for their child if they are not aware that the child is employed. If the election provisions are to have any effect as to minors, the parents must be allowed a fair chance to remove their children from coverage if they so desire.

Therefore, we feel compelled to reverse the decision of the trial court and now hold that plaintiffs, having elected to remove their son from workmen’s compensation coverage, were entitled to proceed in tort.

Since both sides stipulated that the accident was caused by the exclusive negligence of DuBose’s employee, Jerry Grant, we now turn to the question of the award to be made to Mr. and Mrs. Alizzi.

The parents are entitled to recover for their grief, and for their deprivation of love, affection and companionship. Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir. 1975). In this regard it is appropriate to give consideration to the awards made in other similar cases, although these awards are by no means binding upon us. They are merely to be looked to for guidance. In recent years, the awards for the death of a child have ranged from the low of $25,-000.00 per parent, Dupuy v. Pierce, 285 So.2d 321 (La.App. 3rd Cir. 1973) to $40,-000.00 per parent, Walker v. St. Paul Insurance Co., 339 So.2d 441 (La.App. 1st Cir. 1976), and Ogaard, supra.

Warren Lee Alizzi was only twelve years old when he died. He was an affectionate child, athletic and outgoing. He was very close to his parents. No one can say what the future held for him, and no one can put a dollar value on the effect of this loss to his parents. However, considering all the testimony, evidence, and surrounding circumstances of this tragedy, we feel that $40,000.00 per parent is an appropriate award and is in keeping with the current trend in these type cases. Additionally, Mr. Alizzi is entitled to the sum of $1,275.51 as special damages subject to a credit of $1,000.00, being the amount paid by defendant-insurer for funeral expenses.

For the above and foregoing reasons the judgment of the trial court is reversed and set aside and judgment is rendered herein in favor of plaintiff, A. G. Alizzi in the sum of $41,275.51 and against defendants, Kenneth DuBose and Employers Insurance of Wausau, in solido, subject to a credit of $1,000.00, together with legal interest thereon from the date of judicial demand until paid, and in favor of plaintiff, June McNeely Alizzi for the sum of $40,000.00, against the same defendants in solido, together with all legal interest thereon from the date of judicial demand until paid. All costs, both at trial and on appeal, are to be borne by defendants-appellees.

REVERSED AND RENDERED.

GUIDRY, J., concurred in the result.

HOOD, J., dissented and filed opinion and voted for rehearing in both applications.

CULPEPPER, J., dissented for the reasons assigned by HOOD, J., and voted for rehearing in both applications.

HOOD, Judge

(dissenting).

I cannot agree with the conclusions reached by the majority.

In my opinion, the presumption provided in LSA-R.S. 23:1039 must be applied to a contract of employment between a minor and an employer engaged in a hazardous business, even though the minor was working without the knowledge or consent of his parents, and despite the fact that he was illegally hired to perform work in a prohibited employment. Bourgeois v. J. W. Crawford Const. Co., 213 La. 992, 36 So.2d 13 (1948); Matthews v. Buff Hottle Shows, 109 So.2d 261 (La.App. 1 Cir. 1959); Messer v. Bagwell Coatings, Inc., 283 So.2d 279 (La.App. 1 Cir. 1973); Beard v. Wilson Wholesale Distributors, Inc., 215 So.2d 664 (La.App. 1 Cir. 1968).

Under our law, young Alizzi must be presumed to have been an employee of Du-Bose at the time of the accident. LSA-R.S. 23:1044 provides, in part, that a person rendering service for another in any trade, business or occupation covered by the workmen’s compensation act “is presumed to be an employee under this Chapter.” LSA-R.S. 23:233 provides that the presence of a minor under 16 years of age in any place of employment prohibited to him under the Child Labor Law “shall constitute prima facie evidence of his employment therein.” And, in Beard, supra, the court held that by directing the minor to perform some services for the company, the assistant manager thereby, “at least by implication,” made the boy an employee of the company.

Since the deceased minor must be held to have been employed by DuBose, and to have been an employee at the time the accident occurred, it seems to me that the presumptions which are applicable to other employees must be applied to his implied, or legally recognized, enforceable and valid contract of employment.

In Bourgeois v. J. W. Crawford Const. Co., supra, a 16-year-old boy was killed in the course of his employment. Plaintiff, his mother, was unaware of the employment until after the accident occurred. She sought to recover workmen’s compensation benefits, contending that she had the right to elect after her son’s death whether his employment was or was not governed by the compensation act. Our Supreme Court held that the presumption that the parties have elected to be bound by the compensation act applies to all employees, even minors working without the knowledge or consent of their parents, and that the recourse of the decedent’s surviving mother in that case was exclusively under the workmen’s compensation act. The court said:

“The presumption applies to all employees, even minors working without the consent of their parents. The compensation statute is as beneficial to minors as it is to majors, if not more beneficial. If minors were not intended to be affected by the presumption unquestionably the Legislature would have specifically excepted them from it.
“The right of election (referred to in paragraph 6) to be exercised in behalf of an employee under the age of 18 by a parent, tutor, or the court, relates, in our opinion, to an election not to be subject to the act. There is no need, as before shown, for a representative to elect for him that the statute shall apply; the law presumes such an election. (Emphasis added).

My colleagues have brushed aside Bourgeois, supra, with the statement that it “can be distinguished factually as well as legally” from the instant suit, and that the Supreme Court “pretermitted any discussion of the issue of making an election for a minor after the accident occurred.” I do not agree with their assessment of the Bourgeois case. The facts in that case were almost identical to those presented here. It is true that plaintiff there sought to recover workmen’s compensation benefits, instead of damages as in the instant suit, but the Supreme Court held categorically that “the employment of plaintiff’s minor son was governed by the compensation statute,” and I think the rule applied there would be applicable whether the claim was for compensation or for damages. With reference to pretermitting the issue of election after the accident, the court said:

“Having determined that the employment of plaintiff’s minor son was governed by the compensation statute, in view of the legally created presumed agreement discussed above, it is unnecessary for us to consider the further and alternative contention of plaintiff that she, under the provisions of Section 16 of the statute, as amended by Act No. 38 of 1918, had the right to make an election in his behalf after the accidental death." (Emphasis added).

In my opinion, the Supreme Court found it unnecessary to consider the alternate contention of plaintiff, because it felt that under the circumstance presented there a conclusive presumption existed that the employment was governed by the compensation act, and that decedent’s mother simply had no right to elect otherwise after the accident occurred.

The only cases I have found that support the holding of the majority in the instant suit are Ballard v. Stroube Drug Company et al., 10 So.2d 532 (La.App. 1 Cir. 1942), and Melton v. Fraering Brokerage Co., Inc. et al., 31 So.2d 884 (La.App. 2 Cir. 1947). In each of those cases the father (or parents) had no knowledge of the child’s employment until after the accident occurred, and in each case the parents claimed damages instead of workmen’s compensation benefits. An issue was presented in each case as to whether the father had the right to make the election after the accident occurred. The Court of Appeal held in each instance that the parent had the right to make that election after the accident, just as the majority holds in the instant suit. Both of those cases, however, were expressly overruled by the Supreme Court in Bourgeois, supra, where the Supreme Court said:

“Nevertheless, the holding in the Ballard and Melton cases are contrary to our jurisprudence, and they must be and are now expressly overruled.” (36 So.2d 13, 19).

My colleagues concede that from and after the time the Bourgeois case was decided, all other cases in which this issue has been presented have been decided contrary to their holding in the instant suit. They hold, however, that the appellate court decisions since Bourgeois “have erroneously held that a parent cannot elect against coverage after the accident,” that “these decisions misinterpreted both Bourgeois and the Act,” and that “in those cases it is not clear whether the parents knew their child was employed.” I disagree with those conclusions of the majority.

In Matthews v. Buff Hottle Shows, supra, a 15-year-old boy was injured while operating a merry-go-round. The opinion makes it clear that the boy’s parent, who also was his tutrix, had no knowledge of the employment until after the accident, and that the work performed by the injured minor was in violation of a prohibitory law, LSA-R.S. 23:161. The tutrix filed suit against the employer primarily for damages, and alternatively she claimed workmen’s compensation benefits against the employer. The trial judge sustained an exception of no right and no cause of action to the plaintiff’s claim for damages, holding that her claim was solely for workmen’s compensation benefits. Plaintiff appealed, contending that she was entitled to maintain an action in tort against the employer. The defendant urged substantially the same defenses as are being urged in the instant suit. The reviewing court, in holding that the remedy of the tutrix was exclusively under the workmen’s compensation act, said:

“ * * * It is self-evident that the law in this State is to the effect that the provisions of the Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq., applies to a minor injured while illegally employed in a prohibited employment and no other remedy may be pursued by the lawful representative of the injured minor. Furthermore, the provisions of the act apply to a minor in such a situation by operation of law under a conclusive presumption of consent and no actual agreement or consent on the part of the minor or his or her parents or other lawful representative is necessary or.required.” (Emphasis added).

The Matthews case was cited and followed in Messer v. Bagwell Coatings, Inc., supra, where a minor was injured while employed in violation of the Child Labor Law, LSA-R.S. 23:151, et seq. See also Early v. Ethyl Employees Recreation Association, 101 So.2d 716 (La.App. 1 Cir. 1958); and Beard v. Wilson Wholesale Distributors, supra.

In the instant suit, I believe that plaintiffs’ claim is governed by the workmen’s compensation act, despite the fact that plaintiffs did not know that their young son was working for defendant DuBose when the accident occurred, and even though the employment may have been prohibited by LSA-R.S. 23:151, et seq.

There are some other circumstances which I think should be considered.

LSA-R.S. 23:1040 and 1041 provide that the agreement, that is, the presumed agreement that the employment is to be governed by the compensation act, may be terminated by giving written notice to that effect “not less than thirty days prior to the accident.” Here it would have been impossible for plaintiffs to have terminated the contract of employment between the time their son began working and the time of the accident two days later, even if they had learned of the employment during that time. They thus would have had no right to elect in this case under any circumstances. The majority, however, proposes to give the plaintiffs in this case the right which the law very pointedly does not give to them or to anyone else in similar circumstances. I can find no basis or justification for the majority’s statement that “it is arguable that the provisions giving the choice for minors to their parents or tutors sets out no such limitation.”

If the majority opinion is allowed to stand, it will have the effect of giving to plaintiffs the right to elect after the accident whether the employment was governed by the workmen’s compensation act. I suppose that my colleagues intend that plaintiff will have the right to make that election within one year after the accident occurred, that is, within the prescriptive period for filing suit. No one else, whether an employee or the survivor of an employee, has ever had that right. I do not believe that the granting of such a privilege can be justified under the provisions of the act.

Finally, the judgment being rendered by the majority will raise some novel and difficult legal questions. For instance, when plaintiffs make their election after the accident, will they be bound by that election once it is made, or will they be permitted to make an alternate claim for compensation in the event they are unable to prove negligence on the part of the defendant employer? Also, will there be any insurance coverage of the employer at all in this type case? There certainly would be none under a workmen’s compensation policy, and I believe that at least some liability policies exclude coverage of claims by employees.

The majority opinion does not make it clear whether the status of young Alizzi was that of an employee or a third person at the time of the accident, and it does not suggest any answers to the above questions. It simply gives plaintiffs in this case a greater right than any other employee, or the survivor of any other employee, has ever had under our law or established jurisprudence.

For these reasons, I respectfully dissent.

      . These provisions were repealed by the legislature in 1975, but that repeal does not affect this case, inasmuch as it arose prior to the effective date of the repeal.

      . In an attempt to avoid liability defendant insurer pleads alternatively an exclusionary clause in the policy which provides no coverage where one employee injures another employee. We find no merit to that position. Plaintiffs son was twelve years old and the driver of DuBose’s truck was fourteen years old. See New Amsterdam Casualty Co. v. Soileau, C.C.A., 5th Circuit (1948), 167 F.2d 767, cert. den. 335 U.S. 822, 69 S.Ct. 45, 93 L.Ed. 376. The rationale therein applies here.


author: HOOD, Judge. WATSON, Judge,

text:
    Joseph Marshall PRIER, Individually, and as Administrator of the Estate of Van Prier, Plaintiff-Appellant, v. HORACE MANN INSURANCE COMPANY, Defendant-Appellant, and The Avoyelles Parish School Board, Defendant-Appellee.
    No. 6093.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.
    Writs Refused Dec. 14, 1977.

      Riddle, Bennett & Ryland by John T. Bennett, Marksville, for plaintiff-appellant.
    Bolen, Halcomb, Bolton & Erwin, James A. Bolen, Jr., Alexandria, Knoll & Knoll by Jerold E. Knoll, Marksville, for defendant-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

Joseph Marshall Prier, individually and as administrator of the estate of his minor son, Van Prier, seeks damages for personal injuries sustained by young Prier as the result of an explosion which occurred on the grounds of the Mansura High School, in Avoyelles Parish. The defendants are the Avoyelles Parish School Board and Horace Mann Insurance Company, the latter being the insurer of the principal and teachers at that school. The defendant insurance company filed a third party demand against the School Board.

The trial judge rendered judgment in favor of defendants, rejecting plaintiff’s demands. Plaintiff appealed. Horace Mann Insurance Company also appealed to protect its rights under its third party demand.

The issues presented are whether plaintiff is entitled to recover damages from defendants either under Article 2320 or under Article 2317 of the Louisiana Civil Code.

The accident occurred on April 28, 1976. Van Prier was eleven years of age and was in the sixth grade of the Mansura High School at that time. The school consisted of classes which ranged from kindergarten through the twelfth grade.

At about 3:00 P.M. on the above date, Van was asked by his teacher, Valery Joseph Bernard, to take a waste paper basket from the classroom and to empty it into a trash burner which was located in the rear part of the school grounds. Van proceeded to comply with that request, but while he was dumping the contents of the wastebasket into the trash burner something in the burner exploded causing him to sustain injuries which consisted mainly of burns on his arm and face.

The property on which the trash burner was located was owned by defendant, Avo-yelles Parish School Board. The principal of and the teachers at the Mansura High School were employees of the school board. The accident occurred during school hours.

The trash burner consisted of four metal posts driven into the ground, with wire netting stretched around those posts. It was three or four feet high and measured from four to eight feet on each side. The burner was located in the extreme southeast corner of the school grounds, near a public street, in an area which was not designated as a playground area, and in a part of the school grounds where children normally do not play. We agree with the trial judge that the trash burner was not defective in any way.

Ordinarily, only burnable trash, such as paper, was put into the burner. Cans and other non-burnable items were placed in separate containers, consisting of barrels, and were picked up and hauled away later. The burnable trash which was put into the burner was ignited or burned by the janitors twice a day, about 7:00 A.M. and at noon. A period of from 15 to 20 minutes was required to complete the burning of the trash, and the janitors remained at the burner on each occasion after they lighted a fire until all of the trash was burned. Usually there was no fire in the burner around 3:00 o’clock in the afternoon. The ashes which collected in the burner were removed from it two or three times each year.

Despite the fact that cans usually were placed in separate containers, two janitors testified that they found cans in the burner occasionally. They stated that when that occurred they immediately removed the cans from the burner and placed them in the separate containers which were maintained for that type of trash. The evidence shows that some residences were located within 100 to 150 feet from the trash burner. Cans and other non-burnable items thus could have been put in the burner by the occupants of those houses, rather than by students or school employees.

After the above accident occurred, a “busted” can was found on the ashes in the trash burner. The can obviously had been in a fire, and it was impossible to determine from the evidence whether it was an aerosol can or what the contents of the can had been. The fact that it was “busted,” however, indicates that the can had exploded. We conclude, as did the trial judge, that a can of some kind was in the trash burner when young Prier started to empty trash into it, that the can exploded and that the injuries sustained by the boy were caused by that explosion.

Just a few minutes before the accident occurred another student, Lester Lavalais, emptied the contents of a wastebasket into the trash burner. Lavalais testified that there were no cans in the wastebasket which he emptied, and that he did not see any cans in the burner when he put trash in it. Young Prier testified that he did not see a can in the burner before he began emptying trash into it, and apparently no one else saw a can in the burner before the explosion occurred. The evidence convinces us that no cans were used in any of the classrooms of the school on the day of the accident, or shortly prior thereto.

It is obvious, we believe, that the can which later exploded was placed in the trash burner before Lavalais or Prier emptied wastebaskets in it. The evidence does not show how or when the can was placed in the burner, or who put it there, or why-no one saw a can in the burner before the explosion occurred. We agree with the trial judge that the evidence fails to establish that the can which exploded was put in the trash burner by a student at the Mansura school, or by the principal, a teacher or a school board employee at that school. The evidence also fails to show that any school official or employee knew that a can was in the burner as plaintiff’s son approached it.

Although there usually was no fire or blaze in the trash burner at any time after the noon hour, we find that there was a small flame or blaze in it immediately prior to and at the time of the accident.

It had been a practice for many years in practically all schools in Avoyelles Parish for teachers to permit students to take wastebaskets from their classrooms and to empty them in trash burners. The students liked to perform that chore, and they were permitted to do so as a reward for good conduct and as training for cleanliness. That practice had been followed at the Mansura High School for almost 40 years, and no accident of any kind ever occurred arising out of the use of the burner, until young Prier was injured on April 28, 1976.

The trial judge concluded that there was no negligence on the part of the school board, or on the part of the principal, teachers and school employees of the Mansura High School, and that plaintiff thus is not entitled to recover from defendants.

Plaintiff contends that the trial court erred. He takes the position primarily that the school board, and the principal and teachers at the Mansura school, owed a duty to provide his son with adequate and qualified supervision, that they breached that duty with the result that his son sustained injuries, and that he thus is entitled to recover damages from defendants under LSA-C.C. art. 2320. The cited article provides:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
“Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
“In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.’A

Our jurisprudence is settled that a school board is not the insurer of the lives or safety of children. School teachers charged with the duty of superintending children in the school must exercise reasonable supervision over them, commensurate with the age of the children and the attendant circumstances. A greater degree of care must be exercised if the student is required to use or to come in contact with an inherently dangerous object, or to engage in an activity where it is reasonably foreseeable that an accident or injury may occur. The teacher is not liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, and did not do so. It also is essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident. Whitfield v. East Baton Rouge Parish School Board, 43 So.2d 47 (La.App. 1st Cir. 1949); Nash v. Rapides Parish School Board, 188 So.2d 508 (La.App. 3rd Cir. 1966); Station v. Travelers Insurance Company, 292 So.2d 289 (La.App. 1st Cir. 1974); Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La.App. 3rd Cir. 1975); Partin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3rd Cir. 1977); Richard v. St. Landry Parish School Board, 344 So.2d 1116 (La.App. 3rd Cir. 1977).

In Whitfield, supra, where the court rejected plaintiff’s claim for damages for the death of his seven-year-old child by drowning in a drainage ditch which adjoined the school, the court said:

“Again, the school board cannot foresee and guard against all the dangers incident to the rashness of children. It is not the insurer of the lives or safety of children. The school board, through the principals and/or the teachers, are expected to take reasonable precautions and care to avoid injury to the students.”

We said in Partin, supra, where the issues were similar in some respects to those presented here, that:

“We recognize that a school teacher charged with the duty of supervising the play of children must exercise a high degree of care toward the children, however, the teacher is not the absolute insurer of the safety of the children she supervises. Our law requires that the supervision be reasonable and commensurate with the age of the children and the attendant circumstances. There is no requirement that the supervisor, especially where the play of some ninety children is being monitored, have each child under constant and unremitting scrutiny.”

Plaintiff argues in the instant suit that the trash burner was inherently dangerous and that a “particularly heavy” duty rested on defendants to see that his child was not exposed to it. The trial judge found that the burner was not inherently dangerous. We agree. The fact that this burner had been maintained and used at the Mansura School for almost 40 years, and that no accident of any kind occurred in connection with the use of it until Prier was injured, indicates that the burner was not so dangerous that special precautions should have been taken to prevent children from going near it. We believe that some items of playground equipment used at schools, such as swings, see-saws and slides, are as dangerous as this burner was, and yet no one would suggest that the school board should take precautions to prevent children from playing on them.

Plaintiff argues that an accident of this kind was foreseeable, and that the school officials were negligent in failing to anticipate and prevent the accident and injury which is involved here. The trial judge held that the accident was not foreseeable. We concur in that holding. Cans usually were not put in the burner and the burning of trash normally was completed long before this accident occurred. No such mishap had ever occurred before. We do not believe that the principal and teachers should be held to be negligent for failing to foresee that an explosion would occur.

The argument is made that the school board, through its employees, was negligent in locating and maintaining the burner at a place on the school grounds which was accessible to other people who could place cans or other dangerous objects in it. We find no merit to that argument. It was necessary to have some facility for burning trash at the school. The burner was located in a remote part of the school grounds, away from the area where children played. We cannot say that it would have been safer for the school board to move the burner nearer the center of the campus solely to discourage outsiders from putting trash in it, and there has been no suggestion as to any other steps the school board could have taken to prevent that from occurring.

Plaintiff contends that Van’s teacher, Mr. Bernard, was negligent in failing to determine whether there was a blaze in the burner before allowing young Prier to approach it. That argument is made on the assumption that the teacher would have been negligent if he had permitted the boy to put trash in the burner while there was a blaze in it. The burner was located about 300 feet from Bernard’s classroom, and the latter could have seen it through a window of that classroom if he had looked. Bernard conceded that he did not look at the burner before he allowed Van to empty trash in it. The evidence shows, however, that usually there was no blaze in the trash burner at 3:00 o’clock in the afternoon, that it was an established practice at that school for teachers to allow students to empty wastebaskets into the burner just before the close of the school day, and that that practice had been followed for many years without mishap. The blaze which existed in the burner when this accident occurred was very small, and the evidence does not show that Bernard or anyone else could have detected that there was a blaze in it even if he had looked out the window of the classroom. If Bernard had observed and knew that there was a small blaze in the trash burner that afternoon, however, we cannot say that he would have been negligent in allowing plaintiff’s son to empty a waste paper basket into it despite that circumstance, because the boy was 11 years of age and should be expected to exercise some degree of care. Actually, the blaze was not the cause of the accident and injury. Plaintiffs son was injured as the result of the explosion of a can which had been placed in the burner and concealed from view. We believe that the presence of a small flame in this relatively large burner, even if detected by the teacher ahead of time, would not justify a holding that the teacher should have foreseen that an explosion would occur or that the teacher was negligent in permitting an 11 year old boy to go near the burner. We agree with the trial judge that the teacher, Bernard, was free from negligence.

Our ultimate conclusion is that the principal and teachers at the Mansura High School exercised reasonable supervision over plaintiff’s son under the existing circumstances, that they were free from negligence, and that plaintiff is not entitled to recover from their insurer under LSA-C.C. art. 2320. We also conclude that the defendant school board was free from negligence, and that plaintiff is not entitled to recover from that defendant under the cited article of the Civil Code. We thus find no error in the judgment of the trial court which rejects plaintiff’s demands for damages under that article.

Plaintiff contends alternatively that he is entitled to recover against the school board under LSA-C.C. art. 2317, as interpreted and applied in Loescher v. Parr, 324 So.2d 441 (La.1975), even though the school board was free from negligence. He argues that the trash burner was under the school board’s control and custody, that it was “nothing more than a smoldering trash heap totally unsuited for trash disposal,” that the injuries to young Prier resulted from the vice or defect in that burner, and that the school board is responsible for the damage caused by the thing in its custody. He reasons that under those circumstances the defendant could escape liability only by proving that the damage was caused by the victim, by the fault of a third person, or by an irresistible force. He contends that defendant has failed to exculpate itself from liability.

We have found, as did the trial judge, that there was no vice or defect in the trash burner located at the Mansura High School. Even if there was a defect in it, there was no causal connection between that defect and the injury sustained by plaintiff’s son. The causality is related to the can which presumably exploded, for which none of the defendants are responsible.

We conclude that LSA-C.C. art. 2317, and the holding in Loescher v. Parr, supra, are not applicable here.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

WATSON, J., concurs and assigns reasons.

WATSON, Judge,

concurring:

I concur in the result, my only reservation being with respect to the application of Loescher v. Parr, 324 So.2d 441 (La., 1975). It seems to me that a trash heap or burner which explodes must be considered to have a vice or defect. Perhaps the doctrine of Loescher does not extend to cover a transitory defect, but I cannot agree with the statement that there was no vice or defect present.

I respectfully concur.


author: FORET, Judge. DOMENGEAUX, J.,

text:
    Mrs. Lee DUGAS, Plaintiff-Appellant, v. ST. MARTIN PARISH POLICE JURY, Defendant-Appellee.
    No. 6108.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.

      Davidson, Meaux, Sonnier & Roy, by L. Lane Roy, Lafayette, for defendant-appellant.
    Edwards, Stefanski & Barousse, by Jean Pierre Lendais, Lafayette, for plaintiff-ap-pellee.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   FORET, Judge.

Plaintiff, Mrs. Lee Dugas, brought this suit against the St. Martin Parish Police Jury seeking damages resulting from defendant’s cleaning, clearing, and widening of her alleged private drainage ditch across her property adjacent to the Isle Labbe Road in St. Martin Parish. In her prayer for judgment, plaintiff sought damages for loss of the 1975 crop and for mental pain and suffering; in the alternative, for compensation for land expropriated, for damages to her adjacent property, and for loss of future crops.

Prior to the time of the alleged incident, pursuant to a February 27, 1968, resolution of defendant, St. Martin Parish Police Jury, the drainage ditch in question had been designated as Public Drainage Channel No. L-30-C. That designation and resolution was accepted on April 16,1973, by the Louisiana Department of Public Works.

Trial of this matter was of long duration. It was held on May 27 and June 2, 1976. Thereafter two motions for a new trial were filed, both of which were partially granted. The first new trial, dated September 28, 1976, was limited to the extent of damages to plaintiff’s remaining adjacent acreage; the second, to the extent of work required to prevent the future flooding of plaintiff’s property.

The various rulings of the trial judge were to the effect that the ditch in question, “the Dugas Ditch”, was a public drainage channel; that, pursuant to LSA-R.S. 38:113, defendant possessed a servitude to maintain and clean it; that defendant had merely cleaned the ditch, and had not expropriated any land from plaintiff; that plaintiff’s remaining land was damaged to the extent of $10,050.00; that plaintiff was not entitled to an award for damages to the 1975 crop and to any future crops; and that plaintiff was not entitled to recover damages for mental anguish resulting from the conduct of defendant. From such judgments, defendant appeals, contending that the preponderance of the evidence is to the effect that plaintiff’s property did not flood as a result of defendant’s actions, and that the trial court erred in awarding damages to plaintiff. Plaintiff answered the appeal, alleging that an expropriation had occurred, that she was entitled to damages for mental anguish, and that defendant’s appeal was frivolous.

For his analysis of the legal issues presented, and in his reasons for judgment, the trial judge reviewed the history and legislative intent of LSA-R.S. 38:113 and the jurisprudence thereunder. We partially adopt his reasons for judgment and quote from same.

“. . . The case centers around an interpretation of Section 113 of Title 38 of the Revised Statutes. And the way that Statute reads, if you take out the language that’s not pertinent to this case, is this way:

“Drainage districts shall have control over all public drainage channels within the limits of their districts and for a space of one hundred feet on each side of the channel selected by the district and recommended and approved by the Department of Public Works for preserving the efficiency of the drainage channels. (Tr., pg. 144)
“Number One, what’s the meaning of a drainage district? I think it’s clear in the law that in this particular case it applies to the St. Martin Parish Police Jury and that body is a drainage district within the meaning of that Statute. And I refer counsel to Section 1798.1, sub-paragraph 1, of Title 38 of the Revised Statutes for that definition. That means then that all public drainage channels within the limits of St. Martin Parish come within the control of the St. Martin Parish Police Jury for purposes of Section 113; and it means then that the St. Martin Parish Police Jury shall have control over all public drainage channels within St. Martin Parish for preserving the efficiency of the drainage channels. That’s going back to the language of Section 113. (Tr., pg. 144,145)
“It’s the opinion of the court that Section 113 of Title 38, which has been law and which has read essentially the same since Act 61 of 1904 was adopted, creates and establishes a very limited servitude and obviates the necessity of expropriation, if a channel is in fact already a public drainage channel. . . . (Tr., pg. 145)
“The key then is whether the channel is an existing public drainage channel because that is the only kind covered by Section 113 of Title 38. If it’s not, then expropriation is necessary to acquire a drainage channel that is not already public. I would cite as authority for that, in addition to what I have just said, the ancient case of Petit Anse Coteau Drainage District versus Iberia & Vermillion Railroad Co., an opinion by the Louisiana Supreme Court in 1909, which is found in [124 La. 502,] 50 So. at Page 512 (Tr., pg. 146)
“Let’s look now to a definition of public drainage channel to see if the drainage ditch in this case, which was always referred to as the “Dugas Ditch”, comes within the meaning of the public drainage channel. I find no explicit definition in the law of this State of a public drainage channel. The conclusion I’ve reached, I’ve gleaned from several sources. One is Section 215 of Title 38 , which defines drainage as any natural drain or artificial drain which has been used for purposes of drainage for at least ten years. In the case of Scott versus Red River-Bayou Pierre Levee and Drainage District of Louisiana, a 2nd Circuit decision, reported in [La.App.] 7 So.2d 429, the court said that for purposes of Act 61 of 1904, which is, as I said, R.S. 38:113, that for those purposes it’s immaterial whether it’s a natural drain or an artificial drain as long as it’s maintained for many years as a drainage ditch. That’s how that court defined a public drainage channel within the meaning of Section 113. In the Petit Anse Case which I referred to earlier, the Louisiana Supreme Court in considering Act 61 of 1904, defines public drainage by distinguishing public drainage from drainage affecting only the interests of particular individuals. The converse of that is that public drainage is drainage affecting the interests of other than particular individuals; that is, individuals in general and the public. (Tr., pg. 146-147)
“The court feels that with regard to the public nature of the ditch, the evidence preponderates in favor of the defendant, the St. Martin Parish Police Jury, for several reasons. ... I still think it fits the definition of a public drainage channel for the reason that it flows onto the land of another, and involves the interests of other than particular individuals; that it’s ancient and fits the other definitions with regard to age, notwithstanding the fact that almost certainly it was originally dug by Mr. Lee Dugas, and is not natural. The question that bothered the court much more was the connection of that ditch to the drainage ditch which runs alongside the public road which has been commonly referred to as the “Isle Labbe Road”. In that regard also, the court feels that the evidence preponderates in favor of the Police Jury. . . . (Tr., pg. 148)
“We move now to the question of damages. The court finds that notwithstanding the legal right of the Police Jury to enter this property without trespassing and without the necessity of expropriation, still if it causes damage, it is obligated to pay for it • to the plaintiff, that is because the plaintiff is the only one who has brought this action against the Police Jury. . . . (Tr., pg. 149, 150)
“First, there’s the 1975 crop. The court finds that the plaintiff is entitled to no relief here. There was damage to the crops from the evidence, but it wasn’t caused to the plaintiff. It was caused to her tenant who did not bring this action and although the court may have some sympathy for Walter Champ’s loss in this case, he didn’t bring an action and the Police Jury is not required to defend something that’s not before the court. . . . (Tr., pg. 150)
“The next item is the land taken. The court finds that there’s no justification for allowing plaintiff any relief on this, particularly in view of my earlier comments about there being no necessity for expropriation. The ditch was already there. There was some evidence that the ditch had been widened. That evidence was greatly contradicted and besides that, there was no evidence presented of how much it had been widened, if in fact it had been widened. The court would have no way of assessing damages here. It cannot compensate plaintiff for loss of a ditch or loss of land that was already not there, and has no way of determining what quantity of additional land was taken. . . . (Tr., pg. 151)
“We now move to what plaintiff terms as the land wasted. . . . Where plaintiff can prove that because of the Police Jury’s acts, she experienced damage to her land apart from the ditch, then the court finds that it must be compensated for. . But the court must determine whose evidence preponderates. In this instance the court feels it preponderates in favor of the plaintiff. (Tr., pg. 151-152)
“. . . There was only one expert on value in this case. He testified that assuming that the overflow of that ditch caused the damage, caused the flooding, and assuming that that was a circumstance that had not happened before 1975, but happened because of the work done by the Police Jury, that six (6) acres of land were affected. Based on the evidence, the court has to conclude that this circumstance is likely to recur in the future, and that there’s a diminution in the value of those front six (6) acres. As stated, the court has only one expert to base the value of this diminution on. Mr. Babineaux testified that those front six (6) acres were all suitable for homesites, rural homesites, and that they would have a value of $3,000.00 an acre. That comes to $18,000.00. He feels that assuming what he did assume, that the use of the land would now be limited to basically pasture land[;] I think he stated that low pasture land, which would have a value of $1200. an acre; the difference between the two is $11,000.00. He deducted from that figure the area of land within the ditch, which he estimated at a quarter of an acre. I feel that has to be deducted, because there’s no damage to the ditch. It already existed. . . . ” (Tr., pg. 152-153)

I

FLOODING AND DAMAGES THEREFOR

At trial, there was testimony adduced that plaintiff’s property was flooded as a result of defendant, St. Martin Parish Police Jury’s deepening and widening of the Dugas Ditch. Plaintiff Dugas, and Mr. and Mrs. Sidney Dubois, Jr., relatives of plaintiff and adjacent landowners, testified that until the Dugas Ditch had been worked on by defendant, no flooding had occurred on plaintiff’s property. (Other testimony, that of Cliff Durand, Jr. and M. C. Greig, Parish Supervisor, was to the opposite effect.) There was uncontradicted testimony from Preston Babineaux, accepted as an expert appraiser, as to the value of plaintiff’s land and as to the loss in value thereto as a result of the flooding.

We cannot disturb that finding of the trial judge. There was a substantial evi-dentiary basis from which the trial judge could rule that plaintiff’s property flooded as a result of the actions of defendant, St. Martin Parish Police Jury, and that $10,-050.00 was the extent of such damages. Canter v. Koehring Co., La.App., 283 So.2d 716 (1973).

II

EXPROPRIATION

As correctly mentioned by the trial judge, LSA — R.S. 38:113 creates a very limited servitude by which a drainage district or political subdivision possessing those powers is given control over the area of land within one hundred feet on either side of a public drainage channel for the purpose of preserving the efficiency of a drainage channel. It does not, however, vest the political district with ownership of the drainage channel. Arkansas-Louisiana Gas Co. v. City of Minden, 341 So.2d 607 (La.App. 2 Cir. 1977); Daspit v. State, Dept. of Highways, 325 So.2d 368 (La.App. 3 Cir. 1975); Justice v. Bourgeois, 288 So.2d 106 (La.App. 4 Cir. 1974); Scott v. Red River-Bayou Pierre Levee and Drainage Dis. of Louisiana, 7 So.2d 429 (La.App. 2 Cir. 1942). The ownership thereof must be acquired by the political authority when so desired.

From the record, we find conflicting testimony as to whether or not the Isle Labbe Ditch was connected to the Dugas Ditch. Plaintiff, Mrs. Lee Dugas, and Mr. & Mrs. Sid Dubois, Jr. (plaintiff is Mr. Dubois’ great aunt), adjacent landowners, stated that the Dugas Ditch, dug by Mr. Lee Du-gas in about the year 1956, was not connected to the Isle Labbe Ditch. Mr. Herman Bienvenu, accepted as an expert civil engineer, testified that he was the Project Engineer for construction and/or repair on the Isle Labbe Road in 1946, and that, at that time, the two ditches were connected. Mr. Cliff Durand, Jr., an adjacent landowner for the past thirteen years, testified that the two ditches were connected at the time in which he purchased his homesite. Mr. Dale Vincent, St. Martin Parish deputy sheriff and an adjacent landowner, said that water flowed from the Isle Labbe Ditch into the Dugas Ditch prior to the spring of 1975. Mr. Antoinne Chataignier, an employee of defendant’s for the past thirty-seven years, testified that the two ditches had been connected for over thirty years.

We believe that defendant acquired a servitude of aqueduct or drain over the Dugas Ditch situated upon the property of plaintiff. A servitude of aqueduct or drain is “the right by which one [defendant] conducts water from his estate [Isle Labbe Road Ditch] through the land of his neighbor [plaintiff] by means of an aqueduct or ditch”. LSA-C.C. Art. 724. That servitude was acquired by a political entity, the St. Martin Parish Police Jury, whose authority included that of establishing servitudes on its lands. LSA-C.C. Art. 759. It was acquired by the uninterrupted ten-year use of an apparent and continuous servitude, an aqueduct constructed on plaintiff’s property by her deceased husband. C.C. Art. 727, 728, 765; Wild v. LeBlanc, 191 So.2d 146 (La.App. 3 Cir. 1966); Acadia-Vermilion Rice Irrigation Co. v. Broussard, 175 So.2d 856 (La.App. 3 Cir. 1965).

Ill

DAMAGES FOR MENTAL ANGUISH

Plaintiff-appellant Mrs. Lee Dugas asserts that the trial court manifestly erred when it denied to her an award for damages for mental anguish and distress caused by the deepening and widening of the Du-gas Ditch by defendant St. Martin Parish Police Jury.

According to Louisiana jurisprudence as regards an award for mental anguish as a result of damage to property, recovery is normally permitted in but four instances: (1) property is damaged by an intentional or illegal act; (2) property is damaged by acts for which the tortfeasor will be strictly or absolutely liable; (3) property is damaged by acts constituting a continuous nuisance; (4) property is damaged at a time in which the owner thereof is present or situated nearby and the owner experiences trauma as a result. Farr v. Johnson, 308 So.2d 884 (La.App. 2 Cir. 1975), writ refused, 310 So.2d 854, and cases cited therein.

In this case, there was no illegal act, no act by which the St. Martin Parish Police Jury would be strictly or absolutely liable, and no continuing nuisance. Defendant, St. Martin Parish Police Jury, owned a servitude by which it could maintain the Dugas Ditch, a public drainage channel. At the time at which the defendant performed work (widening and deepening) to maintain the efficiency of the Dugas Ditch, plaintiff Dugas was hospitalized. Plaintiff was not present nor was she situated nearby; she did not view defendant’s operations. Any traumatic experience which she may have suffered could not have been the result of defendant’s maintenance operations on the Dugas Ditch.

IV

FRIVOLOUS APPEAL

Where the court finds that a frivolous appeal has been lodged, it may award damages. That power of the court is penal in nature and must be strictly construed. Only in those cases in which the court finds that the appeal was taken solely for delay and/or that counsel for appellant did not seriously believe the law which he advocated, are damages for a frivolous appeal allowable. C.C.P. Art. 2164; Seale v. Evangeline Parish Police Jury, 330 So.2d 378 (La.App. 3 Cir. 1976); Guidry v. Carmouche, 320 So.2d 267 (La.App. 3 Cir. 1975).

In the case at bar, serious issues, especially that of the proper construction to be placed upon LSA-R.S. 38:113, are presented. We do not find that the appeal was filed solely to delay the execution of the judgment of the trial court and/or that counsel for appellant raised questions of law which he seriously disbelieved. Therefore, we will not assess damages for a frivolous appeal.

Costs of this appeal are assessed against the St. Martin Parish Police Jury, but are limited as to only those costs which are assessable against police juries, by law.

The judgment of the trial court is affirmed.

AFFIRMED.

DOMENGEAUX, J.,

concurs in the result but is of the opinion that the costs on appeal should be divided equally between the parties subject of course to the limitations imposed by law in favor of the Police Jury.

      . LSA-R.S. 38:113 provides:
      The various levee and drainage districts shall have control over all public drainage channels within the limits of their districts and for a space of one hundred feet on each side of the channel, selected by the district and recommended and approved by the Department of Public Works, whether the drainage channels have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels, and may adopt rules and regulations for preserving the efficiency of the drainage channels.

      . (1) Such districts or sub-districts, wholly within the boundaries of one parish, by resolution of the police jury of said parish on its own motion in the absence of a functioning board of commissioners, or by resolution of the board of commissioners if there be an existing one; and

      . § 215. Obstruction of drainage prohibited No person shall wilfully obstruct any natural or artificial drainage canal, creek, bayou, or small river, or any public or private drainage.
      Whoever violates this Section shall be fined not less than twenty-five dollars nor more than one hundred dollars and in default of payment of fine and costs shall be imprisoned for not less than thirty days nor more than six months.
      Each obstruction shall constitute a separate offense.

        Failure on the part of anyone who has felled or cut trees in such manner that the tops obstruct any drainage or has placed any other obstruction in any drainage to remove the obstruction shall constitute prima facie evidence of wilful intent within the meaning of this Section.
      The word drainage as used in this Section means any natural drain or any artificial drain which has been used for the purposes of drainage for at least ten years.