author: SCHOTT, Judge.

text:
    Ronald WILLE, Individually and on behalf of his minor daughter Rhonda Ann Wille v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    No. 7024.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      A. R. Christovich, Sr., A. R. Christovich, Jr., New Orleans, for defendant-appellee, New Orleans Public Service, Inc.
    Orlando G. Bendana, Roy F. Amedee, Jr., New Orleans, for plaintiff-appellant.
    Stephen L. Huber, for defendant-appel-lee Liberty Mutual Ins. Co.
    Bronfin, Heller, Feldman & Steinberg, Bernard H. Berins, New Orleans, for defendant, third-party defendant-appellee Herman L. Walton.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit against New Orleans Public Service, Inc. and Liberty Mutual Insurance Company. Defendant Philip Walton, though named as a party defendant, was not served with the petition or citation.

On March 22, 1970, plaintiff’s thirteen year old daughter, Rhonda, having been a passenger on a Public Service bus which was heading uptown on Magazine Street, exited from the bus to the sidewalk at a service stop at Natorium Drive in Audubon Park. She turned around and entered a pedestrian crosswalk so as to cross Magazine Street in front of the bus. After clearing the bus she was struck by an automobile passing the bus on its left side, which automobile was owned by Philip Walton and driven by his son, Herman Walton. During these events Rhonda was accompanied by four school girl friends.

Plaintiff’s case against Liberty Mutual is based upon allegations of negligence on the part of Herman Walton and the uninsured motorist provisions of Liberty Mutual’s policy covering plaintiff. His cause of action against Public Service is based upon the allegation of the bus driver’s “Negligent waving or signalling to [Rhonda] that the way was clear for her to cross the street in front of the bus when, in fact, he was aware or should have been aware that the way was not clear or safe due to the approaching vehicle coming at a rapid rate of speed.” Liberty Mutual filed third-party petitions against Philip and Herman Walton seeking indemnification as an alternative to its denial of liability. Philip Walton was never served but Herman Walton answered the third-party petition denying liability.

The trial judge dismissed the main demand as well as Liberty Mutual’s third-party petition, giving the following reasons for judgment:

“Whether or not the bus driver ‘waved’ Rhonda across the street is disputed by the bus driver, and there is also some conflict in the testimony of plaintiff’s witnesses on this point.”
****** “The Court is of the opinion that even if the bus driver had made some motion, which Rhonda assumed was meant for her to cross in front of the bus, it did not mean, and she had no right to assume, that he was doing other than to advise her that it was safe for her to pass in front of the bus — that he was not going to move forward while she was passing. It did not indicate to her that she was free to enter the remainder of the street, in front of possible oncoming traffic, without first observing whether or not it was safe for her to do so.
“It is the opinion of the Court that, having safely crossed in front of the bus, it was Rhonda’s duty to check to see if there was any oncoming vehicles before proceeding further into the street, and that her failure to do so constituted contributory negligence on her part, thus barring her from recovery.”

Rhonda testified that after she left the bus and turned around she leaned back and looked to her left behind the bus to see if any traffic was approaching and seeing none started to cross. Reaching the middle of the bus she looked up at the bus driver and “he looked in his rearview mirror and he motioned to me to go across.” She understood from that signal that it was safe for her to go across. One of her companions testified to the same effect:

“We got off the bus, stood on the curb, walked out in front of the bus and just waited, the bus driver made a motion like this and she went.”

This witness further testified that she interpreted the driver’s signal to mean for them “to go ahead over” and “that it was O.K. to cross the street.”

The other three girls did not see the driver make any signals but they did not rule out the possibility that he did.

The bus driver testified that as the girl exited from his bus his attention was on the door which they were using, on his right. The screech of the brakes caused him to look to his left where he saw Rhonda get struck. He denied without equivocation that he gave any signal whatsoever to Rhonda and he was not even looking at her and the others as, they passed in front of his bus.

Plaintiff had the burden of proving that the clriyer made a signal for Rhonda to cross; that he intended to convey to Rhonda the .thought that he had checked for traffic on the left side of the bus, that no such traffic was approaching and that it was safe for her to make the crossing; that she had a legal right to and did in fact rely on the driver’s signal; and that this combination of circumstances caused her to be struck. In connection with her right to rely on the driver’s signal it is clear from the record that Rhonda had made her exit from the bus and was safely on the sidewalk before the driver allegedly signaled to her. At this point she was no longer in the capacity of a passenger and her relationship to the bus driver was the same as any pedestrian. See Deason v. Greyhound Corporation, 106 So.2d 348 (La.App. 1st Cir. 1958) and Lewis v. Goodman, 92 So.2d 723 (Orl.App.1957). We are constrained to observe that the circumstances of a case would have to be most unusual to find that a driver of a vehicle stopped at a pedestrian crosswalk can be placed under a duty to insure the safe crossing of a pedestrian in front of him even to the extent that the risk of such a pedestrian being struck after passing his vehicle by another vehicle is within the ambit of the first driver’s duty. But even assuming that such a case might be made under unusual circumstances, those of the instant case do not support such a theory.

We do not have the benefit of the trial judge’s credibility call as between the two girls who testified that the driver gave a signal and the driver who testified that he gave no signal at all. But we interpret the trial judge’s findings to mean that while the driver may have given some signal the plaintiff did not establish by a preponderance of evidence that such signal carried with it the significance which Rhonda attached to it, namely, that the driver was assuring her that he had checked for oncoming traffic and that she could enter the roadway without looking and rely on his guarantee that there was no approaching traffic.

Rhonda never looked down Magazine Street at all after passing in front of the bus. She said she had just stepped out beyond the edge of the bus and that she never saw the automobile. In answer to how far from the edge of the bus that she was when she was hit she said that she had taken “a few steps.” From this testimony we cannot conclude that at the time she reached the edge of the bus there was no way for her to look down Magazine Street to check for oncoming traffic and that she was entitled or required to rely on the bus driver’s assurance that no vehicle was approaching. We are cited no authority for the proposition that a typical thirteen year old child may step blindly into a roadway in reliance upon the signal of a third party. On the contrary, she was under a duty to look and see what she could have seen and her dereliction was the sole cause of her accident.

Because of Rhonda’s negligence, plaintiff’s recovery against Liberty Mutual Insurance Company is also barred so that we need not consider the allegations of negligence on the part of the uninsured motorist Herman Walton. Plaintiff relies on Cooper v. Lane, 286 So.2d 759 (La.App. 1st Cir. 1973) for the proposition that Rhonda’s position in a marked pedestrian crosswalk when she was struck made Walton absolutely liable. In the cited case the pedestrian looked and saw the approaching car and the driver saw the pedestrian in time to stop. None of the elements were established by plaintiff in the instant case.

Accordingly, the judgment of the trial court is affirmed at plaintiff’s cost,

Affirmed.

LEMMON, J., concurs.


source: Caselaw Access Project

author: SCHOTT, Judge. STOULIG, Judge

license: Public Domain

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. The AUDUBON PARK COMMISSION and the City of New Orleans. Walter CHAPPELL, III and Vera Bisso v. The AUDUBON PARK COMMISSION, through its President, Clayton Nairne, and the City of New Orleans, through its Mayor, Moon Landrieu.
    Nos. 7228, 7289.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, Louis M. Jones, William P. Curry, Jr., Sam L. Levkowicz, Robert E. Redmann, New Orleans,. for plaintif f-appellant.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Phillip A. Wittmann and S. Michael Henry, New Orleans, for defendant-appellee.
    Blake G. Arata, City Atty., Henry W. Kinney, III, New Orleans, for defendant-appellee.

      Vernon V. Palmer, New Orleans, for Upper Audubon Assn, and Walter Chap-pell, III.
    Thomas F. Jordan, New Orleans, for Uptown Civic Assn, and Donald S. Lee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

These appeals were taken from three separate judgments by the Attorney General of the State of Louisiana, Uptown Civic Association and Donald S. Lee (Uptown and Lee) and by Walter Chappell, III and Vera Bisso (Chappell and Bisso).

The procedural history of this litigation began on June 26, 1975, with the filing of a petition for a temporary restraining order, a preliminary injunction and a final injunction by the Attorney General to prevent defendants from proceeding with an expansion project on the Merz Memorial Zoo in the Audubon Park in the City of New Orleans. The trial judge declined to issue a temporary restraining order and assigned the preliminary injunction for a hearing on July 2. On June 30 the Audubon Park Commission (APC) and the City filed peremptory exceptions of no right and no cause of action to the Attorney General’s petition. On July 1 Uptown and Lee filed a petition of intervention seeking a declaratory judgment declaring illegal defendants’ activities in carrying out the zoo project, and a final injunction prohibiting them from proceeding with the project and compelling them to restore Audubon Park to its condition existing before the project began. On July 3 the trial court maintained the exceptions of no right and no cause of action filed by defendants dismissing the Attorney General’s suit. The court also dismissed the petition of intervention filed by Uptown and Lee. On applications for writs to this Court, the application of the Attorney General was denied but the application of Uptown and Lee was made peremptory because of a procedural deficiency in the record in that no exceptions had been filed against their petition and the validity of their intervention had not been placed at issue before the court.

On July 22 APC and the City filed peremptory exceptions of no cause and no right of action as well as a dilatory exception of unauthorized use of summary process against the petition of Uptown and Lee. In the meantime, on July 8 Chappell and Bisso filed a separate suit for declaratory and injunctive relief against APC and the City. The rule for the preliminary injunction was originally assigned for hearing on July 15 but was apparently continued by the court until July 29. Defendants filed similar exceptions to those filed in response to the petition of intervention by Uptown and Lee.

On July 31 the trial court overruled the dilatory exception of defendants to the petition of Uptown and Lee and maintained the exception of no right of action filed by defendants to the petition of Uptown and Lee dismissing their suit. In a separate judgment on July 31 the trial court also maintained the exception of no cause of action filed by defendants to the petition of Chappell and Bisso dismissing their suit. From these judgments the Attorney General, Uptown and Lee, and Chappell and Bis-so have appealed, and the matters have all been consolidated in this Court.

It can be seen from the foregoing that we must consider exceptions of no right of action maintained against the Attorney General, no right of action maintained against Uptown and Lee, and no cause of action maintained against the Attorney General and Chappell and Bisso. While the trial judge did not specifically pass upon the exception of no cause of action filed against Uptown and Lee it appears from a reading of his reasons for judgment that he intended to maintain the exception of no cause of action against Uptown and Lee, and in any event since the suit by Uptown and Lee contains allegations much the same as those pleaded by the Attorney General and/or Chappell and Bisso we are inclined to consider the exception of no cause of action as we are authorized to do under LSA-C.C.P. Art. 927 even though the judgment appealed from did not specifically maintain that exception as against Uptown and Lee.

THE EXCEPTION OF NO RIGHT OF ACTION AGAINST THE ATTORNEY GENERAL

The trial court gave the following reasons for judgment on this aspect of the case:

“This Court takes the position that the Attorney General of the State of Louisiana does not have the right to challenge the acts and actions of the Audubon Park Commission when that body is discharging, as the Court feels it is doing here, its legislative mandate.
“See Act 191 of 1914 and Louisiana Const, of 1974 arts. 6' sections 4-6. cf. article XIV, section 22 of the La.Const. of 1921, as amended by act 551 of 1950.
“To permit the plaintiff to obtain the relief it seeks would, to this court’s way of thinking, amount to an unconstitutional repeal of the Home Rule Charter of the City of New Orleans.”

Art. 4, § 8, of the Constitution of 1974 contains the following grant of authority to the Attorney General:

“As necessary for the assertion of protection of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding;”

As will be seen hereafter defendants rely on Act 191 of 1914 and Act 492 of 1958 for their principal authority to proceed with the project and to support their exceptions of no cause of action to the various petitions filed against them. There is no question but that APC is an agency of the City and not of the State, State Civil Service Commission v. Audubon Park Commission, 99 So.2d 920 (La.App. 4th Cir. 1958), but Audubon Park is owned by the State and not by the City, City of New Orleans v. Board of Commissioners, 148 So.2d 782 (La.App. 4th Cir. 1962), and when the legislature by the passage of the two acts cited above saw fit to place the administration and management of its property, the park, in the City and APC it did so within the limitations and under the conditions specified in those acts. Since the Attorney General’s petition contains allegations that defendants have exceeded and are exceeding their own authority it follows that he does have the right under the constitutional provision cited to bring this action to enjoin the defendants from doing so. We have therefore concluded that the trial judge erred in maintaining defendants’ exception of no right of action to the petition of the Attorney General.

THE EXCEPTION OF NO RIGHT OF ACTION TO THE PETITION OF UPTOWN AND LEE

In support of their exception of no right of action to the petition to Uptown and Lee defendants argue that Uptown and Lee are estopped from requesting injunc-tive relief because they have observed the construction under way at Audubon Park for several months and that the zoo expansion project has been public knowledge since the summer of 1973. This argument does not support an exception of no right of action. It might support an affirmative defense based on evidence which would have to be taken at a trial. Whether such evidence would support estoppel or perhaps laches is not before us and we express no opinion on the validity of such a defense. We hold only that the argument does not provide a legal basis for an exception of no right of action.

We do not gather from defendants’ brief or argument that they seriously question that Uptown and Lee have an interest in bringing their suit and therefore have a right of action. The allegations are that Uptown Civic Association is made up of property owners, voters and tax payers living in the general vicinity of Audubon Park in the City of New Orleans and that Lee is a resident, voter and tax payer of the City, residing in the general vicinity of Audubon Park. We therefore conclude that the exception of no right of action as to the petition of intervention by Uptown and Lee should have been overruled.

While the trial judge specifically maintained the exception of no right of action it appears that he intended to maintain the exception of no cause of action. His reasons for judgment were in large measure based upon the action which had already been taken in maintaining the exception of no cause of action as against the suit by the Attorney General. Furthermore, in giving reasons for judgment maintaining the exception of no cause of action against Chappell and Bisso on the same day as the judgment against Uptown and Lee, the trial judge stated that the exceptions should be disposed of the same way in both cases, suggesting that there was simply a technical error in mislabeling the exception he was maintaining against Uptown and Lee.

Finally, it follows that if the exceptions of no cause of action filed against the Attorney General and Chappell and Bisso have merit they likewise would apply against the petition of Uptown and Lee. Therefore, in reversing the trial court to the extent that an exception of no right of action was maintained against the petition of Uptown and Lee, we will consider the judgment as one which also maintained the exception of no cause of action.

EXCEPTIONS OF NO CAUSE OF ACTION

At the outset of this discussion we should recall the nature and purpose of the exception of no cause of action so as to dispel any possible misunderstanding about the result we may reach. We are not now concerned with the merits of this controversy but we accept as true the well pleaded allegations of the petition together with any documents which were attached and made part thereof. We may not consider assertions of fact in the answers filed by defendants or to facts referred to by the various counsel in their briefs or arguments before the trial court or in this Court which were not pleaded in the petitions. Our inquiry is whether as a matter of law plaintiffs are entitled to the relief they seek if they can prove all of the facts they allege in their petitions. If they are, then plaintiffs have stated a cause of action and are entitled to their day in court. LSA-C.C.P. Art. 931, Borenstein v. Joseph Fein Caterers, Inc., 308 So.2d 396 (La.App. 4th Cir. 1975).

In his petition the Attorney General alleged that APC through the City has entered into various contracts with architects and contractors to bring about a major expansion of the zoo; pursuant to a contract which is attached to the petition, defendants have employed architects to further an expansion plan and have entered into four separate contracts between January, 1974, and January, 1975, to spend approximately $1,240,000 for the renovation of the entrance and expansion of the zoo, for the renovation of the tropical bird house, for the renovation and expansion of the zoo fences and for the relocation of the rides concession. The “master plan” annexed to the petition standing alone does not provide one with background information as to what was located in this area before the plan was laid, what part of the total of Audubon Park this plan encompasses, exactly what kind of activities were available in the area before the plan was drawn and to what extent such activities must be discontinued after the plan is completed. However, plaintiff alleges as follows :

“8.
The effect of the performance of these contracts and the implementation of the plans of the Audubon Park COMMISSION FOR THE EXPANSION OF THE Merz Memorial Zoo will be to:
A. Increase the size of the zoo more than three times its former size;
B. enclose behind fences large areas of green, open space, which the public has used freely for many years;
C. change picnic areas and open space into animal pens;
D. charge the public a fee for admission into an area formerly accessible without charge;
E. change baseball and soccer fields into paved, commercial parking lots;
F. close three oak tree lined, paved drives in the park, formerly open to the public for many years; and to
G. change a small state park into a municipal tourist attraction.
“9.
The performance of these contracts and the implementation of the Zoo expansion plans change the character and nature of a substantial portion of the Park, and change the character and nature of the entire Park. The performance of these contracts and the implementation of these plans constitute acts of ownership, which a general agent may not perform.”

In deciding whether the petition states a cause of action the problem bifurcates: 1) Are these well pleaded allegations, that is, does the Attorney General allege facts or does he allege conclusions? 2) If these are well pleaded allegations of fact, is the legislative grant of authority to defendants so comprehensive that they are immune from the Attorney General’s attack as a matter of law?

With respect to the first question, it cannot be disputed that paragraph 8 contains factual allegations except for sub-paragraph G, which does seem to be a conclusion. But the other allegations of that paragraph do not suggest what may be the impact of these changes on the park as it existed before the plan is put into effect. We are not told the original size of the zoo so that we do not know how much of the park will be affected when the zoo is increased three times its former size. We do not know what percentage of the large areas of green open space originally existing will be enclosed. The same can be said for the change of picnic areas, the animal pens, the charging of fees for the use of areas formerly free or the conversion of athletic fields to commercial parking lots. However, the allegation is made in paragraph 9 that this project will change the character and nature not only of a substantial portion of the park but also the entire park. The query is whether that is an allegation of fact or a conclusion, or is it necessary for the Attorney General to spell out in minute detail all of those elements which comprised the character and nature of the park before the project as compared to those things after the project is implemented and put into effect.

The American Heritage Dictionary of the English Language, 1973 edition, defines “character” as the combination of qualities or features that distinguishes one thing from another and “nature” as the intrinsic characteristics and qualities of a thing. It seems obvious that if changes are of such a degree and are so drastic that the thing loses its character and nature it is no longer the same thing at all, but has taken on a different identity. To plead that the zoo expansion plan would change the character and nature of a substantial part or of all of the park is to plead that what was once a park will no longer be a park. From this we conclude that these are well pleaded, or at least sufficiently pleaded, allegations to overcome an exception of no cause of action.

The next question is one of law and requires a consideration of the authority given to the defendants by the legislature. Act 191 of 1914 established the Audubon Park Commission and provided as follows:

“Section 2. Be it further enacted, etc., That the said Audubon Park Commission shall be, and it hereby is, vested with the control and management of the park in the City of New Orleans, known as the ‘Audubon Park.’
“Section 3. Be it further enacted, etc., That the duties of the said Audubon Park Commission shall be to take charge and supervision of the said park, and to preserve it for public recreation and use as a place of public resort and pleasure, and such Commission shall have full charge of the control and management, repair, maintenance, development and improvement of the said park.”
Act 492 of 1958 provided as follows:
“Section 1. That the Audubon Park Commission for the City of New Orleans and the New Orleans City Park Improvement Association are hereby vested with authority to establish, maintain, operate and control park recreational and entertainment facilities and activities in the parks in the City of New Orleans under their respective management and control.
“Section 2.' That the Audubon Park Commission for the City of New Orleans and the New Orleans City Park Improvement Association are hereby vested with authority to enter into contracts with private individuals, firms or corporations for the establishment, maintenance and operation of park recreational and entertainment facilities and activities in the parks in. the City of New Orleans under their respective jurisdictions, and to charge and collect'from said contracting parties rentals for, the use of said park property. • •
‡ ‡ >¡í ‡ :ji
“Section 5. That nothing contained in this Act shall be construed to' affect, or change, in any manner whatsoever, the rights, powers and authority granted to Audubon Park Commission for the City of New Orleans by Act 191 of 1914, or any other act of the Legislature, to manage and control the park in the City of New Orleans known as the ‘Audubon Park’.”

We recognize that these acts contain broad grants of authority to APC but reason dictates that any authority it exercises must be within the limits of preserving the character and nature of the park. If the zoo project is such that the park’s character and nature as such will be lost the underlying purpose behind the cited acts will be defeated.

In oral argument to this Court both sides contended that it is a question of degree as to whether this project will change the character and nature of the park to the extent that the Attorney General is entitled to injunctive relief, and we agree with this characterization. It is difficult to verbalize an effective definition of the word “park” but it seems obvious that the word is not synonymous with “zoo,” and if a park which once contained a zoo becomes primarily a zoo with little or no characteristics normally associated with a park then it is no longer a park primarily but rather a zoo. We have concluded that the Attorney General has alleged this to be the result if the zoo expansion project continues and therefore he has stated a cause of action and is entitled to have his day in court.

The Attorney General has also alleged that the implementation of thi'S project will “close three oak'tree’lined;'paved drives in the park, formerly' open to the public for many years.” As to this allegation the Attorney General relies upon LSA-R.S. 48:512 which provides as follows :

“No person shall close, obstruct, or change any legal road except upon order of the governing authority of the parish.”

We agree with defendants that the naked allegation of the Attorney General does not state a cause of action because the fact that these drives were formerly open to the public for many years does not bring them under the definition of a public road as provided by R.S. 48:491:

“All roads or streets in this state that are opened, laid out or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality, or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish or by authority of any municipal governing authority in its municipality shall be public roads or streets as the case may be. . ”

However, in the light of the allegations on this point by Uptown and Lee, as well as Chappell and Bisso, which we will discuss hereafter the Attorney General’s petition shall not be dismissed but rather the judgment sustaining the exception shall be amended so as to permit the Attorney General to amend his petition so as to state a cause of action, C.C.P. Art. 934. This he can do by tracking the petition of the other plaintiffs.

In their petition of intervention, Uptown and Lee incorporated paragraph 8 of the Attorney General’s petition in their own petition by reference. But they also alleged as follows:

“9.
Intervenors aver that Natatorium Drive, East Drive and River Drive are public roads, or streets within the meaning and intendment of Article 48:491 which have been, prior to the initiation of the plan for the expansion of the Audubon Park Zoo, open to the free passage of the public for a period in excess of ten years and have been maintained or worked by the governing authority of Orleans Parish or by the City of New Orleans in excess of three years and no authority has been granted for the closing of said roads which have been closed to the free ingress, egress and passage of the public contrary to law and without proper authority and a mandatory injunction should issue herein ordering, directing and compelling defendants to" open said roads to the free ingress and egress of the citizens of the state. . . .”

Chappell and Bisso included the following allegation in their petition :

“1L
In addition to the foregoing, implementation of the defendants’ Master Plan has caused and brought about the closing of three paved streets or roads within Audubon Park. These streets or roads were built decades ago at public expense and have been maintained at public expense for more than three years by either the City of New Orleans or its purported agent the Audubon Park Commission. These streets have not been abandoned by lack of public use but constitute an essential and frequently used means by which the public and the plaintiffs have been able to move within and gain access to recreation areas within Audubon Park. Accordingly, the above-mentioned roads and streets fall within the definition of ‘public roads or streets’ set forth by LSA-R.S. 48:491 and also fall within the prohibition of LSA-R.S. 48:512 which declares:
‘No person shall close, obstruct or change any legal road except upon order of the governing authority of the parish.’ ”

These quoted allegations plainly state a cause of action. They allege facts which make the subject roads public as defined by R.S. 48:491 and they recite that these roads have been closed in violation of R.S. 48:512. Defendants’ argument that APC has been delegated the authority to close these public roads by the governing authority of the Parish is without any legal basis. They cite no authority for the proposition that this power can be delegated and even assuming that it can it would be a matter of affirmative defense for defendants to allege and prove at trial. It cannot be speculated upon in our consideration of an exception of no cause of action.

Our discussion of defendants’ exception of no cause of action with respect to the Attorney General’s petition relative to the details of the zoo expansion project and its effect in changing the character and nature of the park applies to the petitions filed by Uptown and Lee and Chappell and Bisso, since their petitions are in this respect substantially the same as the petition of the Attorney General.

In their petition Uptown and Lee also included the following allegations:

“Article 191 of 1914 which created the defendant, the Audubon Park Commission, did not grant to the Audubon Park Commission authority to operate a zoo. By virtue of the provisions of Article 10, § 10, of the 1921 Constitution of the State of Louisiana, the City of New Orleans was given the power to levy a special tax for the purpose of establishing and maintaining a zoological garden in the city and subsequent thereto there was established in Audubon Park a small animal exhibit. However, by Act 81 of 1928 there was established a zoological board of control to administer the proceeds of a special tax for the purpose of establishing and maintaining a zoological garden at some place in the City of New Orleans which act provided for the repeal of any laws in conflict with it and clearly establishes that whatever may be the status of the Valentine Merz Memorial Zoo situated on 10.4 acres of Audubon Park that the Audubon Park Commission of said zoo and that its action in entering into contracts for said purpose and its action in pursuance of its plan for the expansion of the Audubon Park Zoo are ultra vires illegal and of no force and effect and that the Audubon Park Commission should be permanently enjoined from carrying out said plan and from expending public or private funds thereon.
“8.
The establishment of the Merz Memorial Zoo, which did not charge admission, did not have the legal effect upon the status of the Audubon Park as a public common thing to convert it from that dedicated use as does the works presently being carried out by the Audubon Park Commission and it was commensurate with that public common dedication even though the Audubon Park Commission did not have the power at the time of its construction to operate a zoo in Audubon Park in view of the effect of Act 81 of 1928. ...”

Similarly Chappell and Bisso alleged as follows:

“8.
In addition to the foregoing, neither defendant Audubon Park Commission nor the defendant City of New Orleans has the authority to establish a zoological garden in Audubon Park. The sole and exclusive agency empowered by law to select a site and to establish and maintain a zoological garden in the City of New Orleans is the Zoological Board of Control referred to in Act 81 of 1928.
“9.
Furthermore the Zoological Board of Control is the sole agency authorized by Act 81 of 1928 to administer the proceeds of the special tax levy of 1/5 of one mill pursuant to Article X, § 10 of the Louisiana Constitution of 1921 for purposes of establishing a zoological garden in New Orleans. Nevertheless, despite the mandate of Act 81 of 1928, the defendant City of New Orleans has, since 1973, annually turned over the proceeds of the above special tax to the defendant Audubon Park Commission.
“10.
Thus all actions taken by the defendants, as contrasted to the lawfully empowered Zoological Board of Control, to establish and maintain a zoological garden in Audubon Park through implementation of the aforesaid Master Plan and utilization of the special tax levy are ultra vires, null and void. Accordingly, this Court should declare such actions null and should preliminarily and permanently enjoin the defendants from further unlawful construction and expenditure of public and special tax funds on this project.”

Plaintiffs and intervenors contend that by the passage of Act 81 of 1928 the legislature restricted the authority to establish, maintain and operate a zoo, and levy taxes for the support thereof to a Zoological Board of Control established by the act. They contend that APC never had the authority to establish a zoo in the first instance, but without attempting to interfere with the zoo as it existed before the expansion project began they contend that the expansion and implementation of the present project constitutes an illegal intrusion of APC on functions which are reserved by the legislature to the Zoological Board of Control.

Act 81 of 1928 got its authority from Article 10, § 10, of the Constitution of 1921, the pertinent part of which was as follows:

“. . . The City of New Orleans may further levy a special tax not to exceed one-fifth of one mill on the dollar of its assessed valuation, for the purpose of establishing and maintaining a zoological garden in that city, provided the rate, purpose and duration of such special tax shall have been submitted to the resident property taxpayers qualified to vote in said city, and a majority of those voting, in number and amount, shall have voted in favor thereof.”

While the legislature may have originally intended by Act 81 of 1928 that zoo operations would be the exclusive function of the Zoological Board of Control that intention was expressly changed by the passage of Act 434 of 1970, R.S. 39:801, which provides as follows:

“. . . The city of New Orleans may further levy a special tax not to exceed one-fifth of one mill on the dollar of its assessed valuation, for the purpose of establishing and maintaining a zoological garden in that city, provided the rate, purpose and duration of such special tax shall have been submitted to the voters qualified to vote in said city, and a majority of those voting shall have voted in favor thereof.”

Plaintiffs contend that the only purpose for the passage of the last quoted act was to eliminate the constitutionally objectionable features of Art. 10, § 10, of the Constitution of 1921, which restricted the election to property holders. They say that it was not the intention of the legislature to change the authority and functions of the Zoological Board of Control but only to provide that the election would be conducted by all registered voters of the city.

We do not accept this narrow interpretation of the intention of the legislature. Act 434 of 1970 was passed against a backdrop of the New Orleans Home Rule Charter, the de facto existence of the zoo in Audubon Park, and the statutory existence of Act 81 of. 1928. Had the legislature intended to breathe life into the Zoological Board of Control after 42 years of dormancy they could and should have done so. We are not persuaded by the fact that the legislature has not specifically repealed Act 81 of 1928. We perceive that the legislature recognized the anomaly of the existence of a board which is nowhere mentioned in the Home Rule Charter, and the necessity for updating the law so as to place control over the zoo where it obviously belongs, namely, in the City of New Orleans and any agency thereof which the City sees fit to delegate. On this point, we agree with the trial court that the plaintiffs state no cause of action.

Finally, Uptown and Lee have incorporated in their petition still another paragraph which they contend states a cause of action as follows:

“5.
Intervenors further aver that the defendant, the City of New Orleans, employed the architectural firm of Cimini & Meric & Assoc., Inc. at an estimated sum of $300,000.00 to prepare with its representatives a plan for the expansion of the Merz Memorial Zoo in Audubon Park and such plan was developed and executed thereof was begun without compliance with the public hearing provisions of the Home Rule Charter of the City of New Orleans and is continuing without the approval required under said charter which conduct has done irreparable harm and damage to intervenors and should be declared illegal and permanently enjoined.”

They rely on provisions of the Home Rule Charter of the City of New Orleans, Sec. 5-507 in particular, which provides as follows:

“Prior to making recommendations on any zoning ordinance, or amendment thereto; prior to adopting regulations governing the subdivision of land; and prior to adopting the Master Plan, or part thereof; the Commission shall hold a public hearing thereon at which interested persons shall be afforded a reasonable opportunity to be heard. Notice of the time and place of the hearing shall be published at least three times in the official journal.”

By reference to the quoted section the requirements for public notice and public hearing apply to specific undertakings, namely, any zoning ordinance, subdivision regulations and the adoption of “the Master Plan.” There are no allegations in the petition which equate defendants’ zoo project with those undertakings. It may be that the zoo expansion plan has some effect on zoning or “the Master Plan” discussed in the Home Rule Charter since it does appear from the copy of the Zoo Expansion Plan, made a part of plaintiffs’ petition, that certain aspects of it are located along Magazine Street and other streets of the City of New Orleans, which may not be a part of Audubon Park. But plaintiffs have not made any facutal allegations which would qualify as “well pleaded” allegations for purposes of our overruling the exception of no cause of action on this aspect of the case. However, in maintaining the exception plaintiffs should be given an opportunity to amend this part of their petition in accordance with C.C.P. Art. 934.

DECREE

Accordingly, it is ordered, adjudged and decreed that the judgment in favor of Audubon Park Commission and the City of New Orleans maintaining their exceptions of no right and no cause of action and dismissing the suit of William J. Guste, Jr. as Attorney General of the State of Louisiana, is reversed and set aside. The exception of no right of action is overruled without qualification. The exception of no cause of action is overruled considering the allegations made by the Attorney General in paragraphs 8A. through E. and 9. As to paragraph 8F. the exception of no cause of action is maintained subject to the Attorney General’s right to amend his petition on this point pursuant to LSA-C.C.P. Art. 934.

It is further ordered, adjudged and decreed that the judgment in favor of the Audubon Park Commission and the City of New Orleans, maintaining their exception of no right of action and dismissing the petition in intervention of Uptown Civic Association and Donald S. Lee, is reversed and the exception of no right of action is overruled. Considering that the trial court intended to maintain an exception of no cause of action as against the intervenors, the judgment is reversed and the exception is overruled considering those allegations which are the same as or expansions of paragraphs 8A. through E. and 9 of the Attorney General’s petition and considering paragraph 9 of intervenors’ petition. The exception of no cause of action is maintained as to paragraph 5 of intervenors’ petition subject to their right to amend their petition on this point pursuant to LSA-C.C.P. Art. 934. The exception of no cause of action is maintained as to those portions of paragraphs 7 and 8 of in-tervenors’ petition having reference to Act 81 of 1928 and its provisions.

It is further ordered, adjudged and decreed that the judgment in favor of Audubon Park Commission and the City of New Orleans maintaining their exception of no cause of action and dismissing the suit of plaintiffs Walter Chappell, III, and Vera Bisso, is reversed and the exception of no cause of action is overruled provided that the exception is maintained only with respect to paragraphs 8, 9 and 10 of their petition having to do with Act 81 of 1928 and its provisions.

It is further ordered that this case be remanded to the District Court for further proceedings consistent with the views we have expressed herein.

Reversed and remanded.

STOULIG, J., concurs with written reasons.

STOULIG, Judge

(concurring).

I concur in the result. Upon the trial court’s determination that the plaintiffs’ petitions did not state a cause of action, the petitioners, under C.C.P. art. 934, are entitled as a matter of right to amend their pleadings to set forth a cause of action, if any they have. The failure to afford plaintiffs the opportunity to amend before dismissing their suits is reversible error and these matters must be remanded in order that the provisions of C.C.P. art. 934 may be satisfied.

      . Section 4 of Act 434 of 1970 provided that the Act’s provisions would become operable only if laws restricting bond elections to property holders were declared unconstitutional. This occurred in Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969). See Cox v. City of New Orleans, 250 So.2d 47 (La.App. 4th Cir. 1971).


author: BOUTALL, Judge. GULOTTA, Judge BEER, Judge REDMANN, Judge LEMMON, Judge

text:
    RUBENSTEIN BROS. v. Michael A. LaFORTE, Jr.
    No. 6919.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      Stahl & Berke, Kenneth J. Berke, New Orleans, for Rubenstein Brothers, plaintiff-appellant; Max Nathan, Jr., of Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, of counsel.
    Ronald J. Rakosky, New Orleans, for Michael A. LaForte, Jr., defendant-appel-lee.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOU-TALL, SCHOTT, MORIAL and BEER, JJ-
   BOUTALL, Judge.

Plaintiff, Rubenstein Bros., instituted suit against defendant, Michael A. La-Forte, Jr., for recovery of the balance due on defendant’s promissory note. Defendant answered and reconvened seeking recovery of unpaid wages, together with statutory penalties and attorney’s fees. Judgment was rendered in favor of Rubenstein Bros, on the promissory note after LaForte admitted the debt and correctness of the amount. This part of the judgment has not been appealed and is now final. On the reconventional demand, judgment was rendered in favor of LaForte, the amount being increased upon new trial had. Rub-enstein Bros, has appeáled the judgment on the reconventional demand.

Michael LaForte was a clothing salesman for Rubenstein Bros, in its Madison Shop. Basically he worked on a commission basis receiving 6% commission on all the goods he sold. The dispute arose over the commissions due on certain “special order” sales. In a “special order” sale, the customer would be measured and select certain fabrics and styles, this would then be written up in an order form and sent to a clothing manufacturer. When the custom made suits and apparel arrived at Rubenstein Bros, they would be delivered to the customer for his approval. Since the customer had the right to accept any part of the special order, or to reject the order entirely, such a sale is not complete until the buyer accepts the goods. It is only then that the commission on the sale becomes due upon only that part accepted. The crux of the dispute in this case is that LaForte had written up the special order, but had resigned his job with Rubenstein Bros, before the suits arrived for delivery, and the delivery of the suits and conclusion of the sale was handled by another employee. LaForte demands the full 6% commission on the goods sold (stipulated in the amount of $6,280.00) because the goods were actually accepted and purchased by the customer. In opposition to this Ruben-stein Bros, contends that when a salesman resigns before the completion of the sale, no commission is due him, but nevertheless the commission was split, LaForte was paid 3% and the concluding salesman was paid 3%.

There is no written document between the parties setting out the terms of employment, and resort must be had to the testimony of the witnesses to determine if some oral agreement existed. Testimony was elicited from LaForte, David Rubenstein (a partner in the business), the manager of the Madison Shop and two salesmen. Although David Rubenstein testified that it was store policy not to pay any commission to a resigned salesman in cases of special order as this, the manager of the shop was of the opinion that such matters are handled on an arbitrary or equitable basis, depending upon the circumstances. The two salesmen testified variously on the policy, and LaForte denied the existence of the policy. With this contradictory and confusing testimony before him, the trial judge decided that Rubenstein’s did not have such a policy and awarded LaForte the full 6%. Since Rubenstein’s had already paid LaForte one half of the commission, or 3%, the trial judge awarded LaForte the sum of $188.40, representing the other 3%. In his reasons for judgment, the trial judge clearly has based his decision upon the credibility and the weight to be assigned to the testimony of the various witnesses. Although we do not agree with some of the findings of the trial judge, we may not simply substitute our opinion for his, but we must accept his findings unless they are manifestly erroneous. There is sufficient evidence in the record to support his findings and we cannot say there is manifest error present.

The next issue before us is the award of penalties and attorney’s fees because of nonpayment of wages under the provisions of LSA-R.S. 23:631 and 632. Initially, Rubenstein Bros, contends to us that these laws are not applicable since LaForte was paid on a commission basis based on amount of sales and hence his employment was not by the day, week or month. The application of the statute is not governed by the type of salary or payment received by the employee but rather by the terms of the employment itself. In this case, the trial court found that the employment was by the week, because the employee had a weekly draw of $180.00 per week. In view of the fact that the days per week that such salesmen could work were regulated by the employer, we have no quarrel with this finding, although we note that the weekly draw was not a guaranteed salary, but was subject to adjustment and accounting one way or another based upon the amount of goods sold, goods returned, et cetera once each month. In any event, we find that LaForte does come within the provisions of the statute cited above.

However, we disagree with the conclusion that LaForte is entitled to the statutory penalties. As noted above, the dispute between the parties arises because LaForte made the initial contact in the special order sale, then resigned, and after the goods arrived another salesman, together with David Rubenstein, called upon the customer, fitted him into the merchandise and secured his acceptance of the merchandise. Despite not having done the work necessary to completion of the sale, LaForte contends he is entitled to the full 6% commission, to the exclusion of the other salesman. On this and other sales he claimed full commission on a sum in excess of $12,000 and filed reconventional demand for recovery of this amount. The employer, although initially taking the position that LaForte was entitled to no commission, after negotiations paid him one-half the commission on the sum of $6,280.00, and it is noted that this was the stipulated sum at trial date.

The record further discloses that these negotiations came about because at time of resignation, LaForte owed his employer both a balance due on an open account and on the promissory note sued upon. The parties had agreed that whatever was due LaForte would be applied to the debt. LaForte’s claim was always that the commissions due him more than offset the indebtedness he owed the company, and it appeared that the negotiations between the company and LaForte were heavily influenced by LaForte’s debt to his employer. We conclude that there was a good faith dispute between the parties as to the indebtedness and that this is not a case where an employer simply refuses to pay. In this case the employer actually paid the 6% commission due on the sale, having paid one half of it to LaForte and the other one half to the salesman who completed the sale, Barry Lipscomb. Our jurisprudence has uniformly held that the statute in question is a penal statute, that it should be strictly construed and that its provisions yield to equitable defenses. Mitchell v. First National Life Insurance Company of Louisiana, 236 La. 696, 109 So.2d 61 (1959); Clevy v. O’Meara, 236 La. 640, 108 So.2d 538 (1959).

We hold that the above facts indicate a good faith dispute existed between the parties, and that the trial judge erred in awarding the maximum penalties for unpaid wages. Considering that Rubenstein Bros, was in no way enriched by this transaction since it paid out the entire 6% commission timely, we conclude that the employer should not have been assessed the penalties provided in the statute. Pittman v. Eyrand, 290 So.2d 800 (La.App. 4th Cir. 1974); Krison v. Texas Industries, 253 So.2d 614 (La.App. 2nd Cir.1971); Clevy v. O’Meara, supra.

Next we turn our attention to the matter of attorneys’ fees. LSA-R.S. 23 :632 allows reasonable attorneys’ fees in the event the employee files a well-founded suit for any unpaid wages whatsoever. As noted above, we have affirmed the award of $188.40 in unpaid wages. The statute does not apparently require that the entire amount sued for be recoverable, but only that “any unpaid wages whatsoever” be recoverable. Additionally, as we interpret § 632, it does not require the claimant to be successful in obtaining the continuing wage penalty in order to receive reasonable attorneys’ fees, but establishes a different basis for recovery of attorneys’ fees.

Prior to 1964, it appears that the statute provided the same basis for recovery or denial of wage penalties and attorneys’ fees, that is, dependent upon the existence of equitable defenses by the employer. See Clevy v. O’Meara, supra and Mitchell v. First National Life Insurance Company of Louisiana, supra. However § 632 was amended by Act 422 of 1964 to its present status, substituting for the words “just suit” the words “well-founded suit for any unpaid wages whatsoever”. While just suit carries the connotation of good faith and equitable defenses, a well-founded suit simply means a suit in which recovery of wages is granted. Thus, in this case, where we affirm the award of back wages due, we must also grant reasonable attorneys’ fees.

We recognize that in the case of Pittman v. Eyrand, supra, we granted back wages due and denied both continuing wage penalties and attorneys’ fees. The change in basis established by the Act of 1964 was not argued to us or placed at issue, but only the amount or sufficiency of the award of attorneys’ fees. (The trial court awarded only $1.00 attorneys’ fees.) We have been referred to the cases of Porter v. Lombardino, 303 So.2d 493 (La.App. 2nd Cir. 1974) and Scallan v. Mark Petroleum Corporation, 303 So.2d 498 (La.App. 2nd Cir. 1974). We note in each case that the employee was granted back wages and because of his successful recovery of unpaid wages was granted attorneys’ fees. We agree with the holdings in those cases permitting the recovery of attorneys’ fees based simply upon the successful recovery of unpaid wages, and we reject our decision to the contrary in Pittman v. Eyrand, supra.

The trial judge initially awarded the sum of $350 as reasonable attorneys’ fees based apparently upon the amount of work done, and then on new trial simply based attorneys’ fees on a percentage of the amount recovered. Although the record does not disclose any evidence as to the value of the attorneys’ fees, it is apparent from an examination of the record that the attorney for LaForte did considerable work in connection with this case. Accordingly, we simply adopt and award the amount of $350.00 as originally awarded by the trial judge, inasmuch as we cannot say that it is unreasonable and tax it as costs to be paid by the employer.

For the foregoing reasons, we affirm the judgment appealed from insofar as it makes an award in favor of plaintiff in re-convention, but we amend the judgment to reduce the amount recovered in accordance with the views expressed herein to read as follows:

It is now ordered, adjudged and decreed that there be judgment in favor of plaintiff in reconvention, Michael A. LaForte, Jr., against defendant in reconvention, Rubenstein Bros., in the sum of $188.40, with legal interest from date of December 20, 1973, together with attorney’s fees in the amount of $350.00, which are taxed as costs. Appellant shall pay all costs in both courts.

Amended and affirmed.

GULOTTA and BEER, JJ„ concurring with reasons.

REDMANN and LEMMON, JJ., dissenting with reasons.

GULOTTA, Judge

(concurring).

I concur. In retrospect, as the author of the Pittman v. Byrand opinion, I feel we erred when we denied attorney’s fees after we concluded plaintiff was entitled to past due wages. I agree with the result reached by the court en banc in the instant case.

BEER, Judge

(concurring).

I feel that the majority is correct in its treatment of the issue involving the award of attorney’s fees. Also, I agree that the majority is correct in its conclusion that the judgment of the trial court on the basic determination of liability is not so incorrect as to. be manifestly in error. However, I am obliged to state that I do disagree with the trial court’s basic determination of liability on the part of Rubenstein Brothers though I cannot say that it is manifestly erroneous.

REDMANN, Judge

(dissenting).

This is such a questionable case that I, for one, would reverse the trial court’s basic determination of liability for the claimed commission. Yet we say that the employer should have- paid this questionable claim rather than question it — and penalize the questioning of it by imposing attorney’s fees twice the amount of the claim itself!

If Louisiana’s courts are to be open, La.Const. 1 § 22, and no one is to be deprived of property except by due process of law, art. 1 § 2, nor to be subjected to forfeiture of property without the right of judicial review, art. 1 § 19: then — even ignoring federal constitutional guarantees ■ — Louisiana’s legislature may not close the courts to an employer and take his property without due process and right of judicial review, by a statute which obliges the employer to pay seriously disputed wages rather than contest them, under substantial penalty.

I therefore dissent from the majority interpretation of La.R.S. 23:632 and the overruling of Pittman v. Eyrand.

LEMMON, Judge

(dissenting).

I agree that some meaning should be ascribed to the rewording of R.S. 23:632 in 1964. A reasonable interpretation of the legislative intent was to allow attorney’s fees in suits which successfully recovered “any unpaid wages whatsoever”, although the overall circumstances might not warrant imposition of a penalty. The apparent purpose of such a statutory change would be to infuse some economic justification into a “well-founded” claim for a small amount of unpaid wages which most competent and busy attorneys would otherwise not find feasible to pursue.

Nevertheless, I disagree that the evidence supports a judgment that the claim was well-founded. Conceding that a trial court’s resolution of conflicting testimony must be accorded great weight and should not be disturbed unless manifestly erroneous, I find the only conflict in testimony to be on the point of whether or not Rub-enstin had a fixed policy to cover the situation presented here.

If there was such a policy, as claimed by David Rubenstein, it was not communicated to the salesmen. Those salesmen who appeared at trial testified essentially that they decided among themselves the question of allocating commissions in unusual situations where more than one employee participated in a sale.

The salesmen fairly agreed that they “covered” for each other when the salesman who initiated a sale was not in the store at the time a customer returned and required additional service to complete or to save the original sale. Under such circumstances the “initiating” salesman normally received the entire commission, the justification apparently being that each salesman could expect reciprocal treatment from the other. Furthermore, those witnesses also agreed that the “completing” salesman under such circumstances would be entitled to the full commission on any accessories or additional items purchased by the customer returning to the store in connection with the original purchase.

Such an “in house” arrangement obviously would not apply to a “special order” sale which was .consummated by a second salesman after the “initiating” salesman had left Rubenstein’s employment. The second salesman could expect no reciprocation in the future from the departed “initiating” salesman.

In the present case the trial judge’s basis for awarding LaForte the full 6% commission, according to the reasons for judgment, was that “Plaintiff agreed to pay to the Defendant 6% commission on all sales” and “Defendant did not consent to have his commissions ‘split’ regarding the sales in question.” ' This reasoning was not a credibility determination, and the reasoning must stand or fall on its legal merit.

I respectfully disagree with the trial judge’s reasoning. While Rubenstein did agree to pay LaForte 6% on all sales, it also made the same agreement with Barry Lipscomb, the salesman who consummated the sales after LaForte’s employment terminated. And Lipscomb also did not agree to split commissions on those particular sales. How would the reasoning in question apply if Lipscomb had sued for the commissions rather than LaForte?

Since the overall compensation scheme was to pay commissions for successful sales transactions, the equitable disposition of a commission (earned because more than one salesman performed substantial services in completing the successful sale) would require allocation of the commission according to the contribution of each salesman to the success of the sale under the circumstances of the particular case. The record established without contradiction that “special order” sales often required as much sales work in completing the sale as in initiating the sale, and sometimes more. The record further established that Lipscomb (and David Rubenstein) made several trips to Baton Rouge to complete the particular sales after LaForte left Ruben-stein’s employment.-

In my opinion LaForte failed to prove that, under the circumstances of this particular case, he was entitled to the full commission. On the "other hand, Ruben-stein’s even division of the commission (to its own possible detriment because of La-Forte’s outstanding and still uncollected debts) was the more reasonable and equitable solution to the problem according to the terms of the employment contract between Rubenstein and all of its salesmen.

LaForte received half of the commission and sued for the other half. The record does not support his entitlement to both halves, notwithstanding any credibility determination by the trial judge of the conflicting testimony as to whether a fixed policy controlled the situation. His suit should be dismissed."

      . “§ 631. Discharge or resignation of employees ; payment within 24 hours after termination of employment
      “It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment ■whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.”
      “§ 632. Liability of employer for failure to pay; attorney’s fees
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety day’s wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation. As amended Acts 1964, No. 422, § 1.”


author: REDMANN, Judge.

text:
    Ernest L. PERRY v. The TEXACO COMPANY and the Travelers Insurance Company.
    No. 6993.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Robert E. Lee, Metairie, for plaintiff-appellant.
    James R. Murrell, III, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal, after trial on the merits, of his tort suit. The trial court reasoned defendant was his statutory employer under La.R.S. 23:1061 and therefore liable exclusively in workmen’s compensation, R.S. 23:1032. We affirm.

Plaintiff’s direct employer was Arc & Arms, Inc., who had agreed under a “Miscellaneous Work Agreement” to “furnish certain general oil field contract services including but not limited to lease maintenance, roustabouting, construction work, hauling, transportation, boat rental, and other equipment rentals.” The Agreement specified an hourly rate for 29 classifications of workers, and over 100 other hourly or daily rates for trucks, boats, and a variety of equipment. The Agreement provided for daily “work tickets” to be submitted to defendant for work done and equipment provided, “if and when said work is directed to be performed from time to time” by defendant.

The testimony of the representatives of defendant and of Arc & Arms, and the invoices for the hourly work done on the project in this case, support a conclusion that Arc & Arms did not here act as a general contractor who executed a construction contract, but acted only as a supplier of labor to do defendant’s bidding. Whether the installation of an additional seepage-catching drain under defendant’s gas compressor station is deemed new construction or maintenance, it was defendant itself who did the installation with additional roustabouts hired through Arc & Arms, and the installation was therefore defendant’s trade, business or occupation; Doss v. American Ventures, Inc., 1972, 261 La. 920, 261 So.2d 615.

Accordingly, even if Arc & Arms can be considered a contractor in respect to the work here involved, defendant is a “principal” within R.S. 23:1061, liable in compensation to Arc & Arms’ employees.

Affirmed.


author: PER CURIAM.

text:
    J. E. JUMONVILLE v. John Wayne JEWELL et al.
    No. 10569.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 22, 1975.
    Tom F. Phillips and John R. Tharp, Baton Rouge and Francis A. Smith, Jr., New Roads, for Jewell.
    Stephen P. Dart, St. Francisville, for D. J. McDuffie.

      Wra. J. Guste, Jr., Atty. Gen., and Kenneth C. Dejean, Asst. Atty. Gen., Baton Rouge, for Wade O. Martin, Jr.
    C. Jerome D’Aquila, New Roads, F. Barry Marionneaux and Jack T. Marionneaux, Plaquemine, for Jumonville.
    Before BLANCHE, COVINGTON and BAILES, JJ.
   PER CURIAM.

Plaintiff, J. E. Jumonville, is a qualified elector of the Seventeenth Senatorial District of the State of Louisiana and is a candidate for the office of Senator of that district, having duly qualified for said office on August 2, 1975. In this suit he opposes the qualification of the defendant, John Wayne Jewell, as a candidate for said office on the grounds that Jewell did not qualify in accordance with law and, more particularly, with LSA-R.S. 18¡397. Plaintiff has also brought suit against the Seventeenth Senatorial District Democratic Executive Committee and all of its members, even though they have not certified the defendant Jewell as a candidate to the Secretary of State; and as against these defendants plaintiff seeks to prohibit their certification of defendant Jewell to the Secretary of State as a candidate for the office of Senator. Suit was also filed against Wade O. Martin, Secretary of State of the State of Louisiana, to prohibit him from listing the name of defendant Jewell as a candidate for the office of Senator.

In accordance with LSA-R.S. 18:391, persons affiliated with a political party desiring to become a candidate for the office of Senator must file with the Chairman of the Senatorial District Democratic Executive Committee a written notice of their intention to become a candidate no later than 5:00 P. M. on the fifth day after the opening of qualifications. The defendant Jewell’s notice of his intention to become a candidate for the office of Senator was not received by the Chairman of the Seventeenth Senatorial District Democratic Executive Committee until the morning of August 8, 1975.

The evidence shows that the defendant Jewell caused the written notice of his intention to become a candidate for the office of Senator to be mailed through the United States mail to the Chairman of the Committee at his address in Plaquemine, Louisiana, before the 5:00 o’clock P. M. deadline on August 7, 1975.

The issues in the case are whether the defendant Jewell’s mailing of his notice of intention to become a candidate for the office of Senator through the mails was in compliance with LSA-R.S. 18:397 and whether the aforesaid statute is unconstitutional.

LSA-R.S. 18:397 provides:

§ 397. Filing papers or deposit with committee
“Whenever provision is made in this Part for the filing of any notice, deposit, or any other paper with any party committee or party officer, it shall be filed with the chairman of the proper committee. If the chairman is not available, absents himself, cannot be found or for any reason refuses to accept the paper or deposit, it may be filed with the secretary. If the secretary is not available, or refuses to accept the paper or deposit, or cannot be found, it may be deposited in the United States mail, at some point in Louisiana, by certified or registered mail in an envelope properly stamped and addressed to the chairman, which deposit in the mail constitutes a proper filing as of that date.
“Failure of the chairman to receive the paper or deposit does not prejudice or deprive a person of any rights given him under this Part if the above conditions are complied with.”

The trial judge found that the defendant Jewell’s filing was not timely inasmuch as the Chairman of the Committee was the proper person with whom the defendant’s written declaration and notification of candidacy should have been filed, that the Chairman was available to receive the defendant’s filing, and that mailing of the same by the defendant in the United States mail did not satisfy the foregoing statutory requirement. We affirm.

Section 397 is a verbatim reenactment of LSA-R.S. 18:312 which was interpreted in Jordan v. 26th Senatorial District Democratic Executive Committee, 202 So.2d 681 (La.App. 4th Cir. 1967), writ refused, 251 La. 65, 203 So.2d 86 (1967). There a prospective candidate sent his notice of intent by certified mail to the home address of the Chairman of the Twenty-sixth Senatorial District Democratic Executive Committee two days prior to the deadline. The letter was never received and the Committee refused to certify him. The candidate contended that mailing the notice was sufficient under the statute, and, therefore, he should have been certified by the Committee. Following suit, the district court ordered that he be certified. The Court of Appeal reversed, stating:

“ * * * [I]n order for the mailing of plaintiff’s notice of intention and check to constitute a proper filing as of the date of that deposit in the mail, both the chairman and the secretary of the committee must have been unavailable, absent, unable to be found, or for any reason actually refused to accept the notice and the check. Otherwise plaintiff’s notice of intention was not filed on the date of mailing * * (Jordan v. 26th Senatorial District Democratic Executive Committee, 202 So.2d at 684)

The Court found that the Chairman of the Committee was at home for the three days prior to the deadline and that the prospective candidate, knowing the location of the residence, could have filed notice with him had he simply brought the papers there. Noting that both the Chairman and the Secretary were not absent in any manner and, therefore, not “unavailable” within the meaning of the statute, the appellate court held that the prospective candidate was precluded from relying upon the mailing provisions of the statute.

The defendant Jewell herein offers the same argument as that propounded in Jordan, supra,, that is, that the Committee Chairman, D. J. McDuffie, was unavailable when his decision to file was made, and, therefore, he should have been allowed to file by mail pursuant to Section 397. While it may be that Chairman McDuffie was remote to the defendant when he made his decision to file, the evidence shows that the Chairman, nevertheless, was available.

The record conclusively shows that both the Chairman and Secretary were available to the candidate during the entire five-day filing period. The defendant Jewell has not contended they were absent. During the qualifying week of August 2-7, 1975, McDuffie was present at his home or office. He asserted that his only absences during the period were temporary and that when he was absent, his wife or secretary was there since his office is under the same roof as his house. During this period of time the defendant Jewell did not make any attempt to contact him. In fact, McDuffie’s first notification that the defendant Jewell was intending to file was at approximately twenty minutes to five on the last day, August 7.

The defendant Jewell contends he did not make up his mind to run for the office until approximately 4:00 o’clock P.M. on August 7, the last day for qualifying. At that time he was in Galveston, Texas, and communicated his decision to his father in New Roads. His father told him that he would tend to filing the papers.

The elder Jewell evidently realized at that point that he could not make the forty-mile trip to Plaquemine by the S :00 P. M. deadline to file with the Chairman in person. He then contacted his brother, Tom Jewell, a practicing attorney, for advice. Tom Jewell then called Edward J. Merrick, the ¡secretary of the Committee who is a resident of New Roads, seeking to file the qualification papers with him. The Secretary informed Jewell that he had no authority to accept the papers and that they should be filed with the Chairman, McDuffie. The Jewells then telephoned the Chairman and told him they were mailing the papers. The next day the defendant Jewell submitted affidavits of postal employees showing that he did, in fact, mail before the 5:00 o’clock P.M. deadline.

Under the clear wording of the statute, the mails are an improper means by which to submit qualifying papers where the prospective candidate cannot show the unavailability of the Committee Chairman. Since the right to become a candidate in an election is created and governed by law, that right can be exercised only upon the terms and conditions prescribed by that law. We hold that the provisions of R.S. 18:397 relative to filing by registered mail are inapplicable in the instant case since there was no showing that the Chairman was unavailable.

Lastly, defendant contends that an independent candidate has an unqualified right to deposit his qualification papers in the mail and the date and time of mailing shall be considered the date and time of filing. LSA-R.S. 18:391, subd. B. However, the rights of a person with party affiliation are qualified by the language of LSA-R.S. 18:397. It is contended that this language places a more onerous burden on party affiliates as candidates, and as such it is violative of the Fourteenth Amendment of the Constitution of the United States, denying unto defendant due process, and Article 1, Section 3 of the Louisiana Constitution of 1974, which prohibits laws that are arbitrarily, capriciously or unreasonably discriminative against a person because of his political affiliations.

In essence, two methods are provided for in the statute to accomplish qualification. One is applicable to the class of candidates that are party affiliates and another is made applicable to that class that are independents. Both have the objective of affording candidates an orderly means by which they may qualify as candidates. Where a party affiliate chooses to qualify, he is treated similarly under the law as are all party affiliates. The same may be said for independents. Likewise, the defendant Jewell had the option of either method of qualifying, i. e., as a member of a political party or as an independent candidate. He chose the former, and having done so, he subjected himself to the applicable statutory provisions relative thereto, and he cannot be heard to complain that he is discriminated against because independent candidates without qualification can use the U.S. mails to qualify moments before the qualifying deadline, while he cannot. For constitutional authorities, see Women’s Liberation Union of Rhode Island, Inc. v. Israel, 379 F.Supp. 44 (D.C.R.I.1974).

For the above reasons, the judgment of the trial court is affirmed, at the cost of defendant-appellant, John Wayne Jewell.

Affirmed.

      . Act Nos. 1 and 199 of the Thirty-eighth Regular Session of the Louisiana Legislature which amended Chapter 2 of Title 18 of the Louisiana Revised Statutes of 1950, to add thereto a new Part, designated as Part 1-A, containing R.S. 18:384 through R.S. 18:423, became law effective July 1, 1975, upon the submission of a letter from the United States Attorney General on July 22, 1975, stating that he was not interposing an objection to implementation of the Acts.


author: HOOD, Judge.

text:
    Harold LOEWER et al., Plaintiffs-Appellants, v. Clyde P. VANDERHIDER, Defendant-Appellee.
    No. 5273.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 21, 1975.
    Edwards, Stefanski & Barousse, by Homer Ed Barousse, Jr., Crowley, for plaintiff-appellant.
    Donald Soileau, Mamou, for defendant-appellee.
    Before HOOD, CULPEPPER, and MILLER, JJ.
   MOTION TO REMAND

HOOD, Judge.

The plaintiffs-appellants, Harold Loewer and Louisiana Implement Company, move to remand their unlodged appeal from the 13th Judicial District Court for the purpose of retaking the testimony of certain witnesses whose testimony was not transcribed due to a malfunction in the Court Reporter’s recording device. The motion is unopposed. We remand.

The pertinent facts are as follows: the plaintiffs-appellants perfected an appeal from an adverse judgment of the 10th Judicial District Court, which appeal was made returnable October 6, 1975. After the appellants perfected their appeal they learned from the Court Reporter that parts of the testimony of certain witnesses at the trial were not recorded, particularly that of the defendant Clyde P. Vanderhi-der, and also a portion of the testimony of Mr. William Bufkin, a plaintiff’s witness.

Article 2132 of the Code of Civil Procedure provides as follows:

“A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.” (Emphasis added)

We believe that under the clear wording of this statute the appellants are entitled to the relief sought here. This court has held, on several occasions, that when, due to mechanical failure, all or part of the testimony is unable to be transcribed, the parties are entitled to a remand for the purpose of re-taking this testimony. Kay v. Home Idemnity Company, 301 So.2d 705 (La.App.3rd Cir. 1974); Middleton v. Pleasant, 298 So.2d 895 (La.App.3rd Cir. 1974); Neal v. Neal, 268 So.2d 723 (La.App.3rd Cir. 1972).

For the reasons assigned, the case is remanded to the trial court for the limited purpose of re-taking the testimony of certain witnesses whose testimony was not recorded during the trial due to a mechanical failure.

Appeal remanded.


author: MILLER, Judge.

text:
    Joyce Mae STEVENS, Plaintiff-Appellee, v. Lester Joseph BREAUX, Defendant-Appellant.
    No. 5136.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Jefferson J. Moss, Lafayette, for defendant-appellant.
    Lucius A. Hornsby, Jr., Lafayette, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

Defendant Lester Joseph Breaux appeals the judgment awarding $100 monthly child support to plaintiff Joyce Mae Stevens, the mother of his two children. In a prior proceeding defendant confessed plaintiff should be awarded custody of their two children. We affirm.

At trial and on appeal defendant contends the mother’s Mexican divorce was void ab initio and could not support the mother’s claim for child support.

On the basis of his wife’s Mexican divorce, defendant had remarried and has two children of his second marriage. In answer to plaintiff’s suit for custody of their children, defendant admitted: 1) his wife obtained a divorce in Mexico, and 2) the children for whom child support is here awarded were legitimated when defendant married plaintiff in 1965.

The evidence does not show the Mexican court was without jurisdiction. There is nothing in the record to justify invalidating the Mexican divorce.

Without reviewing the facts and without appearing to argue the appeal, appellant makes the statement in his brief that the award of $50 per month for each of his two children is excessive. He failed to establish the trial court abused its much discretion in assessing child support. Bol- ing v. Boling, 229 So.2d 423 (La.App. 3 Cir. 1969).

The trial court judgment is affirmed at defendant’s costs.

Affirmed.


author: CULPEPPER, Judge.

text:
    S. A. COOLEY, Jr., d/b/a Cooley Agency, Plaintiff-Appellee, v. Clarence L. MILLER, Defendant-Appellant.
    No. 5156.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    McHale & Bufkin, by Louis D. Bufkin, Lake Charles, for defendant-appellant.
    Levingston, Ezell & Liles by David L. Levingston, Lake Charles, for plaintiff-ap-pellee.
    Nel F. Vezina, Gretna, for intervenor-appellee.

      Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a suit by a realtor to recover from defendant the commission and attorney’s fees due under a contract. The trial judge awarded to plaintiff $1,360 in commission and $250 in attorney’s fees. From this ruling defendant appealed. Plaintiff answered the appeal, asking that the award for attorney’s fees be increased to include those incurred on appeal.

On March 30, 1973, plaintiff and defendant entered into a “Realtor’s Sales Agency Contract”. This contract provides in pertinent part:

“In consideration of your agreement to list the property herein described, and to use your efforts to find a purchaser, I hereby grant you the exclusive right for 120 days from date hereof to sell 1805 Hwy 171 including Metal Building 2 Bed Room Home & all improvements, for the sum of Sixteen Thousand Five Hundred ($16,500.00) Dollars, payable Cash or upon any other price, terms or exchange to which I consent.
* * * * * *
“If said property is sold before the expiration of this agreement by myself or any other person, firm or corporation, I agree to pay you the commission of 10 per cent.
‡ * its sji i}c
“In the event of such sale I will execute and deliver to said purchaser a deed for said property with full covenants of warranty. I represent the title to said property is good and valid and subject to no mortgages, easements or reservations . . .”

On June 4, 1973, which was within the 120 days granted to plaintiff to sell the property, he procured a buyer, Ortear Manuel. Mr. Manuel and Mr. Miller, the defendant, then signed an “Agreement to Purchase and Sell” for a price of $13,600, the printed form for which was supplied them by plaintiff. This contract provided that the sale would be “dosed” within 30 days of the date of the contract if title to the subject property was “good and merchantable”.

Subsequently, the defendant found he was unable to deliver merchantable title because of judgments against him. Cooley then filed the present suit to recover the commission he alleges is due under the contract. Ortear Manuel filed a petition of intervention seeking an order for specific performance.. Mr. Manuel’s intervention was dismissed on the grounds defendant could not deliver merchantable title. The intervention is not before us on appeal.

The only issue for our determination is whether a commission and attorney’s fees are owed to the plaintiff.

Appellant contends that under the language of the listing contract a commission is earned only when a contract “of sale” is entered into, as distinguished from a contract “to sell”. We cannot agree that the contract provides this subtle legal distinction.

Courts are bound to give legal effect to contracts according to the intent of the parties. Sabine Construction Company, Inc. v. Cameron Sewerage District No. 1, 298 So.2d 319 (La.App. 3rd Cir. 1974) ; Powell Lumber Company v. APCO Corporation, 288 So.2d 697 (La.App. 3rd Cir. 1974); LSA-C.C. Article 1945. We believe the intent of the parties is evidenced by the first paragraph of the contract which begins : “In consideration of your agreement to list the property herein described, and to use your efforts to find a purchaser . . .” The jurisprudence has repeatedly held that a real estate broker’s commission is earned when he finds a purchaser who is ready, willing and able to buy the property, notwithstanding that the title ultimately is found to be unmerchantable. Eanes v. McKnight, 262 La. 915, 265 So.2d 220 (1972).

Here, plaintiff did find an able and ready purchaser. That purchaser entered into a contract with Mr. Miller to purchase the property. At this point, plaintiff earned his commission.

In addition, we believe plaintiff-appellee is entitled to additional attorney’s fees as a result of this appeal. Attorney’s fees may be awarded where provided by statute or by contract. Hughes v. Burguieres, 276 So.2d 267 (La.S.Ct. 1973). Mire v. Magnifique Volkswagon, 274 So. 2d 463 (La.App. 3rd Cir. 1973). Here, the contract provides for reasonable attorney’s fees. The trial court awarded $250 for services there. We believe an additional fee of $150 for this appeal is reasonable.

For the reasons assigned, the decision of the trial court is amended so as to increase the award for attorney’s fees to the sum of $400. In all other respects, the decision of the trial court is affirmed.

Amended and affirmed.