author: CHIASSON, Judge:

text:
    Lawrence E. JOHNSON et al. v. J. Al AMISS, Sheriff, et al.
    No. 11699.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Lawrence E. Johnson, East Baton Rouge Parish Prison of counsel for plaintiff-appellant Lawrence E. Johnson in pro. per.
    C. James Carville, Jr., Baton Rouge, of counsel, for defendant-appellee J. Al Amiss, Sheriff.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge:

This appeal was fixed for argument and all attorneys of record and the plaintiff in proper person were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    James C. JOHNSON, Jr. and Bonnie Johnson v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 11769.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Gordon M. White, Baton Rouge, for plaintiff-appellant.
    David K. Balfour, Baton Rouge, for plaintiff-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

ON MOTION TO DISMISS

This Court, ex proprio motu, issued a show cause order as to why this appeal should not be dismissed for failure to timely file the appeal bond.

Judgment was signed on June 15, 1977. The motion of appeal was filed on July 15, 1977, and the appeal bond on September 6, 1977.

An appeal bond is jurisdictional, and appellate courts do not acquire jurisdiction of an appeal which is not timely perfected. Taylor v. Harvey, 340 So.2d 1072 (La.App. 1st Cir. 1976).

In response to the show cause order, appellant contends LSA-C.C.P. art. 2087 provides the security for an appeal may be furnished within 60 days of the date of the appeal. We do not agree. Article 2087 is very clear when it provides:

“Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within sixty days after:
“(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
“(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
“(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
“When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any other appel-lee, may take a devolutive appeal therefrom, and furnish the security therefor, within the delays allowed in the first Paragraph of this Article, or within ten days of the granting of the first devolu-tive appeal in the case, whichever is later.”

Therefore, under the above facts, the appeal bond was not filed timely.

Therefore, for the above and foregoing reasons the appeal of James C. Johnson, Jr. is dismissed at appellant’s cost.

APPEAL DISMISSED.

      . Both James C. Johnson, Jr. and his wife, Bonnie Johnson, are the plaintiffs and have appealed. The judgment of the Trial Court dismissed this suit as against the plaintiff, James C. Johnson, Jr. but does not mention Bonnie Johnson.


author: PONDER, Judge.

text:
    Patsy STEWART v. Vinal James STEWART.
    No. 11639.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Joel B. Dickinson, Baton Rouge, of counsel for plaintiff-appellee, Patsy Stewart.
    Donn Moss, Baton Rouge, of counsel for defendant-appellant, Vinal James Stewart.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is an appeal by defendant from an award for alimony pendente lite and child support.

The issue is the amount of the award.

We amend and affirm.

Defendant’s attack is two-fold: he has not sufficient means to pay the amount awarded, and his wife and child do not need the amount awarded.

Defendant admits to a projected adjusted gross income of $4,843.96 per month. He deducts projected taxes of $1,695.38, personal expenses of $2,977.63 and business expenses of $810.00 to arrive at a net monthly deficit. The personal expenses, however, include interest and principal payment on notes of $1,525.08 and the note of $187.50 on the automobile which the court ordered the plaintiff to pay if she kept the car. Defendant stated he had a net worth of approximately $225,000.00, included in which was about $45,000.00 in notes receivable. We can find no error in the court’s finding that defendant was able to pay the amount awarded. Privette v. Privette (La. App. 1st Cir. 1976) 335 So.2d 547; Nelson v. Nelson (La.App. 1st Cir. 1976) 335 So.2d 787.

Defendant argues strenuously that the award is based upon a standard of living not achieved by them while living together. The testimony as to the average cost is varying but there is unequivocal testimony that the standard of living had been elevated in the immediate past. We find no error in the Court’s finding on this point.

In her testimony, however, Mrs. Stewart stated that from the $1,818.50 she first estimated as her need, should be deducted $200.00 for child care and $150.00 for educational expenses. It was established that $50.00 for health and accident insurance was deducted from her salary the net of which was about $500.00. We therefore compute from her own testimony that the need is for $900.00 per month. In addition, we are convinced that the figure of $250.00 per month for clothing is an overestimation, even under the improved living standard enjoyed by the parties immediately before the separation. We therefore believe that an award of $800.00 per month is ample under the circumstances.

Maintaining approximately the same proportion as employed by the trial court, we allocate $300.00 to child support and $500.00 to alimony pendente lite.

For these reasons the judgment appealed from is amended to order that defendant pay plaintiff the sum of $800.00 per month, allocated as $500.00 alimony pendente lite and $300.00 as child support.

The costs are to be borne by the defendant.

AMENDED AND AFFIRMED.


text:
    Clyola P. TUNNARD v. James D. TUNNARD.
    No. 11640.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Joel B. Dickinson, Baton Rouge, of counsel for plaintiff-appellant, Clyola P. Tun-nard.
    Martin C. Schroeder, Jr., Baton Rouge, of counsel for defendant-appellee, James D. Tunnard.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the award of a separation from bed and board on grounds of mutual fault.

The issues are the admissibility of some evidence and the correctness of the lower court’s finding of mutual fault.

We affirm.

Plaintiff complains of the court’s admission of evidence beyond the allegations of defendant’s reconventional demand and some hearsay evidence.

In his answer, defendant made some allegations of habitual intemperance and specified at least one instance. In his re-conventional demand he alleged habitual intemperance, a suicide attempt and extreme cruelty, all in quite general terms. Without objection plaintiff’s witnesses were cross-examined about alcoholism, the suicide attempt and an attempt to pour hot water on defendant. Plaintiff objected to the question: “Was she drunk?” directed to defendant without specifying the ground therefor. She objected to a question as to acts of cruelty without specifying the grounds but evidently on the basis of relevancy because the time was not specified. She objected to the leading nature of another question. These objections were overruled. Then for the first time plaintiff objected to questioning about a shooting incident because it had not been pled. The judge overruled the objection saying that the incident could be corroborative of the other evidence of cruelty. Thus it can be seen that plaintiff’s objection of no basis in the pleading was to evidence of the shooting, not to all acts of cruelty, many of which were received into evidence without objection and others without objection on that ground. We find no error.

Plaintiff complains of the court’s sustaining defendant’s objections to hearsay and overruling plaintiff’s objections to hearsay, without being specific of the instances. While the court was quite lenient in its rulings, we find no prejudicial error since there was sufficient evidence otherwise, and the incidents related were corroborative of that evidence. In the one instance in which plaintiffs objection to hearsay was made and overruled, the answer finally given was not subject to that objection.

Plaintiff’s other argument is that the trial court erred in finding mutual fault. We have examined the record and find that the court was correct in its conclusion.

We affirm the judgment. Plaintiff is cast with all costs of this appeal.

AFFIRMED.

      . LSA-C.C. Article 141
      “A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”


author: LANDRY, Judge.

text:
    Carol WEATHERSBY and Delbert H. Cox v. Robert M. KERSBERGEN and United Services Automobile Assoc.
    No. 11644.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Daniel E. Becnel, Jr., Reserve, for plaintiff and appellee.
    Timothy G. Schafer, New Orleans, for defendant and appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Conceding liability, defendants Robert M. Kersbergen and his insurer, United Services Automobile Association (United), (Appellants), appeal from judgment awarding plaintiffs Carol Weathersby and Delbert H. Cox (Appellees), general damages of $25,-000.00 each for the wrongful death of Ap-pellees’ major son who was killed in an automobile accident. Judgment was also rendered in favor of United States Fidelity and Guaranty Company (USF&G), interve-nor, for $1,000.00 for funeral expenses paid by USF&G as workmen’s compensation insurer of decedent’s employer. In addition, judgment was rendered in favor of Appel-lees in the sum of $1,469.23 for funeral expenses not paid by USF&G. Despite a stipulation limiting United’s liability to $50,000.00, all judgments were rendered against Appellants in solido. We amend the judgment to limit United’s liability to the stipulated sum.

Appellants principally contend that the trial court abused its discretion in awarding equal special damages to both parents since the record allegedly shows a much closer relationship between father and son than between mother and son. It is suggested that the award to the mother should be reduced drastically.

Decedent’s parents were divorced in 1968, at which time decedent was approximately 13 years old. Custody of the children of the marriage (5 girls and 3 boys) was awarded the father. From the time of the divorce until March, 1974, decedent lived in Reserve, Louisiana, with his father and some of his brothers and sisters. In March, 1974, decedent’s father moved to Georgia for business reasons. Decedent remained in Reserve to complete his high school education and was graduated from high school in the summer of 1974. Following graduation, decedent obtained employment and had been employed a short time prior to his demise on September 4, 1974. At the time of his death, decedent was almost 19 years of age.

Following the divorce, decedent’s mother resided in Reserve until February, 1972, at which time she remarried and moved to Lafayette, Louisiana. From the time of the divorce until she left Reserve, the mother saw decedent and her other children at frequent intervals and they stayed with her often. After moving to Lafayette, the mother saw decedent at intervals of 4 to 5 weeks. Although the mother did not make fixed periodic payments for decedent’s support, she occasionally gave him money for traveling expenses to encourage his visiting her in Lafayette. She gave decedent a graduation present and was present at the hospital at the time of decedent’s death.

Appellants correctly contend the amount due a parent as special damages for the death of a child depends on the loss of love, affection and companionship involved in each case. Wright v. Romano, 279 So.2d 735 (La.App. 1st Cir. 1973).

Amounts awarded parents for the death of a child may differ where, due to divorce or other factors, ties between a child and one parent are stronger or closer than those between the child and the other parent. Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir. 1975).

Nevertheless, an award of special damages for wrongful death or personal injuries lies within the sound discretion of the trial court, and is not to be disturbed on appeal except on a showing of clear abuse of such discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). Under the circumstances, we find no abuse of that discretion. We find these awards well within the range of discretion allowed by Coco, above.

We do, however, find merit in United’s contention that its liability should be limited to the stipulated amount of $50,-000.00.

It is ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby amended and judgment rendered herein as follows:

In favor of plaintiffs Carol Weathersby and Delbert H. Cox in the sum of $25,000.00 each, against defendants Kersbergen and United, in solida;

In favor of intervenor, USF&G against defendants Kersbergen and United, in soli-do, in the sum of $1,000.00, to be paid by preference;

In favor of plaintiffs Carol Weathersby and Delbert H. Cox against defendants Kersbergen and United, in solido, in the sum of $1,469.23.

It is further ordered, adjudged and decreed that all awards bear legal interest from date of judicial demand until paid; that the total liability of United is limited to stipulated policy limits of $50,000.00; and, that all costs of these proceedings be paid by defendants.

Amended and rendered.


text:
    Hector MARTIN v. The SOUTH COAST CORPORATION and Aetna Life and Casualty Company.
    No. 11660.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Anatole J. Plaisance, Plaisance & Fran-ques, Lafayette, for appellant.
    Edwin G. Pries, Jr., Voorhies & Labbe, Lafayette, for appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff, Hector Martin (Appellant), appeals from judgment dismissing his workmen’s compensation suit against defendants (Appellees), with prejudice for failing to appear at trial, pursuant to La. C.C.P. Article 1672. Appellant contends that the trial judge abused his discretion in dismissing the action with prejudice and also erred in refusing to grant a new trial. We affirm on finding no abuse of the trial court’s discretion in such matters.

Appellant filed suit for compensation benefits on October 21, 1975, predicated on an alleged employment related injury occurring on November 27, 1973. Trial was set for December 2, 1976. Notice of trial date was received by Appellant’s attorney of record on September 28, 1976.

About 10 days before trial, Appellant’s attorney of record, Kenneth P. Mayers, verbally informed Appellant that Mayers was withdrawing as Appellant’s counsel. He reminded Appellant of the assigned trial date and urged Appellant to seek other representation. He also requested that Appellant return the next day and pick up his file. The day following this notification, Mayers, on November 23, 1976, filed a formal motion to withdraw as counsel, which motion was signed by the trial judge on November 29,1976. The trial judge, however, declined to delay the scheduled trial. On November 29, 1976, Mr. Mayers wrote Appellant a letter advising that Mayers would not be present for the trial on December 2, 1976. This letter was received by Appellant who can neither read nor write. The letter was read to Appellant by his daughter who testified that she believed that Appellant understood its import.

On December 1, 1976, Appellant contacted Jack M. Pruge, Jr., Attorney-at-law, in the attorney’s office on two occasions, for consultations that lasted a total of about 2 hours. Mr. Fruge contacted Mr. Mayers by telephone and after discussing the matter with Mayers, Pruge declined to represent Appellant because Fruge could not be present for trial the next day. Mr. Pruge so informed Appellant and urged Appellant to be present for trial the next day in order to preserve Appellant’s cause. On at least one of these visits to Pruge’s office, Appellant was accompanied by his daughter who testified that she was sure that her father understood that he had to either settle his claim or appear in court the following day. Appellant did not appear. Neither did he contact the trial judge. Appellant’s suit was dismissed with prejudice and upon receipt of notice of dismissal Appellant retained counsel who applied for a new trial.

It is well settled that a trial judge is vested with wide discretion in acting upon a motion for continuance and his ruling in such regard will not be disturbed on appeal except on a showing of a clear abuse of discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974).

La. C.C.P. Article 1672 allows a trial judge discretion to dismiss an action with or without prejudice analagous to the discretion permitted in acting upon a motion for continuance. In both instances, the trial judge’s knowledge of “the condition of his docket, fairness not only to both parties but also to other litigants in his court, and the need for an orderly and prompt administration of justice” provides him with superior ability to determine the terms of the dismissal. Malter v. McKinney, 310 So.2d 696, 698 (La.App. 1st Cir. 1975).

We find no abuse of the trial court’s discretion in dismissing Appellant’s action with prejudice. Consequently, we find no error in the refusal to grant a new trial.

The judgment is affirmed at Appellant’s cost.

Affirmed.


author: SARTAIN, Judge.

text:
    HIWAY ADS, INC. v. STATE of La., Through the DEPT. OF HIGHWAYS.
    No. 11651.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      J. Michael Stefanski, Crowley, of counsel, for plaintiff-appellant.
    Jonathan C. Harris, Baton Rouge, of counsel, for defendant-appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Hiway-Ads, Inc. brought this suit against the Department of Highways demanding compensation for certain signs along Interstate Highway 10 which it removed in October, 1972, after demand by the Department pursuant to R.S. 48:461.7. However, by supplemental and amending petition, it was averred: “That the name of the original petitioner HIWAY ADS, INC., be deleted and that LOUIS BELTON COMEAUX, a person of full age of majority and domiciled in the Parish of Acadia, be amended as the proper petitioner and party plaintiff.” The suit went forward with Comeaux as plaintiff and judgment was rendered in favor of defendant on its motion for summary judgment. At the same time plaintiff’s motion for partial summary judgment on the question of liability was rejected. Comeaux thereupon filed a Motion for New Trial on Plaintiff’s and Defendant’s Motions for Summary Judgment. The motion was granted. After the new trial, judgment was once again entered for defendant rejecting plaintiffs demands. We affirm.

Both Hiway-Ads, Inc. and Louis Belton Comeaux appealed from this judgment. On our own motion we issued an order to Hi-way-Ads, Inc. to show cause, by brief, why its appeal should not be dismissed, since it appeared not to have an interest. C.C.P. 2086. Hiway-Ads, Inc. did not respond. We therefore dismiss its appeal. There is nothing of record to show any interest on its part which is connected in any way with Comeaux’s action against the Department of Highways. C.C.P. 1091. All the aver-ments have been amended to recognize Co-meaux as the owner of the signs in question. We therefore need only consider the appeal of Comeaux.

Three issues are presented for our determination: (1) what is the effective date of Act 474 of 1966 (presently R.S. 48:461, et seq.)? (2) what is the meaning of R.S. 48:461.4(d)? and (3) is R.S. 48:461, et seq. a constitutional exercise of the police power of the state?

It is undisputed that the signs in question are located “within six hundred sixty feet of the nearest edge of the right of way and visible from the main traveled way of the interstate.” R.S. 48:461.2. The first issue is whether they were erected prior to the effective date of the provisions. If they were, Comeaux is entitled to just compensation for their removal. R.S. 48:461.6. This statute was adopted in the 1966 Regular Session of the Louisiana Legislature. Absent a contrary legislative intent it would therefore have become effective on the twentieth day after the legislature adjourned, i. e.', July 27, 1966. La. Const. Art. 3, § 27 (1921). Plaintiff argues that the statute, although not specifically stating a special effective date, evidences a legislative intent that it not become effective until the Department of Highways promulgated regulations thereunder and entered into a compliance agreement with the U.S. Department of Transportation. It is apparent that a compliance agreement and regulations were contemplated in the adoption of the statute. See R.S. 48:461.3, 461.4, 461.15. However, we believe that the statute is sufficiently detailed to be effective before either of these events.

“If our Legislature had intended that the effective date of this statute be delayed until the Department of Highways issued its regulations regarding permits, or until the Secretary of Commerce issued his final regulations, or until the compliance agreement was signed, then it would have been a simple matter for the Legislature to state in the statute that it would not become effective until these were accomplished by the respective agencies. In the absence of such an express provision in the statute as to a special effective date, these provisions do not show a clear legislative intent that the effective date of the statute be postponed.” State, Through the Department of Highways v. Lamar Advertising Co., 304 So.2d 779, 785 (La.App. 3rd Cir. 1974), writ denied 305 So.2d 539 (La.1975).

Plaintiff especially argues that Act 546 of 1972 which added an additional paragraph to R.S. 48:461.6 evidences a clear legislative intent that all signs erected before January 31, 1972, were lawfully erected. This provision provides:

“However, notwithstanding the above provisions, such payment shall be made by the department upon the removal of any sign, display or device erected along the interstate or primary systems prior to January 31, 1972 if seventy-five percent of the cost thereof is made available from federal sources.”

We do not believe that this provision helps plaintiff’s case. Although the provision states that payment shall be made upon the removal of any sign, it qualifies this by requiring that seventy-five percent of the cost be made available from federal sources. Funds are only available from federal sources for removal of lawfully erected signs. 23 U.S.C. § 131. Therefore, it is apparent that Act 546 of 1972 did not grant plaintiff any additional rights.

We next must determine the meaning of R.S. 48:461.4(d). The absolute prohibition of the statute does not apply to signs in “unzoned commercial or industrial areas.” R.S. 48:461.2(e). Signs in these areas are regulated by R.S. 48:461.4. The land on which the signs in question were found are asserted by plaintiff to be “unzoned commercial or industrial areas.” Plaintiff requested the trial court to make this determination. The trial judge found that the signs were unlawfully erected. He held that the statute implies that the judicial determination of permissible areas for signs must be made prior to the erection of the sign. If this is not done the sign is considered unlawful. We are in accord with this statutory interpretation. The statute with its provisions for the issuance of permits for signs in accepted areas certainly envisions a prior judicial determination of the areas accepted under R.S. 48:461.4(d).

We next come to plaintiff’s constitutional arguments. He argues first that the statute contains arbitrary distinctions in that it applies only to landowners and tenants whose land borders interstate highways and federal aid primary routes and in that it exempts signs advertising on premises activities. The statute is certainly not invalid under the Louisiana Constitution. It was specifically “validated and ratified" thereby. La.Const. Art. 6, § 19.3 (1921). The test to be used under the U.S. Constitution has recently been stated by the U.S. Supreme Court.

“When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. See, e. g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973). Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their program step-by-step, Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. See, e. g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-65, 99 L.Ed. 563 (1955). In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines, see, e. g., Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469 (1952), in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment. See, e. g., Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93 (1963). “(footnote omitted) City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 2516-2517, 49 L.Ed.2d 511 (1976).

In Dukes, the Supreme Court found that the city ordinance which prohibited pushcart vendors from operating in the French Quarter unless they had been engaged in such business for over eight years, was constitutional. The court found that the City Council could reasonably find that pushcart vendors disrupted the charm and beauty of the French Quarter. In proceeding against this problem the Council need not abolish all pushcart vendors. “[RJeform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955).

In applying this test to our factual situation, we find that the legislature could reasonably find that regulation and restriction of outdoor advertising “promoting the public safety, health, welfare, convenience and enjoyment of public travel, * * * protect the public investment in public highways, and * * * preserve and enhance the scenic beauty of lands bordering public highways.” R.S. 48:461. We likewise find the distinctions drawn by this statute to be reasonable. There is a distinction between on premises signs and other signs. The signs on the premises are part of the business itself whereas other signs are a separate business. E. B. Elliott Advertising Co. v. Metropolitan Dade County, 424 F.2d 1141 (5th Cir. 1970). In any event, we find the regulations sustainable as a “one step at a time” reform. The regulation of only some highways is sustainable for the same reason.

Plaintiff also argues that the statute deprives him of his property without just compensation. This argument is untenable when viewed in light of our determinations of the other issues. We have found that the plaintiff’s signs were erected unlawfully. The state is certainly not constitutionally compelled to compensate a person for the removal of property which he has erected in contravention of valid law.

For the reasons assigned, the judgment is affirmed at appellant’s cost.

AFFIRMED.

      . We helieve that Linmark Associates, Inc. v. Township of Wiilingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) is inapposite. The regulation here involved was “unrelated to the suppression of free expression.” See 97 S.Ct. at 1619 n. 7 and cases therein cited.


text:
    BOYCE MACHINERY CORPORATION, Plaintiff-Appellee, v. INTERSTATE PAVING CORPORATION, Defendant-Appellant.
    No. 11662.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    James E. Toups, Jr., Baton Rouge, of counsel for plaintiff-appellee.
    James Q. Smith, Wichita Falls, Tex., W. Clay McGehee, New Orleans, of counsel for defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is an appeal from a judgment of the district court recalling and vacating its previous order granting Interstate Paving Corporation (appellant) a devolutive appeal. We affirm.

A chronology of events leading up to the instant controversy is as follows: On June 18, 1976, plaintiff instituted suit against appellant on an open account. Service of process was made pursuant to R.S. 13:3201, et seq. (Louisiana’s Long Arm statute). Judgment by default was entered on August 31, 1976. On January 4, 1977, appellant filed an ex parte motion for a devolu-tive appeal which was granted by the trial judge. An appropriate bond was filed.

Subsequently, plaintiff filed a motion in the trial court to dismiss the appeal on the ground that it was untimely filed. After hearing argument the trial judge rendered judgment on March 16, 1977, setting aside appellant’s order of appeal of February 4, 1977. It is from the judgment of March 16th that appellant now appeals suspensively-

Appellant first contends that service under R.S. 13:3201, et seq. is so patently erroneous that it amounts to no service at all and any judgment rendered thereunder is an absolute nullity. Alternatively, appellant urges that in the event such service is not an absolute nullity, it was not served with a copy of the judgment, the delays for an appeal had not accrued, its original appeal was timely, and this matter should be remanded with instructions to reinstate the original appeal.

We pretermit for the moment a consideration of the merits and/or demerits of the service of process because we must first determine if the trial court had jurisdiction to set aside its order of appeal. Inherent in this issue is the question of whether appellant was entitled to notice of judgment under C.C.P. Art. 1913.

R.S. 13:3204 provides in pertinent part:

“Service of process so made has the same legal force and validity as personal service on the defendant in this state.” (Emphasis ours.)

It appears beyond question that in all respects service of process via the long arm statute, above, is in fact personal service. It therefore follows that C.C.P. Art. 1913 is not applicable. This article, by its express language, requires notice of the signing of default judgment in only those instances where “citation was not served personally.”

Appellant concedes that if it was not entitled to notice of the signing of judgment its initial motion for appeal was untimely. We hold that the trial court had jurisdiction to set aside its order of appeal of February 4, 1977 because appellant was not entitled to notice of the signing of judgment. City of Baton Rouge v. Kiper, 96 So.2d 241 (La.App. 1st Cir. 1957).

Turning now to the question of service of process under R.S. 13:3201, et seq., we note that it is undisputed that appellant is a foreign corporation and has not qualified to transact business within the state. It is a Texas corporation whose mailing address is P.O. Box 5002, Wichita Falls, Texas. The record reflects that numerous items of equipment and merchandise were shipped by plaintiff to Texoma Construction Company (a subsidiary of appellant) and billed to the former at “Drawer S, Fort Polk, Louisiana 71459.” This was in accordance with a letter dated August 15, 1975, addressed to plaintiff from defendant advising plaintiff “In the future, you are requested to direct all correspondence that was formerly sent to Texoma Construction, Inc., in Wichita Falls, Texas, to Interstate Paving Corporation as set out below.” The address shown below was “Interstate Paving Corporation, P. O. Drawer S, Fort Polk, Louisiana 71459.” A certified copy of the petition was sent by certified mail to appellant and Texoma at the Fort Polk address and was receipted for by one Morris Sellers.

At the hearing in the trial court on March 16, 1977, appellant argued that the record is devoid of any evidence to show that Sellers was authorized to receive and receipt for any mail on behalf of Interstate or Texoma and that for R.S. 13:3204 to be effective it must be strictly complied with. That is, that it must be mailed by registered or certified mail to the non-resident address of the defendant. Further, appellant contests the import of its letter of August 15, 1975, above. Plaintiff contends that it complied with appellant’s request to forward all future correspondence to the Louisiana address.

Under these circumstances, the trial judge, in his written reasons for judgment, stated, inter alia, that appellant attacks the validity of "the judgment based on the insufficiency of the service of process” and that its remedy is by a suit to annul thé default judgment and not by appeal. C.C.P. Arts. 925 and 928; Crescent Welding Supply Co. v. Harding, 197 So.2d 405 (La.App. 4th Cir. 1967), We agree.

For the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . Plaintiff stated in oral argument that such a suit is now pending in the district court.


text:
    Jules D. FALCON, Plaintiff-Appellee, v. BIGELOW-LIPTAK CORPORATION et al., Defendants-Appellants.
    No. 11664.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Samuel R. Cicero, Baton Rouge, of counsel for plaintiff-appellee Jules D. Falcon.
    John L Moore, Baton Rouge, of counsel for defendants-appellants Bigelow-Liptak Corp. et al.
    Aubrey L. Moore, Baton Rouge, of counsel for defendants and third party defendants-appellees Joy Manufacturing Co. and Liberty Mut. Ins. Co.
    David W. Robinson, Baton Rouge, for defendants and third party plaintiffs-appel-lees Hertz Equipment Rental Corp. and Highlands Ins. Co.
    Michael Harson, Lafayette, of counsel for intervenor-appellee Liberty Mut. Ins. Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is a suit for personal injuries and related damages sustained by plaintiff in an accident which occurred while he was inspecting a two hundred foot high smokestack. Named as defendants are Bigelow-Liptak Corporation (Bigelow), Hertz Equipment Rental Corporation (Hertz), Joy Manufacturing Company (Joy), and their respective liability insurers, Great American Insurance Co. (Great American), Highlands Insurance Company (Highlands), and Liberty Mutual Insurance Company (Liberty). Liberty also intervened as the workmen’s compensation insurer of plaintiff’s employer, Reynolds Metal Company (Reynolds).

The defendants answered plaintiffs petition denying all liability and, in the alternative, asserted pleas of contributory negligence, assumption of risk, and last clear chance. Hertz and Highlands filed third party actions against Bigelow for indemnification and, alternatively, against Joy and Liberty for breach of warranty of fitness.

The trial judge, with detailed written reasons for judgment, found for plaintiff but against Bigelow and Great American only and rendered judgment awarding him $65,000.00 for physical injuries, pain and suffering and future medical and $216,-870.05 for loss of future earnings, subject to Liberty’s claim (as intervenor) for $10,-040.32 for workmen’s compensation benefits paid to the plaintiff. It is from this judgment that Bigelow and Great American have appealed. Plaintiff has answered the appeal asking that the award of $65,000.00 for personal injuries be increased. We affirm as amended.

On July 9, 1973, the date of the accident, Reynolds had contracted with Bigelow to refurbish one of the former’s smokestacks. In the performance of their responsibilities under the contract Bigelow rigged an air tugger hoist, through a series of pulleys and sheaves to a cage inside the smokestack. The cage, used to lift personnel inside the stack, was raised and lowered by cable by engaging the air powered tugger. The tug-ger, manufactured by Joy, was rented to Bigelow by Hertz.

Plaintiff, a production supervisor with Reynolds, and two Bigelow employees were to inspect the interior of the stack and designate areas that needed repairs by marking them with spray paint. The cage was equipped with an intercom for communication to another Bigelow employee, one Roy Burleigh. The tugger was operated by Robert Forbes, also a Bigelow employee. Forbes would raise, stop or lower the cage in accordance with the orders he received from plaintiff through Burleigh.

Plaintiff and his two fellow passengers had surveyed approximately one hundred eighty feet of the stack from the bottom to the top when plaintiff gave the instruction to be raised again. Suddenly and without warning the cage plummeted to the cement floor of the stack, causing critical injuries to all three of its occupants. Of course, the big issue of fact is what caused the cage to fall.

The tugger consists of a large drum, activated by air pressure through a series of gears. On the right is a lever which when pushed forward winds the cable onto the drum, thereby lifting the cage and, when pulled back, releases the cable from the drum, thereby causing the cage to descend. On the left of the drum is a hand brake. Also on the left (and attached to the gear housing) is a dog clutch. When the dog clutch is turned ninety degrees and pulled out, the gears are disengaged and the drum will unwind freely. It is undisputed that vibration alone will not cause the dog clutch to become disengaged and that it has to be manually released.

The lifting unit, including the tugger, cables, personnel cage, and air compressor, was assembled under the direction of Herbert Frayling, a Bigelow supervisor.

Plaintiff, Jules D. Falcon, testified that they had made from eight to ten stops, consuming about twenty minutes, when he gave the order to be raised again. The cage made a slight upward motion and then commenced its sudden fall. Nothing unusual had previously occurred and the intercom and light on the cage were in good working order. He could offer no explanation for the failure. His testimony is corroborated by that of Walter R. Thomas and Albert Richard, his fellow occupants.

Forbes testified that he had been operating tuggers of the same or similar type for twenty-eight years and that he was thoroughly familiar with its operation and characteristics. He stated that when he was given the word to life the cage, he released the brake and pushed the hand lever forward. He immediately noticed that the drum was not responding. To the contrary, it began to unwind with increasing rapidity. He then applied force to the handbrake with both hands, but to no avail. He explained that when the operational lever is just released, a spring mechanism causes the gears to revert to a neutral position. He stated that on previous occasions he had left a tugger of this type in a neutral position with a load of material suspended in air and that the drum would not automatically unwind when the gears were in a neutral position. He was adamant in his testimony that he did not release the dog clutch or endeavor to lower the cage by the handbrake alone. He could not explain how the accident happened except to say that something “tore up in it or something happened,” meaning that there was a mechanical failure of the unit.

About a week following the accident the tugger was examined by four experts: Andrew McPhate for Hertz; Wiley Poole for Joy; Robert G. Osgood, a senior production engineer, for Joy; and, Oscar W. Albritton for Bigelow. A series of simulated tests were run which disclosed that the machine was in good working order. After the tests, the tugger was completely disassembled and no broken or defective parts were noted. It was the opinion of McPhate and Poole that the dog clutch had been manually removed which permitted the drum to spin freely. Osgood opined that the operator had endeavored to lower the cage with only the hand brake. Albritton was of the opinion that the loss of air (power) from the compressor caused the cage to freefall.

The trial judge correctly held that the circumstances of this case give rise to the application of the doctrine of res ipsa loquitur. This doctrine does not modify the general rule that negligence is not to be presumed but that an inference of negligence is drawn when the surrounding circumstances are of such a nature that, absent a justifiable explanation, the only fair and reasonable conclusion is that the accident was due to some omission or want of care on the part of one or more of the defendants. Larkin v. State Farm Mutual Automobile Insurance Co., 233 La. 544, 97 So.2d 389 (1957); Milton v. State Health and Social and Rehabilitation Services Administration, 293 So.2d 645 (La.App.1st Cir. 1974). The doctrine encompasses the following essentials: (1) a superior knowledge on the part of the defendant(s) as to the cause of the accident; (2) the absence or unavailability of direct evidence of negligence; (3) the existence of a sufficient duty on the part of defendant(s) to use due care; and (4) proof of the accident or injury and defendants relation thereto. Milton v. State Health and Social and Rehabilitation Services Administration, above.

In resolving the conflict in the testimony, noted above, vis-a-vis, res ipsa loquitur, the trial judge in his written reasons for judgment stated:

“The Court has reviewed the testimony taken from the various expert and law witnesses as to where the responsibility for the accident should rest. Reviewing this testimony reveals the following possibilities for the injury: (1) a sudden air power failure; (2) manual removal of the dog clutch; or (3) removal of the dog clutch without human involvement (i. e., disengagement caused by vibrations being emitted from the machine itself). Although an analysis of these theories, in light of the testimony, suggests one cause to be more plausible than the others, (i. e., manual removal of the dog clutch), there is no conclusive or direct evidence of responsibility for the negligent injury. The Court also finds that the evidence suggests that the first possibility is the least likely to have occurred. The evidence further indicates that the last possibility is, at best, speculative and unsupported by the test results. The Court is therefore constrained to hold that the above combination of circumstances gives rise to the doctrine of res ipsa loquitur (discussed supra). In so holding, the Court finds the consequent inference that the most plausible cause of the accident was Bigelow’s negligence. Thus, the duty devolved upon the defendant to establish circumstances from which it could be reasonably inferred, with equal plausibility, that the accident did not result from its negligence. Considering all the testimony, specifically that of Forbes and Burleigh, the Court finds that defendant, Bigelow, has failed to establish the requisite circumstances to establish, with equal plausibility, that the accident was not caused by its negligence. The Court further finds Bigelow’s negligence to be the proximate cause of plaintiff’s injuries.”

We find no manifest error in the conclusion reached by the trial judge. Canter v. Koehring, 283 So.2d 716 (La.1973); Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975). However, we would not restrict the occurrence of the accident to the three possibilities listed by the district court. We are satisfied that the clear preponderance of the evidence is to the effect that there was no defect in or malfunction of the tugger from a mechanical viewpoint. This leaves only the remaining possibility of human error. Bigelow, who was wholly responsible for its installation and operation, has failed to exculpate itself from the presumption of negligence.

The evidence further reflects, and Joy admits, that this particular type of tugger is unsafe for use as a personnel hoist. On this basis, liability is sought to be imposed against Joy for its failure to warn potential users against such use and against Hertz for renting the tugger as a personnel hoist.

On these assertions, the trial judge stated:

“Frayling admitted that when he telephoned Hertz to rent the tugger, he did not specify the purpose for which it would be used — to raise personnel. By the same token, Hertz did not inquire of Bigelow as to the purpose for which the winch was rented. The Court finds that under these circumstances, Hertz owed no duty of inquiry to Bigelow. To impose this duty upon Hertz, absent a reason for believing that such an inquiry should be made, would be unreasonable. Frayling gave Hertz no reason to believe that an inquiry was necessary; thus, Hertz acted reasonably under the circumstances.
“Parenthetically, it should also be noted that according to the preponderance of the expert testimony, an experienced superintendent such as Frayling should have specified the type of hoist he desired and should have realized the dangers inherent in a utility hoist used to haul personnel. Therefore, the Court finds that Hertz was not negligent in its maintenance and rental procedures. Assuming, arguendo, that Hertz was negligent and such negligence was a proximate cause of the accident, it would have been entitled to indemnification under the express agreement signed by Mr. Frayling. The Court, however, will pretermit further discussion of this issue since negligence on the part of Hertz has not been proven.
“Joy, the manufacturer of the hoist, is alleged to be negligent in its defective manufacture and its failure to warn of the danger of using the hoist to raise personnel. This Court concludes, based upon the expert testimony, that the air tugger was structurally sound both before and after the accident. Thus, the Court will address itself to the alleged duty to warn.
“Defendant Bigelow cites numerous cases standing for the proposition that a manufacturer or seller of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or-a third person, who, without fault on his part, sustains an injury caused by a defect in the design or manufacture of the article, if the injury might have been reasonably anticipated.
“The Court is cognizant of the jurisprudence referred to above. However, these cases presuppose a defect in the design or manufacture of the article. The Court has not been presented with one scintilla of evidence tending to show the air tug-ger was defective in manufacture or design. To the contrary, the evidence preponderates that the machine was structurally sound in all respects.
“Bigelow’s argument that a warning plate should have been affixed to the subject hoist, in the Court’s opinion, is simply an attempt to beg the question. Assuming arguendo, a warning plate should have been so attached, the failure to do so can not be considered the proximate cause of the accident. The evidence preponderates that it was common knowledge in the construction and maintenance trade that the subject tugger should not be used to lift people. For these reasons, the Court finds a lack of negligence with respect to Joy.”

We agree.

As noted above, the trial judge awarded plaintiff the sum of $65,000.00 “for past, present and future physical and mental pain and anguish and future medical expenses” and $216,870.05 for loss of future earnings, for a total award of $281,870.05. Plaintiff has answered the appeal asking that the award of $65,000.00 be increased to $150,000.00 and that the judgment be otherwise affirmed. Bigelow argues that the award of $65,000.00 is excessive and should be reduced to $40,000.00 and, for reasons hereinafter more fully discussed, the award for loss of future earnings should be eliminated altogether.

As a result of the accident, plaintiff sustained extensive injuries to his lower ex-tremeties, including his feet, ankles, knees, compression fractures of L-2, L-3, and L-4, fracture dislocation of the sternum, and lung contusion. He remained in intensive care for four days and on July 16, 1973, his treating orthopedist performed an open reduction and internal fixation of the left ankle and right foot. Both legs were placed in hard casts at that time. Because of severe injuries to the back, he was placed in a back brace which he wore for some eleven weeks. He was discharged on July 23, 1973.

On September 10, 1973, plaintiff was readmitted to the hospital for the removal of the leg casts and pins from his feet. He was discharged on September 14, 1973.

On October 1, 1973, plaintiff was admitted to the Baton Rouge Medi Center for physical therapy, where he remained until November 5, 1973.

In January of 1974, plaintiff returned to light duty. However, when he resumed normal work duties in March of 1974, he encountered serious discomfort and pain associated with problems with his right knee. In May of 1974, he underwent surgery for the removal of the medial miniscus and cartilage repair of the right knee.

Plaintiff’s treating orthopedist rated his permanent disability as ten percent of the left ankle, fifteen percent of the right foot, and ten percent of the right knee. The doctor was of the opinion that Falcon had reached maximum recovery with the possible exception of future surgery on the left knee. Any change in his condition would be in the nature of further degeneration of the left ankle, right knee and foot. Throughout the period of plaintiff’s recovery and up to the date of the trial on April 13, 1976, plaintiff „^vas rarely free from some type of pain or discomfort.

It was stipulated that his medical expenses exceeded $10,000.00.

With respect to the items of damages for which the $65,000.00 award was made, we do not find that such an award constitutes an abuse of the much discretion accorded the trier of fact. C.C. Art. 1934(3).

We turn now to the award for loss of future earnings.

Plaintiff is a production supervisor for Reynolds. He is generally charged with the responsibility of ascertaining the availability of raw materials for his employer’s production units and their overall operation. As a consequence, it is necessary that he traverse a large portion of Reynold’s plant (approximately twenty acres) daily, which includes considerable walking and climbing. Accordingly, plaintiff contends that he can only perform his functions under considerable pain and discomfort and with the assistance of a co-supervisor. Inherent in this view is the position that at an early date he will be forced to either seek a disability retirement or other employment.

On the other hand, Bigelow argues that plaintiff’s job description and duties are the same now as they were at the time of the accident; and, that his salary has not only continued since the date of the accident but that he is now earning in excess of $4,000.00 more per year than he was at the time of the accident. Bigelow further argues that the record fails to show that plaintiff’s job and future earnings are in jeopardy.

The medical evidence is to the effect that plaintiff has reached maximum recovery and that any change in his condition would be a further degeneration of his right foot and knee.

The trial judge held that plaintiff, who was forty years of age at the time of the accident, has a work-life expectancy of twenty-four years; that he was earning $18,000.00 annually at the time of trial; and, that his future earning capacity, i. e., loss of wages, has been reduced by two-thirds. The judge a quo felt that he “must” apply R.S. 47:2405 and, using the table therein provided, computed plaintiff’s loss of earning capacity thusly: $18,000.00 X 24 = $432,000.00 X .753021 = $325,-305.07 -s- % = $216,870.05. It is obvious from his reasons for judgment that the district judge intended to discount plaintiff’s loss of earning capacity “at the rate of 6% compound interest annually” which is the rate provided for in R.S. 47:2405. However, it is apparent that the trial judge erred in interposing the discount figure of .753021. The correct factor (6% at 24 years) to be used should have been 12.-55036. Thus, adopting the findings of the trial judge as to earnings, disability, and discount, his computation should have been: $18,000.00 X 12.55036 - % = $150,604.32. Thus, we accept this latter figure as the proper amount intended by the trial judge.

It is axiomatic that awards for future earnings will vary according to the facts and circumstances of a particular case. Age, life expectancy, rehabilitation prospects, past earnings and adaptability to rehabilitation must be considered. Robison v. Garnett, 238 So.2d 58 (La.App.1st Cir. 1970), writ refused. Such awards are speculative to some extent in nature and all the court can do is to exercise sound judicial discretion and award an amount that, all circumstances considered, seems just and fair to both litigants and not unduly oppressive to either. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968).

Generally, an award for future earnings can be based on the difference in one’s earnings before the accident and his earnings after the accident because the result of the injuries are immediate. However, this is not always the case. It is for this reason that one’s loss of earnings and/or earning potential should not necessarily be based on actual or on temporary loss of income. Loss of future earnings should also encompass the loss or reduction of the ability or capacity to do something for which a person may be and has been paid, according to that person’s experience and education.

While the plaintiff in the instant case has in fact enjoyed an increase in salary over the intervening years following the accident, the evidence is quite clear that his work-life expectancy of twenty-four years has been reduced to five to ten years. Undoubtedly, he is highly trained in his particular field and is considered a valued employee, but the unalterable fact remains that notwithstanding his determination to work, he will undoubtedly be forced to retire or seek other employment with the uncertainties that attend the latter choice.

1 The Supreme Court has on occasion disapproved the use of formulas in arriving at an award for loss of future earnings. McFarland v. Illinois Central Railroad Co., 241 La. 15, 127 So.2d 183 (1961). However, we do not believe that it is impermissible to use a formula to discount to present value, as we have done above, once the loss of earnings has been determined. Robinson v. Graves, 343 So.2d 147 (La.1977); Guidry v. Canal Insurance Co., 313 So.2d 860 (La. App.1st Cir. 1974). In fact, the formula used above was approved by us in Triche v. Commercial Union Insurance Co., 329 So.2d 784 (La.App.1st Cir. 1976). For these reasons and the above reasons, we find that the award to plaintiff for future loss of earnings should be and we set the same at $150,000.00.

Accordingly, for the above reasons, the judgment of the district court is amended by reducing the total amount thereof from the sum of $281,870.05 to the sum of Two Hundred Fifteen Thousand and 00/100 ($215,000.00) Dollars. In all other respects the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED AS AMENDED.

      . The difference between 1.000000 and .246979.

      . Ibid.

      . Lake’s Monthly Installment and Interest Tables, (6th Ed.) Present Value $1. per Annum at Compound Interest $1. Deposited Annually for 1 to 50 years (Compound Discount Table)


author: ELLIS, Judge:

text:
    COHN REALTY CO., INC. v. Hardy WELL, Jr.
    No. 11652.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Paul Marks, Jr., Baton Rouge, of counsel for plaintiff-appellee.
    Doris Gates Rankin, Baton Rouge, of counsel for defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is a suit by Cohn Realty Co., Inc. against Hardy Wells, Jr. for rent allegedly due, and for damages done to a warehouse formerly leased by defendant from plaintiff. After trial on the merits, judgment was rendered in favor of plaintiff for $9,000.00, and defendant has appealed. Plaintiff has answered the appeal, asking that the award be increased.

Plaintiff and defendant entered into a lease covering a warehouse building on Europe Street in Baton Rouge, for a term of two years, beginning February 1, 1974, and ending January 31,1976. The lease was the third by the same parties, covering the same property, defendant having been in possession of the property as lessee since September, 1968, paying a rental of $1,000.00 per month.

The lease contained the following provisions:

“At the termination hereof, Tenant hereby binds and obligates themselves to deliver up and return to Lessor the said Leased premises and appurtenances, with all things thereunto belonging, in equal good order as received, the usual wear and tear accepted.
“The leased premises and all of the fixtures and appurtenances thereunto belonging and appertaining, including elevator, glass, locks, keys and other fastenings are received as is by Tenant without any obligation on the part of Lessor to repair same during the term of this lease. No representations, agreements, or promises except such as are contained herein, or indicated by rider or endorsement hereon, have been made to Tenant respecting the condition of said premises, or respecting the rights or obligations of the respective parties in the premises. Tenant is bound to pay for the repairs of any injuries to the leased premises, or any other part of the building, done by Tenant or by any of Tenant’s agents, servants or visitors, and for any breakage of glass, however, caused, and for any damage, to whomsoever occuring, caused by the overflow or escape of water, steam, gas, electricity in or from the leased premises, and resulting from Tenant’s negligence, or that of Tenant’s agent, servants or visitors.
“Lessor will keep the roof on said building in good condition during the term of this lease. Tenant shall keep the balance of said building, including all installations and facilities, such as plumbing, heating, wiring, sprinkler system, etc., in good condition during the term of this lease.”
sfc * * 5k *
“As a further consideration, without which this agreement of lease would not have been executed by Lessor, Tenant agrees and binds and obligates themselves to so use the premises herein leased that the second floor shall not be loaded to exceed a greater stress than would be produced by a uniformly distributed load of one hundred sixty (160) pounds per square foot; and should Tenant fail to comply with the provisions of this paragraph, such failure shall be considered as a violation of the terms, covenants and conditions hereof.
“It is especially understood and agreed by and between the parties hereto that with respect to the elevator now in use in the building, herein leased, the Lessor shall be under no obligation or duty to keep the said elevator in repair or running condition, nor be responsible for its safety or continued operations, the operation, maintenance and condition of the said elevator to be at the sole risk of the Tenant.”

In late 1975, Mr. Wells advised plaintiff that he would not renew the lease at its expiration on January 31, 1976. He was unable to remove all of the property stored in the warehouse by that time, and, by mutual agreement, was to pay $1,000.00 per month until he had vacated the premises. The record shows that he did not remove the last of the items stored there until August, 1976.

This suit was filed in June, 1976, claiming rent, as per the agreement, and asking for damages arising from defendant’s alleged breach of the maintenance provisions of the lease. Plaintiff alleged that Mr. Wells had failed to repair various broken windows and broken floors in the warehouse. In addition plaintiff claimed damages for having to remove debris and for the repair of the freight elevator in the warehouse. There was also a catch-all allegation that the warehouse was in worse condition at the expiration of the lease than when delivered to the defendant.

The evidence showed that the building leased was well over 50 years old, and showed signs of deterioration. It is uncon-troverted that, at the expiration of the lease, there were a number of broken windows, and a number of holes in the wooden floor, both upstairs and downstairs.

Plaintiff put on evidence to show that it had performed and paid for extensive repairs during the term of the lease, for which it is contended defendant is responsible under the terms thereof. It also put on evidence to show that further repairs were needed after defendant vacated the warehouse.

Defendant apparently admits that he is liable for something in this case. However, he testified that, before executing the last lease, he had told plaintiff’s representative that he did not have the money to make any repairs to the warehouse. He further testified that the work done by plaintiff in 1975 and 1976 had been done without any notice to or consultation with him, and that nothing had been said to him about paying for it.

Robert Rosenthal, who managed the property for plaintiff, testified that he had discussed the proposed repairs with defendant, and that defendant had agreed to pay half of the expense thereof. ' In this suit, however, plaintiff is attempting to recover the entire amount of the said repairs, under the terms of the lease. Mr. Rosenthal admitted that no demand had been made on defendant for the cost of repairs, prior to this suit.

The major factual contention relates to the determination of what repairs were necessitated by abuse of the property by defendant, or those for whom he is responsible, and what repairs were necessitated by normal wear and tear or by the age of the building.

Plaintiff showed that work was performed on the building in 1975 which cost a total of $4,778.00. Other work done in March of 1976 cost $3,097.00. This work included chipping away eight inches of a concrete railroad loading platform which had been improperly built in 1975. It was estimated that approximately $5,000.00 would be required to put the freight elevator into proper operating condition. Finally, it was testified that it would cost $7,073.59 to do the same work in 1977 which cost $4,778.00 in 1975. There is no testimony as to how much of this work was, in fact, necessary at the later date.

Except for the repairs to the elevator, it is impossible to tell from the record how much of the work done by plaintiff was necessitated by abuse and how much by normal wear and tear. It is clear from the record that, except for the outer walls and roof, the warehouse was in a dilapidated condition.

The trial judge found that plaintiff had failed to prove that the 1975 and 1976 repairs were necessitated by abusive use by defendant. We find no manifest error in this conclusion. He did award $700.00 for the replacement of the window panes during the course of the lease, as well as those which were missing after the defendant left the premises. He gave $500.00 for repairs to the flooring which he, after his inspection of the premises, found to be necessitated by abuse rather than normal wear and tear. We find no manifest error in either of these conclusions.

The record is clear that, at the time defendant took over the lease in 1968, the elevator was in good working order, with all gates and doors intact. To bring it back to that condition at the end of the lease would cost approximately $5,000.00, according to a representative of the Otis Elevator Company who inspected the elevator. The trial judge awarded that amount. Although the estimate was approximate, and not a firm bid, it appears from the record that it is minimal. We therefore find no error in awarding this amount.

Finally, on the question of rent, defendant complains that none should be awarded, because he was prevented from moving out because he could not bring a railroad car up to the improperly constructed platform. However, the platform was repaired in March, 1976, and defendant was not completely out until August. The contention is without merit.

Plaintiff complains because the trial judge deducted from the rent the sum of $300.00 per month received from a new tenant of a portion of the building during the last four months defendant was in the building. There is no merit to the contention. Plaintiff can only collect his rent once. Defendant’s contention that he is entitled to two more months credit is likewise without merit. The only reference to earlier occupancy by the new tenant is in the answers to interrogatories, which were not in evidence. The testimony is otherwise.

The judgment appealed from is therefore affirmed. Costs of this appeal shall be equally shared by the parties. Defendant shall pay all costs in the court below.

AFFIRMED.


text:
    Derry Lynn BEARDEN et al. v. Joseph RUCKER et al.
    No. 11665.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Roy Maughan, Baton Rouge, of counsel, for plaintiffs-appellants.
    John Swanner, Baton Rouge, of counsel, for defendants-appellees.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is a suit for damages for personal injuries. Plaintiffs are Derry Lynn Bear-den, individually and as natural tutrix of her minor son, Ricky Bearden, and Polly Christian, Mrs. Bearden's mother. Defendants are Joseph Rucker, Cavalier Insurance Company, his insurer, and Gulf Insurance Company, which is alleged to be the uninsured motorist insurer of plaintiffs.

Gulf filed a motion for summary judgment, alleging that it afforded no coverage to plaintiffs. After a hearing, judgment was rendered dismissing the suit as to plaintiffs and they have appealed.

From documents filed in support of the motion, we learn that Mrs. Bearden separated from her husband in January, 1976, and moved into an apartment at 655 Sharp Road, Baton Rouge. Judgment of separation from bed and board was signed on June 9, 1976, in which Mrs. Bearden was awarded custody of Ricky. Since January, 1976, Mrs. Bearden, Ricky and Mrs. Christian have resided together at the Sharp Road address. Mr. Bearden has lived at 9285 West Darryl Parkway, Baton Rouge.

The policy in question was issued on April 27, 1976, and was in effect at the time of the accident. Three automobiles are covered by the policy, including a 1969 Chevrolet Impala, which, according to her counter affidavit, is Mrs. Bearden’s personal car. The record is silent as to whether there has been a community settlement between the parties, or any formal transfer of title to any of the insured vehicles following the separation. Mrs. Bearden alleges in her affidavit that it was intended that she be covered by the policy.

Gulf claims that there is no uninsured motorist coverage under the policy because Mrs. Bearden is not a named insured, and is not a resident of the same household as Mr. Bearden. However, even if this contention is correct, it is not dispositive of the case.

If it is true that Mrs. Bearden is the owner-operator of the 1969 Impala, and that it was intended that coverage be afforded her by the policy, the policy can be reformed to conform to the original intention of the parties. Herbert v. Breaux, 285 So.2d 829 (La.App. 1st Cir. 1973); Perry v. Law, 334 So.2d 523 (La.App. 1st Cir. 1976).

Summary judgment should not be granted unless it clearly appears that the mover is entitled to it as a matter of fact and law. There are facts alleged, over and above those relied on by defendant, which, if true, could defeat defendant’s policy defense. There is, therefore, a dispute as to material facts, and summary judgment is not appropriate. Articles 966, 967, Code of Civil Procedure.

The judgment appealed from is therefore reversed, and the case remanded to the trial court for trial on its merits. All costs of this appeal shall be paid by Gulf Insurance Company. All other costs shall await final disposition of the case on its merits.

REVERSED AND REMANDED.


author: ELLIS, Judge.

text:
    Michael ANSLEY v. The STATE of Louisiana Through the DEPT. OF PUBLIC SAFETY.
    No. 11667.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Stephen M. Irving, Baton Rouge, of counsel for plaintiff-appellant.
    Foye L. Lowe, Jr., Baton Rouge, of counsel for defendant-appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

Michael Ansley’s drivers license was suspended under the provisions of R.S. 32:414(B)(2). He brings this action under the provisions of R.S. 32:415.1 against the State of Louisiana, through the Department of Public Safety, praying for the issuance of a restricted drivers license on the ground of economic hardship. After trial on the merits, judgment was rendered dismissing the suit, and plaintiff has appealed.

The record indicates that Mr. Ansley has been involved in two automobile accidents since May, 1973, has two convictions for moving violations, and two convictions for driving while intoxicated. His drivers license was ordered suspended by the Department for driving while intoxicated, second offense. The license had not previously been suspended.

At the trial, Mr. Ansley testified that he has a wife and three teen age children, all of whom are dependent on him for support. He stated that he was employed by the York Division of Borg-Warner as a factory representative and technical advisor on industrial, heavy commercial refrigeration and air conditioning equipment and that he is always on call. He had a pick-up truck belonging to his employer, which he uses exclusively on company business.

He further testified that he has worked in the past as a millwright and electrician. He did not testify that he would lose his job if unable to drive, or that other arrangements for transportation could not be made.

R.S.- 32:415.1(A)(1) provides:

“Upon suspension, revocation, or cancellation of a person’s drivers license for the first time only as provided for under R.S. 32:414(B), (C), (D), (E), and R.S. 32:415 said person within thirty days after initial notice from the department shall have the right to file a petition in the district court of the parish in which the applicant is domiciled alleging that revocation of his driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood. The district court is vested with jurisdiction to set the matter for contradictory hearing in open court upon ten days written notice to the department, and thereupon to determine whether the allegations of hardship have merit. Upon determination by the court that the lack of a license would deprive the person or his family of the necessities of life, the court may order that the person be granted by the department a restricted license to enable the person to continue to support his family.”

Plaintiff contends that the trial judge must grant a restricted license if the plaintiff satisfies the burden of proof placed on him by the foregoing section. We do not agree. The trial judge certainly has the discretion to do so, but since the statute is couched in permissive rather than mandatory terms, is not obligated to do so, even if plaintiff proves that the “lack of a license would deprive the person or his family of the necessities of life.”

In this case, plaintiffs testimony does not show that his family would be deprived of the necessities of life if he did not have a license. Plaintiff had surrendered his license over a month before the hearing in this case, and was apparently still employed in the same job. He was able to work at two other trades, millwright and electrician, in the event he should lose his job.

In any event, plaintiff’s driving record was such that a refusal by the trial judge to grant him restricted driving privileges would not constitute an abuse of his discretion.

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

AFFIRMED.


text:
    Chris WEAVER, Jr. v. PURPLE SHIELD LIFE INSURANCE CO.
    No. 11668.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Charles Fasterling, New Orleans, of counsel for plaintiff-appellant.
    John W. Swanner, Baton Rouge, of counsel for defendant-appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is an appeal by Chris Weaver, Jr. from a judgment rejecting his demand against Purple Shield Life Insurance Company for damages for the alleged breach of an employment contract.

On September 20,1971, the following letter sent to plaintiff by R. B. Sims, Vice-President and Agency Director of Purple Shield:

“Your application applying for the position of district manager for the Purple Shield Life Insurance Company on the New Orleans district was received and considered by the company and I’m very pleased to state that you have been accepted as district manager for the New Orleans district (Number 8) effective September 15, 1971 as the starting date of your employment at a salary of $8,500.00 per year plus $300.00 per year travel expense. The travel expense is given based on the necessary travel in connection with the territory of your district, which includes 6 trips per year to managers’ conferences at whatever point in the State of Louisiana they are to be held. This also includes any special programs that may be held from time to time by the company. Travel expense at the rate of 5 cents per mile will be paid for trips to supervise that part of your district in Morgan City — point to point, $10.00 per day per diem if you have to stay over night.
“The $8,500.00 per year salary is effective September 15,1971 through December 31, 1972. It is based on the district manager collecting an average of 95 percent of the district’s debit, keeping the arrears down to 30 percent or less of the debit value and putting on increase of not less than $2,500.00 for the year of 1972. At the end of that period of time, the district manager’s salary will automatically be changed to $6,000.00 per year as a base salary plus 1 percent of the gross collection for the year and 1 times the net increase for the year.”

Mr. Weaver was discharged on February 29, 1972. This suit was filed, alleging that the September 20, 1971, letter constituted an employment contract for a specific term, and that he was discharged without cause.

The following Articles of the Civil Code are applicable:

“Art. 2669. Lease or hire is a synallag-matic contract to which consent alone is sufficient, and by which one party gives to the other the enjoyment of a thing, or his labor, at a fixed price.”
“Art. 2675. To let out labor or industry is a contract by which one of the parties binds himself to do something for the other, in consideration of a certain price agreed on by them both.”
“Art. 2747. A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.”
“Art. 2749. If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

The district judge found that the letter of September 20, 1971, did not guarantee employment for a fixed period of time. Under Article 2747, Purple Shield could fire plaintiff at any time, without cause.

Although plaintiff argues otherwise, we agree that the letter of September 20, 1971, does not constitute a contract of employment for a fixed term. It sets the rate of pay through December 20, 1972, and provides the circumstances under which plaintiff might receive a raise at the end of that period. We find no language therein, however, which states that plaintiff is hired for a term ending on December 20, 1972.

Plaintiff argues that the intention to contract for a specified term may be inferred from the circumstances of the employment. The district judge accepted the testimony of Mr. Sims, which was to the effect that no specific term was intended or agreed to, and that plaintiff was discharged because he was not doing the job he was hired to do. We find no manifest error in the trial judge’s determination in that respect.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    Mrs. Thalia Fay BELEW v. NATIONAL FOOD STORES OF LOUISIANA, INC.
    No. 11675.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    James C. Lopez, Baton Rouge, of counsel, for plaintiff-appellant Mrs. Thalia Fay Be-lew.
    William M. Barnett, New Orleans, of counsel, for defendant-appellee National Food Stores.

      Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is a suit by Thalia Fay Belew for damages for personal injuries suffered when she slipped and fell in National Food Store No. 26 in Baton Rouge. From a judgment dismissing her suit after trial on the merits, she has appealed.

Mrs. Belew testified that on April 6,1966, while shopping in the National Food Store, she slipped and fell as the result of stepping on a leaf of lettuce lying in the aisle in the produce department of the store. She said that the lettuce leaf was about the size of her hand and was lying on the floor, together with a line of some “reddish brown stuff” and “other little trashy stuff”, “which looked as though it had been swept up to that point and left there in the aisle.” Her testimony was corroborated by that of her father, who was walking a few feet behind her.

The assistant manager of the store testified that, when Mrs. Belew told him of the accident, he immediately went to the scene, and found no trash or debris, no lettuce leaf, and no scuff marks which might indicate that someone had slipped on a wet substance. He said that the aisle was clean except for one string bean, which showed no evidence of having been stepped on, and which was some distance from the point of the fall.

The manager of the store, and the porter, both of whom were employed there at the time of the accident and at the time of trial, over ten years later, testified that the store was mopped every morning before it was opened, and was swept in its entirety every two hours during the day. The produce aisle was swept every hour. They also testified that no sweeping compound was used in the store.

In Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976), the court said:

“The duty of a store owner to protect his customers from foreign substances on the floor is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall.”

In disposing of the case, the trial judge said:

“The Court believes that Mrs. Belew did sustain a fall much in the fashion as described by her and her father. However, the Court is not willing to accept the implication that the lettuce leaf was swept to that location by store personnel and allowed to repose there until plaintiff’s fall. The store did not use a sweeping compound and Ms. Belew and her father were mistaken in making that inference. The Court finds that the defendant furnished sufficient evidence showing that it had employed adequate cleaning procedures to properly maintain the store in a safe condition for its customers. While a store does have an affirmative duty to keep its store in good condition, it is not the insurer of the safety of its customers.”

Plaintiff contends that there was no testimony that on the day of the accident the store was in fact cleaned according to the policy described by the manager and the porter. We think the testimony is such that the trial judge could properly conclude that the floor was actually properly cleaned on the day of the accident.

We find no manifest error in this conclusion.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    Wade J. VICK et al. v. STATE of Louisiana et al.
    No. 11785.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    William J. Guste, Jr., Atty. Gen. and Joseph R. Oelkers, III, Baton Rouge, for ap-pellees.
    Charles J. Pisano, New Orleans, for appellants.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This wrongful death action was instituted in East Baton Rouge Parish against the State of Louisiana on December 30, 1975, pursuant to Senate Concurrent Resolution No. 134 of 1975. The resolution contained the following venue provision:

“BE IT FURTHER RESOLVED that the suit herein authorized may be instituted before the Nineteenth Judicial District Court in and for the parish of East Baton Rouge or before the U.S. District Court, Eastern District, Louisiana and that, except as otherwise provided herein, the procedure in such suit shall be the same as in suits between private litigants.”

On September 2, 1977, the court granted plaintiffs’ motion for a change of venue to Jefferson Parish, applying the doctrine of forum non conveniens under Article 123 of the Code of Civil Procedure. The State applied to this court for remedial writs, alleging that the district court could not change the venue stipulated in the resolution authorizing the suit. We issued an alternative writ, ordering the district judge to recall his order transferring the case or to show cause why this writ should not be made peremptory. The trial judge having elected the alternative, the matter is now before us for decision.

The following statutory provisions are found in Title 13, Chapter 32, Part XV, entitled “Suits against State, State Agencies, or Political Subdivisions”:

“§ 5101. Application
“This Part applies to any suit in contract or for injury to person or property against the state, a state agency, or a political subdivision of the state, as defined herein, and also applies to any other suit expressly authorized by special or general law or resolution adopted by the legislature.”
“§ 5103. Determination of procedural questions
“All procedural questions arising in suits on claims against the state, state agencies, or political subdivisions shall be determined, except as the contrary is specified in this Part, in accordance with the rules of law applicable to suits between private parties.”
“§ 5104. Venue
“A. All suits filed against the state of Louisiana or any state agency may be instituted before the district court of the judicial district in which the state capítol is located or in the district court having jurisdiction in the parish in which the cause of action arises.
“B. All suits filed against a political subdivision of the state may be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause arises.”

It is clear that, unless limited by the language of the concurrent Resolution, the trial court has the discretion to apply Article 123 of the Code of Civil Procedure, and grant a change of venue under the doctrine of forum non conveniens.

When we issued the alternative writ herein, we were of the opinion that the dictum in the case of Jobe v. Hodge, 253 La. 483, 218 So.2d 566 (1969) was applicable herein. That case states in dictum that any limitations or restrictions contained in a waiver of immunity by the State must be rigidly enforced.

However, since that time, the Constitution of 1974 has been adopted, and R.S. 13:5101 et seq. have been amended, to read as hereinabove quoted. We now believe it clear that the Legislature intended those statutes to apply to all suits against the State, where authorized by the Constitution or by concurrent resolution. Since the language of the resolution authorizing this suit is permissive as to venue, rather than mandatory, we have no difficulty in concluding that it in no way supersedes the provisions of R.S. 13:5101 et seq. as to State court venue.

We now find the writ herein to have been improvidently issued, and it is recalled. The State shall pay all costs for which it may be liable under the law.

WRIT RECALLED.


text:
    VERMEER SALES & SERVICE, INC. OF TEXAS v. ELECTRICAL SALES & SERVICE, INC.
    No. 11798.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      R. J. Calongne, Jr., Ervin & Waguespack, Baton Rouge, for plaintiff.
    Edward M. Leonard, Jr., Leonard & Hayes, Morgan City, for defendant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

We issued an order to show cause why this appeal should not be dismissed because our examination of the record revealed that the appeal bond was filed late. The last day for the filing of the appeal bond was August 22, 1977. The following affidavit appears in the record:

“BEFORE ME, the undersigned authority, personally came and appeared JANE COULLAR, Dy. Clerk of Court, in and for the aforesaid parish, who by her signature acknowledges receipt of a check from the law firm of ERVIN & WAG-UESPACK, P. 0. Box 3222, Baton Rouge, Louisiana in the amount of Five Hundred and no/100 ($500.00) Dollars, for which same has been made into a Cashier’s Check, to be used as the appeal bond required as Ordered in the proceeding entitled VERMEER SALES & SERVICE, INC., OF TEXAS VS. ELECTRICAL SALES & SERVICE, INC, NO. 53,-445.”

Appellant, in his brief, alleges that he mailed the check for the bond on August 17, 1977. An affidavit to that effect is attached to the brief. Also attached to the brief is the following affidavit:

“Before me, the undersigned authority, personally came and appeared, JANE COULLARD, Deputy Clerk of Court, who did deposed and said:
“That she did receive a check from Mr. R. J. Colongne, Jr. in an amount sufficient to cover the estimated cost of preparing the record for appeal and the $500.00 appeal bond ordered in the above captioned matter;
“That she was unaware at the time that there was any importance of dating the said bond the actual date received;
“That it is very possible and most probable that the said bond referred to in paragraph two above was received by her on behalf of the Clerk of the 16th Judicial District Court at least two days earlier than her affidavit to the Appellate Court indicates.”

Based on the foregoing, and the fact that another check, mailed to the court reporter on August 17, 1977, was negotiated on August 18, 1977, appellant claims that it is more likely than not that the check was received by the Clerk of the 16th Judicial District Court on or prior to August 22, 1977. He concludes that the bond was timely filed.

The record in this case shows the bond as having been filed too late. The affidavit of the deputy clerk of court tells us that it is possible that the bond was received timely. We think the matter can best be resolved only by an evidentiary hearing, at which the testimony of all parties involved can be taken, the procedures followed in the Clerk’s office can be reviewed and the relevant dockets and other documentary records can be properly introduced.

The matter is therefore remanded to the trial court, with instructions to hold an evi-dentiary hearing as outlined above, after which the testimony and exhibits shall be returned, with the record, to this court for a final determination of the question presented.

REMANDED WITH INSTRUCTIONS.


text:
    TANGI READY MIX CONCRETE v. Robert L. EDWARDS, (Green Acres Subdivision).
    No. 11679.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Henry A. Mentz Jr., Hammond, for Tangi Ready Mix Concrete — plaintiff-appellee.
    Thomas B. Waterman, Hammond, for Robert L. Edwards — defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a rule filed by defendant, Robert L. Edwards, to show cause why the Clerk of Court of Tangipahoa Parish, Louisiana should not continue to remain in possession of a cash appeal bond filed in these proceedings until this litigation is concluded. From a judgment ordering the Clerk of Court to pay to plaintiff an amount sufficient to satisfy the judgment decided by this Court on June 30, 1976, rehearing denied August 27, 1976, and reported at 336 So.2d 232, defendant has appealed.

This Court previously affirmed a money judgment in favor of plaintiff granted by the Trial Court on a motion for summary judgment. Defendant appealed and deposited a cash bond with the Clerk of Court. Fearing that plaintiff may attempt to execute against the cash bond, defendant filed the instant rule.

Defendant argued in the Trial Court that this Court affirmed the original judgment from an incomplete record, in that pending the appeal plaintiff filed a motion to supplement the record with defendant opposing as well as alternatively seeking to supplement. Pending the motions to supplement in the Trial Court, this Court affirmed the original Trial Court judgment.

In response to the show cause order, plaintiff prayed that the rule be recalled, vacated and annulled, and for all general relief.

On appeal defendant contends the Trial Court erred (1) in ordering the Clerk of Court to turn over money deposited without a writ of fieri facias, and (2) in finding that there were no issues pending and that the decision of the Court of Appeal was final, inasmuch as the motion to supplement the record and the opposition thereto had not been decided by the Trial Court.

ERROR NO. 1

Defendant-appellant basically argues that a money judgment cannot be enforced without the use of the writ of fieri facias, citing LSA-C.C.P. art. 2291, Succession of Moody, 306 So.2d 869 (La.App. 1st Cir. 1974), writ refused 310 So.2d 639 (La. 1975) and Miller v. Housing Authority of New Orleans, 200 So.2d 704 (La.App. 4th Cir. 1967).

LSA-C.C.P. art. 2291 provides that “a judgment * * * may be executed by a writ of fieri facias.” We do not construe the permissive language may to mean the writ of fieri facias to be an exclusive remedy-

Neither of the cases cited supports appellant’s contention that a writ of fieri facias is necessary to execute on a money judgment.

We know of no rule of law in Louisiana that requires a money judgment be executed only via a writ a fieri facias, nor do we know of any rule which would prohibit a Trial Court after a contradictory hearing from ordering a Clerk of Court from disbursing funds held as an appeal bond sufficient to pay a money judgment. Absent any known rule, we find no error.

ERROR NO. 2

This Court rendered its decision on June 30,1976, denied a rehearing on August 27, 1976 and writs were not applied for to the Louisiana Supreme Court. The decision of this Court is therefore final. LSA-C. C.P. art. 2167.

The jurisdiction of the Trial Court over a case on appeal is not divested for the purpose of correcting any misstatement, irregularity, informality, or omissions of the trial record. LSA-C.C.P. art. 2088. This limited retention of jurisdiction by the Trial Court, however, does not affect the jurisdiction acquired by the appellate court by the perfecting of an appeal. As to this particular retention of jurisdiction by the Trial Court, it is concurrent with the appellate court. LSA-C.C.P. art. 2132.

Inasmuch as the decision of this Court is a final judgment, we find no error on the part of the Trial Judge.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by defendant-appellant.

AFFIRMED.