text:
    Dorothy Sellers GRICE v. AETNA CASUALTY AND SURETY COMPANY.
    No. 61566.
    Supreme Court of Louisiana.
    June 19, 1978.
    Lawrence J. Duplass, New Orleans, for defendant-applicant.
    Floyd J. Reed, Bruce G. Reed, Reed, Reed & D’Antonio, Metairie, for plaintiff-respondent.
   SUMMERS, Justice.

Plaintiff Dorothy Sellers Grice instituted suit on September 12, 1974 against Aetna Casualty and Surety Company claiming loss under a policy of burglary and theft insurance. Therein she alleges that on January 31, 1973 her home was burglarized, damage was done to her house, and coins, jewelry, fur and a television set were stolen. She alleged that Aetna was notified but no effort has been made to reimburse her for the loss. For this failure of Aetna she asserts she is also entitled to penalties and attorneys’ fees.

To this petition Aetna filed an exception of prescription on October 3, 1974 contending that the “cause of action” alleged by plaintiff occurred more than one year prior to commencement of suit, and the claim is barred by the prescription of one year. On March 19,1976 the trial judge dismissed the exception.

Thereafter, on April 6,1976, Aetna filed a motion for summary judgment on the ground that the pleadings, admissions and evidence on file in the proceedings showed no genuine issue of material fact. Then, on April 20, 1976, Aetna filed the affidavit of its claims representative Paul J. Dussang in which he attested that he was familiar with plaintiff’s claim; that on May 30, 1973 she had in full force and effect a policy with Aetna; that after the loss of January 31, 1973 a proof of loss form was forwarded to plaintiff but was never returned; and that there were no negotiations on this claim from August 1973 until March 20, 1974 when plaintiff requested payment pursuant to the policy. A copy of the policy was attached to the affidavit.

Although not marked filed, plaintiff’s May 20,1976 affidavit is the next pertinent document in the record. Therein she denies that she knew Dussang, or that he was the claims representative of Aetna, or that he was its claims representative at any time pertinent to this suit. She also denied that he forwarded proof of loss forms in connection with her claim.

The motion for summary judgment was heard on May 21,1976. Relying on Gremillion v. Travelers Insurance Co., 256 La. 974, 240 So.2d 727 (1970), and Gambino Industries, Inc. v. Securities Insurance Company of Hartford, 333 So.2d 759 (La.App.1976), the trial judge granted the motion for summary judgment on June 16, 1976. On appeal to the Fourth Circuit the judgment was reversed. The Court of Appeal held that, under Section 629 of Title 22 of the Revised Statute, the clause in the fire policy limiting the time for filing suit was null and void with respect to the burglary and theft coverage in the homeowners policy because the time for filing suit was actually less than one year. Finding no valid clause setting forth the time for filing suit in the policy, the court held that the prescription applicable to the loss by theft was the ten-year prescription provided for suit on contracts according to Article 3544 of the Civil Code. 353 So.2d 401 (La.App.1978). Certiorari was granted on Aetna’s application to review the Court of Appeal judgment. La., 355 So.2d 267.

The form of the standard fire policy is mandatory under Louisiana’s Insurance Code. Its provisions are spelled out in detail by the legislature. The following clause is part of the standard fire policy; as such it is part of the State’s statutory law:

“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after the inception of the loss.” La.Rev.Stat. 22:691F(2)

Aetna contends that this prescriptive provision is applicable to the homeowners policy, a contract used in connection with the standard fire insurance policy in the case at bar. The homeowners policy insures against burglary and theft and provides other coverages in addition to the perils of fire and lightning covered by the standard fire insurance policy. To support its position Aetna relies upon Section 691E of the Insurance Code wherein it is stated:

“Appropriate forms of other contracts or endorsements whereby the interest in the property described in such policy shall be insured against one or more of the perils which the insurer is empowered to assume, in addition to the perils covered by said standard fire insurance policy, may be approved and may, unless at anytime disapproved by the fire insurance division, be used in connection with a standard fire insurance policy and such forms may contain provisions and, stipulations inconsistent with the standard policy if applicable only to such other perils.
“Any policy or contract otherwise subject to the provisions of subsections A and B hereof, which includes either on an unspecified basis as to the coverage or for a single premium, coverage against the peril of fire and substantial coverage against other perils need not comply with the provisions of Subsections A and B hereof, provided . . . La.Rev.Stat. 22:691E.

If Aetna’s position is sound, plaintiff’s suit, filed 19V2 months after the loss, is prescribed.

Plaintiff, on the other hand, contends that the prescriptive clause contained in the standard fire policy to which Aetna’s homeowners policy is attached, insofar as the burglary and theft coverage is concerned, is in reality a limitation of the right of action against the insurer to a period of less than one year from the time when the cause of action accrues. This reduction of the time limitation for filing suit to less than one year is said to result from the provision of the standard fire policy to the effect that suit may not be instituted and payment for the loss is not enforceable until at least sixty days after the loss. By this requirement the insured must wait sixty days during the one-year period before suit can be filed, thereby reducing the time for suit to ten months. La.Rev.Stat. 22:691F(2). Such a limitation, while specifically authorized by the legislature with respect to the standard fire policy, is, according to the plaintiff, null and void when applied to the burglary and theft coverage of a homeowners policy used in connection with a standard fire policy. To support this position plaintiff refers to Section 629A(3) and B of the Insurance Code:

“A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement:
(3) Limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances unless otherwise specifically provided in this Code.
B. Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract.” (La.Rev.Stat. 22:629A(3) and B.)

The first question is whether the clause in the standard fire policy limits the right of action against the insurer to a period of less than one year from the time when the cause of action accrues. In interpreting that clause is Gremillion v. Travelers Indemnity Co., 256 La. 974, 240 So.2d 727 (1970), this Court held that the phrase “next after inception of the loss” means “the time of the fire and not the time of the ascertainment of the loss.” This holding was reaffirmed in P. O. P. Construction Co. v. State Farm Fire and Cas. Co., 328 So.2d 105 (La.1976). Accepting this interpretation requires a holding that that clause does in fact limit the right of action against the insurer to a period of less than one year. This is so because the condition of the standard fire policy, which provides that no suit can be maintained against the insurer unless all requirements of the policy have been complied with, requires that the one-year limitation for suit be read in connection with the other policy provision. La.Civil Code art. 1955. Other pertinent policy provisions are to the effect that the insured must render a proof of loss within sixty days after the loss, and the amount of loss shall be payable sixty days thereafter. Considered in its best light, under the policy no suit can be filed within sixty days after loss, if it is conceivable that the insured could furnish a proof of loss the day the loss occurred. The time could be 120 days if the insured and the company each availed themselves of the sixty days allowed by the policy. The time for filing suit is therefore reduced by no less than sixty days, giving the insured ten months to file suit instead of one year.

On the basis of the foregoing and the quoted provisions of Section 629, the limitation in the standard fire policy in question would be considered void because it limits the right of action against the insurer to less than one year, unless it can be held that it is a limitation “otherwise specifically provided” in the Insurance Code. In that event the limitation would find a basis for a separate validity not affected by the prohibitions of Section 629. We find that the quoted limitation in the standard fire policy is mandated by the legislature as part of the Insurance Code and because of this it is “otherwise specifically provided” in the Code. It follows that if the homeowners policy is part of the same contract as the standard fire policy the burglary and theft coverage of the homeowners policy will be governed by the same limitation as the standard fire policy. Such a rationale would result in a finding that the plaintiff’s suit was prescribed. We so hold.

The standard fire policy mandated by the legislature pertains to “direct loss by fire, lightning and by removal from premises endangered.” La.Rev.Stat. 22:691F(1). At the same time the form of policy prescribed provides space for listing “premiums for the basic coverages insured under the standard form of policy and for additional coverages or perils insured under endorsements attached.” Id. (1). On the second page of the prescribed form this clause is found: “Perils not included — This company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by: (a) enemy attack . [etc.] (j) nor shall this Company be liable for loss by theft.” La.Rev.Stat. 22:691F(2). This clause is also found on page two: “Other perils or subjects — Any other peril to be insured against or subject of insurance to be covered in this policy shall be by endorsement in writing hereon or added hereto.”

These standard fire policy provisions indicate that the legislature intended that this basic standard fire policy could be employed for “additional coverages or perils insured under endorsements attached” and to “other perils” — that is, perils other than fire and lightning. With respect to “theft”, it is excluded from coverage. But, it is noted, the insurer is not precluded from providing theft coverage inconsistent with the standard fire policy. By the terms of Section 691E “other contracts or endorsements . may contain provisions and stipulations inconsistent with the standard [fire insurance] policy . . . .”

The homeowners policy is attached to the standard fire policy. Both are included under the heading “Homeowners Policy". In fact the homeowners policy is so essentially “connected” to the standard fire policy, that it would not be coherent standing alone, because the form of the policy and the coverages section contemplates both as part of one policy.

Therefore the time limit for filing suit contained in the standard fire policy applies to coverages and perils other than fire and lightning when those other coverages and perils are made part of the prescribed standard fire policy, unless these additional coverages and perils are otherwise limited by the terms and conditions of the endorsements. La.Rev.Stat. 22:691E. Significantly the homeowners policy attached to the standard fire policy has no provision prescribing the time for filing suit on a loss.

The position stated is supported by this Court’s 1976 decision in P. O. P. Construction Co. v. State Farm Fire & Cas. Co., 328 So.2d 105. It was recognized there that Section 691 of Louisiana’s Insurance Code was modeled after the New York Standard Fire Insurance Policy of 1943. Because the suit limitation clause in the New York policy contained the phrase “unless commenced within twelve months next after the fire,” New York courts interpreted this clause to mean that it was not necessary to bring an action within twelve months after other type of casualty loss covered by the policy. Consequently, the suit clause in the standard policy was changed in 1943 to provide that no suit could be maintained “unless commenced within twelve months next after inception of the loss.” Margulies v. Quaker City Fire & Marine Insurance Co., 276 App.Div. 695, 97 N.Y.S.2d 100 (1950), found that this change was made in order that the suit limitation clause would “apply also to additional coverages by indorse-ments on the 1943 standard fire insurance policy.”

From a number of decisions it is apparent that the question of additional coverage for other perils attached to the standard fire policy have been governed by the suit limitation clause in the standard fire policy. In Blum v. Cherokee Ins. Co., 336 So.2d 894 (La.App.1976), a suit by the insured against the insurer for hail damage, the one-year limitation of the standard fire policy was invoked to support a holding that the suit was filed too late. Pinion v. Pennsylvania Millers Mutual Ins. Co., 245 So.2d 733 (La. App.1971), stands for the proposition that the one-year limitation on suit clause of the standard fire policy is applicable to a claim for hurricane loss under an extended coverage endorsement.

The same time limitation for suit clause was applied to a loss arising from vandalism and malicious mischief covered by endorsement on a fire policy in Sager Glove Corp. v. Aetna Ins. Co., 317 F.2d 439 (7th Cir. 1963). A floor buckling loss under an extended coverage endorsement to a homeowners policy was held prescribed by a time limitation on suit clause almost identical to the clause in the case at bar. Naghten v. Maryland Casualty Co., 47 Ill.App.2d 74, 197 N.E.2d 489 (1964).

A loss under a theft and mysterious disappearance of personal property endorsement in a homeowner’s policy was held subject to the same limitation on suit clause contained in a New Jersey fire insurance policy in Staehle v. American Employers’ Ins. Co., 103 N.J.Super. 152, 246 A.2d 745 (1968).

The Court applied the one-year suit limitation clause in a fire policy to a loss claimed for settling pipes under a fire and extended coverage policy in Zurn Engineers v. Eagle Star Ins. Co., Ltd., 61 Cal.App.3d 493, 132 Cal.Rptr. 206 (1976).

Compare Rodriguez v. Northwestern National Insurance Co., et al., 358 So.2d 1237 (1978.)

For the reasons assigned the judgment of the Court of Appeal is reversed, and the judgment of the District Court maintaining the motion for summary judgment is reinstated and made the judgment of this Court.

DIXON, J., dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Albert LANDRY et al. v. Edith P. DENT et al.
    No. 61784.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Albert Landry and Bessie Landry applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 358 So.2d 673.

Writ denied.


text:
    John J. LEGENDRE and Catherine Lasseigne Legendre v. Wally RODRIGUE and the Travelers Insurance Company.
    No. 61770.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: John J. Legendre and Catherine Lesseigne Legendre, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 358 So.2d 665.

Writ denied.


author: TATE and DIXON, JJ.,

text:
    Charles M. BROWN et al. v. James A. EVERDING.
    No. 62452.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: James A. Everding, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo.

Writ denied.

TATE and DIXON, JJ.,

concur. The Court of Appeal was in error for failing to consider the issue of unconstitutionality of the statute argued by the plaintiff Everding in the nullity action, see Assignment 2, since the plaintiff was not required to file a replicatory plea of unconstitutionality when the defendant relied upon the statute, see La.C.Civ.P. 852. However, on the merits, we do not find the statute to be unconstitutional.


text:
    Homer Gerald OUTLAW et al. v. BITUMINOUS INSURANCE COMPANY.
    No. 62418.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Bituminous Casualty Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1350.

Writ denied.

DIXON, CALOGERO, MARCUS and DENNIS, JJ.,

concur in the denial but note that it was error for the Court of Appeal to refuse to consider defendant’s objection to the jury charges, made by agreement after jury had retired. Such agreement does not conflict with CCP 1793. Nevertheless full review by Court of Appeal makes the error harmless.


text:
    STATE of Louisiana v. Frankie SEPULVADO.
    No. 62488.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Frankie Sepulvado, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Dave E. POWELL v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62495.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Dave E. Powell applying for writ of certiorari. Parish of Orleans.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ., would grant out of time appeal.


text:
    Succession of Russell N. SMITH, Sr.
    No. 62503.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Minette Smith, Administratrix of the Succession of Russell N. Smith, Sr., applying for certiorari, or writ of review to the Court of Appeal, Second Circuit. Parish of Winn.

Writ denied.


text:
    STATE of Louisiana v. Joe Edward WILLIAMS.
    No. 62507.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Joe Edward Williams, applying for writs of review. Parish of Ouachita.

Denied. Applicant has an adequate remedy by appeal in the event of conviction.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Dan Edward ROBERTSON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 62509.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Dan Edward Robertson applying for writ of habeas corpus. Parish of Orleans.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    SHERWOOD FOREST CITIZENS ASSOCIATION, R. J. Louden, O. H. Robertson, Jr., J. F. McElderry, J. L. McCrary, D. L. Latil, Sr., and R. W. Jackson v. Basil LEPP and Nita Lepp.
    No. 62492.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Basil Lepp and Nita Lepp applying for writs of review, prohibition, certiorari, and mandamus. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Roosevelt RANDOLPH, Jr. v. CLERK OF COURT, PARISH OF ORLEANS.
    No. 62478.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Roosevelt Randolph, Jr., applying for remedial writs. Parish of Orleans.

Denied. The Court is informed that the appeal is granted and the record is being transcribed.


text:
    STATE of Louisiana v. Ralston BAHM.
    No. 62461.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Ralston Bahm applying for writs of certiorari, prohibition and mandamus. Parish of Tangipahoa.

Writ denied.


text:
    STATE of Louisiana v. Paul R. SWIETLOWSKI.
    No. 62463.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Paul R. Swietlowski applying for writ of review. Parish of Ouachita.

Writ denied: Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Eldridge E. PAYTON.
    No. 62469.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Eldridge E. Payton applying for mandamus. Parish of Orleans.

Denied. The matter is moot. Applicant’s appeal to this Court was decided on May 31, 1978, # 60,917.


text:
    STATE of Louisiana v. Mrs. Loyd E. BOOTHE.
    No. 62476.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Mrs. Loyd E. Boothe, applying for Writs. Parish of Catahoula.

Writ denied.


text:
    STATE of Louisiana v. Leonard Ray SHARPLEY, Jr.
    No. 62448.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Leonard Ray Sharpley, Jr. applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Natchitoches.

Writ denied.


text:
    STATE of Louisiana ex rel. Billy Wayne SINCLAIR v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62449.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Billy Wayne Sinclair, applying for writ of habeas corpus. Parish of East Baton Rouge.

Writ denied.

CALOGERO, J., would grant an eviden-tiary hearing.


text:
    Dewey Lee BRIMER v. MID-CONTINENT STEEL CASTING et al.
    No. 62444.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Mid-Continent Steel Castings, etc., & Seaboard Fire & Marine Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo.

Writ denied.


text:
    Don COLEMAN, Jr. v. Harvey McLEAN, Jr.
    No. 62430.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Harvey McLean, Jr. apply for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    Claudette L. ROMERO v. STATE of Louisiana, DEPT. OF EMPLOYMENT SECURITY and W-K-M Wellhead Systems, Inc.
    No. 62431.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Claudette L. Romero applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Iberia.

Writ denied.


text:
    Jo Ann Henry, wife of David C. HENRY v. David C. HENRY.
    No. 62425.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Jo Ann Henry applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Writ denied: On the showing made, we cannot say the previous courts erred in result.

SUMMERS and DIXON, JJ., would grant the writ.


text:
    Joseph DIMITRI and Frank Dimitri v. Hugh C. SNELL, John C. Snell and H. Charles Snell, d/b/a John-Charles Restaurant.
    No. 62413.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Joseph Dimitri and Frank Dimitri applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana v. James HOWARD.
    No. 62412.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: James Howard applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Bossier.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    LOUISIANA ASSOCIATION OF EDUCATORS v. J. K. HAYNES.
    No. 62411.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: J. K. Haynes and the Louisiana Education Assn., et al. applying for writs of certiorari, mandamus and prohibition. Parish of East Baton Rouge.

Writ denied.


text:
    Debby CAGLE v. VALLEY ELECTRIC MEMBERSHIP CORP. et al.
    No. 62408.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Debby Cagle applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine.

Denied.


text:
    Mae Lelia Woody, separated wife of Elix Doss MOORE v. ALTON OCHSNER MEDICAL FOUNDATION and St. Paul Fire & Marine Ins. Co.
    No. 62401.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Mae Lelia Woody applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Byron WADE.
    No. 62404.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Byron Wade applying for Writ of Habeas Corpus. Parish of Carroll.

Motion denied.


text:
    STATE of Louisiana v. Jerry R. BOYKIN.
    No. 62391.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: The State of Louisiana, through District Attorney John M. Mamoulides, applying for remedial writs to the 24th Judicial District Court. Parish of Jefferson.

Writ denied.

SANDERS, C. J., and SUMMERS, J., would grant the writ.


text:
    STATE of Louisiana v. Roger A. EYSTER.
    No. 62392.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: State of Louisiana through the District Attorney, John Mamoulides, applying for remedial writs. Parish of Jefferson.

Writ denied.

SANDERS, C. J., and SUMMERS, J., would grant the writ.


text:
    In the Interest of Russell GIANGROSSO, Lonnie Gros, and Scott Hood.
    No. 62393.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Russell Giangrosso, Lonnie Gros and Scott Hood applying for writ of certio-rari. Parish of Ascension.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    Barbara DOGAN v. CAPITOL TRANSPORTATION CORPORATION et al.
    No. 62386.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Barbara Dogan applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.


text:
    David Patrick BEACH v. Martha Terry BEACH.
    No. 62365.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Martha Terry Beach Statum applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.

TATE, DIXON and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. John FELTUS v. Rudolph F. BECKER, III, Judge Criminal District Court, Orleans Parish.
    No. 62290.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: John Feltus, applying for writ of mandamus. Parish of Orleans.

Writ denied. Moot.


author: TATE, J.,

text:
    STATE of Louisiana v. Darrell J. SONGY, Jr.
    No. 62103.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Darrell J. Songy, Jr., applying for writs of certiorari, prohibition, mandamus and for stay order. Parish of Jefferson.

Writ denied.

TATE, J.,

concurs because the issue may be considered on appeal upon proper assignment of error.

DIXON, J., would grant the writ.


text:
    In re Mr. and Mrs. Henry MARTIN applying for adoption of the minor child, Lance Le Bouef.
    No. 62378.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Mr. and Mrs. Henry Martin applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 357 So.2d 893.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    STATE of Louisiana and City of Ruston v. Billy Ray STRINGFELLOW.
    No. 62381.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Billy Ray Stringfellow applying for writ of review. Lincoln Parish.

Not considered. Not timely.


text:
    STATE of Louisiana ex rel. Billy R. BROWN v. C. Paul PHELPS, Secretary Department of Corrections.
    No. 62464.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Billy R. Brown, applying for writ of mandamus. Parish of East Baton Rouge.

Granted. Whether applicant is in jail on an unrelated charge may not be relevant; he is entitled to discharge if allegations are correct; an evidentiary hearing is ordered to determine whether he is entitled to a discharge from Angola, and to make a record thereon.


text:
    STATE of Louisiana ex rel. Joseph GOINER v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62497.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Joseph Goiner, applying for writ of certiorari. Parish of Orleans.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Bernard J. Bagert, Judge of the Criminal District Court, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 14th day of July, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    James S. ARCENEAUX v. Drew DOMINGUE, Jimmy Beard, and Allstate Insurance Company.
    No. 62446.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: James S. Arceneaux, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette.

Writ Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Henry K. WEINBERG, Jr.
    No. 62434.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari, prohibition and mandamus. Parish of Orleans.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank Shea, Judge of the Criminal District Court, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 14th day of July, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    CASUAL VILLAGE, INC. v. L. J. ONE, INC., L. J. Two, Inc., U. T. Corporation and Sizeler Realty Co., Inc.
    No. 62382.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: L. J. One, Inc., L. J. Two, Inc., U. T. Corporation and Sizeler Realty Co., Inc., applying for writs of certiorari, etc., to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Byron WADE.
    No. 62403.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Byron Wade applying for post-conviction relief and issuance of a writ of habeas corpus. Parish of East Carroll.

Writ granted: Evidentiary hearing ordered to determine the nature of the plea bargain and whether it has been violated. The trial judge should also consider whether the sentence is cast in legal form to comply with the plea bargain and is authorized to recast it, if not.


text:
    G. W. HOLLEYMAN v. Adrienne GARBARINO et al.
    No. 62493.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Ruth Oliver Holleyman and Robert Walker Holleyman applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Jefferson Davis. 358 So.2d 365.

Writ denied.

SUMMERS and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 62477.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: McArthur Johnson applying for Remedial Writs. Parish of Bossier.

Motion denied.


text:
    Joseph G. KEY v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
    No. 62451.
    Supreme Court of Louisiana.
    June 30, 1978.
   In. re: State of Louisiana, through the Department of Highways, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 357 So.2d 1230.

Writ denied.


text:
    Marie Louise Cambre Richard, wife of David Charles RICHARD v. David Charles RICHARD.
    No. 62454.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Marie Louise Cambre Richard, wife of David Charles Richard, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.

DIXON, J., would grant the writ.


text:
    Leonce HERNANDEZ v. COMCO INSURANCE COMPANY.
    No. 62456.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Leonce Hernandez, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 357 So.2d 1368.

Writ denied.

TATE, CALOGERO and DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Timothy R. RUDOLPH.
    No. 62460.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Timothy R. Rudolph applying for writs of mandamus and certiorari. Parish of Orleans.

Writ denied.

DIXON, J., would grant the writ.


text:
    Mrs. Barbara Blaine, wife of Edward Paul SMITH v. Edward Paul SMITH.
    No. 62445.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Barbara Blaine, wife of Edward Paul Smith, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1380.

Writ denied.


text:
    CLAIBORNE ELECTRIC COOPERATIVE, INC. v. Felix Gordon GARRETT et al. CLAIBORNE ELECTRIC COOPERATIVE, INC. v. Mrs. Alicegene McKENZIE et al.
    No. 62447.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Felix Gordon Garrett, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Claiborne. 357 So.2d 1251.

Denied. The result is correct.

SUMMERS, TATE and DENNIS, JJ., would grant the writ.


text:
    AMERICAN BANK & TRUST COMPANY OF MONROE v. F & W CONSTRUCTION, INC.
    No. 62432.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: American Bank & Trust Co. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 357 So.2d 1226.

Writ denied.

SANDERS, C. J. and SUMMERS, J., would grant the writ.


text:
    Clyde BEL, Sr., d/b/a Bel for Awnings v. CAPITAL PROPERTIES, INC., d/b/a Delta Towers Hotel.
    No. 62436.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Clyde Bel, Sr., d/b/a Bel for Awnings, applying for certiorari, or writ of review, to the 4th Circuit Court of Appeal. Parish of Orleans. 357 So.2d 1330.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    Patte Weathers MARINES v. Henry W. HINRICHS.
    No. 62438.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Patte Weathers Marines applying for writ of certiorari to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1358.

Writ denied.


text:
    Hilda Taylor, wife of and Russell TAYLOR v. AUDUBON INSURANCE COMPANY.
    No. 62439.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Audubon Insurance Company, applying for certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 912.

Writ denied.


text:
    Julian ROY v. Edward C. KURTZ, Director, Department of Safety and Permits for the City of New Orleans, et al.
    No. 62443.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Julian Roy, applying for writs of certiorari, prohibition, and mandamus. Orleans Parish. 357 So.2d 1354.

Writ denied. The result is correct.

SANDERS, C. J., would grant the writ.


text:
    John A. KYLE, Rosemary Deig, wife of/and George E. Godbey v. CITY OF NEW ORLEANS and Lt. Eugene Fields of the N.O. Police Dept.
    No. 62428.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: J. Kyle, R. Deig, wife of/and G. Godbey applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1389.

Denied.


text:
    Earline Roussell TRAPANI et al. v. CITY OF KENNER.
    No. 62423.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: City of Kenner applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 357 So.2d 910.

Writ denied.

SUMMERS, J., would grant a writ.


text:
    LOUISIANA INTRASTATE GAS CORPORATION v. Earl J. GUIDRY et al.
    No. 62410.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Louisiana Intrastate Gas Corp. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 357 So.2d 830.

Writ denied.


text:
    Varis BARENIS v. Joseph GERANCE, the Administrator, Dept. of Employment Security, a Div. of the Dept. of Labor of the State of Louisiana, et al.
    No. 62400.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Varis Barenis applying for certio-rari, or writ of review, in the Court of Appeal First Circuit. Parish of East Baton Rouge. 357 So.2d 892.

Writ denied.

SUMMERS and CALOGERO, JJ., would grant the writ.


text:
    Pat William ALMOND v. Helen Ann Butler ALMOND.
    No. 62395.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Pat William Almond applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of W. Baton Rouge. 357 So.2d 875.

Writ denied.

SANDERS, C. J., and DENNIS, J., would grant the writ.


text:
    Gail Verberne McCLENDON v. STATE of Louisiana, Through the DEPT. OF CORRECTIONS.
    No. 62380.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: State of Louisiana through William J. Guste, Jr., Attorney General, applying for writs of certiorari, prohibition, and mandamus. East Baton Rouge Parish.

Writ denied. The result reached on the ruling is correct.

SANDERS, C. J., would grant the writ.


text:
    Ella Rae Falgout ADAMS v. Errol ADAMS.
    No. 62376.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Ella Rae Falgout Adams applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 357 So.2d 881.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Joseph G. KEY v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
    No. 62455.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Joseph G. Key, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 357 So.2d 1230.

Not considered. Not timely. Application postmarked June 12,1978, after 30 days had expired.


text:
    Newt V. MILLS v. Jerry A. ADAMS.
    No. 62409.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Newt V. Mills applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 352 So.2d 287.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


author: LOTTINGER, Judge.

text:
    Judy Foret DUNCAN v. Kenneth Addison DUNCAN.
    No. 11962.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Gerard E. Kiefer, Baton Rouge, of counsel for plaintiff-appellee Judy Foret Duncan.
    Johnny X. Allemand, Thibodaux, Paul Hebert Jr., of Breazeale, Sachse & Wilson, Baton Rouge, of counsel for defendant-appellant Kenneth Addison Duncan.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an appeal from a dismissal of the defendant’s exceptions of prematurity and no cause and no right of action, and a granting to the plaintiff of a divorce based on living separate and apart continuously for a period of two years or more.

The facts are undisputed that on June 11, 1975, Mr. Duncan, defendant-appellant, left the matrimonial domicile on a business trip. On June 14, 1975, Mrs. Duncan decided to cease living together as man and wife, and on June 15, 1975, she left the matrimonial domicile, removing some of her belongings.

On June 14, 1977 Mrs. Duncan filed suit for divorce based on living separate and apart for a period of two years or more. LSA-R.S. 9:301. The defendant timely filed a dilatory exception of prematurity along with a peremptory exception of no cause and no right of action. The trial judge overruled the exceptions and granted plaintiff the divorce stating: “at that time [June 14, 1977] the parties had been living separate and apart for two years and three days, and exactly two years had elapsed since Mrs. Duncan had concluded that she desired to discontinue the marital relationship.” The facts and testimony unequivocally confirm that Mrs. Duncan physically remained in the matrimonial domicile until June 15, 1975. ‘

Defendant-appellant argues that the trial judge erred in (1) finding that the two year period of separation began to run on June 11, 1975, or June 14, 1975, rather than June 15, 1975, (2) denying the plea of prematurity to the original petition filed June 14, 1977, (3) finding plaintiff to have a right or cause of action as of June 14, 1977, and (4) allowing the amended petition of June 27, 1977 to relate back and cure the defects of the premature filing of the original petition of June 14, 1977.

ERROR NO. 1

Appellee argues that all that is legally required is that one party decide not to live with the other and take some action to bring about the separation. The intent or knowledge of the other party is immaterial, citing Otis v. Bahan, 209 La. 1082, 26 So.2d 146 (1946) and Sciortino v. Sciortino, 209 So.2d 355 (La.App. 4th Cir. 1968), writs refused 252 La. 461, 211 So.2d 328 (1968). Mrs. Duncan contends that since she decided not to live with her husband and took some action by packing her clothes on June 14, 1975, she has met all the legal requirements. We disagree.

To authorize a separation or divorce, the living separate and apart must be in such a manner that those in the neighborhood or community may see that the husband and wife are not living together. Quinn v. Brown, 159 La. 570, 105 So. 624 (1925); Arnoult v. Letten, 155 La. 275, 99 So. 218 (1924); Hava v. Chavigny, 147 La. 330, 84 So. 892 (1920); Boyd v. Boyd, 348 So.2d 121 (La.App. 4th Cir. 1977).

This jurisprudential standard when applied to the facts of this case compels the finding that the two year period commenced on June 15, 1975, the date on which plaintiff-appellee physically left the matrimonial domicile. We hold that as a matter of law the two year period of separation commenced on June 15, 1975.

ERRORS NO. 2, 3 & 4

Since we have above concluded that the separation between Mr. and Mrs. Duncan did not commence until June 15,1975, plaintiff’s suit filed on June 14, 1977, is premature, thus there is no need to discuss the exception of no cause of action.

On June 27, 1977, plaintiff filed an amended petition changing the date of separation to June 15,1975. We are not cognizant of any rule of law that allows an exception of prematurity to be cured by an amended pleading. LSA-C.C.P. art. 933 in part provides that if the exception of prematurity is sustained, “the suit shall be dismissed”. Further, as we held in Pepe v. Drouant, 311 So.2d 582 (La.App. 1st Cir. 1975), an amended petition cannot relate back to the date of the original petition when the cause of action alleged had not then occurred. Thus, the trial judge was in error in denying the exceptions.

Therefore, for the above and foregoing reasons the judgment of the trial court is reversed, and IT IS ORDERED, ADJUDGED and DECREED that plaintiff’s suit be and the same is hereby dismissed without prejudice at appellee’s cost.

REVERSED AND RENDERED.

EDWARDS, J., concurs in this harsh, but technically correct result.


author: GARSAUD, Judge. REDMANN, Judge,

text:
    Philip MONTELEPRE et al. v. Edwin W. EDWARDS et al.
    No. 9582.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 1978.

      Montelepre, Montelepre, P. C., Philip Montelepre, New Orleans, for plaintiffs-appellants.
    William J. Guste, Jr., Atty. Gen., Kendall J. Vick and Donald Ensenat, Asst. Attys. Gen., for defendants-appellees.

      Emile Turner, Jr., New Orleans, amicus curiae.
    Before REDMANN, BOUTALL and GARSAUD, JJ.
   GARSAUD, Judge.

Petitioner, Philip Montelepre, a publicly-announced candidate for the office of Municipal Court judge for the City of New Orleans, filed a petition for declaratory judgment and injunctive relief to declare R.S. 13:2492(A) unconstitutional as a denial of equal protection of the law under the United States Constitution and as unreasonably discriminatory on the basis of age under the Louisiana Constitution of 1974. This claim is based on the provision of that statute which requires that a member of that court shall not be less than thirty years of age. Other petitioners, registered voters of Orleans Parish, contend that the age requirement of R.S. 13:2492(A), under these circumstances, denies them certain rights protected by the First Amendment of the United States Constitution. We should note here that the petitioner, Philip Monte-lepre, brought this action only in his capacity as a potential candidate for the office, and not as an incumbent by appointment whose incumbency had been challenged. The latter contention was obviated when Mr. Montelepre resigned from that office, to which he had been appointed as judge ad hoc pending election of a permanent judge.

The trial court dismissed the plaintiff’s claim for declaratory judgment as to the unconstitutionality of R.S. 13:2492(A), but declared Montelepre qualified to seek the office of judge of the Municipal Court of the City of New Orleans under R.S. 18:451. The trial court interpreted R.S. 18:451 as follows:

“I read a clear distinction between qualifying for the election and qualifying for the office. One qualifies for the office by having been elected and taking an oath.
“Therefore, if a candidate will be 30 years old by the time he qualifies for the ‘office,’ he meets the requirements of R.S. 13:2492, as read in the light of R.S. 18:451.”

The respondents filed a motion to dismiss the appeal with this Court on the theory that, as the petitioner was declared qualified, he received a favorable judgment and thus had no right to appeal. We cannot agree. The petitioner’s prayer for a declaration of unconstitutionality was dismissed. As he did not secure a judgment in strict accordance with the prayer of his petition, he may appeal. Simpson v. Kimbell Milling Company, 164 So.2d 637 (La.App. 3rd Cir. 1964), writ refused, 246 La. 834, 167 So.2d 665; Salassi v. Salassi, 220 La. 785, 57 So.2d 684 (1952).

Regarding the merits of the appeal, this Court finds that the petitioner is qualified to run for the office of judge of the Municipal Court for the Parish of Orleans, but for reasons other than those found by the trial court. In view of this finding, the constitutional question will not be reached. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909); Aucoin v. Dunn, 255 La. 823, 233 So.2d 530 (1970); Stein v. Town of Lafitte, 266 So.2d 516 (La.App. 4th Cir. 1972), writ denied, 268 So.2d 259.

R.S. 18:451 is perhaps imprecisely drawn, and it is somewhat difficult to ascertain the intent of the legislature in enacting this particular section. Nevertheless, we believe that, taken as a whole, that section refers to qualifications for candidacy, which by definition means that one must possess the requisite qualifications for a position at the time one qualifies to seek that position; in other words, one qualifies when he files to run for the office. Such requisite qualifications, however, as will be seen below, may refer to a subsequent condition.

We reach this interpretation by an analysis of the language of the section itself, aided by reference to the title and chapter wherein R.S. 18:451 is found. Although classification and organization of sections of the Revised Statutes and headings to those sections do not constitute part of the law, R.S. 1:12-13, nonetheless we believe they provide some aid in interpreting legislative intent where the language of the statute is unclear. The section in question is found in Chapter 5 of the Election Code, entitled “Primary and General Elections,” and in Part IV of that chapter, entitled “Candidates.” Further, the title of § 451 itself is “Qualifications of Candidates.” Additionally, the language of the first sentence clearly refers to the qualifications one must have when one qualifies as a candidate. Accordingly, we believe the section was intended to refer to qualifications for candidacy.

No doubt the troublesome question arises due to the last sentence of that section, which says, “Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.” The trial court interpreted that section, in effect, to read, “at the time he assumes office.” We do not agree. We believe that the operative word here is “qualifies,” and that, in the context of this section, as well as in the context of elections generally, “qualifies” is normally understood to mean “qualifies to become a candidate.” One does not “qualify” when one is elected; rather, one “assumes office” or “takes office.” By using the term “qualifies,” the legislature is still referring to a candidate or his candidacy, as opposed to his capacity as a duly elected official. In summary, then, we feel that the legislative intent, as indicated by the title of the section, by the specific language of the first sentence, and by the use of the term “qualifies” in the last sentence, is that the candidate must meet the qualifications for the office at the time he qualifies to run as a candidate, except, of course, as otherwise provided by law.

Applying this rationale to the instant case, we see that R.S. 13:2492(A) states, “They shall not be less than thirty years of age.” This sentence follows the sentence which says, “The court shall consist of four judges . . . .” It is apparent that “they” refers back to “judges”; thus, a requirement for that office is that one be thirty years of age when he assumes the office. As the petitioner, on the day he qualifies to be a candidate for the office, will fulfill the requirements for being a judge because he will be thirty years of age on the day the duly elected candidate assumes the office, he meets the qualifications to be a candidate under R.S. 18:451. Put another way, one of the qualifications to be a candidate for office is whether, at the time one becomes a candidate by filing to run for office, it can be determined that one will possess the requirements, if any, for assuming the office. Here, it can be determined on the day Montelepre qualifies as a candidate that he will meet the requirement for assumption of the office — he will be thirty years old on or before the date the office is to be assumed.

For these reasons, the decision of the trial court is affirmed.

REDMANN, J., concurring.

REDMANN, Judge,

concurring.

The expression qualify for office is embodied in our jurisprudence and statutes, and was contained in our 1921 Constitution (e. g., art. 7 § 69 C). One who has been elected or appointed to an office “qualifies for that office” (the phrase of R.S. 18:451) by taking the oath of office (and, if bond is required, by giving bond). (See, e. g., La. R.S. Tit. 42, Ch. IV, “Qualification by Taking Oath and Giving Bond”, and § 142’s use of “qualify for office”; also cases noted at West’s LSA-R.S. 42:141.)

R.S. 18:451 provides “a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.” It does not say “at the time he qualifies as a candidate for that office.” To so interpret it is to arrogate to it the amendment of the Constitution, in respect to all offices whose qualifications are set forth in the Constitution (e. g., La.Const. 1974 art. 5 § 24). That would be constitutionally impermissible and therefore a most unworthy and most unlikely interpretation of R.S. 18:541. See Powell v. McCormack, 1969, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491.

The trial judge’s differentiation of R.S. 18:451’s two qualifyings as a candidate and for office, is historically and constitutionally correct: the statute says only, and requires no more than, that a candidate shall possess the “qualifications for office” by the time he is to qualify for office by taking his oath of office.

      . R.S. 13:2492(A) states as follows:
      “A. The court shall consist of four judges, all of whom must be attorneys-at-law, who shall be elected by the qualified electors of the parish of Orleans. They shall not be less than thirty years of age. Each shall have practiced law in the state for at least five years preceding his election; and shall be a duly qualified elector of the parish of Orleans.”

      . R.S. 18:451 states as follows:
      “§ 451. Qualifications of candidates
      A person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for the office.”

      . E. g., R.S. 13:2492(A) provides, in part, “Each shall have practiced law in the state for at least five years preceding his election; . . . .”


author:
SAMUEL, Judge.
      LEMMON, Judge,

text:
    NATIONAL ROOFING AND SIDING COMPANY, INC. v. Mrs. Irene McINTOSH.
    No. 8354.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1978.

      Jacob L. Karno, Metairie, and Margaret Duplantier, New Orleans, for plaintiff-ap-pellee.
    Robert Scott McIntosh, II, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

Plaintiff, National Roofing and Siding Company, confirmed a default judgment which awarded it $2,492, plus 25% attorney’s fees in a suit on a roof repair contract and recognized a privilege against defendant’s property granted under the Private Works Act (L.R.S. 9:4801, et seq.). Defendant, unrepresented by counsel until after the default was taken, has filed this appeal through her attorney contending: (1) the document upon which the claim is based never ripened into a contract because plaintiff never accepted it; and (2) plaintiff’s noncompliance with the lien procedure renders the lien invalid. We agree with , the first contention and therefore a consideration of the second is unnecessary.

Plaintiff claims defendant is indebted to it for roof replacement or repairs based on a written contract on a printed form bearing its logo. The alleged contract contains printed stipulations and leaves a space for one of plaintiff’s salesmen to describe in handwriting the work required on each individual job. It does contain a handwritten description of the proposed work at 9018 Quinee Street, New Orleans. The signature of Don Ferrill is affixed on a line designated for use by a “Salesman”. The only other signature on the document is the defendant’s.

The “terms and conditions” section states in part:

“This contract is binding, subject only to acceptance by an executive of the company who reserves the right to reject it without liability on its part.
It is agreed that this contract, properly accepted as above provided, shall constitute the entire agreement between us.” (Emphasis added).

No executive officer of plaintiff signed the instrument, which by its own terms requires express acceptance by a plaintiff executive, nor does the record contain any evidence even suggesting any such acceptance did occur. Civil Code Article 1798 provides a contract comes into being when something proposed by one is accepted by another. The agreement remains incomplete until the offer is accepted. Civil Code Article 1800. In this case plaintiff cannot base a claim on a written agreement which by plaintiff’s own stipulations never became binding.

The document then does not support the judgment which is based on the alleged contract. Code of Civil Procedure Article 1702 provides default judgments must be based on evidence sufficient to establish a prima facie case. See Blackwell v. Daigle, La.App., 317 So.2d 18. Nor does the record warrant judgment on any other basis. Civil Code Article 2277 permits verbal agreements for the payment of more than $500 to be established by the testimony of one credible witness and other corroborating circumstances. Here, James W. Hughes, plaintiff’s office manager, was the only witness.

For the reasons assigned, the judgment appealed from is annulled and set aside and this matter is remanded to the trial court for further proceedings consistent with law and with the views herein expressed. Plaintiff is to pay all costs of this appeal.

ANNULLED, SET ASIDE AND REMANDED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge,

concurring.

After defendant offered in writing to pay $2,200.00 (plus an extra charge to replace any rotted sheathing) for the work outlined in the salesman’s proposal, plaintiff corporation (according to the allegations) accepted the offer by performing the work. This record, however, contains no competent evidence that the work was in fact performed. Therefore, the default judgment is not supported by the record evidence, which is insufficient to prove entitlement to a judgment based on the disputed document or on any other contractual or quasicontractual basis.

For these reasons I concur in the decision to annul and set aside the default judgment.

      . If the record established that all of the work outlined in the document had been performed, plaintiff would be entitled to a judgment in the amount defendant indicated was reasonable for this work, although perhaps plaintiff could not collect specifically on the written document and thus arguably would not be entitled to attorney’s fees' provided for in the document.

      . The only evidence relative to performance is the office manager’s statement, apparently based on secondhand information, that “(w)e removed her present roof and put on a new one”.


author: REDMANN, Judge.

text:
    Mrs. Marguerite Lawson, widow of Silas ROBINSON v. PROVIDENCE MAUSOLEUM, INC.
    No. 9301.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1978.
    Sidney L. Shushan (Guste, Barnett & Shushan), New Orleans, for plaintiff-appellant.
    Laurence E. Larmann (Hailey, McNamara, McNamara & Hall), Metairie, for defendant-appellee.

      Before REDMANN, LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

Plaintiff by this appeal seeks increase in quantum of a judgment for $100 damages from the burial of her husband in the wrong grave. We affirm.

The cemetery realized its mistake the next morning and, without consulting plaintiff, exhumed the casket to reinter it in plaintiff’s plot. Meanwhile plaintiff, who had “noticed” at the original interment that the grave was not her own plot, returned for an explanation and learned of the error and of the casket’s having already been exhumed for reinterment. Plaintiff saw the casket, in the condition one must expect from interment in New Orleans: wet and muddied, with its top cracked from the weight of the earth and part of its cloth covering loosened by moisture and movement. Plaintiff waited almost an hour while her own plot was prepared and rein-terment was accomplished.

Plaintiff was, most naturally, “shocked” and upset at the distressing and inexplicable failure by defendant to perform its contractual obligation to prepare the correct site for her husband’s burial, and the less-than-ideal remedying of the error. (As a minimum, the widow should have been informed beforehand of the discovery of the error and of the proposal to remedy it. Because both graves were unused, she might have preferred to swap plots, if the other owner would consent.) But plaintiff had no medical expenses and no loss of earnings as a result of her shock. Already heavy-burdened by the loss of her husband, she appears to have borne the shock of his necessary disinterment and reburial admirably well.

This is not a case of outrage, as in the deliberate profanation of graves for profit, Humphreys v. Bennett Oil Corp., 1940, 195 La. 531, 197 So. 222 ($20,000 reduced to $3,000); or the negligent performing of an autopsy over the widow’s expressed objection, French v. Ochsner Clinic, La.App. 4 Cir. 1967, 200 So.2d 371, writ refused 251 La. 34, 202 So.2d 652 ($500 increased to $1,500; “the primary consideration . is the effect of the [breach of duty] on the feelings and emotions” of the survivors, 200 So.2d at 373); or the refusal by a mortician to return a corpse to the family, Morgan v. Richmond, La.App. 1 Cir. 1976, 336 So.2d 342 ($250). Nor is it a case of accidental destruction of the body, preventing a normal funeral, as in Blanchard v. Brawley, La.App. 1 Cir. 1954, 75 So.2d 891 ($2,000 and $1,000 reduced to $800 and $250 for decedent’s mother and siblings).

We concede that the award of $100 may be minimal but, because there were no aggravating circumstances and no dire consequences to the widow, we conclude that the award is within the trial judge’s “much discretion”, C.C. 1934(3).

Affirmed.


author: LEMMON, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Anthony Balestra v. SOUTH CENTRAL BELL TELEPHONE COMPANY and James A. Dendy.
    No. 9285.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1978.

      Sessions, Fishman, Rosenson, Snellings & Boisfontaine, James Ryan, III, New Orleans, for plaintiffs-appellees.
    Ogden & Ogden, Timothy L. McCune, New Orleans, for defendants-appellants.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   LEMMON, Judge.

This case seeks recovery of damage to a car which veered off the highway to avoid striking defendant’s parked tractor-trailer unit and ran into a manhole on the shoulder. After trial on the merits the trial court rendered judgment in favor of plaintiffs, the owner of the car and his subrogat-ed collision insurer. The principal issue is whether defendant’s employee’s conduct in parking on the highway was a concurrent legal cause of the accident.

The accident occurred shortly before noon on a hazy, dry day on a divided four-lane, north-south highway. Prior to the accident plaintiff’s son was driving the car in a northerly direction in the right lane at about 40 miles per hour in a 45-mile zone. To his right was a shoulder, about 12 feet wide, and a set of railroad tracks. He testified that as he proceeded around a winding curve, he did not notice the tractor-trailer unit stopped in the right lane until he was about three car lengths away, because his view was obstructed by the railroad tracks. He immediately applied his brakes, but when he saw he could not stop he veered to the right (the left lane being occupied) onto the shoulder where he struck the manhole and then the tracks.

Defendant’s employees were beginning work on installation of underground cable along the shoulder of the road. The tractor-trailer involved in this incident was about 60 feet long, and on top of the flatbed trailer was a bright yellow crane. Just prior to the accident defendant’s operator stopped the truck on the highway next to the manhole, intending to feed cable with the crane into the manhole. He first instructed the driver of defendant’s other truck to proceed about 600 or 700 feet down the highway to the next manhole, where that second truck was to pull the cable through with a winch, and then he began to unload warning cones from his truck to place them up the highway to warn oncoming traffic. The accident occurred while he was unloading the cones.

Defendant’s driver testified that at all times the flashers on his taillights on the bed of the truck were operating. He stated without explanation that it was necessary for him to park on the highway in order to perform this work, although he admitted that he could have pulled off onto the shoulder of the road until the warning cones were placed further up the highway to warn approaching traffic. He estimated that about 90 seconds elapsed between the time when he first stopped on the highway and the time that the accident occurred.

The driver of the car was clearly negligent in failing to maintain a proper lookout so as to discover the huge tractor-trailer and crane in the highway ahead. However, the sole basis alleged for imputation of the driver’s negligence to the owner was that the driver was on a family mission, and the driver testified that he was on his way home from work for lunch. When this evidence is accepted, there is no basis for imputation of negligence (and the record contains no claim for contribution).

Accordingly, plaintiffs’ right to recovery depends upon the determination of whether defendant’s employee’s conduct was a concurrent legal cause of the accident.

Legal cause is determined, as outlined in Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970), by first determining whether the conduct was a cause-in-fact of the accident, then by determining what duty was imposed and whether the risk created by a breach of that duty was one for which the statute or rule of law was intended to afford protection, and finally by determining whether defendant breached that duty.

The initial determination of whether defendant’s conduct was a cause-in-fact is a but-for inquiry. Defendant’s parked vehicle occupied a lane ordinarily used by moving vehicles, and if defendant had not blocked this lane or had provided adequate warnings, the accident would not have occurred. Thus, defendant’s conduct was a cause-in-fact or a substantial factor in causing the accident.

R.S. 32:141, R.S. 32:369, and common sense rules of the road impose a duty on motorists to keep the highways open for the safe flow of traffic or to adequately warn approaching motorists of highway obstructions. The duty is designed to prevent the risk that another driver, while confused or inattentive, will collide with the obstructing vehicle. In this case breach of the duty to refrain from stopping or to adequately warn if stopping was necessary created the exact risk the statute was designed to prevent.

The key inquiry is whether there was a breach of defendant’s duty. Even if it were necessary for defendant’s truck to occupy a position on the highway, the truck operator could have parked on the shoulder until the warning cones were in position up the highway or could have flagged or otherwise protected approaching traffic until these devices were in place. The flashing of taillights on the bed of the trailer was simply not adequate warning, and the accident occurred because adequate warning was supplied too late.

We hold that defendant’s failure to provide adequate warning timely to approaching motorists was a concurrent legal cause of the accident.

The amount of damages was stipulated.

The judgment is affirmed.

      . The rule of reason of R.S. 32:141 applies to the determination of civil liability in accidents on highways in residential and commercial areas. Pierre v. Allstate Ins. Co., supra.


author:
LEMMON, Judge.
      GULOTTA, Judge GARSAUD, Judge,

text:
    Edgar PENDER, Lawrence Pichon and Roland Cashen v. POWER STRUCTURES, INC.
    No. 8790.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.

      Patrick C. Leitz, Metairie, for plaintiffs-appellants.
    Evans & Scheffler, Robert B. Evans, Jr., Gretna, for defendant-appellee.
    Before REDMANN, LEMMON, GULOT-TA, STOULIG and GARSAUD, JJ.
   LEMMON, Judge.

Plaintiffs, former employees of defendant corporation, have appealed from a judgment dismissing their suit for bonuses allegedly earned prior to termination of their employment. The pivotal issue on appeal is the validity of the bonus plan’s requirement that the employee be still employed on the scheduled date for payment of the bonus.

I

Defendant’s bonus plan, as revised in April, 1975, provided generally for quarterly bonuses (and semi-annual bonuses for upper management personnel) payable from a calculable portion of the profits for the bonus period. The bonus was payable within 30 days of the end of the bonus period and was limited to a percentage of the employee’s salary, varying among three specified groups of employees. The plan was subject to certain rules, the rule pertinent to this dispute being:

“Employees must be employed at time of payment.”

The last quarter of defendant’s fiscal year ended on October 31, 1975, and plaintiffs were involuntarily terminated on the next work day because they were planning to begin their own business in competition with defendant. In this regard they admitted approaching the assistant chief engineer to leave defendant’s employ and to join their new company, and other undenied evidence shows they undermined their employer in gathering company information preparatory to starting a competitive business.

II

Plaintiffs contend that the bonus plan’s requirement of continued employment 30 days beyond the bonus period is unenforceable, because the public policy inherent in R.S. 23:634 prohibits a provision for forfeiture of wages based on failure to complete a term of employment.

The bonus plan in the present case was based on profits earned by the employer during the bonus period, and plaintiffs worked for the entire period under an employment contract whose terms obligated the employer to pay the bonus, contingent upon the employee’s compliance with the rule requiring continued employment for 30 days beyond the bonus period. Thus, the bonus was part of the employee’s bargained-for compensation for services rendered during this period, and the public policy of this state expressed in R.S. 23:634 prohibits an employer from forfeiting such compensation when the employee works for the entire period of profits upon which the bonus was based, but does not work for the required additional 30 days.

We are aware of and disagree with the decision in Knight v. Oden, 282 So.2d 612 (La.App. 1st Cir. 1973), which conceded that forfeiture of wages is not favored, but held that R.S. 23:634 does not apply to bonuses. The compensation that the employee is promised in bonuses forms part of the compensation for the employee’s labor during the bonus period, which he otherwise would presumably have received in wages or other benefits.

This decision is an extension of the decision in Morse v. J. Ray McDermott & Co., 344 So.2d 1353 (La.1976), which was based both on the public policy expressed in R.S. 23:634 and on the fact that the employer prevented fulfillment of the condition of continued employment for reasons not attributable to the employee’s misconduct. In the present case plaintiffs were terminated for misconduct, which was sufficient cause for dismissal, and the Morse case is therefore not controlling. Nevertheless, we conclude that the requirement of continued service in this particular bonus plan is unenforceable as against public policy, and plaintiffs are accordingly entitled to collect the bonuses which constituted part of the compensation promised to them for services performed during the bonus period.

Ill

Defendant contends that it should receive credit against any bonus due because it gratuitously awarded plaintiffs severance pay, which was not due under the terms of the employment contract.

Defendant’s president testified that he authorized payment of severance pay, although the company had never granted severance pay except on one prior occasion and had no obligation to do so in this case, because plaintiffs had not qualified for the bonuses. He admitted, on cross-examination that he had promised plaintiffs at time of termination to try to secure payment of the bonuses, explaining that he felt a sense of loyalty to plaintiff Cashen, who was the manager of manufacturing and had been with the company since its inception. He further stated that a major factor in fixing the amount of severance pay (two months’ salary) was the amount of the bonuses which were forfeited.

Under the overall circumstances we conclude defendant is entitled to credit for the amount of severance pay, which was awarded based on the belief that bonuses were not payable. Because the severance pay awarded to plaintiffs Pender and Pi-chon exceeded the amount of their bonuses, their suits were properly dismissed.

Accordingly, the judgment of the trial court is reversed in part, and judgment is now rendered in favor of Ronald Cashen in the sum of $7,956.00, subject to a credit of $3,316.00. Costs of this appeal are to be paid one-third each by Pender, Pichón and defendant. In all other respects the judgment is affirmed.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

GULOTTA, J., dissents and assigns reasons.

GARSAUD, J., dissents and assigns reasons.

GULOTTA, Judge

dissenting.

I dissent. The employees were terminated because of their own misconduct. Their misdeeds in attempting to undermine their employer, preparatory to going into a competitive business, prevented their receipt of the bonus. Furthermore, the employer gratuitously gave to the terminated employees two months’ severance pay. As a matter of fact, in the cases of two of the employees, the severance pay exceeded the amounts of the bonus to which they claim entitlement.

While I strongly support public policy protecting employees against unscrupulous employers, I also recognize that the employer-employee relationship is not a one-way street. It was not the employer’s action which prevented fulfillment of the condition but the employees’ action. Our case is different, in this respect, from Morse v. J. Ray McDermott & Co., Inc., on rehearing, 344 So.2d 1353, 1369 (La.1977). See also LSA-C.C. art. 2040. The judgment of the trial court is correct.

GARSAUD, Judge,

dissenting.

I respectfully dissent. This bonus plan was part of a deferred compensation arrangement related to productivity and was an incentive for future performance. It had not been given in the company’s early lean years, but only when the company began to make money. The bonus was earned in the sense that its distribution arose out of the employer-employee relationship and was not a willy-nilly gratuitous payment on the part of the employer. Nonetheless, I do not believe it is the type of compensation (wages) protected by R.S. 23:634. This section should be read together with sections 631, 632 and 633, all of which I believe refer to the base wage earned and not to any “deferred compensation,” which is part of a general fringe benefit package. Thus, the contractual provision is effective and, as the appellants were not in the employ of the company on the date specified, they were not entitled to the bonus.

      . R.S. 23:634 provides:
      “No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.”

      . The facts of this case do not present the question of whether an employer can require an employee to continue in employment until the end of the bonus period in order to collect a bonus for the period. We simply hold that an employer cannot require an employee to continue in employment after the end of the period during which the services were performed which gave rise to the profits and the bonus based thereon.

      . Concededly, defendant had the right to terminate these employees, and the record does not suggest that termination was designed to deprive them of their bonuses. Nevertheless, the conduct which justified the penalty of termination does not justify the additional penalty of forfeiture of earned labor compensation in violation of the public policy of this state.


author: DeSONIER, Judge.

text:
    Francis A. RODRIGUE, Sr. v. B. G. MAYET d/b/a Bonnet Carre Cattle Company, et al.
    No. 8967.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Porteous, Toledano, Hainkel & Johnson, James S. Thompson, New Orleans, for defendant-appellee.

      Daniel E. Becnel, Jr. and Barry J. Landry, Reserve, for plaintiff-appellant.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   DeSONIER, Judge.

Plaintiff appeals from a judgment dismissing his suit for personal injuries sustained when his automobile killed a cow. Named defendants were the alleged owner of the cow, B. G. Mayet, d/b/a Bonnet Carre Cattle Company, and its liability insurer.

Louisiana’s stock law applicable to U. S. Highway 61, R.S. 3:2803, and the codal article making the owner responsible for damage caused by an animal, C.C. Art. 2321, are interpreted to place on the animal’s owner the burden of proving that he was free of negligence. An owner

must not only show he has taken all reasonably prudent precautions . . , but must also explain the presence of the livestock on the highway by showing how the animal escaped in order to overcome the presumption of negligence and to prove freedom from fault in the slightest degree. Womack v. Rhymes, La.App., 300 So.2d 226, 231, writ refused, La., 303 So.2d 179.

Accordingly, plaintiff need not show negligence on the owner’s part. If he established that defendant is the owner, he recovers.

But plaintiff did not establish defendant’s ownership. The trial judge’s reasoning that there was “no evidence offered to place ownership in the defendant” is supported by the record.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


author: BOUTALL, Judge. GULOTTA, Judge,

text:
    Billy Marie DECKER v. OFFICE OF EMPLOYMENT SECURITY, State of Louisiana and Gandolfo, Kuhn, Luecke & Associates.
    No. 9235.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.

      Gertler & Gertler by Rodney P. Vincent, New Orleans, for Billy Marie Decker, plaintiff-appellant.
    Charles E. McHale, Jr., John J. Farrell, Jr., New Orleans, for Office of Employment Sec. et al., defendants-appellees.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

Billy Marie Decker appeals a judgment of the District Court affirming the decision of the Board of Review of the Office of Employment Security and dismissing her petition for review.

Petitioner’s original complaint alleged she quit her job as combination secretary-bookkeeper and receptionist complaining that she could not tolerate the harsh and obscene language used, improper accusation of errors, excessive work and harsh working conditions. At the hearing before the appeals referee, she testified that one of the partners of the employer frequently used harsh and obscene language, that on several occasions he “blew up” and accused her of making errors which in fact were not her fault, and that this, coupled with the excessive work piled upon her drove up her blood pressure and caused her to quit.

The finding of fact by the appeals referee in summary found that she had been working for some eight years and normally worked a 32 hour work week; that during the latter part of her employment there were several incidents on the job where one of the partners became angry and used harsh language, however, this was not directed towards her. The two incidents upon which the claimant relied was one on about September 21, 1976 when the claimant was reprimanded by the partner unjustly for an error determined later not to be her fault. However the partner after learning that the claimant was not responsible for the error, apologized to her and she remained on the job until September 29 when another incident occurred whereby a customer’s order was incorrectly completed. The partner again voiced his disapproval by use of harsh words. When the claimant discovered the cause of the error, she brought it to the attention of the fellow employee involved, and another partner then informed her that it was not her place to apprise the other worker of his error. She became extremely upset and quit. The referee noted that the second partner did not use harsh words or reprimand her. He further noted that although she testified that the latter two incidents made her extremely upset and nervous, she was not advised by her physician to leave her job for this reason. The referee concluded that she was not wilfully harassed by the employer or induced or forced by the employer to resign, and then disqualified her for compensation for leaving employment without good cause connected with the work. R.S. 23:1601(1).

The scope of judicial review is set forth in R.S. 23:1634 stating in part:

“In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”

We believe there is sufficient evidence in the record to justify the findings in this case. In considering the record, one is presented with a picture of growing dissatisfaction with her job by an employee who labored sincerely in the best interest of her employers, and who was, after the death of the managing partner three years prior, subjected to the varying personalities of the surviving partners. Her dissatisfaction came to a crisis upon being accused of errors she did not make, and she voluntarily resigned. We do not mean to say that the claimant was not upset and nervous because of the conditions at the place of employment. However, we note that although the claimant now contends that it was for medical reasons that she was required to quit, her initial claim did not state that she left because of personal illness. It was not until the hearing before the appeals referee that she sought to introduce evidence of that nature in the form of a notation from Dr. MeCurley that she was under his care for hypertension periodically, together with a statement from his office which indicated some treatment in 1975, but none in 1976 until October 26, a month after her quitting.

Finding sufficient evidence to support the decision appealed, we affirm the judgment of the District Court.

AFFIRMED.

GULOTTA, J., dissented with reasons.

GULOTTA, Judge,

dissenting.

I dissent.

LSA-R.S. 23:1601, in pertinent part, provides:

§ 1601. Disqualification for benefits
“An individual shall be disqualified for benefits:
(1) If the administrator finds that he has left his employment without good cause connected with his employment. * * * ” (emphasis supplied) '

I am of the opinion that the record supports a conclusion that the employee left her employment for good cause. The claimant testified that she could not take any more of the hollering, abuse and foul language. She explained that this is why she left. Her employer, John B. Luecke, admitted that “bad” language had been used around the office in the claimant’s presence. This witness added that he would not allow his daughter to work there because of the foul language.

The employer further testified that the claimant was regarded as a dedicated and hard-working employee and on the day she left she was visibly upset. Claimant’s husband testified that on numerous occasions when his wife came home from work she was upset, nervous and crying.

The circumstances considered, I conclude that the employee’s.. working conditions were such that she was compelled to work under a nervous strain. I would conclude that the employee left her employment for good cause.


author: GULOTTA, Judge.

text:
    Mr. and Mrs. Louis R. BECK, for themselves and for the use and benefit of Kristel Fay Beck, their minor daughter v. ALLSTATE INSURANCE COMPANY.
    No. 9239.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied June 30, 1978.

      Hugh G. Oliver Westwego, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, E. Ross Buckley, Jr., New Orleans, for defendant-appellee.
    Gerald J. Arceneaux, Westwego, for third-party defendant-appellee, Heard J. Morales, Jr.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from the dismissal of their suit on behalf of their six-year-old child for injuries sustained when she was struck by an automobile traveling in a westerly direction on La. Hwy. 18, the River Road. The child and her 11-year-old sister were attempting to cross the highway from their home located on the south side of the River Road to the levee to join their parents. The younger child had reached the northern edge of the highway nearest the levee when she was struck by the right front of the automobile. She was knocked into a ditch at the base of the levee and sustained a broken arm and other injuries.

Plaintiffs’ suit was directed against their insurer under the uninsured motorist provision of the policy. The driver of the automobile, Heard J. Morales, Jr., was not made a party defendant. The petition alleges the driver was an uninsured motorist and his negligence was the cause of the accident and injuries. The insurer, in a third-party demand, seeks indemnification from the driver in the event that it is cast in judgment.

The court, in dismissing the main demand and the third-party petition, concluded that plaintiff had failed to show 1) that the driver was an uninsured motorist and 2) that the driver was negligent. The record supports the trial court’s conclusions. Accordingly, we affirm.

UNINSURED MOTORIST

A plaintiff seeking to enforce a claim under the uninsured motorist provision of an automobile liability policy may make prima facie proof by affidavit that the other vehicle is uninsured. LSA-R.S. 22:1406(D)(6). Absent such an affidavit, the plaintiff has the burden of proving by other evidence the offending driver is uninsured. See Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972); Bubrig v. Phoenix of Hartford Insurance Company, 306 So.2d 60 (La.App. 4th Cir. 1974). In his reasons, the trial judge stated that not “one scintilla of evidence” had been introduced to indicate the driver was uninsured. Our consideration of the record supports the trial judge’s reasons. The record simply failed to contain any evidence which would establish that the driver was an uninsured motorist.

DRIVER’S NEGLIGENCE

The accident occurred shortly after 5:00 p.m. on a June afternoon. The weather was clear and the highway dry. According to the driver, he first saw the child at a distance of 50 feet as she ran onto the highway across the path of his vehicle. At that point he immediately applied his brakes and skidded in the process.

It is not seriously contended that the driver, after seeing the child, was negligent. Rather, the more serious inquiry is whether he saw or should have seen the child before she came into the street and whether the presence of the children at roadside required a prudent driver to reduce his speed.

Morales testified that he was traveling at a speed of 35-40 miles per hour in a 40-m.p.h. speed zone; that the child ran in front of his automobile, from left to right, about 50 feet in front of his vehicle; that he immediately applied his brakes and skidded to a point where the right front of the automobile, moving at a speed of 10-15 miles per hour, struck the child who had reached a point on the right or north edge of the highway. This testimony, together with the 88.6' skid marks measured by the investigating police officer, as well as the testimony of the driver of a following vehicle, support the conclusion that Morales was not traveling in excess of the speed limit.

Though plaintiff testified that measurements of the skid marks (taken by him at approximately 3:00 a.m. on the morning following the accident) were 97' 8" in length, we cannot say the trial judge erred in placing more reliance, in oral reasons for judgment, on the measurements made by the investigating police officer.

The injured child and her older sister who was walking a bike came from the house and crossed the front yard of their home before reaching the highway. The older sister testified that the younger child ran ahead and into the street in front of her when she (the witness) was standing in the driveway between her father’s parked car and the front yard fence. The independent witness following the Morales car stated that plaintiffs’ parked vehicle was even with the fence and was approximately 10 to 12 feet from the roadway. Morales stated that he had first seen her at the point when she reached the highway and was running. He further testified that the parked car and debris and building materials in the yard obstructed his view and that the front of the house was at a distance of 30' from the highway.

Although the car was parked in the driveway and there was some debris, building materials and bricks in the yard, this evidence is not significant in the ultimate determination of whether or not the driver was negligent. Though the older child testified that some of the materials stacked in the front yard were “about as tall” as her younger sister, the witness stated that this trash was “back by the house”. She testified that a mortar box and trash in the front of the yard were only about a foot high. Furthermore, her testimony does not clearly indicate on which side of the parked vehicle she and her sister were located as they approached the highway, i. e., whether or not on the side nearer the approaching vehicle. A fair interpretation of the evidence is that neither the debris nor the car constituted an obstruction.

Although we conclude there existed no significant obstruction of the driver’s view of the children, the record does not contain evidence of the children’s presence at roadside which would have placed a driver on notice requiring a reduction in speed. There is no evidence that the children were standing, playing or waiting for any extended time to cross the street or engaged in any other activity at roadside prior to the moment the child ran in front of the automobile. The evidence indicates the children walked from the house toward the road and when they reached approximately 10 or 12 feet from roadside, the younger child ran into the highway in front of the automobile.

Under the circumstances, we cannot say the trial judge erred when he concluded plaintiffs failed to carry the burden of establishing the driver’s negligence. We are not here confronted with a situation similar to Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978) or Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978), where the question was the contributory negligence of the pedestrian. In those cases, the driver’s negligence was established. In our case, however, no showing has been made of the driver’s negligence and the Baum-gartner and Dupas cases are clearly distinguishable from the instant one.

The judgment is affirmed.

AFFIRMED.

      . The act refers to an affidavit of the uninsured owner and operator or an affidavit of the Casualty and Surety Insurance Division or evidence that the owner and operator of the uninsured vehicle is a nonresident and has no automobile liability insurance.


author: BOUTALL, Judge. LEMMON, Judge,

text:
    George A. WASHINGTON v. Isabel ANGLADE and Allstate Insurance Company et al.
    No. 9240.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.

      Marvin C. Grodsky, New Orleans, for George A. Washington, plaintiff-appellant.
    James S. Thompson, Porteous, Toledano, Hainkel, & Johnson, New Orleans, for State Farm Auto. Ins. Co., defendant-appellee.
    Bradford H. Walker, Drury, Lozes & Curry, New Orleans, for Isabel Anglade and Allstate Ins. Co., defendants-appellees.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

As a .result of an automobile collision, plaintiff sued for personal injuries and damages to the extent of $461,000 and the jury awarded him a judgment of $2,000. He appeals on quantum only.

George A. Washington was driving his automobile on West Metairie Avenue at the intersection of Athania Pkwy., when it was struck on the rear side, causing his vehicle to spin around several times. As a result of the accident he contends that he suffered injuries to his shoulder, neck, low back and right knee, and he suffered the loss of two teeth. He testified that initially his shoulder gave him the most pain, but that soon resolved, and then he was confronted with the pain in his neck, back and knee. For these injuries he received treatment over the course of two years, and tells us that he still suffers pain in those areas. He also testified that he received a blow to his mouth, which loosened a number of teeth, resulting in the extraction of two of them. If his testimony is accepted as true, it is apparent that he is entitled to an award much greater than that which he received. As we see it, the issue resolves itself to a question of credibility of plaintiff Washington.

It is noteworthy that at the time of the collision, plaintiff reported both to the investigating police officer and to an independent witness who sought to aid him, that he was not injured, but merely shaken and scared. He admits this and relates that he was too dazed to realize that he was hurt, and that it was not until he got home that he discovered that his mouth was bleeding and his teeth were loosened and that his right knee was bleeding. Because his shoulder began to hurt the next day, he called his family doctor, who had been treating him for a heart problem, and was advised by that doctor to take some pain pills and call him later if necessary. He never did seek further services from that doctor. Instead, several weeks later he called an attorney who referred him to Dr. Bernard Manale, an orthopedic surgeon in the Metairie area. Despite the fact that the accident happened on October 31, 1975, plaintiffs did not see Dr. Manale until December 12, 1975.

The testimony of Dr. Manale is to the effect that although he saw plaintiff a number of times and treated him for his complaints of pain, he never found any clinical evidence, or objective symptoms, except for two small bruises on the right knee, which could be related to a trauma. Instead, the doctor found that plaintiff’s spine was affected by the disease of degenerative arthritis, common for a man of this age, and could only relate the complaints of plaintiff to the collision by virtue of what plaintiff told him.

The plaintiff further testified that his injuries prevented him from working for a period of time after the accident, and interfered with his ability to effectively work as a real estate salesman thereafter, causing him the loss of at least $14,000 in income. His testimony in that respect is woefully short. It is evident that he attended work regularly, and in fact rented an automobile immediately after the collision for use in his work. On his testimony alone, we see no basis for any award for lost wages.

Plaintiff’s testimony concerning his loss of teeth and restriction of physical activities, such as caused him to quit fishing and forced the sale of a boat which he owned are equally unfounded. Dependent upon credibility, it appears equally probable that he lost his teeth as a result of a gum infection rather than a trauma; and the restriction of his deep-sea fishing activities stems from the time of his heart problems.

All in all, the plaintiff’s testimony presents a very exaggerated picture of his situation, and is not supported by any corroborating evidence. It is apparent that the jury must have disbelieved plaintiff’s testimony and awarded him damages only for the slight injuries he received as a result of the trauma. There is ample evidence in this record to support such a finding, and we find no manifest error.

Plaintiff assigns as error the introduction of the defendant’s testimony tending to establish her impecuniousness or inability to pay damages. He contends that his objection to the testimony should have been maintained because that matter was not urged as an affirmative defense. C.C.P. Article 1005. We refer to the case of Williams v. Garner, 268 So.2d 56 (La.App. 1st Cir. 1972) which considered just such an issue. We agree with the opinion of that court that inability to pay merely seeks to limit recovery because of the defendant’s incapacity to pay in full the amount to which plaintiff may be entitled, it does not tend to defeat plaintiff’s claim.

Additionally we note that evidence of defendant’s insurance of coverage of $5,000 for liability and $5,000 for property damage, together with plaintiff’s own uninsured motorist coverage of $10,000 was placed in evidence. In view of the insurance coverage, and the award made, it is apparent that that evidence could have had little effect upon the jury.

For the reasons assigned the judgment is affirmed.

AFFIRMED.

LEMMON, J., concurs with reasons.

LEMMON, Judge,

concurring.

Ability or inability of a defendant to pay a judgment is completely irrelevant to the amount of damages sustained by the plaintiff, and evidence of Mrs. Anglade’s poverty should have been excluded. However, the irrelevant evidence in this case was apparently not prejudicial, because the jury did not even award the amount of the insurance limits.