author: LANDRY, Judge.

text:
    James CORSEY v. The STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS et al.
    No. 12247.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.

      Joseph S. Russo, Jefferson Parish, Jefferson, of counsel for plaintiff-appellant, James Corsey.
    J. Marvin Montgomery, Baton Rouge, of counsel for defendant-appellee, State of Louisiana, et al.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment sustaining defendants’ (Appellees) exception of prescription and dismissing Appellant’s suit in tort for damages for personal injuries allegedly sustained from stab wounds inflicted upon Appellant, an inmate of Angola State Penitentiary, by a fellow inmate, and alleged failure of the institution to afford Appellant adequate medical attention and care following Appellant’s injury. We affirm.

Appellant alleges he was stabbed during the course of a basketball game conducted on the prison grounds on June 18, 1972. Following the incident, Appellant was reputedly taken on a stretcher to the prison hospital emergency room where Appellant was treated by an inmate attendant and directed to return to normal activities. The next morning, Appellant allegedly requested leave of his superior to report to sick call but was ordered instead to work in the cotton fields as per Appellant’s regular assignment. Within a short time of commencing work, Appellant allegedly collapsed from his wounds and the loss of blood. Appellant was then allegedly taken to the prison hospital where he remained unconscious continuously until taken to the Earl K. Long Hospital, Baton Rouge, on June 22, 1972. Appellant maintains he was hospitalized in the Earl K. Long Hospital until August 19, 1972.

For a cause of action Appellant alleges negligence on the part of prison officials in not preventing the stabbing, allowing his assailant to possess a knife, and failing to take proper measures to supervise inmates. Appellant also alleges he was given inadequate and inefficient medical care and treatment by prison hospital employees and doctors at the time of the stabbing and on his return from the Earl K. Long Hospital. In addition to the Department, Appellant names as defendants the prison warden, the prison hospital supervisor, the prison doctor who allegedly attended Appellant, the inmate hospital attendant who initially treated Appellant, and the guard or employee who forced Appellant to work the day following the stabbing.

Two basic issues are presented: (1) Whether Appellant’s action is prescribed for failure to institute suit within one year of the stabbing; and (2) Whether prescription, having run, was waived by Appellees.

A clear understanding of the issues requires narration of the following operative facts: on March 27, 1974, a suit entitled Walter H. Brown v. State of Louisiana (No. 74-833) was filed in the Federal District Court, Eastern District of Louisiana, which action attempted a class action on behalf of all Angola inmates. The nature of this action, as respected the various plaintiffs therein, is not shown in the record before us. By supplemental and amending petition, Appellant joined in said action on June 25, 1974. In November, 1975, the Brown suit was dismissed voluntarily by plaintiffs therein, Appellant included. Said dismissal was based in part on the following stipulation:

“That said plaintiffs may refile their actions individually either in the state or federal court, and the statute of limitations shall be tolled for that purpose.”

Pursuant to the aforesaid stipulation, Appellant filed an individual suit in Federal District Court, Middle District of Louisiana, on November 20, 1975, seeking damages for his alleged injuries. On November 26,1976, Appellant filed this present action. Later, on December 6, 1976, Appellant dismissed his individual Federal Court action.

Appellant contends prescription was suspended because, from the time of injury until he regained complete control of his faculties in July, 1973, he was either unconscious or so physically incapacitated that he could not hear, speak or write; that he was paralyzed from the waist down; and that he was unaware of his surroundings. It is contended further that this condition continued during this period due to Appellees’ failure to accord Appellant adequate medical attention and treatment.

In urging suspension of prescription, Appellant relies upon the doctrine of contra non valentum agere nulla currit praescrip-tio which holds that prescription does not run against a person unable to bring an action. In this regard, Appellant relies heavily upon the fact that since his alleged injury, he has been in confinement under the supervision and control of the Department of Corrections, whose negligence as-sertedly amounts to gross fault and is the cause of his subsequent inability to bring his action.

In Israel v. Smith, 302 So.2d 392 (La.App. 3d Cir. 1974), it is recognized that there is neither statutory nor jurisprudential authority to support the rule that prescription on a claim is interrupted if a defendant negligently causes a plaintiff’s mental incapacity.

The doctrine of contra non valentum has been given limited application in this state. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970).

Our jurisprudence also holds that the doctrine in question is inapplicable to mental incapacity resulting from feeble-mindedness. Perrodin v. Clement, 254 So.2d 704 (La.App. 3rd Cir. 1971). Neither does it apply to an irrational plaintiff. Gaspard v. Liberty Mutual Insurance Company, 243 So.2d 839 (La.App. 3rd Cir. 1971). More pertinently, our courts have held that institutionalization does not suspend the running of prescription until the institutionalized party has been formally interdicted. Buvens v. Buvens, 286 So.2d 144 (La.App. 3rd Cir. 1973). See also Vance v. Ellerbe, 150 La. 388, 97 So. 735 (1922).

Our jurisprudence does recognize two instances when the doctrine urged by Appellant may be utilized to suspend the running of prescription. These are when the cause of action has not manifested itself with sufficient certainty to be susceptible of proof in a court of justice, and when defendant has concealed information or deceptively lulled plaintiff into inaction. McClendon v. State, Through Department of Corrections, 357 So.2d 1218 (La.App. 1st Cir. 1978); Brown v. State, Through Department of Corrections, 354 So.2d 633 (La.App. 1st Cir. 1977); Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La.App. 1st Cir. 1970).

Appellant’s action, being one in tort, must be instituted within one year of the commission of the offense unless prescription has been suspended or interrupted. LSA-C.C. Article 3536.

Since no action was instituted by Appellant within one year of June 18, 1972, his cause of action has prescribed on its face. Article 3536, above.

When an action is prescribed on its face and plaintiff relies upon an interruption or suspension of prescription, plaintiff bears the burden of establishing the alleged interruption or suspension. Hunter v. Sisters of Charity of Incarnate Word, 236 So.2d 565 (La.App. 1st Cir. 1970) and authorities cited therein.

Apparently the plea of prescription filed herein was tried on the face of the pleadings. The record is barren of proof of any of the allegations made by Appellant. Appellant did not testify either in person or by deposition. Neither did he offer any prison or hospital records or the testimony or deposition of any other witness to prove even a single allegation. Interrogatories propounded by Appellant resulted in answers filed by defendants to the effect that there is no prison hospital record of Appellant having received medical treatment at the prison hospital. We do find of record an affidavit by an acquaintance of Appellant in support of Appellant’s motion to be allowed to sue in forma pauperis. This affidavit states simply that Appellant is an inmate of the state penitentiary.

Based on the foregoing affidavit, we conclude that Appellant is an inmate of the penitentiary at all times pertinent herein. This fact alone, however, is insufficient to interrupt or suspend the running of prescription on Appellant’s claim. Buvens v. Buvens, above. Assuming, solely for argument’s sake, that Appellant’s joinder in the federal class action on June 25,1974, constitutes bringing an action on his claim, said action was instituted more than one year subsequent to June 18,1972, and was therefore untimely. It follows that Appellant’s action has prescribed.

LSA-C.C. Article 3460 provides that a litigant may not renounce a prescription before it has run, but that prescription may be renounced once it has run.

LSA-C.C. Article 3461 states that:

“Such renunciation of prescription is either express or tacit.
A tacit renunciation results from a fact which gives a presumption of relinquishment of the right acquired by prescription.”

Relying upon Foster v. Breaux, 263 La. 1112, 270 So.2d 526 (1972), Appellant argues that defendants’ failure to plead prescription in the federal court suit, together with the stipulation entered into therein, constitutes a tacit waiver by defendants of prescription which had accrued, in the event this court determines that prescription had in fact run. We disagree with this premise.

It is well settled jurisprudence that a renunciation of accrued prescription takes place only when intent to renounce is manifest from either the words or actions of the party in whose favor prescription has run. Moreover, such an acknowledgment must be clear, direct and absolute. Torrey v. Simon-Torrey, Inc., 284 So.2d 130 (La.App. 3rd 1973); Succession of Brower v. State, 80 So.2d 217 (La.App. 2d Cir. 1955); H. J. Cottam & Co. v. Raphael, 198 So. 513 (La.App. 1st Cir. 1940).

Considering the nature of the Brown action in which the stipulation was made, the language of the stipulation does not evince a clear, direct and absolute intent to renounce acquired prescription as to the claims of all parties plaintiff therein. On the contrary, we are of the view that defendant entered into the stipulation to mitigate, as far as plaintiffs in the Brown suit were concerned, the effect of LSA-C.C. Article 3519, which provides that the interruption of prescription resulting from filing an action, as provided for by LSA-C.C. Article 3518, does not apply when plaintiff voluntarily abandons his action, because in the event of such abandonment the interruption is considered as having never happened. See Franklin v. Insurance Company of North America, 284 So.2d 158 (La.App. 3rd Cir. 1973).

The details of the Brown action in the Federal Court are not of record herein. It is stated that the action was a class action. Presumably, numerous plaintiffs asserted actions therein which may or may not have prescribed before they were pursued in that action. With respect to those plaintiffs whose actions had not prescribed, the stipulation in question was necessary because the interruption of prescription by filing that suit would have been nullified by the voluntary dismissal of that action. Thus, plaintiffs who may have timely joined in said action would have lost their cause of action if the stipulation had not been made by defendants and if the prescriptive period on their claims would have expired between the time they joined in the action and the time that the action was voluntarily dismissed. We believe defendants intended the stipulation to mean that any suspension or interruption resulting from the filing of the Federal Action would be honored and recognized by defendants in a subsequent action, LSA-C.C. Article 3519 notwithstanding. We see nothing to indicate that defendants intended to renounce the benefit of any prescription which accrued in their favor.

Failure of defendants to urge a plea of prescription in their federal suit does not influence or affect our determination that no renunciation of prescription was intended herein. A plea of prescription may be filed at any stage of a proceeding, even on appeal. Gulotta v. Cutshaw, 283 So.2d 482 (La.1973); Moreau v. Falgout, 304 So.2d 429 (La.App. 1st Cir. 1974).

Without citation of authority, Appellant contends that failure to plead prescription in a federal action constitutes a waiver of such a defense in a. subsequent state action. We find this position without merit and decline to so hold.

Our review of Foster v. Breaux, supra, does not disclose, as contended by Appellant, that the holding therein is dispositive of the issue of renunciation. Foster involved a suit for slander, which action was filed in a court of improper venue. Service was made on defendant after the prescriptive period of one year had expired. Defendant filed an exception to the venue after a preliminary default had been entered. On appeal, the matter was remanded to the trial court and defendant entered a plea of prescription. The Supreme Court held in Foster, above, that prescription had not run because, under the circumstances, prescription had been interrupted by the filing of a suit, even though the venue was not proper. In effect the court held that mere filing of a suit in an improper venue will interrupt prescription where venue is waived and the venue becomes proper before a plea of prescription is entered. As we understand Foster, above, it did not hold that prescription in such instances is waived but rather that prescription is interrupted and has not run. We are of the view that Foster, above, should be limited to its peculiar facts which do not pertain herein.

The judgment of the trial court is affirmed at Appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    NORTH CENTRAL UTILITIES, INC., Plaintiff-Appellant, v. Norris SARVER et al., Defendants-Appellees.
    No. 6757.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 16, 1979.

      Guerriero & Placke by Joseph D. Guerrie-ro, Monroe, for plaintiff-appellant.
    McClain, Morgan & Greenwald by R. Scott McClain, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Plaintiff, North Central Utilities, Inc., has appealed from a trial court judgment dismissing its claims against defendants, Norris and Richard Sarver, d/b/a Sarver Industries, (hereafter “the Sarvers”), for alleged breach of a construction contract.

North Central undertook to build a sewer system in an Alexandria subdivision known as Quail Creek Estates for the Sarvers. North Central contends that the contract required the Sarvers to transfer the completed sewer and water facilities to North Central’s subcontractor, H & H Sewer Systems, Inc., and that the Sarvers breached the contract by transferring the facilities to the City of Alexandria instead. The contract price was $196,926.69, and the Sarvers retained $19,692.67. North Central asked damages and the retainage. The Sarvers reconvened against North Central and filed a third party demand against H & H.

The trial court concluded that there was no agreement for transfer of the utility systems to H & H and that North Central had not carried the burden of proving that payment of the retainage was due. Judgment was rendered rejecting the demands of North Central and the reconventional and third party demands of Sarver Industries.

A second suit, H & H Sewer Systems, Inc. v. Richard A. Sarver, et al., La.App., 366 So.2d 972, in which a separate opinion has been rendered this date, was consolidated for trial and appeal. In that suit, H & H asked specific performance; that is, delivery of the sewer and water systems or, alternatively, damages. The Sarvers filed a third party demand against North Central and North Central reconvened against the Sarvers. In La.App., 366 So.2d 972, the trial court dismissed the suit of H & H and the third party demands of the Sar-vers.

North Central has appealed in both suits, and the Sarvers have answered the appeals, asking that the judgments be affirmed or, in the alternative, asking for a credit or offset. North Central contends on appeal that the trial court erred in failing to award damages for the Sarvers’ failure to transfer the sewer and water facilities of Quail Creek Subdivision to H & H; and that the trial court erred in finding that North Central was not entitled to the retainage of $19,692.67.

The issue on appeal is whether there is manifest error in the trial court’s decision, which is largely based on an evaluation of the credibility of the various parties.

It was stipulated that North Central bid on the sewer system and entered into a contract with the Sarvers for its construction; that the contract price was $196,-926.69, which was paid with the exception of retainage of $19,692.67; that H & H was the true party at interest in the agreement and North Central was to receive 11% of the price to make the bid because H & H was unable to secure bonding; that H & H entered into a separate contract with the Sarvers for construction of the water system for Quail Creek; and that all but $5,754.26 was paid on the water system contract. It was further stipulated that demand for transfer of the water and sewer systems to H & H was made by both North Central and H & H, but the Sarvers failed to make the transfer. It was also stipulated that the mortgage holder, First Federal Savings & Loan Association, had foreclosed on the Quail Creek project, which is no longer owned by the Sarvers; that the Sar-vers do not own the water and sewer systems; and that other bids on the Quail Creek sewer system were as follows:

Roland Construction Company $381,763.60
Bud Construction Company $394,692.00
Hooter Brothers Company $393,115.00
Courtney Construction Company $415,742.30

It was stipulated that these bids did not include any provision about ownership of the sewer and water systems.

The main source of contention is certain handwritten language noted on the bid submitted by North Central for construction of the sewer system, as follows:

“Contract and proposal is based on H & H Sewer Systems, Jonesville, La. becoming owner and operator of Sewer & Water Facilities and becomes part of this contract. Bobby L. Lawrence.”

Bobby L. Lawrence is president of North Central. The contract form itself is signed by Richard Sarver on behalf of Sarver Industries and by Lawrence on behalf of North Central and does not include the above language. This language is also not contained in the water system contract between the Sarvers and H & H. (Joint Exhibit # 3).

Louis J. Daigre Associates were consulting engineers for the sewer project. Larry O’Hearn Matthews, an employee of Daigre, was project engineer. Matthews testified that the 10% retainage was withheld because sewer project construction stopped and the certificate of acceptance was never filed.

Kenneth Hudnall, a utility contractor and utility operator associated with H & H, testified that a mutual friend told him the Sarvers were having trouble getting acceptable bids for Quail Creek’s sewer and water systems. Hudnall contacted the Sarvers about building those systems and advised them that he was licensed by the State of Louisiana to operate utilities. H & H entered into a negotiated contract for construction of the water and sewer systems. This first contract called for construction of both systems for a total price of about $243,528.63. (TR. 158). Hudnall testified that his actual cost on the project was $330,000 and he had intended to make up the difference through ownership of the water and sewer systems. The sewer contract was later voided because of inability to work out bonding and North Central undertook the contract on behalf of H & H. Some doubt is cast on Hudnall’s testimony by Exhibit Sarver-2, which was signed by Hudnall on behalf of H & H Sewer Systems, Inc., by Richard Sarver, and by the Alexandria Utility Commissioner. It provides that:

“. . such facilities [water distribution] shall become unconditionally the singular property of the City of Alexandria for the use and benefit of Council, and by these presents DEVELOPER-CUSTOMER has GRANTED, SOLD AND CONVEYED and does hereby GRANT, SELL AND CONVEY unto the City of Alexandria for the use and benefit of the City of Alexandria, its successor and assigns, all rights, title, and interest in an (sic) to said water mains, fire hydrants and appurtenances hereinabove identified or which may hereafter be installed to provide water service within the said property, to the end that full ownership and control of all water mains, fire hydrants, and appurtenances that serve the said subdivision or property of DEVELOPER-CUSTOMER, shall be vested forever in the City of Alexandria for the use and benefit of the Water Department, City of Alexandria, and City Council of the City of Alexandria, its successors, and assigns. As a consideration therefore, Council obligates itself to render water service through all such facilities and to perform all maintenance and replacement requirements in accordance with the ‘ “Regulations” ’ and Ordinances of the City of Alexandria.” (Sarver-2, p. 8).

Hudnall identified his signature on this document but did not recall signing the instrument. Hudnall admitted that Louis (Jake) Daigre of the engineering firm had told him he might have difficulty in trying to own and operate the sewer and water systems.

Bobby Lawrence of North Central testified that he was unaware of the existence of Sarver-2 prior to its introduction into evidence. He would not have given permission for Hudnall to execute Sarver-2 had he been aware of it. It is difficult to determine from the testimony the nature of North Central’s interest in the transfer to H & H. It is clear that there were various credits and transactions between North Central and H & H; they had worked together on other projects. Lawrence testified that, as guarantor on the sewer contract, he was interested in H & H receiving the added consideration of the water and sewer systems but his pecuniary interest is not otherwise specified.

Richard Sarver testified that he had never had any objection to H & H owning the water and sewer systems for Quail Creek as long as H & H could do so consistent with various government guidelines and regulations. However, he did not consider the transfer a condition of the contracts.

Under all the circumstances, as outlined above, the trial court correctly found that the parties did not have a meeting of the minds about the eventual disposition of the water and sewer systems. Hud-nall’s execution of the agreement transferring the water system to the City of Alexandria would constitute a waiver of any claim by H & H to the water system. It is clear from the evidence that the water and sewer systems were regarded as one entity. Execution of the transfer to the City by Hudnall on behalf of H & H and by Richard Sarver shows that the parties did not intend ownership of the sewer and water systems to be additional consideration in the contracts for their construction.

North Central did not carry its burden of proving entitlement to the additional sum claimed under the contract for construction of the sewer system. H & H has not appealed from the judgment dismissing its claims, which is final as to H & H.

The answers to the appeals ask only alternative relief if the judgments below are reversed or amended and need not be considered in view of our disposition of the appeals.

For the foregoing reasons, the judgment of the trial court herein is affirmed at the cost of the plaintiff-appellant, North Central Utilities, Inc.

AFFIRMED.

      . The judgment makes no disposition of North Central’s reconventional demand against the Sarvers. The demands urged in that pleading are identical with those urged by North Central against the Sarvers in our docket No. 6757 (trial docket No. 93,305). The judgment in No. 93,305 (our No. 6767) effectively disposes of the reconventional demand in trial docket No. 93,414 (our No. 6758). No issue has been made of the technical omission and a remand would be pointless.


text:
    H & H SEWER SYSTEM, INC., Plaintiff-Appellee, v. Norris SARVER, et al., Defendants-Appellees.
    No. 6758.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 16, 1979.
    Guerriero & Placke by Joseph D. Guerrie-ro, Monroe, for plaintiff-appellee.
    McClain, Morgan & Greenwald by R. Scott McClain, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

North Central Utilities, Inc., a third party defendant and plaintiff in reconvention, has appealed from a trial court judgment dismissing the demands of plaintiff, H & H Sewer Systems, Inc., and the reconventional and third party demands of defendants, Norris Sarver and Richard Sarver, d/b/a Sarver Industries. For the reasons assigned in North Central Utilities, Inc. v. Sarver et al., 366 So.2d 968, the judgment of the trial court herein is affirmed at the cost of appellant, North Central Utilities, Inc.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    AUDUBON INSURANCE COMPANY v. PARISH OF EAST BATON ROUGE et al.
    No. 12346.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    John V. Parker, Baton Rouge, counsel for plaintiff-appellant Audubon Insurance Co.
    Joseph F. Keogh, Parish Atty., Fred G. Benton, Jr., Baton Rouge, counsel for defendants-appellees Parish of East Baton Rouge and the Parish Council.

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

This is a suit by a taxpayer of East Baton Rouge Parish, Louisiana, for a refund of ad valorem taxes paid under protest. Plaintiff contends that the ordinance levying the tax is invalid, null and void in its entirety, or in the alternative, that it is invalid, null and void to the extent that the tax levied exceeds five mills. The defendants, Parish of East Baton Rouge and the Parish Council of the Parish of East Baton Rouge, filed a peremptory exception of prescription under the provisions of Art. 6, § 35(A) La.Const. (1974) and La.R.S. 39:513. The trial court sustained the exception and dismissed plaintiff’s suit. Plaintiff has appealed.

The facts are not in dispute. The Parish Council of the Parish of East Baton Rouge created a consolidated garbage district and called an election to authorize the levying of an ad valorem tax of ten mills upon all property located therein for a period of ten years. On April 3, 1976, a tax election was held in the district on two propositions. Proposition number one levied a five mill tax for garbage collection and disposal services. A second proposition levied an additional five mills for the purpose of paying the cost of a second garbage collection each week. Each proposition received a majority of the votes cast. The election returns were promulgated by the parish council on April 14, 1976, and published in the official journal of the parish on April 19, 1976.

During the latter part of 1976, plaintiff received its notice from the sheriff and ex-officio tax collector showing that a tax in the amount of ten mills had been assessed upon its property located in the consolidated garbage district. On December 29, 1976, plaintiff paid, under protest, that portion of the ad valorem tax levied for 1976 in the garbage district, and on January 17, 1977, filed this suit.

Subsequently, on April 13, 1977, the Parish Council for the Parish of East Baton Rouge adopted Ordinance No. 4996 which levied a tax of 9.18 mills upon all property in the garbage district. Plaintiff followed the same pay under protest procedure and filed a supplemental petition on January 18, 1978, to which the defendant again filed a peremptory exception of prescription.

On appeal the plaintiff alleges the following specifications of error:

“1. The District Court erred in concluding that the provisions of Section 35 of Article 6 of the the 1974 Constitution and L.R.S. 18:1294 are clear and free from ambiguity.
2. The District Court erred in holding that the predecessor provisions of Section 35 of Article 6 of the 1974 Constitution were construed so as to prohibit the institution of suits to contest maintenance tax elections, as well as bond elections.
3. The District Court erred in concluding that the provisions of Section 35 of Article 6 of the 1974 Constitution and L.R.S. 18:1294, as construed by the District Court, do not conflict with the provisions of the Fourteenth Amendment of the U.S. Constitution.
4. The District Court erred in concluding that a taxpayer, paying ad valorem taxes under protest and filing suit for their recovery, as authorized by L.R.S. 47:2110, must bring the action within sixty days of the promulgation of the results of a special maintenance tax election.
5. The District Court erred in sustaining the exception of prescription.”

Initially, we must resolve the apparent conflict between Article 6, § 35(A) La. Const. (1974) and La.R.S. 39:513 providing for a 60 day peremptive period and the 30 day peremptive period provided provided by La.R.S. 47:2110.

The trial judge held Article 6, § 35(A) La.Const. (1974) was applicable and dismissed plaintiff’s suit. Plaintiff argues that by reference to the transcript of the constitutional convention, the intent of the delegates was to limit the application of Article 6, § 35(A) La.Const. (1974) to bonds. It is further argued by plaintiff that since La.R.S. 39:513 is merely a legislative reenactment of Article 6, § 35(A) La.Const. (1974) the same interpretation must apply, and thus, since the election in question did not involve bonds, the only peremptive period applicable is that found in La.R.S. 47:2110.

Conceding arguendo that after studying the constitutional convention debates we were to conclude that Article 6, § 35(A) La.Const. (1974) was only intended to apply to bonds, we do not find that this controls our interpretation of La.R.S. 39:513.

At the time of the election, April 3,1976, and the filing of this suit, January 17, 1977, the applicable law was that enacted by the legislature as Act 18 of 1975, Extraordinary Session. Act 18 repealed Part II of Chapter 4 of Title 39 of the Louisiana Revised Statutes of 1950 and established a uniform procedure for the conduct of elections to authorize the issuance of bonds, the assumption of indebtedness, and imposition or increase of taxes by political subdivisions. Though Act 18 repealed Part II of Chapter 4 of Subtitle II of Title 39, it did not reenact and renumber those repealed sections of Title 39. This, however, was accomplished under the authority of La.R.S. 24:253, and §§ 1 to 14 of Act 18 were designated La.R.S. 39:501 to 514. Thus, we reach the same result as if the legislature in enacting Act 18 had merely amended and reenacted Part II by repealing the then existing language and inserting the Act 18 language with appropriate revised statute section numbers.

In attempting to understand the intent of the legislature in the enactment of La.R.S. 39:513, it is necessary that we look not only to the language of the statute, but also to its relationship with other sections in the same area of the revised statutes.

Title 39 of the Louisiana Revised Statutes is entitled Public Finance. It is subdivided into two subtitles, Subtitle I- — State Finance and Subtitle II — Local Finance. La. R.S. 39:513 is found under Subtitle II, Local Finance, in Chapter 4, Bonded Indebtedness and Special Taxes. Chapter 4 is further subdivided into twelve parts. We note that Chapter 4 does not deal exclusively with bonds or bonded indebtedness, but also authorizes the calling of elections to impose special taxes, and special taxes in aid of specified enterprises. Thus, we must conclude that Part II of Chapter 4 which is entitled Elections, governs any election authorized under Subtitle II, Chapter 4 of Title 39, as well as those statutes making reference to this Part. See La.R.S. 33:8004. This would include elections to authorize the issuance of bonds as well as elections imposing special taxes. Necessarily then the legislature must have intended that La. R.S. 39:513 apply to elections other than bond elections.

Though we have concluded that La.R.S. 39:513 is applicable to tax elections, it still remains for this court to resolve the apparent conflict between La.R.S. 39:513 and La. R.S. 47:2110.

The legislature certainly never intended to provide two separate and distinct per-emptive statutes providing different time periods within which to attack the same tax. Obviously, these statutes were never intended to apply to the same tax; otherwise, havoc would reign and there could be no certainty as to which peremptive period would apply. We, therefore, conclude that La.R.S. 47:2110 was intended to apply to those taxes levied under authority granted the state or political subdivision by the legislature or by the constitution. There is no mention made in La.R.S. 47:2110 of a tax authorized by an election, and thus we find a distinction. Since the tax in this case was authorized by an election, the applicable peremptive period is that provided by La. R.S. 39:513.

Plaintiff argues that it would be in violation of the provisions of the Fourteenth Amendment of the United States Constitution to prohibit a constitutional challenge to the tax authorized. We disagree. In McLavy v. American Legion Housing Corporation, 227 La. 300, 79 So.2d 316 (1955) our Supreme Court held under similar legislation that the validity of the election is conclusively presumed after the 60 day period has expired, and this included constitutional attacks. Indirectly the United States Supreme Court has approved Louisiana’s 60 day peremptive period in Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

APPENDIX A

Act 18 of 1975, Extraordinary Session provides:

AN ACT

To implement Article VI, Section 22 of the Louisiana Constitution of 1974 to establish a uniform procedure for the conduct of elections to authorize the issuance of bonds, the assumption of indebtedness, and imposition or increase of taxes by political subdivisions as defined herein; and to repeal Part II of Chapter 4 of Title 39 of the Louisiana Revised Statutes of 1950.

Be it enacted by the Legislature of Louisiana: Section 1. Statement of purpose; definitions

The purpose of this Act is to implement Article VI, Section 22 of the Louisiana Constitution of 1974 by establishing a uniform procedure for the conduct of elections to authorize the issuance of bonds, the assumption of indebtedness and the imposition or increase of taxes by political subdivisions. The following provisions relating to the procedure for elections shall apply to and shall supersede those provisions of the Louisiana Constitution of 1921 continued as statutes under the authority of Part II of Article XIV of the Louisiana Constitution of 1974 and existing laws of the state of Louisiana, notwithstanding any contrary provisions contained therein. However, nothing contained in this Act shall repeal the limitations in effect on January 1, 1975, on the authority of political subdivisions to impose or increase taxes.

For purposes of this Act, the term “political subdivision” means state agencies, boards, or commissions, parishes, municipalities, school boards and districts, levee boards and districts, port boards and commissions, port, harbor, terminal and industrial districts, and all special service districts, including but not limited to, road, water, sewerage, fire protection, recreation, gas utility and garbage districts and all other boards, districts or units of local government authorized by law to conduct elections for the issuance of bonds, the levying of any tax or the assumption of indebtedness.

Section 2. Elections

In all cases in which the provisions of the Louisiana Constitution of 1974, as now existing or hereafter amended, or of law, as now existing or hereafter amended or enacted, require the approval of voters at an election in a political subdivision as a prerequisite to the issuance of bonds, levying of any tax, or assumption of indebtedness by said political subdivision, the election shall be held substantially in accordance with the general election laws of the state of Louisiana, except that the election shall be called, conducted, canvassed, promulgated and notice thereof given by the governing authority of the political subdivision in accordance with the procedures hereinafter set forth. The governing authority of the political subdivision may call a special election for any of these purposes at any time, and it shall call an election for any of these purposes when requested to do so by the petition in writing of one-fourth of the electors qualified to vote at an election.

Section 3. Resolution calling election; proposition

The election shall be ordered by a resolution of the governing authority of the political subdivision which shall state the purpose for which it is called.

If the purpose of the election is to authorize the issuance of bonds, the resolution and the proposition submitted to the voters shall state the purpose for which the bonds are to be issued, and, if required by the law pursuant to which the bonds are issued, the maximum amount of the bonds to be issued, the number of years for which the bonds are to run and the maximum rate of interest of the bonds.

If the purpose of the election is to authorize the levy of special tax, the resolution and the proposition submitted to the voters shall state the rate, object, and purpose for which the tax is to be levied and, if it is to be limited as to duration, the number of years it is to run.

If the purpose of the election is to authorize the assumption of indebtedness, the resolution and the proposition submitted to the voters shall state the amount and nature of the debt to be assumed.

Section 4. Notice of Election

Notice of the election shall be given embracing substantially all matters required to be set forth in the resolution ordering the election, and shall further state that the governing authority of the political subdivision ordering the election will, in open session, at the hour and place named, proceed to canvass the returns and declare the result of the election. The notice shall be published once a week for four consecutive weeks in a newspaper of general circulation in the political subdivision; or if there is none, then in a newspaper of general circulation in the parish; or if there is no newspaper of general circulation in the parish, then in a newspaper of general circulation in an adjoining parish. Not less than thirty days nor more than ninety days shall intervene between the date of the first publication and the date of the election.

Section 5. Polling places; election officers

The governing authority of the political subdivision ordering the election shall designate the polling places, provide the voting machines and compiled statement of qualified voters and fix the compensation of the election officers. It shall appoint for each polling place, three commissioners and one clerk of election, all of whom shall be qualified electors. To reduce expenses of holding the election, said governing authority may combine two or more regular voting precincts into a single polling place located at such place as may be designated by the governing authority, provided that notice thereof is given in the publication required by Section 4 of this Act.

Section 6. Election officers; substitutes

If any commissioner or clerk of election is unable, or if he fails or neglects to attend or serve at the polling place designated, at the hour fixed for opening, or within one hour thereafter, the commissioners present shall appoint, or in the absence of all commissioners the voters present shall elect the necessary number of commissioners and clerks, who shall have the same powers, compensation and duties as other commissioners and clerks and shall serve in the place and stead of the absentee or delinquent appointees.

Section 7. Election officers; oaths

Commissioners and clerks of elections, before opening the polls, shall be sworn to perform all the duties incumbent on them as such, the oath to be taken before any officer authorized to administer oaths, or by the clerk, and each commissioner before any other commissioner. The commissioners of election may administer any oath and receive any affidavit provided for in this Act.

Section 8. Penalty for violations

The commissioners and clerks of elections held under the provisions of this Act shall have the same powers and duties in conducting the elections and in preserving order at the polls as are conferred and imposed upon similar officers under the general election laws of this state. Whatever is declared in the general election laws to be a felony, other crime , or misdemeanor, shall be the same for any election held under the provisions of this Act and shall be punished in the same manner.

Any willful failure or neglect to comply with the requirements of this Act or any willful violation of any officer, agent or employee of any political subdivision availing itself of the provisions of this Act shall be punished by a fine of not less than twenty-five dollars nor more than five hundred dollars or by imprisonment not exceeding one year, with or without hard labor, or by both fine and imprisonment.

Section 9. Qualification of voters

All qualified electors of the political subdivision shall be entitled to vote in an election on the issuance of bonds, levying of a tax or assumption of indebtedness by the political subdivision and such bonds may be issued, such tax levied or indebtedness assumed if approved by a vote of a majority in number of the qualified electors voting on the proposition at such election as is provided in this Act. No voter shall be required to sign a ballot or vote assessed valuation of property.

The registrar of voters shall furnish to the election commissioners appointed to hold the election the precinct register for each precinct or polling place. No defect or irregularity in or omission from the register so furnished shall affect the validity of the election unless it be established that the voters were thereby deprived of votes sufficient in number to have changed the result of the election.

Section 10. Voting

Voting machines shall be used and the general election laws of this state shall govern the conduct of the voting, except as otherwise provided herein.

Section 11. Canvass of returns

On the date and at the hour and place named in the notice of election, the governing authority ordering the election shall in public session examine and canvass the returns, and declare the result of the election. The result shall be promulgated by one publication in a newspaper of general circulation in the political subdivision, or if there is none, in a newspaper of general circulation in the parish, or if there is no newspaper of general circulation in the parish, then in a newspaper of general circulation in an adjoining parish.

Section 12. Proces verbal

The governing authority ordering the election shall preserve a proces verbal of the canvass and shall forward a copy to the secretary of state, who shall record it; another copy shall be forwarded to the clerk of the district court, who shall record it in the mortgage records; and the remaining copy shall be retained in the archives of the office of the governing authority ordering the election.

Section 13. Contests

For sixty days after promulgation of the results of an election held under this Act to incur debt, issue bonds, levy a tax or assume debt, any person in interest may contest the legality of the election, the bond issue provided for, the tax authorized or the assumption of indebtedness for any cause. After that time, no one shall have any cause or right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever. If the validity of any election, tax, debt assumption, or bond issue authorized or provided for is not raised within the sixty days, the authority to incur or assume debt, levy the tax, or issue the bonds, the legality thereof, and the taxes and other revenues necessary to pay the same shall be conclusively presumed to be valid, and no court shall have authority to inquire into such matters.

Section 14. Special election to increase interest rate

Any parish, municipality or other political subdivision of the State of Louisiana in which a special election has been held, at which election the issuance of bonds of said political subdivision has been approved and a maximum rate of interest to be borne by said bonds has been established, may through the respective governing authority thereof, call and hold a special election to authorize the issuance and sale of such bonds at a maximum rate of interest greater than that rate specified in the proposition or propositions previously approved. However, such greater maximum rate of interest so submitted for approval shall not exceed the maximum rate of interest then permitted by the applicable laws of the State of Louisiana for that type of bonds described in the aforesaid proposition or propositions.

Any election called and held hereunder shall be held and conducted under the same legal authority under which the previous election was held and conducted unless such laws have since been amended, in which event said election shall be held and conducted in accordance with the laws of the State of Louisiana then in effect with respect to the holding and conducting of special elections to authorize the issuance of such bonds. Any election held and conducted hereunder shall have no effect other than to permit the issuance and sale of said bonds at a maximum rate of interest greater than that approved at said previously held election.

Notwithstanding any provision of this act to the contrary, the authority to issue any bonds approved in prior bond elections shall remain in full force and effect.

Section 15. This Act shall become effective upon signature by the governor or, if not signed by the governor, upon expiration of the time for bills to become law without signature by the governor, as provided by Article III, Section 18 of the constitution.

Section 16. Severability

If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.

Section 17. Repeal

All laws or parts of laws in conflict herewith, particularly the provisions of Part II of Chapter IV of Title 39 of the Louisiana Revised Statutes of 1950, are hereby repealed.

      . For full text of Act 18 of 1975, Extraordinary Session, see Appendix A of this opinion.

      . Part I: General Provisions, Part II: Elections, Part III: Bonded Indebtedness, Part IV: Special Taxes, Part V: Borrowing in Anticipation of Tax Collections, Part VI: Special Taxes in Aid of Specified Enterprises, Part VII: Federal Loans, Part VIII: State Control of Local Indebtedness, Part IX: Registry of Bonds, Part X: Participating Certificates, Part XI: Lost, Destroyed or Cancelled Bonds, and Part XII: Bonds to Acquire Plant Sites.


author: ELLIS, Judge:

text:
    Walter J. DUGAS, Jr., Appellee, v. Julia Faye Richard DUGAS, Appellant.
    No. 12359.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Aubrey L. Moore, Glusman, Moore, Lopez & Wilkinson, Baton Rouge, for plaintiff-ap-pellee.
    Fred H. Belcher, Jr., Baton Rouge, for defendant-appellant.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

Walter J. Dugas, Jr. obtained a divorce on the ground of adultery from his wife, Julia Faye Richard Dugas. The evidence showed that Mrs. Dugas had sexual relations with Charles Salemi in her apartment on a number of occasions when the two minor daughters of the parties hereto were also in the apartment.

After awarding a divorce to Mr. Dugas, the court gave custody of the two minor children to Mrs. Dugas. He found that she had been a good mother, other than her “moral problem”, but expressed grave reservations as to her relationship with Mr. Salemi. He therefore placed the following condition on the grant of custody:

“. . . the relationship with Mr. Sale-mi should not go on in the presence of the children. If she wishes to marry him, that will be a different situation altogether but the Court would, for whatever it’s worth, this is, simply to point out that a twenty-nine year old mother with two children and while Charles Salemi may have been a friend in a rough time, he is, from all testimony adduced here today a totally irresponsible child in a lot of ways. He has broken up a marriage, or helped break up a marriage, which was rocky probably before he ever came along. He just might have been a good excuse, I don’t know, but it was convenient and it does not speak well for mother’s stability. A mother of two children who is trying to earn a living so she can — get an education so she can earn a living to help take care of those children — to be bouncing around with a twenty-two year old. Lady, he’s a little too young.
“Those are my comments, they are on the record for whatever they are worth. The Court will condition the continued custody in the mother — care, custody and control in the mother — upon the fact that the relationship is carried on away from the children and by the relationship I mean dating, the rest of it at this point in time.
“. . . Again, if this relationship is continued around that apartment I expect him to refile and I expect to give him custody.” '

The judgment which was signed contained the following condition:

“Julia Faye Richard Dugas will not visit with or entertain Charles Salemi at any time or in any way at her domicile or in the presence of the aforesaid minor children.”

After the divorce, Mrs. Dugas continued to see Mr. Salemi, and to have occasional sexual relations with him, although away from the presence of the children. She testified that neither of them was interested in marriage. Although he had been warned by Mrs. Dugas’ attorney to stay away from her apartment, Mr. Salemi frequently acted as a baby sitter for the two girls, and saw them frequently. He also occasionally furnished transportation to Mrs. Dugas and the children, when she was having car trouble.

Mr. Dugas then brought this rule to have the custody changed on the ground that Mrs. Dugas had violated the condition placed on her by the judge. At the hearing, Mrs. Dugas testified that the children had seen Mr. Salemi on a regular basis since the divorce; that she thought he was a good influence on her daughters; and that she wanted the restriction on her relationship with him lifted by the court. She further testified that she understood the conditions imposed by the court to mean that she and Mr. Salemi were never to be together in the presence of the children.

At the conclusion of the trial of the rule, the trial judge said:

“At this time for the reasons stated earlier and are reurged or restated at this time;
“That Mrs. Dugas was warned, she was warned in Court, she was warned by counsel, she was warned by the Judge, the Court did not attempt to, at that time, tell her who she could date or who she could have around the children. The Court simply told her no illicit or no sexual relationships in front of the children with other men and that Mr. Sale-mi — the exception was made with him that he was not to be around the children at all as the paramour and this was the only condition upon which she was allowed to retain custody of the children. “This order was violated flagrantly. The Court thinks that rather than it being contumacious and deliberate, the Court thinks that she simply managed to convince herself that this was — despite all and everything to the contrary — that this course of conduct of her was perfectly okay. .
“The Court at this time will grant to the father the care, custody and control of his minor children, born of the marriage, subject to the same extensive and liberal visitation rights that the Court granted to the mother previous to this, however, with the one limitation, that those visitation rights shall be carried out in the absence of Mr. Salemi.”

Judgment was signed transferring custody to Mr. Dugas and Mrs. Dugas has appealed. In this court, it is argued that the trial court erred in not requiring a heavier burden of proof of Mr. Dugas, and in finding that Mrs. Dugas had violated the conditions placed on her when the custody award was made.

We do not view this as an ordinary custody change case, in which the party seeking the change is subject to a heavy burden of proof. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Monsour v. Monsour, 347 So.2d 203 (La.1977). Rather, we view this case as one in which the judge found at the initial determination that the conditions under which the children were living were not in their best interest. However, he permitted the mother to retain custody, conditioned on her eliminating the circumstance which he found to be deleterious to their welfare. That circumstance was, of course, the association of the mother, and the children, with Charles Salemi.

We agree that the instructions given by the judge, and the condition placed in the judgment are ambiguous. However, the record as a whole affirmatively supports the conclusion of the trial judge that the association with Mr. Salemi, coupled with the attitude of Mrs. Dugas, demonstrates a disregard of conventional morals and the ordinary proprieties on both their parts sufficient to justify placing the children with their father.

Whether Mrs. Dugas misunderstood or misinterpreted the judge’s conditions or not, the fact remains that she has chosen to perpetuate a condition which the trial judge obviously felt was important enough to justify a change of custody. We find no abuse of the broad discretion afforded the trial judge in cases such as this one.

The judgment appealed from is therefore affirmed, at Mrs. Dugas’ cost.

AFFIRMED.


author: BLANCHE, Judge.

text:
    Lipton and Lillian GUIDRY v. CHEVRON OIL COMPANY.
    No. 12360.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      H. Sanders O’Neal, Houma, for petitioners and appellants.
    Lloyd C. Melancon, New Orleans, for defendant and appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiffs, Lipton and Lillian Guidry, filed a petition seeking damages for personal injuries arising out of a boating accident. Defendant, Chevron Oil Company, filed a peremptory exception of prescription which was sustained by the trial court. From this judgment, plaintiffs have appealed.

On June 21, 1976, plaintiffs filed suit, alleging that on June 17, 1974, they were injured when the outboard motor vessel they were operating struck a submerged pipeline in Crook Canal leading into Bay Champagne. It was also averred that Crook Canal is a navigable waterway in the State of Louisiana and that defendant owned or managed the pipeline causing plaintiffs’ injury.

With the foregoing allegations, plaintiffs state that the case presents a maritime cause of action under the savings to suitors clause pursuant to 28 U.S.C.A. § 1333 and prayed for relief under the general maritime law.

Defendant filed a peremptory exception of prescription and other exceptions which are not before this Court, noting that plaintiffs’ petition had been filed one year and eleven months after the accident had occurred. The trial judge sustained the exception and dismissed the suit at plaintiffs’ costs. We reverse and remand.

The trial judge has not favored us with written reasons for his decision, and in the absence of any evidence in the record concerning the lack of navigability of Crook Canal, he must have applied Louisiana’s law of prescription to a maritime personal injury action brought in a state court under the savings to suitors clause. In so doing, he committed an error of law.

In Larios v. Victory Carriers, Inc., 316 F.2d 62 (2nd Cir. 1963), Judge Friendly noted, with respect to the same issue before this Court, the following:

“Since Larios’ claim against Victory Carriers and Onassis Corp. was for an injury on the high seas, the applicable principle with respect to the effect of his delay in bringing suit is laches and not the statute of limitations. This is so whether his suit against these defendants be treated as a libel in admiralty, The Key City, 14 Wall. (81 U.S.) 653, 20 L.Ed. 896 (1872); Gardner v. Panama Railroad Co., 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31 (1951); Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 533-534, 76 S.Ct. 946, 100 L.Ed. 1387 (1956), or as an action on the Taw side’ of the federal court based on diverse citizenship under the saving clause, 28 U.S.C. § 1333(1), as we expressly held in Oroz v. American President Lines, Ltd., 259 F.2d 636 (2 Cir. 1958), cert. denied, 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572 (1959). Indeed, it would also be true if the suit against Victory Carriers and Onassis Corp. had been brought in a state court under the saving clause. For it is now clear that the maritime law controls all ‘substantive’ issues in the disposition of maritime claims regardless of the form or forum of suit. See Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918); Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-411, 74 S.Ct. 202,98 L.Ed. 143 (1953); and see, as to the ‘substantive’ character of rules relating to limitations, Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Judicial recognition of this principle wholly undermined the basis for the rigid application of state statutes of limitation to maritime claims that had been expressed in McGrath v. Panama Railroad Co., 298 F. 303 (5 Cir. 1924) * * (316 F.2d at 65—Emphasis supplied)

Federal courts have repeatedly held that in an admiralty suit state statutes of limitations are not strictly applied; instead, the doctrine of laches controls. E. g. Hill v. W. Bruns & Company, 498 F.2d 565 (2nd Cir. 1974); Oroz v. American President Lines, 259 F.2d 636 (2nd Cir. 1958).

Our brethren in the Fourth Circuit have likewise addressed this issue. In Sewerage & Water Board of New Orleans v. Sanders, 264 So.2d 270 (La.App. 4th Cir. 1972), writ refused, 262 La. 1157, 266 So.2d 443 (1972), that Court said:

“The federal courts have consistently treated the doctrine of laches as a substantive right and have insisted that its application by the state courts is essential to insure uniformity in the judicial administration of maritime law. They maintain in effect that to substitute in lieu of the substantive right of laches, a statute of limitations having a lesser term than would constitute an inordinate delay, would be a deprivation of a substantial admiralty right granted by federal law. While it is permissible for a state statute to supplement federal maritime policies, in doing so it must recognize that the source of the controlling law is national and that it cannot adversely affect any rights created by the dominant federal law. * * * ” (264 So.2d at 272-273)

The Court concluded:

“ * * * Based upon the decrees of the United States Supreme Court in the cases of Pope and Garrett, and their application in the cases of Oroz and Larios, together with the rationale emanating from this Circuit expressed in the Guil-beau and Ferdinandtsen cases, we are constrained to hold that the admiralty doctrine of laches rather than our statute of prescription must be invoked in determining the timeliness in the filing of a maritime tort action in our state courts.” (264 So.2d at 274)

Sanders, supra, was most recently followed in Lavergne v. Western Company of North America, Inc., 346 So.2d 239 (La.App. 4th Cir. 1977), where that Court said:

“ * * * In adjudicating admiralty issues — in this case timeliness of filing suit — Louisiana courts are bound to apply the more liberal federal doctrine. * * ” (346 So.2d at 241)

Defendant argues that the state law of prescription should apply as set down by the United States Supreme Court in Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). However, that case involved the Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1331 et seq., which is not a part of the general federal admiralty or maritime law. See Rodrigue v. Aetna Casualty & Surety Company, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969). We, therefore, find it inapposite and not applicable to the case at bar.

We, therefore, conclude that the trial judge erred in applying Louisiana Civil Code Article 3536, dealing with prescription to the instant case; and for these reasons, reverse and set aside the judgment of the trial court and remand the case for further proceedings in accordance with law. All costs of this appeal are to be paid by defendant-appellee.

REVERSED AND REMANDED.


text:
    L. B. YOUNG d/b/a L. B. Young Realty v. Earl SMITH.
    No. 12370.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Jerry H. Bankston, Baton Rouge, counsel for plaintiff-appellee L. B. Young d/b/a L. B. Young Realty.
    Teddy W. Airhart, Jr., Baton Rouge, counsel for defendant-appellant Earl Smith.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

On May 23, 1977, Ollie Mae Smith and Earl Smith signed a listing agreement with L. B. Young, Realtor, listing their property in North Baton Rouge for sale for the sum of $19,000.00. In the agreement, the owners agreed to pay a commission of seven per cent of the purchase price. The agreement was for a period of four months, and contained the following remarks: “To be sold FHA, VA, conventional or cash Seller to pay prevailing points.” No other provisions as to the terms and conditions of sale are contained in the listing agreement.

Mr. Young obtained two offers to purchase the property for $19,000.00, subject to certain terms and conditions, which were accepted by Mr. and Mrs. Smith. These sales did not go through because of the inability of the purchasers to obtain financing.

On June 25, 1977, Mr. Young obtained an offer to purchase the property for $19,-000.00 from Willie Lee Kidd and Billie Kidd. This offer contained the following conditions:

“100% VA 30 year loan. Purchaser to pay prepaid items, appraisal and credit ck. Seller to pay closing cost, prevailing points, furnish termite citificate (sic) (install new roof removing old roof) (235 shingle) V.A. specs, plumbing, heater, hot water heater to be in good working order at sale.”

Mrs. Smith signed the agreement, but Mr. Smith refused to do so. Mr. Young testified that Mr. Smith told him he “was thinking about chickening out on the deal and to sell it himself to his ex-wife.” Mr. Young stated that Mr. Smith did not ask how much the property sold for or what the conditions of the sale were, and that he just wanted to get out of the listing. He further testified that before the last offer was presented, Mr. Smith had been very anxious to sell the property, and had said that he would pay the closing costs and put a new roof on the house. The record shows that these conditions had been embodied in the two prior purchase agreements, which Mr. Smith had signed.

Mr. Smith, on the other hand, testified that Mr. Young told him what the purchase agreement said, and that he figured that he would make no money on the deal with “all these added expenses that came along after we signed the purchase agreement.” He then refused to sign the agreement. Specifically, Mr. Smith stated that he did not want to pay the closing costs. He also testified that he did not know what conditions were contained in the first two agreements of sale which he signed.

The trial judge was of the opinion that it did not make any difference who was telling the truth. He found that the items that Mr. Smith was to pay under the listing agreement were ordinary costs and charges incident to the sale, and their presence in the purchase agreement would not go beyond the terms of the listing agreement. He held that the broker had fulfilled his obligation of finding a buyer ready, willing and able to purchase on the terms of the listing agreement, and was entitled to his commission.

In the recent case of Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977), the court said:

“It is well-settled that an agreement listing immovable property for sale with a real estate broker need not be in writing. A contract between seller and agent may be made orally or a written contract may be changed orally. Whatley v. McMillan, 152 La. 978, 94 So. 905 (1922); Olympic Homes, Inc. v. Ory, La.App., 207 So.2d 258, writ ref., 252 La. 113, 209 So.2d 41 (1968); Caruso-Goll v. Gallo, La.App., 205 So.2d 57 (1968) and cases cited therein. Likewise, it is well-settled that a sale need not be consummated for an agent to earn his commission. The agent is entitled to his commission when he has secured a purchaser ready, able, and willing to buy on vendor’s terms even though no sale is consummated because of actions of the owner. Peck v. Bemiss, 10 La.Ann. 160 (1855), Strahan v. Weiland, La.App., 216 So.2d 169 (1968); Olympic Homes, Inc. v. Ory, supra.”

The record in this case clearly and affirmatively shows that Mr. Smith had verbally agreed to the conditions contained in the agreement. Mr. Young says he did, and Mr. Smith had already signed two agreements containing the same provision. We are of the opinion that the listing agreement had been orally amended by the parties so as to include the said conditions. Mr. Smith is liable for the commission, since the agent secured a purchaser ready, willing and able to buy on the terms specified in the listing agreement, as orally amended.

The judgment appealed from is affirmed, at Mr. Smith’s cost.

AFFIRMED.


text:
    Frank HARRISON, Jr. v. UNIROYAL, INC. et al.
    No. 12371.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      Glenn P. Marcel, Zachary, of counsel for plaintiff-appellant Frank Harrison, Jr.
    William R. D’Armond, Baton Rouge, of counsel for defendants-appellees Uniroyal, Inc., and James A. Daily.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff, Frank Harrison, Jr., appeals the denial of recovery in his action seeking damages for defamation.

It is alleged that ■ defendants, Uniroyal, Inc., and James A. Daily, defamed Harrison when they filed a separation notice with the Department of Employment Security which stated that he had been “[discharged for misconduct connected with his work (falsification of records).”

Harrison was hired by Uniroyal at its Baton Rouge plant on May 9, 1974. On November 18, 1975, he was injured in a motorcycle accident. On November 24, 1975, Harrison, through his wife, applied for accident and health benefits (hereinafter referred to as “A & S”) under the Unirbyal program. This program was a negotiated benefit, the purpose of which was to provide injured or sick employees with compensation when they had no other means of income. Harrison drew these benefits for the maximum forty-two week period, terminating on November 16, 1976.

In order to continue receiving benefits during that period, Harrison was required to submit periodic status reports from his physician. On July 30, 1976, Uniroyal received a report from Dr. John F. Loupe, Harrison’s physician, which stated in response to the specific inquiry of whether the patient would be able to return to work the following answer: “No: possible 4 months.” Uncontradicted testimony indicated that the above inquiry was the determining factor in whether an employee received A & S benefits.

In August, Harrison offered to return to work but Uniroyal declined, noting that his July 30 status report indicated he was still unable to work and believing he should not work until released by his doctor. After this, Harrison filed a claim for unemployment compensation which was denied. Subsequently, he appealed to Appeals Referee, Dennis Dykes. James A. Daily, the Industrial Relations Manager at Uniroyal who was in charge of all personnel, testified that no one from Uniroyal attended this hearing since they were advised by letter that their appearance was unnecessary. The Referee denied Harrison’s claim.

Harrison sought and obtained review by the Board of Review, which also denied benefits. At some time during this period Harrison obtained for the Department of Employment Security another note dated September 28,1976, from Dr. Loupe’s office indicating he was available as of July 29, 1976, for light duty work. This note was never delivered to Uniroyal and contradicted the July 30 status report in the possession of Uniroyal.

Harrison then sought and received judicial review by the trial court, alleging he was available for work as of July 29, 1976, and therefore was entitled to benefits. Hearing was originally set for December 17, 1976, but was later postponed until January 14,1977. James Daily attended the hearing on December 17, 1976, and was informed that Uniroyal would receive notice of the new trial date. However, the uncontradict-ed testimony of Daily was to the effect that no notice was ever received and no representative of Uniroyal attended the court hearing.

Judgment was rendered in favor of Harrison on January 14,1977, and signed January 27, 1977, reversing the findings of the Board of Review and ordering that unemployment benefits be paid. The trial judge apparently felt that while plaintiff was unable to work at his former position, he was “available for work” under the statute for other types of employment. Daily was unaware of the rendering or reasons for this judgment.

In the meantime, Harrison had returned to work in January of 1977. On February 22, 1977, he received unemployment benefits retroactively, apparently from July 25, 1976. At the same time the corporate office of Uniroyal in Connecticut was contacted and instructed that unemployment benefits had been paid to Harrison. Daily was informed of this by telephone on February 22 or 23, 1977. Daily examined the A & S benefits file on Harrison and noticed there was a four-month overlap between July 25, 1976, and November 16, 1976, where Harrison received both A & S payments and unemployment compensation. Daily became suspicious that a falsification had occurred.

A meeting was held on the morning of February 23, 1977, attended by Daily, who had ultimate authority for hiring and firing all personnel; Glyn D. Harding, Maintenance General Foreman, who was Harrison’s immediate supervisor; and Charles C. LeBlanc, the Labor Relations Supervisor, whose job was to see that discipline was administered fairly. The three men all testified that they reviewed the file, particularly the July 30,1976, status report indicating that Harrison would be unable to work for four months. They also testified that they understood the general rule was that a person had to be able to work in order to receive unemployment compensation, yet one had to be unable to work to receive benefits under the A & S plan at Uniroyal. Therefore, the condition that qualified one for unemployment compensation presumably disqualified one from A & S benefits. Based upon the apparent contradiction, the three men concluded that some falsification must have occurred.

Harrison was then called before the three men and asked to explain the contradiction. Having been unable to explain satisfactorily how he was able to receive both, he was informed that his position with Uniroyal was terminated for falsification of records.

Pursuant to statute, Uniroyal then notified the Department of Employment Security of Harrison’s discharge, setting out the reason as being “misconduct connected with his work (falsification of records).”

In response, Harrison filed this defamation suit seeking $1.34 million. The trial court held, without determining whether the statement was true or false, that the communication was subject to a qualified or conditional privilege. The court found that the defendants acted in good faith and without malice and that there was no evidence of reckless disregard for the truth. The trial court also found the communication was made by a person with interest in the subject matter to another person who had a corresponding interest. Since the communication was privileged, the trial court dismissed Harrison’s action. We affirm.

Plaintiff assigns three specifications of error which all go to the same issue, i. e., that the trial judge erred in finding the defendants acted in good faith.

At the outset, it is important to note that this is not a wrongful discharge case, it is a defamation action. The sole issue is whether defendants’ communication to the Department of Employment Security defamed plaintiff.

Under our law, a person making a statement may enjoy:

“ * * * a ‘qualified’ or conditional privilege, applicable if the communication is made (a) in good faith, (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duty, (c) to a person having a corresponding interest or duty. This privilege arises from the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate.”

Toomer v. Breaux, 146 So.2d 723, 725 (La.App. 3rd Cir. 1962). See also, Boyd v. Community Center Credit Corporation, 359 So.2d 1048 (La.App. 4th Cir. 1978); Alford v. Georgia-Pacific Corporation, 331 So.2d 558 (La.App. 1st Cir. 1976), writ refused, 334 So.2d 427 (1976); Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2nd Cir. 1975); Cormier v. Blake, 198 So.2d 139 (La.App. 3rd Cir. 1967). This privilege was recently held applicable to communications between an employer and the Department of Employment Security in a case quite similar to the one at bar. Boyd v. Community Center Credit Corporation, supra.

Plaintiff claims the trial judge erred in finding that defendants acted in good faith. The test for whether a communication is made in good faith so as to allow defendant to invoke the qualified privilege set forth above was stated in Cormier v. Blake, 198 So.2d 139, 144 (La.App. 3rd Cir. 1967), as follows:

“ * * * [0]ne of the requirements which must be met before a publication is entitled to such a qualified or conditional privilege is that it be made in good faith. This means that the person making the statement must have reasonable grounds for believing that it is true and he must honestly believe that it is a correct statement. A statement is not made in good faith if there is not just or probable cause to believe it is true, or if the person making it does not have reasonable grounds for believing that it is true and he is actuated by malice and ill will. Waldo v. Morrison * * * [220 La. 1006, 58 So.2d 210 (1952)].”

Implicit in the trial judge’s finding that defendants were in good faith is a finding that they honestly believed, and had reasonable grounds for believing, a falsification had occurred and that the communication was not motivated by ill will or malice. It is our opinion that these findings are supported by the evidence.

All three men testified that they did not know the plaintiff personally and did not hold any animosity toward him. All testified that they honestly felt on February 23, 1977, the plaintiff had falsified his A & S status report. They all knew that in order to receive unemployment compensation one must be able to work and all knew that under Uniroyal’s A & S program one can only receive benefits if he is unable to work. Thus, in their minds, the condition that qualifies one for employment compensation disqualifies one for A & S benefits under Uniroyal’s plan. The decision of Daily to fire Harrison for misconduct was not a unilateral one. A meeting was called at which Harrison was given an opportunity to explain the charges against him. Albeit that Daily may have been mistaken that Harrison in fact falsified records, the trial judge had ample evidence to conclude that he was in good faith and had reasonable grounds on which to base his judgment that a falsification had occurred.

For the above and foregoing reasons, the judgment of the trial court is correct and is affirmed, plaintiff-appellant to pay all costs of this appeal.

AFFIRMED.


text:
    Alan AUTHEMENT and Robert Bergeron, Plaintiffs and Appellants, v. Major Charles H. DAVIDSON and the City of Houma, Defendants and Appellees.
    No. 12372.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      Douglas H. Greenburg, Houma, for plaintiffs and appellants.
    John R. Walker, Houma, for defendants and appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This suit, by two officers of the city of Houma police department, seeks a judicial interpretation of Act 413 of 1976, Regular Session, as to the extent of vacation time designated in the Act. The trial judge held the Act granted the policemen of Houma “fourteen calendar days plus one additional calendar day for each year of service after five years, not to exceed a total of 21 calendar days, * * Plaintiffs have appealed.

Act 413 began as House Bill 24 introduced by Representative Huntington B. Downer, Jr. After introduction, the mayor and members of the Board of Aldermen expressed opposition to certain provisions of House Bill 24, and a compromise was reached whereby the maximum number of days of vacation was limited to 21. Neither side, however, recalls whether the term days was referred to in their discussions as calendar or working days.

The present controversy arose when the police department desired the application of the statute, and it became apparent that two different interpretations of the word days were being argued.

The members of the police department, supported by Representative Downer, contend that the Act was intended to allow the policemen of Houma vacation time computed on working days, and thus should be judicially interpreted in that manner. The city takes the contrary position that the term days means calendar days.

The trial judge, in his written reasons for judgment, concluded that under the decision of Ethyl Corporation v. Collector of Revenue, 351 So.2d 1290 (La.App. 1st Cir. 1977), writ refused 353 So.2d 1035 (La.1978), he could not consider the testimony of Representative Downer, the sponsor of Act 413, in attempting to determine legislative intent. Thus, relying on New Orleans Firefighters Association Local 632 v. City of New Orleans, 263 La. 649, 269 So.2d 194 (1972), he interpreted the term days to mean calendar days.

In appealing, plaintiffs-appellants contend the trial judge erred in (1) failing to consider the testimony of Representative Downer and (2) incorrectly applying New Orleans Firefighters Association, supra.

ERROR NO. 1

In Ethyl Corporation v. Collector of Revenue, supra, the trial judge relied heavily on the testimony of a state legislator and his conclusions and interpretations. In finding the trial judge in error, we said:

“In its constitutional role, it is the function of the judicial branch of government to interpret the construction to be given legislative acts, and it does not lie within the domain of the legislature or legislators to interpret their own acts. The court must perform its function of interpretation without the aid of the legislature or legislators. State v. Sissons, 292 So.2d 523 (La.1974), State Licensing Board for Contractors v. State Civil Service Commission, 240 La. 331, 123 So.2d 76 (1960).” Ethyl, supra, at 1293.

The definition of interpretation as found in Black’s Law Dictionary 954 (Rev. 4th Ed. 1968) is “the art or process of discovering and expounding the meaning of a statute, will, contract, or other written document. (Citations omitted).”

It is not one individual legislator who enacts a statute, but the entire legislative branch which acts as a whole. Thus, it is the duty of the court to ascertain the legislative intent, as a whole, in order to construe a statute, to accomplish the purposes for which it was enacted. Guillory v. Louisiana Insurance Rating Commission, 357 So.2d 599 (La.App. 1st Cir. 1978), writ denied 358 So.2d 632 (1978) and Board of Trustees of East Baton Rouge Mortgage Finance Authority v. All Taxpayers, 336 So.2d 306 (La.App. 1st Cir. 1976).

We agree with appellants that the trial court as well as this court can consider all of the factual evidence preceding, surrounding, and following the enactment of a statute. State v. Nicholls, 30 La.Ann. 980 (1878), Anderson v. West, 354 So.2d 636 (La.App. 1st Cir. 1977), writ denied 356 So.2d 1013, 1387 (La.1978) and Gremillion v. Lancaster, 244 So.2d 862 (La.App. 1st Cir. 1971), writ denied 258 La. 573, 247 So.2d 393 (1971).

There is always some reason underlying the enactment of legislation. Presently in Louisiana, legislative committee debates, as well as house and senate debates, are not transcribed, and those records that are kept are very minimal. Thus, any evidence which will reenact the debate on a piece of legislation in at least the house and senate is admissible as an aid to the court.

The intention of a legislator in the enactment of legislation, not expressed to others, though factual, is inadmissible as being irrelevant and of no probative value.

However, that same intent expressed to the appropriate legislative committees and both houses is admissible as an aid to the courts in determining the true legislative intent. Here, it is the expression of both the intent and purpose of the legislation to the legislature that aids the court in its constitutional function of interpretation. It is not the opinion of the witness-legislator as to what the legislature intended that is admissible, but rather the factual evidence considered by the legislature in enacting legislation.

In excluding the deposition of Representative Downer in its entirety, the trial judge fell into error, because along with the opinion testimony, he also excluded the factual. However, considering our discussion under error no. 2 below, we find no reversible error.

ERROR NO. 2

In his deposition, Representative Downer stated that his intention in introducing House Bill 24 was that the term days would mean working days rather than calendar days. However, he candidly admitted that this was never expressed to either the house or senate committees in his presentation of House Bill 24 for committee approval, nor to the house on final passage. The only witness to appear before either the house or senate committee was Representative Downer, and since this legislation was what is termed in legislative circles as “local legislation,” Representative Downer was the only legislator to speak on House Bill 24 in the house. Thus, we find an absence of any factual evidence presented to the legislature which would lead this court to believe that the legislature intended the term days to mean working days rather than calendar days. If the legislature intended Act 413 to mean working days rather than calendar days as judicially interpreted in New Orleans Firefighters Association, supra, it could have so provided.

Appellants argue that the case of New Orleans Firefighters Association, supra, relied on by the trial judge is inappo-site because the statute interpreted therein was a general statute applying statewide, whereas the statute herein is applicable only to the city of Houma police department. Though the distinction is valid, it is of no moment. New Orleans Firefighters Association, supra, interpreted the word days to mean calendar days, and thus subsequent legislation, absent any expressed intent on the part of the legislature to mean working days rather than calendar days, must be construed and interpreted to mean calendar days.

As to appellants’ argument that firemen under La.R.S. 33:1996 receive a greater vacation period than policemen, and thus it is illogical to interpret Act 413 to mean anything other than working days, we find no merit. We need only point out that though it is the function of the courts to interpret legislation, it is not their function to question the wisdom of legislation. Why one group of public employees is granted more vacation time than other groups is a matter properly left to the legislature.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at plaintiffs-appellants’ costs.

AFFIRMED.

      . Act 413 of 1976, Regular Session, provides:
      “AN ACT
      “To amend Title 33 of the Louisiana Revised Statutes of 1950 by adding thereto a new Section, to be designated as R.S. 33:2583, relative to employees of the police department of the city of Houma, to provide for annual vacation benefits determined by length of service.
      “Notice of intention to introduce this Act has been published as provided by Article III, Section 13 of the Constitution of Louisiana. “Be it enacted by the Legislature of Louisiana:
      “Section 1. Section 2583 of Title 33 of the Louisiana Revised Statutes of 1950 is hereby enacted to read as follows:
      § 2583. Annual vacation for police; Houma Each employee of the police department of the city of Houma shall, after one year of service, be entitled to and given with full pay an annual vacation leave of fourteen days during each calendar year; after five years of service, each such employee shall be entitled to and given with full pay an annual vacation leave of fourteen days plus one additional day for each year of service not to exceed a total of 21 days. Such annual vacation leave shall not be denied to any such employee for any reason whatsoever.
      “Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severable.
      “Section 3. All laws or parts of laws in conflict herewith are hereby repealed.”


text:
    C-B CONSTRUCTION COMPANY, INC. v. George T. KILPATRICK.
    No. 12374.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearing Denied Feb. 12, 1979.

      Robert W. Scheffy, Jr., Hopkins P. Breaz-eale, Jr., Baton Rouge, of counsel for plaintiff-appellant C-B Construction Co., Inc.
    Robert G. Dawkins, Michael S. Coyle, Ru-sten, of counsel for defendant-appellee George T. Kilpatrick.
    Paul H. Spaht, Baton Rouge, of counsel for third party defendant-appellee Ralph Kiper.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This suit was originally brought by C-B Construction Company, Inc. against George T. Kilpatrick, seeking the balance due on a building contract, interest due on late payments on the contract, and other damages due because of erroneous and incomplete plans. Defendant answered, denying liability, and reconvened for rent lost, and, alternatively, interest paid, because of late completion of the job, and for an amount sufficient to resurface the parking lot, which was alleged to have been improperly constructed. Defendant also third partied Reliance Insurance Company, plaintiff’s bonding company, seeking attorney’s fees due under the building contract. Defendant subsequently filed an amended pleading, making Ralph Kiper, the architect who designed the building and parking lot, and who supervised the job, a third party defendant.

After trial on the merits, judgment was rendered in favor of plaintiff on its main demand for the balance due on the contract and for interest for late payments; and in favor of defendant for the cost of rebuilding the parking lot. All other demands were dismissed including those against Mr. Kiper. From the judgment, plaintiff has appealed, complaining on several grounds of the finding that the parking lot was not properly constructed. Defendant has answered the appeal assigning as error the award of interest on late payments to plaintiff, and the failure of the court to award him interest paid because of late completion of the job.

It is plaintiff’s position that it constructed the parking lot in strict compliance with the plans and specifications, and should not be held liable for a subsequent deterioration of the lot. It claims the benefit of R.S. 9:2771 and argues that the court failed to give effect to the unconditional acceptance filed by the defendant at the completion of construction.

According to plaintiff’s witnesses, tests were run on the sub-base and base of the parking lot at each stage of its construction by Shilstone Testing Laboratories. The purpose of the tests was to ascertain if the sub-base and base had been adequately prepared and compacted. Work could not proceed on the parking lot until each step in the construction process was tested and approved.

When the final asphalt surface was applied, there were a number of faults, which were repaired by plaintiff to the satisfaction of Shilstone and Mr. Kiper. The final acceptance of the job was executed by Mr. Kilpatrick thereafter.

Within about four months of the acceptance, additional faults began to appear in the parking lot, including pot holes, “bird baths” or sunken areas, and areas in which the asphalt deteriorated. These faults were apparently so extensive that it would have been more expensive to repair each defect than to replace the defective area of the parking lot.

Plaintiff argues that, since its work was done according to specifications, and was tested and found satisfactory at each step of construction, the fault must have been in the design. R.S. 9:2771 provides:

“No contractor shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.”

Plaintiff takes the position that, under the facts as above outlined, and the foregoing statute, it cannot be held liable for the deterioration of the parking lot after it had been completed and accepted.

However, defendant’s expert witnesses testified that there was nothing wrong with the plans and specifications prepared by Mr. Kiper. They were of the opinion that the deterioration of the parking lot could only be the result of improper preparation of the sub-base, regardless of the tests conducted by Shilstone.

The trial judge was impressed by, and adopted the testimony of defendant’s experts in reaching his conclusion relative to the parking lot. This is a matter involving the credibility of witnesses and determinations of fact. There is evidence in the record from which one might reasonably conclude that the testimony of the defendant’s expert witnesses is correct. We therefore find no manifest error in the conclusion of the trial judge in this respect.

Plaintiff also argues that the defendant accepted the job unconditionally, knowing that there were problems with the parking lot, and cannot now complain of those problems, citing Maloney v. Oak Builders, Inc., 224 So.2d 161 (La.App. 4th Cir. 1969), modified, Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970).

The record shows that the defects in the parking lot complained of herein developed after the acceptance, and were not readily discoverable at that time. The contention is therefore without merit.

Defendant’s first specification of error is to the ruling of the trial court that interest was owed by him under the terms of the building contract for making late payments of the amounts due monthly thereunder.

It is claimed that plaintiff did not follow the procedures for requesting payment set forth in the contract, and that defendant should not be liable for late payments under those circumstances.

The trial judge held that, although the procedures followed by C-B in requesting the monthly payments were not strictly in accordance with the terms of the contract, Mr. Kilpatrick had acquiesced in the method used, as had his architect, and could not now urge the irregularity as a defense. We agree.

Mr. Kilpatrick also alleges that plaintiff failed in its burden of proving the amount of interest due. Plaintiff introduced into evidence a statement showing the number of days each payment was late, which stands unrebutted in the record. This document, together with the other evidence on the point is sufficient proof of the amount. There are some technical errors, arising out of the application of a seven percent rate of interest prior to July 28, 1970, when a five percent rate was in effect; and the use of 35 days instead of 25 days in computing the interest due between January 10th and February 4, 1971. This results in a net reduction of $147.43 in the amount due plaintiff, or a total of $3,333.81.

The final specification of error is to the failure of the trial court to award defendant the amount of interest it was forced to pay under its interim financing because of plaintiff’s failure to complete the job timely. The job was scheduled to be completed by December 10, 1970. The job was substantially completed on May 24, 1971, and was occupied by defendant’s lessee on that date. The formal acceptance was filed on June 7, 1971.

Plaintiff testified that it lost 41 working days on the job due to a strike, and over 200 days because of rain. However, it did not request an extension of the completion date for these reasons until April or May, 1971. This request was not granted by defendant.

The trial judge found that, although the request for extension was not properly made, Mr. Kiper was aware of the delays, and it would be inequitable to tax plaintiff with the interest under those circumstances.

Plaintiff’s failure to finish the job in the time provided for in the contract is a passive breach thereof. Ordinarily, damages for a passive breach of contract are due only from the time that the debtor has been put in default. Articles 1931, 1933, Civil Code. However, Article 1933 further provides the exception that:

“When the thing to be given or done by the contract was of such a nature, that it could only be given or done within a certain time, which has elapsed, or under certain circumstances, which no longer exist, the debtor need not be put in legal delay to entitle the creditor to damages.” This provision has been interpreted to

mean that, when time is of the essence in a contract, there is no need to put the debtor in default. Williams Lumber Co. v. Stewart Gast & Bro., 21 So.2d 773 (La.App. Orl. 1945).

In this case, the contract itself provides that time is of the essence. In addition, the lease which Mr. Kilpatrick had with the telephone company was subject to cancellation if the job was not timely completed. We recognize the fact that Mr. Kilpatrick was able to obtain extensions of his contract with the telephone company, but we do not believe that this changes the importance of time to the building contract. We therefore hold that there was no necessity for defendant to put plaintiff in default.

It is undisputed that plaintiff failed to request extensions of time on the contract as the delays occurred. It waited until after the job was completed, which is contrary to the provisions of the building contract. Plaintiff is entitled only to such delays as it properly requested under the contract. We find that the timely notification that time was being lost because of a labor problem, and that an extension might be requested for that reason, is a sufficient compliance with the contract. Plaintiff therefore is entitled to a 41-day extension for that reason. No such notice or request was made for the delays allegedly caused by rain, and plaintiff is not entitled to an extension for that reason.

The 41-day extension puts the last day for completion at January 20, 1971. Interest due on the loan from Louisiana National Bank from January 21, 1971, through February 26, 1971, would total $2,970.07 and from February 27, 1971, through April 7, 1971, equals $3,728.25, for a total of $6,698.32. Interest on a loan from Capital Building and Loan Association from March 17, 1971, through June 10, 1971, equals $4,681.80. Total interim interest paid during the above periods totals $11,380.12, for which defendant is entitled to judgment.

The judgment appealed from is therefore affirmed in part, reversed in part and amended in part, so as to reduce the amount of interest for late payments awarded to plaintiff from $3,396.77 to $3,333.81; and to award to defendant the additional sum of $11,380.12, together with legal interest from date of judicial demand until paid. In all other respects, the judgment is affirmed. All costs of this appeal shall be paid by plaintiff.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART AND RENDERED.