text:
    C & D PAINTING SERVICE, INC. v. CAPITAL HOUSE OFFICE PLAZA, INC.
    No. 11858.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Teddy W. Airhart, Jr., Baton Rouge, of counsel, for plaintiff-appellee C & D Painting, Inc.
    Emile M. Weber, Baton Rouge, of counsel, for defendant-appellee Capital House Office Plaza, Inc.
    James Robert Jeter, Shreveport, of counsel, for intervenor-appellant Great American Properties-La., Inc.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (C & D) brought this action for recognition of its lien and privilege on property of defendant (CHOP), in the sum of $23,845.50, for material and labor allegedly furnished and performed in renovating a building owned by CHOP and known as the Heidelburg Hotel, Baton Rouge, Louisiana. Great American Properties, Louisiana, Inc., (Intervenor), financed the remodeling project and as mortgagee has taken this appeal from judgment in favor of C & D in the sum of $23,736.71 and also recognizing the lien of C & D. We affirm.

The issues presented are purely factual and, to say the least, are in serious dispute. We are also concerned with the issue of witness credibility. Emile Weber, as apparent owner or in control of CHOP, entered into a verbal agreement with one Clyde Vidrine whereby Vidrine undertook to obtain a loan of approximately $600,000.00 for proposed renovation of the former hotel and its conversion into a modern day office building. In consideration of Vidrine’s obtaining the loan and supervising the remodeling work, Weber agreed to enter into a contract naming Vidrine as agent to lease and manage the renovated structure for a percentage of the rent. Vidrine obtained the necessary loan from Intervenor and employed a contractor by the name of Lanier & Associates to perform the work.

The building, a seven story edifice, was old and its interior required extensive renovation, repair, remodeling and renewing for its intended use. Many room walls and hallways were finished with plaster on the walls and ceilings, which finish was in a generally deteriorated and damaged condition. Partitions were moved, ceilings lowered, all windows (which had wooden sashes) had to be taken out, scraped and repainted. Virtually all sash cords were replaced; some window sash weights were replaced. Concrete floors in hallways and rooms required patching of holes preparatory to laying new carpet. Many interior doors were of the louvered variety and required tedious scraping and sanding prior to repainting. In some rooms and areas, ceilings were lowered and plaster ceiling replaced with acoustical tile. On some floors, hallways were paneled with prefinished paneling; on others, unfinished paneling was used and finished on the job. All bathroom medicine chests were removed and the voids thus created were patched with sheet rock, properly prepared for painting and the sheetrock painted. Extensive patching of cracks in bathrooms was also required. The entire exterior of the building was spray painted with a stucco-like material to hide flaws, cracks and give the structure a newly stuccoed appearance.

C & D was on the job twice. The first time was for a period of three or four weeks, as painting sub-contractor pursuant to a sub-contract with Lanier. As the work progressed, Weber became dissatisfied with the work done as compared to the weekly amounts being expended for material and labor. Suspecting complicity, Weber investigated and became convinced that Larry Hinchcliffe and Lanier were padding expenses and were also involved in some sort of kick-back scheme involving sub-contractors. Weber halted construction and took Lanier and all sub-contractors, including C & D, off the job. Weber and/or Vidrine attempted to continue the project on a limited basis by employing some workmen, including Roy Vidrine (the uncle of Clyde Vidrine). These workmen performed an undetermined amount of work.

Progress of the work under Weber and/or Vidrine apparently did not suit Weber. Convinced that C & D had no part in the wrongdoing he discovered, Weber entered into a verbal contract with C & D, through C & D’s President, O. M. Dry, to finish the building on a cost-plus basis. C & D acknowledges payment of all work done by it as sub-contractor of Lanier. This action is for work done by C & D, apparently as 'general contractor on a cost-plus' basis, the second time C & D was on the job.

The factual disputes present three basic areas of conflict. First, the parties agree there was a cost-plus contract for C & D to complete the entire project. C & D claims the agreement was for the cost of material, supplies, labor, equipment (including leased equipment), insurance, overhead, administrative costs, unemployment compensation paid on behalf of labor, plus a 20% net profit cost override on all the enumerated cost factors. CHOP and Intervenor maintain the contract was for cost plus 15%, which 15% would include all overhead and administrative expense. Secondly, CHOP and Intervenor question the accuracy of invoices reflecting material allegedly incorporated in the work and also the time sheets charging labor costs to the work. Lastly, there is dispute concerning whether work not charged for by C & D was performed the first time C & D was on the job, or was performed during the interval when Lanier stopped work and C & D resumed the project.

The testimony is in irreconcilable conflict regarding the amount of work performed by C & D the second time it was on the job. To help solve the dilemma thus posed, the trial court appointed its own expert to examine the building in the presence of litigants and their attorneys. Said expert testified in effect that C & D had performed work of a value greater than the amount claimed herein.

The record shows that Weber’s agent, Vidrine, arranged for one Elbert Snead to manage the work on behalf of Weber. Both Snead and plaintiff’s bookkeeper, Dave Richmond, testified that all time sheets and invoices presented were checked each week when presented by C & D for payment. The first two weekly presentations were paid in full. Thereafter, one or two checks given by or on behalf of CHOP were returned to C & D as NSF. At least one or two such NSF checks were made good by a note or notes given C & D. Despite these developments, C & D remained on the job, furnishing material and labor and even making some cash advances on behalf of the project.

The trial court found plaintiff’s version of the contract the more credible. He so found because all time sheets were approved by CHOP’s representatives without question until after the work was completed. We find no manifest error in this conclusion. We also find that this conclusion is supported by the testimony of the expert appointed by the Court.

Intervenor contends that the trial court overlooked proof that materials charged to the job were not incorporated therein by ignoring the fact that delivery of approximately 285 gallons of paint was made to the jobsite on the last day of work. Intervenor suggests the impossibility of applying that much paint in one work day. The record shows, however, that the painting was done with one or more power operated paint sprayers. The court appointed expert testified that an experienced crew of four or five men using power spray equipment and proper work techniques could apply that amount of paint in one day.

The remaining issue is whether some of the work charged for by plaintiff was done by other parties, particularly workmen employed by Yidrine during the interval when C & D was not on the job.

Roy Vidrine testified as to work done by him and other workmen on closets and windows His testimony was such that it did not convince the trial court that it left insufficient work to support the charges for labor and material claimed by plaintiff. Moreover, plaintiff produced testimony to show that some of the work done by plaintiff the first time plaintiff was on the job had to be redone because of mildew which developed on the walls and ceilings and in the closets.

It is well settled that in making factual determinations predicated on witness credibility, the findings of the trier of fact will not be disturbed on appeal except on a showing of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We find no such error.

The judgment is affirmed, all costs of these proceedings to be paid by defendant Capital House Office Plaza, Inc.

Affirmed.


source: Caselaw Access Project

author: SARTAIN, Judge. ELLIS, Judge,

license: Public Domain

text:
    Leon S. HAAS, Jr., et al., Plaintiff-Appellant, v. BATON ROUGE GENERAL HOSPITAL, Defendant-Appellee.
    No. 11862.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Writ Granted May 12, 1978.
    James T. Gugliemo, Dwight Reed, Opel-ousas, of counsel, for plaintiff-appellant Leon S. Haas, Jr., et al.
    David W. Robinson, Baton Rouge, of counsel, for defendant-appellee Baton Rouge General Hospital.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This litigation concerns the survival of the right to a delictual action under C.C. Art. 2315. Plaintiff appeals from a judgment sustaining defendant’s peremptory exception of no right of action. We affirm.

Mrs. Birdie Artigue Pedigo was injured on November 14, 1975, through the alleged negligence of the defendant. She died on April 1,1976, of unrelated causes. She was survived by neither ascendants nor descendants. Her husband, John Lloyd Pedigo, died on August 19, 1976.

This suit was filed on November 9, 1976, by Leon S. Haas, Jr., as the duly qualified administrator of the Estate of Mrs. Birdie Artigue Pedigo and as the testamentary executor of the Estate of John Lloyd Pedi-go.

Defendant also filed an exception of lack of procedural capacity. The trial judge, in sustaining the exception of no right of action, found the procedural capacity question to be moot.

Plaintiff (Haas) alone has appealed. Defendant did not appeal nor answer the appeal. The procedural capacity question is therefore not before us. C.C.P. Art. 2133.

C.C. Art. 2315, in pertinent part, provides:

“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child, surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the surviv- or or not.”

Plaintiff argues that this is not a case of who is the proper beneficiary to institute this action upon the death of the injured party (Mrs. Pedigo) but rather who is the proper party to bring this suit upon the death of the first named beneficiary (Mr. Pedigo). He submits that for many years the leading case on the subject was Chivers v. Roger, 50 La.Ann. 57, 23 So. 100 (1898), which held that an action by the father for the wrongful death of his son abated upon the death of the father. He contends that to overcome the result in Chivers, Article 2315 was amended to provide that the right to recover damages is a property right, which, on the death of the survivor in whose favor this right of action survived, is inherited by his legal, instituted, or irregular heirs.

While the above statement is, on its face, correct, it is of little comfort to plaintiff because it is premised on the condition that the right may be asserted by the succession representative of the beneficiary’s estate. We hold, as did the trial judge, that it cannot.

Throughout our jurisprudence C.C. Art. 2315 (and its forerunner, Art. 2294, C.C. 1825) has been strictly construed. In each case where the issue has been raised courts have consistently held that the right, while transmitted to the beneficiary under the article, can only be asserted by the designated beneficiary and not the injured party’s succession representative.

In Moore v. Kinney, 315 So.2d 340, 341, 342 (La.App. 3rd Cir. 1975), the court stated:

“Survival actions are not rights which are transmitted from a tort victim to his heirs through inheritance. Rather than passing through the victim’s succession, the rights are granted by art. 2315. LSA-C.C. art. 2315, is a special statute which grants a ‘right of action’ to specified survivors or beneficiaries in the order of exclusionary preference, and absent these specified survivors, this right of action is not transmitted to other persons. Succession representatives are not listed as survivors under art. 2315, and therefore have no right to prosecute the claim. J. Wilton Jones Company v. Liberty Mutual Insurance Company, 248 So.2d 878 (La.App. 4 Cir. 1970), writ denied, 259 La. 61, 249 So.2d 202 (1971); Collins v. Becnel, 297 So.2d 506 (La.App. 4 Cir. 1974). See also: Wakefield v. Government Employees Insurance Co., 253 So.2d 667 (La.App. 4 Cir. 1971).”

In Whittington v. Hopfensitz, 321 So.2d 836 (1975), a panel of this court reviewed in detail numerous eases involving survival actions, vis a vis, rights asserted in a representative capacity. For reasons therein stated we again concluded that survival rights inure to and can only be maintained by one or more of the survivors named in the article.

We see no sound or rational basis to the argument that whereas plaintiff could not sue in his representative capacity as the administrator of the Estate of Mrs. Pedigo, he may now sue in his representative capacity as the executor of the Estate of Mr. Pedigo.

Mr. Pedigo as the surviving spouse of Mrs. Pedigo, was a beneficiary to the survival right as defined in the article (2315). Upon his death the exclusive beneficiaries to this right are his “legal, instituted, or irregular heirs” and no others. The right has consistently passed from class to class or as stated in Moore v. Kinney, above, “to specified survivors as beneficiaries in the order of exclusionary preference.”

For these reasons, the judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.

ELLIS, J., dissents with reasons.

ELLIS, Judge,

dissenting:

When Mrs. ,Pedigo died on April 1, 1976, her cause of action for injuries survived in favor of her husband, under the provisions of Article 2315 of the Civil Code. That article further provides:

“A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.”

The majority properly recognizes that, during the lifetime of one to whom a cause of action survives under Article 2315, only the survivor can maintain the action, to the exclusion of the succession representative. However, the majority then concludes:

“We see no sound or rational basis to the argument that whereas plaintiff could not sue in his representative capacity as the administrator of the Estate of Mrs. Pedigo, he may now sue in his representative capacity as the executor of the Estate of Mr. Pedigo.”

I cannot agree. The law requires that heritable property rights form part of the estate of a decedent, and must pass through his succession. Articles 871, 873, Civil Code.

Article 685, of the Code of Civil Procedure, designates the succession representative as the proper party plaintiff “to enforce a right of the deceased.” Therefore, Mr. Haas, as testamentary executor of Mr. Pedigo’s succession, is the proper party plaintiff to bring this action.

I dissent.


author: LANDRY, Judge.

text:
    Vincent J. BELL v. FIAT DISTRIBUTORS, INC., et al.
    No. 11886.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.

      Phil P. Breaux, St. Gabriel, for plaintiff-appellant Vincent J. Bell.
    Robert H. Wood, Jr., New Orleans, for defendant-appellee Fiat Distributors, Inc.
    Henry D. Salassi, Jr., Baton Rouge, for defendant-appellee Jefferson Parish Enterprises, Inc. D/B/A Bryan Motors.
    Before LANDRY, COVINGTON and CHIASSON, JJ.
   LANDRY, Judge.

Plaintiff-appellant, Vincent J. Bell, is appealing that portion of the trial court judgment dismissing defendant-appellee, Fiat Distributors, Inc., from his redhibition action.

Plaintiff purchased a new Fiat automobile on January 22, 1974, from defendant, Bryan Motors, an authorized Fiat dealer. Included in the sale was an agreement by Bryan Motors to install an air-conditioning unit which was not in the automobile when plaintiff took possession thereof. This unit was installed on May 21, 1974. Plaintiff alleged that the air-conditioning unit was defective and that there were also defects in the vehicle. He asked for rescission of the sale, damages and attorney’s fees.

The trial court held that the air conditioning unit contained redhibitory defects but that the alleged defects in the vehicle were not redhibitory in nature. Judgment was awarded against Bryan Motors only, the court finding that Fiat had not authorized the warranty of the air-conditioning unit under its dealer agreements.

The trial court rendered lengthy and learned Written Reasons for Judgment. After our careful review of the entire record and exhibits in considering plaintiff’s appeal, we adopt the trial court’s reasons by reference thereto and attach them as an appendix herein.

On appeal, plaintiff contends that the trial court erred in the following respects:

(1) In finding that the defects of the car, other than those in the air conditioner, were not redhibitory in nature;
(2) In finding that Bryan Motors was solely responsible as a manufacturer for the defective installation and operation of the air conditioner;
(3) In finding that Fiat was not legally responsible for the defective air conditioner; and
(4) In estimating attorney’s fees in the amount of $800, claiming that the peculiar facts of the case support an award of $3,000 in attorney’s fees.

Regarding the fourth assignment of error, plaintiff additionally seeks an award for reasonable attorney’s fees in connection with this appeal.

Concerning the first assignment of error, the following four sentences of the trial court’s written reasons explain its finding that the defects of the car, other than the air conditioner, were not redhibito-ry in nature:

“On or about January 22, 1974, the plaintiff purchased from Bryan Motors the 1974 Fiat 124 automobile which is the object of this litigation. The petition was filed on May 16, 1975. During the interim, several problems developed in the mechanical aspects of the car which required a return to the dealer for warranty repairs on several occasions. The Court has concluded, upon the evidence introduced, that all of these problems, except for those related to the defective air-conditioning system, were of a minor nature and satisfactorily remedied by subsequent repairs.” (Record, p. 89)

We note from the record that the vehicle had a “twelve month/12,000 mile” warranty and that Joseph W. Stafford, the Fiat representative accepted by the court as an expert, provided testimony, supplemented with exhibits, that the repair invoice for only one of the alleged defects, a leaking windshield, had been filed with Fiat. For this repair, the dealer had been credited with his cost. This witness also testified that all repairs which dealers make under the manufacturer’s warranty are always claimed.by the dealers as a matter of practice, the obvious incentive being the credit which the dealer receives for the service. We agree with the trial court that the problems which the vehicle developed after the warranty period expired were not redhi-bitory in nature, either because they were not serious or because the evidence was insufficient to prove that the problems were redhibitory in nature rather than a result of ordinary wear.

The trial court found that the defects in the air-conditioning unit were re-dhibitory in nature but rendered judgment against only the installing dealer, Bryan Motors, finding that Fiat was not legally responsible by virtue of the fact that the automobile, apart from the function of the air conditioner, contained no redhibitory defects. Plaintiff has assigned as his second and third errors this finding of redhibitory responsibility on the part of Bryan Motors and a lack of responsibility of Fiat. In addition to the finding by the trial court and our reading of the testimony and review of the exhibits, we are further persuaded by the argument in defendant Fiat’s brief:

“ * * * The air conditioner herein was neither manufactured and warranted nor installed by Fiat Distributors, Inc. The testimony showed that the dealer purchased the air conditioner directly from Roy McGriff Design Aire, Inc., and the dealer’s employees installed the air conditioner in the Bell vehicle. At no time did the dealer submit a warranty claim to Fiat for reimbursement for warranty repairs to the air conditioner, as indeed the dealer could not under the terms of the franchise agreement and dealer warranty manual. The dealer offered to the customer and installed the non-factory approved air conditioner at its own risk.
“The jurisprudence imputes knowledge of defects of the thing manufactured to the manufacturer or distributor of the product. Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (S.Ct., 1972). However, in this ease, Fiat, the distributor of the automobile, neither manufactured nor authorized the installation of the particular air conditioner, which was the only component in the automobile concluded to be redhibitory by the trial court. The trial court held that the seller (Bryan Motors) placed itself in the position of manufacturer upon installing the air conditioner. Knowledge of the defective air conditioner is presumed * * * to the seller in this case, or the knowledge is imputed to the selling dealer permitting, therefore, imposition of attorneys’ fees and damages against the seller. See Palmer v. Anchor Marine, Inc., [La.App.], 331 So.2d 114 (1st Cir., 1976); Brown v. Dauzat, [La.App.], 157 So.2d 570 (3rd Cir., 1963). As Bryan placed itself in a position of a manufacturer, vis-a-vis the air conditioner, the trial court correctly dismissed Fiat Distributors from the lawsuit.” (Brief, pp. 2,3)

As for plaintiff’s last specification of error that the attorney’s fees awarded by the trial court should be raised from $800 to $3,000, we are not disposed to disturb an award of this nature where there is no showing of an abuse of discretion in determining what is reasonable attorney’s fees under LSA-C.C. art. 2545. Concerning the fees sought by plaintiff for this appeal, we determine that awarding them is inappropriate since we are not rendering a decision favorable to him.

For the foregoing reasons, the judgment of the trial court is affirmed, the costs to be paid by plaintiff-appellant.

AFFIRMED.


author: CHIASSON, Judge. BLANCHE, Judge,

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. Joseph H. TRAIGLE, Collector of Revenue, State of Louisiana.
    No. 11800.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Writ Granted May 5, 1978.

      Victor A. Sachse, Jr., Baton Rouge, for plaintiff-appellant and defendant in recon-vention South Central Bell Telephone Co.
    Robert Pugh, Shreveport, for defendant-appellant and plaintiff in reconvention Shirley McNamara, Secretary, Department of Revenue and Taxation.
    Before ELLIS, BLANCHE, COVING-TON, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Both parties suspensively appeal from the judgment of the trial court. South Central Bell Telephone Company (South Central Bell) appeals that portion of the judgment which held that the Collector of Revenue (Collector) was entitled to the taxes paid under protest by South Central Bell. The Collector appeals that portion of the judg-ment which denied its reconventional demand for attorney’s fees.

The issue is whether, for purposes of the Louisiana Transportation and Communication (T&C) tax, La.R.S. 47:1001, et seq., the “gross receipts” upon which the tax is based includes funds derived by South Central Bell from the sale of advertising in its directories, commonly referred to as the “yellow pages” but also including “bold face” print in the “white pages”.

Insofar as applicable herein, the trial court in its written reasons for judgment held:

1. “. . . that the only business of a public utility exempt from the tax is that portion involved in interstate commerce. . . . ”
2. “. . . that South Central Bell’s receipts from the sale of advertising in its directories are receipts from a public utility business and are therefore subject to the Louisiana gross receipts tax on public utilities. . .”

We find that the record establishes the following facts:

(1) That South Central Bell is a public utility company;

(2) That the Louisiana Public Service Commission regulates the rates that South Central Bell can charge for its telephone services;

(3) That the gross receipts of South Central Bell from all business engaged in by it are considered by the Louisiana Public Service Commission in establishing telephone rates;

(4) That the Louisiana Public Service Commission requires that South Central Bell publish the “white pages” of its directories;

(5) That it is not mandatory that South Central Bell publish the “yellow pages” of its directories;

(6) That the Louisiana Public Service Commission does not exercise any control over the publication or rates to be charged for advertising in the “yellow pages” of the telephone directories, nor does any other governmental agency;

(7) That South Central Bell does not have the exclusive right to conduct a classified directory advertising business;

(8) That classified directories are published and distributed in Louisiana by other publishers and the receipts of these other publishers are not subject to the “T&C” tax;

(9) That South Central Bell pays occupational license tax pursuant to La.R.S. 47:358 upon its gross receipts from all businesses, public utility and non-public utility, engaged in by the telephone company;

(10) That the actual solicitation of sales of advertising in the “yellow pages” is subcontracted to L. M. Berry & Company by South Central Bell;

(11) That the receipts from the sale of advertising are accounted for separately from receipts received from telephone services rendered and charges for long distance calls;

(12) That South Central Bell has not paid “T&C” tax on its gross receipts from advertising since 1962;

(13) That on May 5, 1972, the Collector advised South Central Bell that “effective for the quarter ending September 30, 1971, firms defined as utilities under LRS 47:1003 must include the entirety of all gross receipts derived from the conduct of their business (whether it be gross receipts from storage, rentals, swamper time, lease or location work, or other company gross receipts either incidental or not to the utility phase of their operation).” (Emphasis supplied by Collector);

(14) That South Central Bell paid the additional assessment under protest and timely filed suit to recover the additional taxes paid pursuant to La.R.S. 47:1576.

The “T&C” tax assesses an additional license tax for the privilege of engaging in the business of owning and/or operating any public utility in this state, of two per centum (2%) of the gross receipts from its intrastate utility business. (La.R.S. 47:1001). La.R.S. 47:1003(1) includes “telephone companies” within the definition of “public utility”; and “telephone companies” is defined in La.R.S. 47:1003(7) as “any person, firm, association or corporation, domestic or foreign, owning and operating, or owning or operating, any telephone line in this state with appliances for the transmission of messages by speech or sound, and engaged in the business of furnishing telephone service for compensation.” “Gross receipts” is defined in La.R.S. 47:1003(11) as “the total amount of billings for services rendered, and all receipts from business beginning and ending within the state . . .”

La.R.S. 47:1004 provides:

“The provisions of this Part shall apply to any person who is or may be engaged in any business, a portion of which is covered by or included in the various classes of business defined in R.S. 47:1003; but only upon the gross receipts derived from that portion of the business which is covered by or included in and not exempted by R.S. 47:1003 shall be subject to tax.”

Pursuant to the rule-making power granted to the Collector by La.R.S. 47:1511, the following relevant rules and regulations were promulgated by the Collector, to wit:

T&C Article 1003.1 provides:
“2. ‘Gross receipts’ means the total amount of billing for services rendered and all receipts from business beginning and ending within the state.
“(a) ‘All receipts from business’ is not limited to revenues received from the portion of business covered in the various classes of business as defined in R.S. 47:1003. Once a taxpayer is defined as a public utility, the tax is based upon all gross receipts from any business engaged in.”

Pertinent principles of statutory construction applicable to the facts of the instant case were set out in State v. State Agricultural Credit Corporation, 176 La. 590, 146 So. 159 (1933), wherein, dealing with a dispute over a license tax, the Supreme Court stated:

“The general principle of all fiscal legislation is that a taxing statute must be construed strictly. The words imposing a tax must be found in the statute, and, if such words are not found there, the tax cannot be imposed.
“And it is a general rule of statutory construction that qualifying words or phrases are to be applied to the words or phrases immediately preceding.
“Where a statute on its face appears to limit the operation of its provisions to particular persons or things by enumerating them, and then engrafts on the indicating clause another clause further modifying and restricting its application, both clauses should be construed together, the terms of the indicating clause being governed by the terms of the modifying clause; thus excluding the possibility of misinterpreting a statute by extending its provisions to cases not intended by the Legislature to be brought within its purview.”

In Hibernia Nat. Bank v. Louisiana Tax Commission, 195 La. 43, 196 So. 15 (1940), the Supreme Court further stated:

“It is also well-established that tax laws are to be interpreted liberally in favor of taxpayers and that the words defining things to be taxed should not be extended beyond their clear import. Uncertainty in the language of the statute must be resolved against the government and in favor of the taxpayer. Miller v. Standard Nut Margarine Co., 284 U.S. 498, 508, 52 S.Ct. 260, 76 L.Ed. 422, 429; State v. Standard Oil Co., 188 La. 978, 992, 178 So. 601; State v. State Agricultural Credit Corp., Inc., 176 La. 590, 597, 146 So. 159, and Elmer Candy Co. v. Fauntleroy, 5 Cir., 24 F.2d 95.”

Finally, Article 14 of the Louisiana Civil Code mandates that in statutory construction “(t)he words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.”

Applying these principles to the statutory laws pertaining to this ease we find that the Legislature imposed upon anyone owning and/or operating any public utility a license tax “. . .in addition to all other taxes and licenses levied and assessed in this state ... for the privilege of engaging in such business .” at the rate of two per centum (2%) of the gross receipts from its intrastate business. La.R.S. 47:1001. (Emphasis added). The underlined portion clearly relates to “public utility” and is the only type of business which is made subject to the additional license tax. This additional tax levied by the Legislature upon anyone owning or operating a public utility was limited to those engaged “. . .in such business carried on wholly in this state, and not a part of interstate commerce.” La.R.S. 47:1002. The Legislature thereafter defined “public utility” to mean “. railroads and railways, sleeping cars, motor bus lines, motor freight lines, express companies, telephone companies, telegraph companies, boat or packet lines, and pipe lines, as herein defined.” La.R.S. 47:1003. Advertising companies are not included therein. In La.R.S. 47:1003(7) “telephone companies” is defined to mean anyone owning and/or operating, “. . . any telephone line in this state with appliances for the transmission of messages by speech or sound, and engaged in the business of furnishing telephone service for compensation.” The mere owning and/or operating of telephone lines with appliances for the transmission of messages by speech or sound is not alone sufficient to subject one to the “T&C” tax, but it requires in addition thereto that that person be engaged in the business of furnishing telephone service for compensation. Anyone meeting this two-fold test is subject to the additional license tax upon the “gross receipts” which is defined as “. . . the total amount of billings for services rendered, [over telephone lines with appliances necessary for transmission of messages by speech or sound], and all receipts from business beginning and ending within the state, [long distance calls originating and terminating within the state but not otherwise] . . .” La.R.S. 47:1003(11). (Words in brackets added).

We construe none of the above as classifying advertising as a public utility or imposing a tax upon anything other than the public utility portion of the business. The Collector would have us ascribe a meaning to the last phrase in the definition of “gross receipts” so as to make that phrase read, “and all receipts from [any other] business beginning and ending within the state . . . ”, which is not within our providence to do.

The Collector interprets La.R.S. 47:1004, quoted hereinbefore, as applying only “to those parts of one’s business which are not constitutionally taxable, i. e. interstate commerce.” However, the statute specifically refers to that portion of a business “which is covered by or included in the various classes of business defined in R.S. 47:1003,” namely, public utilities as therein defined to be railroads, telephone companies, etc. The proviso following relates back to the first clause contained therein and not back to the definition of “gross receipts”. This proviso reads in part, “. . . but only upon the gross receipts derived from that portion of the business which is covered by or included in . R.S. 47:1003 shall be subject to tax.” It is not solely limited to interstate commerce as the Collector contends, but rather, this statute expressly provides that, where part of a company’s business is covered by or included in La.R.S. 47:1003, and part of its business is not covered by or included in La.R.S. 47:1003, only the part covered by or included in La.R.S. 47:1003 is subject to the tax. If there exists any ambiguity as to the subject matter of R.S. 47:1004, then its title “Businesses partly taxable” clarifies any such ambiguity. Further, La.R.S. 47:1001 and La.R.S. 47:1002 have previously specifically and clearly limited the “T&C” tax to intrastate commerce.

We find the above statutory provisions to be clear and unambiguous. However, assuming arguendo that there is ambiguity within the said provisions, the well settled principles of statutory construction, as outlined above, require that they be interpreted liberally in favor of the taxpayer.

La.R.S. 47:1004 recognizes that a public utility company can simultaneously be engaged in a non-public utility business, and in such case, only the public utility gross receipts of the business are subject to the “T&C” tax.

The Collector’s regulation, T&C Article 1003.1 2.(a) is in direct conflict with La.R.S. 47:1004 and is therefore in contravention of that portion of La.R.S. 47:1511 which provides . . Such rules and regulations shall not be inconsistent with the provisions of this Sub-title or other laws or the constitution of this state.”

The Collector contends that the “yellow pages”, just as the “white pages”, are an integral part of . . engag(ing) in the business of furnishing telephone service for compensation.” La.R.S. 47:1003(7). Therefore, it is asserted that receipts therefrom should be included with other receipts of the general telephone company operations for purposes of determining the amount of “T&C” taxes due. Notwithstanding the degree of integration between the two businesses, as asserted by the Collector, we find that operation of the general telephone company business is in no way dependent upon the operations pf the “yellow pages” business. One can function, as equally and adequately, independent from the other. The furnishing of advertising in the “yellow pages” has nothing to do with the operation of telephone lines with appliances for the transmission of messages by speech or sound.

We are therefore of the opinion that funds derived by South Central Bell from the sale of advertising in its directories are not receipts from a public utility business and are not subject to the gross receipts tax on public utilities.

The judgment of the trial court is therefore reversed and judgment is rendered herein in favor of South Central Bell Telephone Company and against the Collector of Revenue, State of Louisiana, in the sum of One Million, One Hundred Seventeen Thousand, Sixty-Nine and. 28/100 ($1,117,-069.28) Dollars, with interest as provided by law. The Collector of Revenue is 'assessed with those costs permitted by law.

REVERSED AND RENDERED.

BLANCHE, Judge,

dissenting.

I am of the opinion that the trial judge is correct. The tax is a “gross receipts” tax and includes all receipts of the public utility. The evidence is heavily in favor of a finding that the “Yellow Pages” constitute an indispensable and integrated part of the operation of a telephone franchisé. I agree when the trial judge remarked:

“ * * * It would tax one’s imagination to hold that revenues derived from directory classified advertising constitute revenues derived from a separate enterprise outside the scope of South Central Bell’s business of ‘furnishing telephone service for compensation.’ ” (Record, p. 90)

South Central Bell attempts to justify its refusal to pay the tax on the omission of certain language from Act 116 of 1940 as indicating that the Legislature has exempted receipts from a source incidental to the business of furnishing telephone revenue. Without admitting the nature of such reve-imes as being “incidental,” the omission of the language in the Act was for the purpose of making the tax applicable only to the intrastate business of the public utility and not to supply some tax exemption to public utilities.

For the above reasons, I respectfully dissent.


author: COVINGTON, Judge.

text:
    DYER & MOODY, INC. v. DYNAMIC CONSTRUCTORS, INC.
    No. 11874.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.

      William C. Bradley, Baker, for plaintiff-appellee Dyer & Moody, Inc.
    E. Wade Shows, Baton Rouge, for defendant-appellee Dynamic Constr., Inc. & Title Ins.
    Weldon J. Hill, II, and Aubrey McCleary, Baton Rouge, for third party defendant-appellant and third party plaintiff Eastern Development & Investment Corp.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

The facts of this case are not in serious dispute, and can be stated as follows: On November 9, 1965, by act of sale of record on November 10, 1965, in COB 1884, folio 272, of the official records of East Baton Rouge Parish, the plaintiff, Dyer & Moody, Inc. acquired a tract of land fronting 176 feet on Ray Weiland Drive in Bakerfield Subdivision of the City of Baker, East Baton Rouge Parish, Louisiana. Plaintiff, consulting engineers, have constructed an office building on the subject property.

Thereafter, on September 25,1970, A & B Apartments, Inc., acquired by act of sale of record in COB 2136, folio 297, October 5, 1970, of the official records of said parish, a tract of land (with other lots) designated as Lot N, Bakerfield Subdivision, in the City of Baker, Louisiana. This property, which is presently owned by the defendant, Eastern Development & Investment Corp., lies immediately adjacent to the property of Dyer & Moody, Inc. on the east side of the plaintiff’s property.

For a number of years there had existed a natural drain, in the form of a ditch, located on the western portion of the defendant’s property, by which surface waters on the lands situated north, west and east of the defendant’s property flowed generally in a southerly direction toward Ray Wei-land Drive in said subdivision. Then, on or about November 9, 1970, A & B Apartments, Inc., as the owner of said Lot N in said subdivision, commenced the construction of an apartment project on said lot. During the course of the construction of said apartment buildings, the drainage ditch was filled in and the buildings obstructed the natural flow of the surface water, in such a manner as to cause said water to flow around the apartment buildings and drain across the plaintiff’s property into Ray Weiland Drive.

Plaintiff, Dyer & Moody, Inc., filed a petition for mandatory and prohibitory injunction and for damages against Dynamic Constructors, Inc. on February 15, 1974, complaining of the obstruction of the natural servitude of drainage. On March 3, 1975, the plaintiff filed a supplemental and amending petition, seeking the same relief, but alleging that Dynamic Constructors, Inc. had sold the subject property to American Equity Investment Trust by act dated May 15,1974, and recorded May 21, 1974, in COB 2363, page 530, of the official records of said parish, and naming said American Equity as a party defendant. By a second supplemental and amending petition filed on August 6,1975, the plaintiff alleged that American Equity had sold to Eastern Development & Investment Corp. by act dated March 4, 1975, of record on March 5, 1975, in COB 2410, page 360, of the official records of said parish, the property involved in this lawsuit, and named said Eastern Development as a party defendant.

In due course Eastern Development filed an answer in the nature of a general denial and filed a third-party demand, alleging that the Title Insurance Corporation of Pennsylvania had issued an owner’s title insurance policy to Dynamic Constructors, Inc. or its assigns. The third-party petition alleged that the policy insured against loss or damage, and that as successor to Dynamic the third party petitioner, Eastern Development, was protected in the event Dyer & Moody recovered judgment against Eastern Development.

Then, exceptions of prescription were filed by defendants, Eastern Development & Investment Corporation, Dynamic Constructors, Inc., American Equity Investment Trust and The Title Insurance Corporation of Pennsylvania, based on the grounds that the cause of action, having accrued more than one year prior to the commencement of the action, had prescribed by the elapse of one year. The lower court maintained the exceptions of prescription “insofar as the same may apply to plaintiff’s action for damages,” but overruled the same insofar as it pertained to the petition for injunction.

Subsequently, motions for summary judgment were filed on behalf of Dynamic Constructors, Inc., American Equity Investment Trust and The Title Insurance Corporation of Pennsylvania. Considering that Dynamic and American Equity were no longer owners of the property involved in the lawsuit, the lower court granted summary judgment in their favor and dismissed them as defendants. The lower court also granted the motion for summary judgment in favor of Title Insurance, based on the owner’s title insurance policy.

The matter was tried on the merits, at the conclusion of which the trial judge, with oral reasons dictated in the record, rendered judgment in favor of the plaintiff, Dyer & Moody, Inc., and against the defendant, Eastern Development & Investment Corp., in the amount of $19,203.00, which sum of money was awarded as compensatory damages in lieu of the mandatory injunction to which the plaintiff was entitled, but which was considered to be a “too harsh and impractical” remedy under the particular facts and circumstances. The amount of damages awarded by the lower court was the amount that he determined would be “the cost of providing a facility that would be adequate to accomplish what the natural drain used to accomplish on the adjoining property, on the property of the apartments, including the feasibility of putting part of it” on the plaintiff’s property.

This matter is on appeal from the judgment rendered in favor of the plaintiff signed on July 6, 1977, and also on appeal from the summary judgment in favor of the third-party defendant, signed on June 28, 1977.

Appellant has urged four specifications of error to this Court:

1. The trial court erred in overruling the exception of prescription insofar as it pertained to the petition for injunctive relief.

2. The trial court erred in awarding the plaintiff the sum of $19,203.00 as compensatory damages in lieu of a mandatory injunction.

3. The trial court erred in ruling that the plaintiff was not estopped from asserting “its claim of a natural servitude of drain.”

4. The trial court erred in granting the third party defendant’s motion for summary judgment.

Specification of Error No. 1

There is no merit in appellant’s assertion that plaintiff’s action for injunctive relief had prescribed. Pursuant to LSA-C.C. Art. 660:

“It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.
“The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.
“The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.”

We hold that Article 660 provides for a natural servitude, and that the applicable prescriptive article is LSA-C.C. Art. 795, which provides:

“Prescription for non-usage does not take place against natural or necessary servi-tudes, which originate from the situation of places.”

Appellant relies upon the case of Dean v. Hercules, Inc., 328 So.2d 69 (La.1976), to sustain its exception of prescription. Dean is concerned with Article 667 of the Civil Code, and is in no way applicable to the Article 660 situation, which is governed by its own specific prescriptive codal article, Article 795.

Specification of Error No. 2

Appellant urges that the trial court erred in rendering a money judgment against Eastern Development & Investment Corp. as compensatory damages in lieu of a mandatory injunction.

In reaching his decision to award compensatory damages, the trial judge remarked, in his oral reasons for judgment:

“When we have a dominant estate which because of its position enjoys a servitude of drain across and onto the property of his neighbor, that estate is entitled for that servitude to continue. The servient estate or that estate that owes the servitude of drainage by virtue of its location and elevation is bound under the law not to disturb that servitude of drain. I find that this was in fact the point that drained the property both to the east of the apartments and to the west of the apartments, Mr. Moody’s property and a considerable amount of property to the north of both properties. It is unquestioned in the evidence that the servitude has been effectively destroyed by the creation of improvements on the property to the east.
“What has really happened is that the servitude has been transformed and relocated into what now amounts to a servitude in favor of the same properties, but on Mr. Moody’s property. It has been moved over about thirty or forty feet to the west, it’s wider, not natural and, in fact, channelized as some of the witnesses put it, and he now drains his property the same as the natural drain used to and drains that property to the northeast of the apartments and property to the northwest of his property and property immediately to the rear, all of the property that the natural drainage used to drain.
“ . . .In situations like this where we attempt to apply the same articles of the Civil Code and say as a matter of law that a party is entitled to a mandatory injunction against one who blocks a natural drain, while not impossible it’s too harsh and impractical to require the relocation of the apartments. The law has provided in such cases that compensatory damages can be awarded in lieu of the mandatory injunction.”

We find that the case of Freestate Industrial Development Company v. T. & H., Inc., 188 So.2d 746, 748 (La.App. 2 Cir. 1966), in which the Court opined as follows, supports the trial judge’s awarding of compensatory damages:

“Plaintiff’s alternative demand for damages is sought only in the event the court denies the primary prayer for injunctive relief. Such an alternative plea is urged in conjunction with the primary demand, and is designed to provide compensatory damages in lieu of the more stringent remedy of injunction. The jurisprudence has established the principle that in the discretion of the court compensatory damages may be awarded in lieu of in-junctive relief.” (Citations omitted.)

As to the assertion on this point that the amount awarded by the trial judge was excessive, we need only remark that we have reviewed the record and find no manifest error in the lower court’s award.

Specification of Error No. 3

Appellant filed an amended answer alleging that the plaintiff was estopped from asserting its claim of a natural servitude of drain. The basis of this estoppel was that the plaintiff was the engineering firm which prepared the survey and plot plan for the initial construction of the apartment complex on the subject property, and should have known of the existence of this servitude of drain and affirmatively indicated same to the defendant, who relied on said survey to its detriment.

In considering the plea of estoppel, the trial judge found that the plaintiff had not participated “engineeringwise or made any studies or any recommendations to the owner, but that his services were limited to that of establishing boundaries and locating the improvements, the slab of the completed building or at some stage of the construction he simply located the building on the property and located the property corners.” The trial judge also found as a fact that the plaintiff did not just stand idly by and allow the improvements to be made to the detriment of the owner having them constructed. The record supports this factual finding of the trial court. There is nothing in the record to indicate that Dyer & Moody, Inc., the plaintiff, should be es-topped in this action, when it persistently tried to work out the drainage problem on an amicable basis with the appellant’s predecessors in title.

Specification of Error No. 4

This particular specification did not concern the plaintiff-appellee, and has been responded to by the third-party defendant, The Title Insurance Corporation of Pennsylvania, and is concerned with coverage under the owner’s title insurance policy issued by the third-party defendant to Dynamic Constructors, Inc., a predecessor in title of the appellant, Eastern Development & Investment Corp.

Our examination of the policy reveals that coverage is not afforded the appellant, as concluded by the trial court, in its granting of the motion for summary judgment. The policy specifically states that it provides coverage only for losses sustained as a result of:

“1. Title to the estate or interest described in Schedule A being vested otherwise than as stated therein;
2. Any defect in or lien or encumbrance on such title;
3. Lack of a right of access to or from the land; or
4. Unmarketability of such title.”

It is clear from the nature of the present lawsuit that “title” is in no way involved. The fact that an owner of the subject property obstructed a natural servitude of drainage did not create a defect in the title to the subject property.

Moreover, the policy specifically excludes from coverage:

“1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law, ordinance or governmental regulation. . . . ”

Louisiana Civil Code Article 660 restricts the building of any work that would prevent the natural running or flow of water; and, consequently, restricts the use or enjoyment of the land within the express exclusionary clause of the subject title insurance policy.

For the assigned reasons, the judgment of the trial court is affirmed at the costs of Eastern Development & Investment Corp., defendant-appellant.

AFFIRMED.


text:
    Richard SANDERS et ux. v. Matthew H. BLUNT et al.
    No. 11877.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Writ Refused May 12, 1978.
    Sumpter B. Davis, III, Baton Rouge, for plaintiff-appellant Richard Sanders and Lena J. Sanders.
    Roger M. Fritchie, Baton Rouge, for defendants-appellees Matthew H. Blunt, ABC Ins. Co. and XYZ Manufacturer.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the lower court sustaining an exception of prescription, and dismissing the plaintiffs’ action. The plaintiffs, Richard Sanders and his wife, Lena J. Sanders, have appealed devolutively. We affirm.

The basis for the dismissal was that more than one year had elapsed since the plaintiffs had knowledge of the existence of the cause of action. LSA-C.C. art. 3536.

This suit arises out of certain injuries allegedly sustained by Lena J. Sanders while she was undergoing the extraction of a lower wisdom tooth by the defendant, Matthew H. Blunt, an oral surgeon, on September 19, 1975. The plaintiffs allege that in the course of administering an anesthetic, and in the subsequent procedures necessary to extract the wisdom tooth, Mrs. Sanders was left with a permanent numbness in the right half of her tongue and that she experiences a sharp, painful sensation in her tongue when pressure is applied to the teeth in the lower right portion of her mouth.

The record reflects that the petition in this matter was filed on March 18,1977. In response to the suit, Dr. Blunt filed a peremptory exception of prescription, setting out that more than one year had elapsed after the happening of the acts and/or omissions sued upon, and that Mrs. Sanders was fully aware of the acts and omissions allegedly committed or omitted by Dr. Blunt and was fully aware of the injuries and damages allegedly sustained by the plaintiffs several days after the surgical procedure.

The matter came on for a hearing on the exception, and the lower court rendered judgment on September 9, 1977, which judgment was signed on September 11, 1977, maintaining it.

The record, particularly the deposition of Mrs. Sanders, reflects that she had actual knowledge of the act, the damage, and the causal relationship between the two, within a few days of the extraction of the tooth.

She testified in her deposition that on the day following the surgery the numbness caused by the anesthetic had worn off, except for her tongue, and that she was aware that something was wrong. Following several office visits, she stated that she was informed by Dr. Blunt that some nerve damage may have been caused. Her deposition further indicates that she was concerned about some loss of feeling in her tongue and the sustaining of some nerve damage ever since the anesthetic wore off. Parenthetically, she is a Licensed Practical Nurse.

Mrs. Sanders’ dental malpractice action is one in tort, and the applicable prescriptive period is one year from the time she had actual or constructive knowledge of the alleged tortious act, the damage, and the causal relation between the act and the damage.

Although ’ C.C. art. 3536 was the cited authority used by court and counsel, we are governed by Act 808 of 1975, which became effective on September 12,1975, seven days prior to the operation. Therein, the legislature set up definitive periods of prescription and peremption, viz: the action must be brought within one year of the date of the alleged act, or within one year of the discovery thereof, but it must be filed within three years from the date of the act. R.S. 9:5628.

The case of Couvillion v. St. Paul Fire and Marine Insurance Company, 328 So.2d 737 (La.App. 3 Cir. 1976), is also pertinent on the question of prescription. In Couvillion, the plaintiff underwent a mas-toidectomy, which surgical procedure was performed on March 19, 1974. During the surgery a facial nerve was severed, partially paralyzing the plaintiff’s face. The next day this paralysis was discussed with the physician, who informed the plaintiff that the nerve would regenerate. Although the muscle tone returned after a period of time, she did not regain any. sensation in her face. Thereafter, in June of 1975, she consulted another physician, who advised her that the nerve damage was permanent. She filed suit on September 2, 1975. From a judgment maintaining the doctor’s exception of prescription, the plaintiff appealed, contending that since the doctor had not informed the plaintiff that the facial paralysis was permanent, prescription had not run.

The Court rejected this contention, stating:

“In the instant case, both Mrs. Couvillion and Dr. Villard testified that Dr. Villard told Mrs. Couvillion soon after the operation the paralysis was caused by the surgery. Even if he had not told her the paralysis was permanent, he told her he had caused a paralysis to the left side of her face and she knew, or should have known, at the time that she had a cause of action for negligence. Therefore prescription began to run against plaintiff s claim almost immediately after the surgery. Even though plaintiff did not then realize the full extent of the damage (i. e. its permanent nature) prescription began to run against the entire claim when Mrs. Couvillion became aware of the injury resulting from the tortious conduct.”

Such is the case alleged by Mrs. Sanders. Prescription had run by the time she filed her action in tort on March 18, 1977.

For the reasons assigned, judgment is affirmed at the plaintiffs-appellants’ costs.

AFFIRMED.


text:
    C. L. PONDER v. William D. VERNON et al.
    No. 11891.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Frank Koles, III, Amite, for C. L. Ponder, plaintiff-appellant.
    Rodney C. Cashe, Hammond, for William D. Vernon, et al., defendant-appellee.
    Jesse P. Lagarde, Amite, for Frank M. Edwards, Jr., Sheriff.

      Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

Plain tiff-appellant appeals from a judgment maintaining exceptions of no cause of action and no right of action, dismissing plaintiff’s suit at his cost. We amend and affirm.

The facts giving rise to this action are: on February 23, 1977, pursuant to a previous order issued for a judicial sale in order to effect a partition by licitation of the community estate formerly existing between two of the defendants, William D. Vernon and Mary Breland Vernon, a Sheriff’s sale took place and the plaintiff was the highest bidder. However, he refused to pay the purchase price of $24,700.00, or any portion thereof, because the property was allegedly burdened with a recorded farm lease to another defendant, Clyde Vernon.

Counsel for appellee, upon being informed that the appellant would not pay the purchase price unless the lease was can-celled, caused the property to be re-advertised for sale on April 13,1977, all pursuant to LSA-R.S. 13:4360.

On April 11, 1977, appellant filed a declaratory action suit against the three defendants named above and also against the Sheriff, asking that the lease, dated December 27,1973, recorded in COB 388, Page 570, on December 29, 1973, be annulled and ordering the Sheriff to deliver title, free and clear from any encumbrance, to him.

In the alternative, he asked to be relieved of any responsibility as the successful bidder because of the encumbrance and further asked that if the sale be declared null that he be awarded $1,000.00 attorneys’ fees incurred “by reason of the sale advertisement misrepresenting merchantability of title.”

He also filed a notice of lis pendens and asked for and obtained a temporary restraining order, thereby effectively stopping the proposed sale pursuant to re-advertisement. Counsel for the defendant, William D. Vernon, filed exceptions of no cause of action and no right of action on June 17,1977, averring that plaintiff had no cause or right to attack the farm lease, and further had no cause or right to tender the purchase price over 100 days subsequent to the sale. On the same date, he filed a motion for a summary judgment. The Sheriff answered, admitted the sale on February 23, alleged that the plaintiff was the highest bidder but that he had refused to adhere to the terms of the sale by refusing to pay the sum bid, and also alleged that in all sales conducted by the Sheriff the property is sold without warranty.

Testimony was taken on the exception of no right of action; the appellant admitted he was aware of the fact that the property would be re-advertised for sale if the bid price was not paid, and further admitted that, even as of the date of the hearing on the exceptions, he was unwilling to pay for the property unless the farm lease was can-celled.

The Trial Court, as stated, maintained the exceptions.

Our Supreme Court, in Ponchartrain Realty Company v. Passera, 172 La. 243, 133 So. 761 (1931), disposes of appellant’s contentions. In that case, the purchaser at Sheriff’s sale had made a 10% deposit but refused to pay the balance, alleging that there were suits pending which affected the property and that the title was not merchantable. The Court stated that the adju-dicatee’s refusal to accept the property gives any interested person the right to demand re-advertisement and sale.

Ordinarily, the doctrine of caveat emptor applies to judicial sales. A court can only order sold the rights of the parties to the proceedings and there is no warranty of title. The purchaser is chargeable with matters of public record, readily ascertainable, which affect the property. Moreover, under LSA-C.C.P. art. 2372 the property is sold subject to any. lease with which it is burdened, superior to any mortgage of the seizing creditor. The farm lease is now and was at the time of the original petition for partition a matter of public record.

The judgment of the trial court being manifestly correct, we exercise our authority under LSA-C.C.P. art. 2164 and amend to order also the cancellation of the notice of Lis Pendens filed by the plaintiff.

AMENDED AND AFFIRMED.


author: PONDER, Judge.

text:
    APEX OIL COMPANY and Petroleum Fuel & Terminal Company v. CITY OF PORT ALLEN.
    No. 11905.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Writ Refused May 5, 1978.

      W. Luther Wilson of Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiffs-appellants.
    John L. Avant of Dodd, Barker, Avant, Wall & Thomas, Baton Rouge, for defendant-appellee.
    George Mathews of Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for intervenor.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

The plaintiffs, Apex Oil Company and Petroleum Fuel and Terminal Company, and intervenor, The Greater Baton Rouge Port Commission, sought an injunction against an attempt by the City of Port Allen to enforce the provisions of a building code on property owned by the Port Commission and leased to the plaintiffs. In the alternative, they also sought a mandamus requiring the City of Port Allen to process applications for building permits filed by plaintiffs with the same speed, fairness and procedural requirements as afforded other applications. Plaintiffs and intervenor appeal from the denial of both remedies.

The issues are:

1) Is proof of irreparable harm necessary?

2) Does the City of Port Allen have jurisdiction over construction on the Port Commission property?

3) Is mandamus appropriate?

4) Is processing of building permits ministerial?

Port Allen was incorporated in 1916 under La.R.S. 33:321-481. The Greater Baton Rouge Port Commission was created in 1952. It was “empowered ... to construct or acquire and equip wharves and landings and other structures useful for commerce in the port area and to provide mechanical facilities therefor ... to provide lights, water, police protection and other services for its facilities as it may deem advisable; . . . ”

Some of the Port Commission property is within the city limits.

Plaintiffs, lessees of the Port Commission, began storing some petroleum products in above-ground tanks. The City sought an injunction. By agreement, a temporary restraining order was signed prohibiting the above-ground storage of fuels with a flash point of 100 degrees Fahrenheit or less. This temporary restraining order has been extended by agreement of the ^parties.

Later, plaintiffs began construction of some interior dikes. The dirt was secured from the leased property in such a manner as to be of benefit in the later construction of additional tanks. When the City told plaintiffs that a permit was required,, they made application. The City advised plaintiffs as follows: “ * * * The City of Port Allen cannot consider any additional permits for construction of any type at that particular site until present litigations are resolved. Therefore, permit is denied on the basis of the temporary restraining order issued by Judge I. N. Claiborne.”

Thereafter, the City returned the application for the construction of a septic tank. Although the application was evidently not complete, plaintiffs, remembering the letter already received, filed this suit. Answer was filed and trial had.

Appellee asserts that the refusal of the preliminary injunction should be affirmed since plaintiffs have not proved any irreparable injury. However, it is not necessary to prove irreparable injury when the injunction is sought on the ground that the action complained of is reprobated by law. Caffery v. Powell, La.App., 320 So.2d 223 (3d Cir., 1975); Whalen v. Brinkmann, La. App., 258 So.2d 145 (1st Cir., 1972).

Admittedly, the City of Port Allen prior to the formation of the port commission had the power to adopt building restrictions and require building permits under its charter and the state general law. The state may alter or recall the delegated power. Harper v. State Department of Revenue, La., 328 So.2d 669 (1976). The question then becomes: Has the state recalled this power from the City of Port Allen. We find nothing in the Constitution or the statutes to convince us that the people or the legislature intended to and did recall the powers of that city insofar as they apply to the Port’s property. The denomination of the port as a state enclave or a “highly sophisticated industrial complex” begs the question; it does not necessarily follow that the legislature has, in fact, recalled the power it has granted. The terms of the Constitutional Amendment and of the statute setting up the port authority did grant some powers, which, however, are more in the nature of proprietorship than police powers. Nowhere is there a clear statement that the powers previously granted to the city are recalled. The language employed is not sufficient to require the conclusion that the recall occurred by implication. We decide that the injunction was properly denied.

Appellee asserts that mandamus is inappropriate in that the suit was directed against the City rather than against a particular officer and in that the action sought is a continuing course of conduct.

First, we note that under C.C.P. Art. 2593, any exceptions should have been filed prior to trial. Furthermore, the suit previously filed was in the name of the City of Port Allen. The case of State v. City of New Orleans, La.App., 209 So.2d 141 (4th Cir., 1968), we find to be inapplicable, because the objection was raised timely on an exception and because the proper officer was named by statute.

La.R.S. 33:4744 requires that all applications for building permits shall be passed upon within ten days after their filing. We believe this to be mandatory and ministerial in nature. The City therefore cannot refuse to consider an application because of pending litigation. Mandamus may properly be issued.

Appellee asserts that a mandamus should not be issued to direct a general course of action. We agree and therefore we limit the mandamus to the applications already filed, even though appellants asserted they intended to ask that the mandamus apply to any and all applications, including those not yet filed. We do not presume that the City will continue to violate the law once called to its attention.

For these reasons, the judgment is amended to the extent that it is ordered that a mandamus issue to the City of Port Allen ordering it to pass upon the applications already filed within the ten days of the finality of this judgment. In all other respects the judgment is affirmed. The costs are to be borne equally by the plaintiffs and the defendant.

REVERSED IN PART AND AFFIRMED IN PART.


text:
    M. Frances SEGHERS and Clydene G. Weathersby v. COMMUNITY ADVANCEMENT, INC., et al.
    No. 11906.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.

      W. Luther Wilson, Baton Rouge, of counsel for plaintiffs-appellees, M. Frances Seghers and Clydene G. Weathersby.
    Richard J. Dodson, Baton Rouge, of counsel for defendants-appellants, Community Advancement, Inc., and the Executive Committee of the Board of Directors of Community Advancement, Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendants have appealed from the judgment ordering them to comply with La.R.S. 42:4.1, et seq., the “Sunshine Law”.

The sole issue is the correctness of that judgment. We affirm.

The statute requires that its provisions be liberally construed so as to effectuate the policy of public business being performed in an open and public manner so that the citizens can be aware of the deliberations and decisions that go into making public policy. La.R.S. 42:4.1. It applies to meetings of “authorities with policy making or administrative functions which receive or expend tax funds ... to discuss or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power.” La.R.S. 42:5.

Community Advancement, Inc., was organized as a private non-profit corporation. Anticipating the formation, both the City and Parish Councils passed resolutions sponsoring the corporation. Several years later both councils passed resolutions reaffirming the sponsorship and redesignating Community Advancement, Inc., as the agency to administer antipoverty programs. With the exception of a comparatively minimal amount, the corporation derived all its support from local, state and federal funds. Even though some guidelines are set by the agencies supplying the funds, considerable policy making was required of the corporation in both the administration and distribution of the funds. Because the board of directors was large it delegated many duties to the executive committee, reserving to itself, however, subsequent review of the actions.

Defendants point to the status of the corporation as a private non-profit one and to the references in the statute to public bodies; they deduce therefrom that it was exempt from the statute. We believe that defendants have applied too restrictive an interpretation.

The corporation was organized to perform and has performed a governmental function, the administration of the antipoverty program. It has been supported almost exclusively by tax derived funds. It has been able to and has set policy in the distribution of those funds. We believe that all this requires that the corporation be classified as a public body or authority within the intendment of the statute. The City or Parish Council, if either had elected to do so, could have been the administrator of the antipoverty program or could have delegated the duties to another public body. The council or other public body would have been subject to the law. The fact that Community Advancement, Inc. was organized under the legal mechanics of the private non-profit corporation law of the state should not result in its immunity from the statute.

The judgment of the lower court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Mrs. Lucia Bateman QUINN et al. v. Gladys Bateman Burris STAFFORD et al.
    No. 11915.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.

      John N. Gallaspy, of Gallaspy & Paduda, Bogalusa, counsel for plaintiffs.
    Richard F. Knight and R. Bradley Lewis, of Talley, Anthony, Hughes & Knight, Bo-galusa, counsel for Charles, Marilyn and Katherine Bateman and Gladys Bateman Burris Stafford.
    Haley M. Carter, Franklinton, counsel for Robert H. Bateman, Jr.
    William M. Quin, Kentwood, counsel for Ella Bateman Knight.
    Curtis Allen Hennesy, New Orleans, counsel for Maude Bateman Hennesy.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiffs and third party plaintiff appealed the judgment holding two conveyances valid against attack as being simulations.

The issues are:

(1) Attack upon validity of act reciting consideration;

(2) Admission of evidence of “other consideration” not pled as an affirmative defense;

(3) Sufficiency of proof of simulation or donation in disguise;

(4) Sufficiency of proof to overcome presumption of simulation resulting from reservation of usufruct;

(5) Effect of lack of authentic form; and

(6) Effect of gift of all one’s goods.

We amend and affirm.

Mrs. Emma Magee Bateman and eight of her nine children signed two acts of sale, dated February 4,1946, to her sons, Herbert and Robert, Jr. The sale to Herbert of 75 acres was for the stated consideration of $1,500. The sale to Robert, Jr. was for the stated consideration of $1,200. The only other difference in the parties to the two acts is that Herbert signed as one of the vendors to Robert, Jr. and Robert, Jr. signed as one of the vendors to Herbert. Robert Bateman, Sr., husband of one vendor and father of the other vendors and the vendees, had died a few years prior. Mrs. Bateman reserved to herself the usufruct of the property. Just prior to the expiration of thirty years, Mrs. Quinn as a granddaughter of Emma Magee Bateman and Robert Bateman, Sr., as administratrix of her grandmother’s succession and as admin-istratrix of the Succession of Lucious Bate-man, her father, filed this suit to have the transactions declared null. She was joined as plaintiff by her brother and by one aunt. Another granddaughter asked for the same relief as reconvenor and third party plaintiff.

First of all, appellees assert that a party to an act of sale of immovable property or his heir cannot attack its validity on grounds of no consideration contrary to the terms of the sale in absence of allegations of fraud, error or force of a counter-letter or supporting answers to interrogatories or requests for admission of fact. However, this rule has no application to forced heirs alleging simulated contracts. Miles v. Miles, 328 So.2d 394 (La.App. 3d Cir., 1976). The aunt who is plaintiff, while unable to attack the sale by her, could attack the sale by her mother. There would be no bar to the attacks by the other plaintiffs or the third party plaintiff.

Appellants’ contention that it was error to admit evidence of other valuable consideration is without merit. The answers raised the issue. One of the defendants’ contentions in the pre-trial order was this very point. Also, appellants’ petition alleges that “no consideration whatsoever” was paid by Robert Bateman, Jr. and Herbert Bateman. The answers deny these allegations. Thus, the issue of consideration was put at issue by the petition and answer; no affirmative allegations were necessary. This evidence is also admissible under LSA-C.C.P. Art. 2276.

Appellants next argue that the acts were simulations, either of the pure form or donations in disguise. Appellees contend that the testimony of past services to the parents showed ample consideration. The trial judge’s evident finding that the real consideration was past services rendered by the vendees, Herbert and Robert, Jr., is accorded great weight. Russell v. Culpepper, La., 344 So.2d 1372 (1977); Bell v. Bell, La.App., 339 So.2d 1333 (3rd Cir., 1976).

For several years Herbert and Robert, Jr. farmed their parents’ property. The three families shared the fruits of this operation. The two brothers also planted an extra cotton crop each year, harvested it and gave the proceeds to their father. Both brothers, with little assistance from the other members, provided the maintenance and support for both parents during the latter part of their lives. Herbert and Robert, Jr., provided most all of the necessary, day to day, personal care of Mrs. Bateman for at least a year prior to her death. The testimony to the effect that these acts of conveyance were passed in consideration for these actions is convincing. Thus, we hold that the act signed by Mrs. Bateman was not a simulation of any kind, but at least a remunerative donation.

The issue raised by the children of Lucious and Murphy Bateman of whether the acts of their parents, Lucious Bateman and Murphy Bateman, were simulations and donations is also without merit. The assumption by Herbert and Robert, Jr. of the obligations for support and care owed by the other brothers and sisters is valid consideration; the acts were, therefore, not simulations or donations in disguise.

In support of their argument of simulation, the appellants cite LSA-C.C. Art. 2480 as providing a presumption that was not rebutted. We disagree. Herbert and Robert, Jr., were operating the farm long before the sale and were in possession along with Mrs. Bateman at the time of the sale. Both Herbert and Robert, Jr. operated their respective tracts individually and as owners after the sales were passed. Furthermore, as shown above, we find the transactions not to be pure donations.

Appellants argue that LSA-C.C. Arts. 1497, 1533, and 1536 prohibit the donations here attacked. This argument is dependent upon a finding that the sales were actually donations in disguise. However, we have found that these acts were onerous in nature and at least remunerative donations. LSA-C.C. Art. 1526 states:

“In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services.”

In Bell v. Bell, supra, and Russell v. Culpepper, supra, this article was held to mean that the effects of the prohibition provided in Articles 1497 and 1533 do not apply to remunerative donations unless the party attacking the conveyance can prove that the value of the property given exceeds the value of the services by one-half. There is no evidence of the value of the land at the time the acts were passed.

The attack on the “donations” because they were not in authentic form also fails for the same reason. Potts v. Potts, 142 La. 906, 77 So. 786 (1918); Castleman v. Smith, 148 La. 233, 86 So. 778 (1920).

In accordance with LSA-C.C.P. Art. 2089, the judgment of the trial court is recast to include , with particularity the description of the property affected. Because both of the vendees are deceased and we are uninformed as to the present ownership we cast the judgment as follows:'

It is ordered, adjudged and decreed that Herbert Bateman was the true and lawful owner of the following described property:
“North Half (NVá) of Northeast Quarter (NEVi) of Southwest Quarter (SWVi), Southwest Quarter (SWVi) of Northeast Quarter (NEVi) of Southwest Quarter (SWVi), West Half (WVi) of Southeast Quarter (SEVi) of Northeast Quarter (NEVi) of Southwest Quarter (SWVi) and Southeast Quarter (SEVi) of Southwest Quarter (SWVi), Section 7, Township 2 South, Range 11 East, St. Helena Meridian, containing 75 acres, more or less.”
It is further ordered, adjudged and decreed that Robert H. Bateman, Jr. was the true and lawful owner of the following described property:
“North Half (NVfe) of Northwest Quarter (NWVi) of Southeast Quarter (SEVi), Southeast Quarter (SEVi) of Northwest Quarter (NWVi) of Southeast Quarter (SEVi), East Half (EVfe) of Southwest Quarter (SWVi) of Northwest Quarter (NWVi) of Southeast Quarter (SEVi); South Half (SVh) of Southwest Quarter (SWVi) of Southeast Quarter (SEV4) and Northwest Quarter (NW14) of Southwest Quarter (SW1^) of Southeast Quarter (SE1^), Section 7, Township 2 South, Range 11 East, St. Helena Meridian, containing 65 acres, more or less.”

All costs of this appeal are taxed equally to appellants.

AFFIRMED.

      . Hinton v. May, 241 So.2d 583, (La.App. 2nd Cir., 1970).

      . Wise v. Johnson, 241 So.2d 534, (La.App. 2nd Cir., 1970), writs refused, 257 La. 604, 243 So.2d 273, (1971). The Supreme Court found “No error of law”.

      .The testimony shows that Emerson Bateman, now deceased, made a $20.00 per month allot- . ment from his military pay in favor of Mrs. Bateman. There is evidence of very little other support of her, except as provided by Herbert and Robert, Jr.

      . LSA-C.C. Art. 2480
      “In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.”

      . LSA-C.C. Art. 1497
      “The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”

      . LSA-C.C. Art. 1533
      “The donor is permitted to dispose, for the advantage of any other person, of the enjoyment or usufruct of the immovable property given, but can not reserve it for himself.”

      . LSA-C.C. Art. 1536
      “An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions under the penalty of nullity.”

      . The Potts case, supra, was cited with approval by the Supreme Court in Owen v. Owen, La., 336 So.2d 782, (1976).


author: EDWARDS, Judge.

text:
    Wayne T. REDDEN and Yvonne Duplantis Redden v. John DOE and the Millers Casualty Insurance Company of Texas.
    No. 11917.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.

      Robert L. Barrios, Houma, for plaintiffs and appellees.
    Rudolph D. Hargis, Jr., and Philip J. McMahon, Houma, for defendants and appellants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is a suit by plaintiffs, Wayne T. Redden and Mrs. Yvonne Duplantis Redden, against their uninsured motorist carrier, Millers Casualty Insurance Company of Texas, and an unknown motorist, seeking damages for personal injuries sustained by Mrs. Redden. After trial on the merits, judgment was rendered in favor of plaintiffs for the sum of $18,250. Millers has appealed.

Three questions, which were determined adversely to Millers, are presented for review: (1) Was there an “accident” within the terms of the policy?; (2) When did the accident end?; and (3) Did Mrs. Redden’s injuries result from the accident?

The record indicates that Mrs. Redden was employed as a messenger by the Bank of Terrebonne & Trust Company to deliver mail and deposits among the various offices of the bank. She used a 1971 Buick station wagon-, owned by her and her husband, and covered by a family automobile insurance policy issued by Millers. On March 18, 1975, while traveling on the Dulac Crossroad, Mrs. Redden’s car was intentionally forced off the highway by two cars driven by a group of unidentified would-be robbers. Her car landed in Bayou Dularge, turned upside down, became partially submerged and began filling with water. Mrs. Redden attempted to escape through a broken window. She got halfway through the window when one of the assailants grabbed her by the shoulder and pulled her from the car. It was during this exit through the broken window that Mrs. Redden sustained the injuries complained of. The assailants were never apprehended.

The first question presents a matter of first impression in Louisiana, namely, whether or not an innocent insured under an uninsured motorist provision of an automobile liability policy may recover from his own insurer because of injuries resulting from an intentional wrong by an uninsured motorist.

The pertinent provision of the insurance policy provides in Part III, Coverage D:

“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . ., sustained by the insured, caused by accident . ” (emphasis supplied).

There are no provisions in the policy defining what is an “accident” under this coverage, or which exclude intentional acts by uninsured motorists from coverage.

It is important to emphasize that we are here concerned with the obligations and responsibilities of an insurance company to its own policyholder as distinguished from the insurer’s liability under an ordinary liability policy. The practical purpose of uninsured motorist coverage is to afford protection to an insured when he becomes the innocent victim of an uninsured motorist, and who would otherwise be left without recourse to secure reparation. See Elledge v. Warren, 263 So.2d 912 (La.App. 3rd Cir. 1972), writ denied, 266 So.2d 223 (La.1972). As such, this coverage acts as an accident policy for the victim; and is statutorily mandated. LSA-R.S. 22:1406. In this instance, the social policy of preventing an insured from profiting from his own wrongs (attendant to liability insurance) is not applicable. Rather, social policy considerations in uninsured motorist situations militate in favor of compensating the innocent and unsuspecting victim.

We believe that the nature and purpose of uninsured motorist coverage require that the question of whether or not an injury is accidental must be determined from the victim’s standpoint. From this point of view, although inflicted intentionally, the victim’s injuries result nonetheless from an “accident” within the meaning of the policy. See Leatherby Insurance Co. v. Willoughby, 315 So.2d 553 (Fla.App.1975); Celina Mutual Insurance Co. v. Saylor, 35 Ohio Misc. 81, 301 N.E.2d 721 (1973). See also 72 A.L.R.3d 1161.

The second question concerns the duration or extent of the accident.

Millers argues that the accident was at an end when the car came to rest in the bayou.

In rejecting this argument, the trial court stated in his Reasons for Judgment:

“The court believes that the term ‘accident’ as used in the policy of insurance includes the entire sequence or chain of events which began with the bumping of Mrs. Redden’s automobile by the uninsured motorist and was not concluded until she had exited and completely escaped from her vehicle. * * * ”

We are of the same opinion.

Finally, we must determine whether or not Mrs. Redden’s injuries resulted from the accident.

Millers contends that the injuries did not result from the accident but rather were the result of a battery committed by the would-be robber.

The trial court found, after reviewing Mrs. Redden’s testimony in toto, that the injuries were sustained while escaping from the partially submerged automobile and were a direct consequence of the accident.

Our examination of the record indicates that an overwhelming preponderance of the evidence favors the trial court’s finding. We find no manifest error.

For the above reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    STATE of Louisiana in the Interest of Lee John BELLANGER, special juvenile.
    No. 11941.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.

      Jerome J. Barbera, III, Asst. Dist. Atty. and Francis Dugas, Dist. Atty., Thibodaux, for the State of Louisiana, appellee.
    Herbert O’Niell, Thibodaux, for Lee John Bellanger, appellant.
    Before COVINGTON, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Lee John Bellanger, a juvenile, appeals from an order committing him to the Department of Corrections.

The issue is whether a truant may be committed to the Department of Corrections. The lower court held that he could. We reverse and remand.

The juvenile had been before the Juvenile Court for truancy and had been placed on supervised probation for an indefinite period of time not to exceed his' eighteenth birthday, with the special condition, among others, that he attend school with no unexcused absences.

He again came before the Juvenile Court with the petition citing that he was a delinquent child and/or a child that needed supervision and that he had violated a special condition of the probation in that he willfully and intentionally missed school without a valid excuse on at least 16 days, and that he had violated LSA-R.S. 17:221 and 17:233. The juvenile judge committed Lee John Bellanger to the Department of Corrections.

Only those juveniles adjudicated delinquent may be committed to the Department of Corrections. LSA-R.S. 13:1580(2). A delinquent child is one who has committed a delinquent act and is in need of care or rehabilitation. LSA-R.S. 13:1569(14). Delinquent act is one designated as a crime under the statutes or ordinances. LSA-R.S. 13:1569(13). A habitual truant is classified as a child in need of supervision. LSA-R.S. 13:1569(15).

Prior to the amendment of 1975, the court could commit a child in need of supervision, but now before doing so the court must find the child to be a delinquent.

Therefore, reluctantly we hold that the legislature in the recent amendments has removed the power of the court to hold a truant a delinquent and to commit him to the Department of Corrections.

LSA-R.S. 17:221 is not to the contrary; it is directed to parents, tutors and others in similar circumstances, not at the juveniles.

LSA-R.S. 17:233 speaks of reporting a habitually absent juvenile as a delinquent but not of classifying him as a delinquent subject to commitment.

Furthermore, we find that the contempt of court for violation of probationary terms is insufficient to place the appellant in the category of a “delinquent child” because of the fundamental principle that the punishment for contempt could not exceed that given in the original hearing.

For the reasons given above, the judgment of the trial court is reversed, with costs cast to the appellee to the extent possible under the law.

REVERSED AND REMANDED.

      . If the interpretation of In Interest of Gras, 337 So.2d 641 (La.App. 4th Cir. 1976), is to permit a child in need of supervision to be committed to the Department of Corrections, we respectfully disagree.

      . LSA-R.S. 17:221:
      “Every parent, tutor, or other person residing within the state of Louisiana, having control or charge of any child between the ages of seven and fifteen, both inclusive (i. e., from the seventh to the sixteenth birthday), shall send such child to a public or private day school provided that any child below the age of seven who legally enrolls in school shall also be subject to the provisions of this Subpart. Every parent, tutor, or other person-responsible for sending a child to a public or private day school under provisions of this Subpart shall also assure the attendance of such child in regularly assigned classes during regular school hours established by the school board.
      “Whoever violates the provisions of this Section or any other provisions of this Subpart shall be fined not more than fifteen dollars. Each day the violation continues shall constitute a separate offense.
      “Visiting teachers, or supervisors of child welfare and attendance, with the approval of the parish or city superintendents of schools, shall file proceedings in court to enforce the provisions of this Subpart.”

      .LSA-R.S. 17:233:
      “Visiting teachers, or supervisors of child welfare and attendance, shall after written notice to the parent or tutor of a child, or a personal visit of notification report any such child as habitually absents himself from school or as is habitually tardy to the family court judge of the parish or city as a delinquent child, there to be dealt with in such manner as the court may determine, either by placing the delinquent in a home or in a public or private institution where school may be provided for the child, or otherwise.
      “A child shall be considered habitually absent or habitually tardy when either condition continues to exist after all reasonable efforts by the principal and the teacher have failed to correct the condition. The principal, with the aid of the teacher, shall file a written report of the school’s efforts showing dates of absence or tardiness, dates and results of school contacts with the home, and such other information as may be needed by the visiting teacher, or supervisor of child welfare and attendance.”