author: PAVY, Judge. DOMENGEAUX, Judge

text:
    Betty Jane DUHON, Plaintiff-Appellee, v. PROF ERNY’S MUSIC COMPANY, INC., Defendant-Appellant.
    No. 5374.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    James E. Mouton, Lafayette, for defendant-appellant.
    Thompson & Sellers, by Roger C. Sellers, Abbeville, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

This is a suit for wages, penalties and attorney fees under the continuing-wage penalty statute, R.S. 23:631-2. Plaintiff terminated her employment with defendant on September 28, 1973. On October 5, she presented herself at defendant’s place of business and demanded her wages. Defendant’s manager offered her a check for $84.79, being the correct net amount due out of $101.95 after certain deductions, and requested plaintiff to sign or sign and complete a “Removal From Payroll” form as a condition to receiving the check.. The evidence is not definite whether defendant’s manager wanted plaintiff to sign the form in blank or would have allowed her to complete it before signing. Plaintiff refused to sign the form and left with it.

The particular form was filed in evidence and indicates that it was filled out as to plaintiff’s name, address and other routine matters but was blank as to other inquiries.

After consulting with her attorney later that day, plaintiff made a written demand by mail upon defendant. The demand letter was received by defendant on October 9, and on the next day he replied by letter in substance that the payroll check was available to plaintiff as soon as she complied with company policy by completing and signing the form. From the contents of this letter, it is clear that plaintiff would have had the right to fill in all blanks on the form as she wished.

Subsequently plaintiff instituted this suit for $175 plus continuing wages as penalties and attorney fees as provided by the said statute. The trial judge awarded $84.79, plus $1,050 as statutory penalties and $350 attorney fees. Defendant has appealed and plaintiff has answered the appeal to obtain an increase of attorney fees.

R.S. 23:631 — 2 reads as follows:

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

Defendant contends that it was justified in withholding payment until plaintiff signed the form. The jurisprudence recognizes that the employer is entitled to certain equitable defenses against the penalty. See Clevy v. O'Meara, 236 La. 640, 108 So.2d 538 (S.Ct., 1959) and the authorities therein cited. The “Removal From Payroll” form is furnished to employers by some governmental agency and is apparently to facilitate adjustment of rights between employer and employee at employment termination and to establish, for unemployment benefit purposes, the reason for the termination. It contains spaces or blanks for answering certain questions such as amount of wages due, etc. These spaces or blanks are above the place for the employee’s signature. Below that place for the employee’s signature and above the place for the employer’s signature are spaces to designate the reasons for termination of employment and the employer’s indication of employee’s eligibility for reemployment. No law is cited to show that the employee must sign the form or the employer must insist that the employee sign it.

Although we understand defendant’s desire to have the form completed and/or signed and think that perhaps plaintiff may have been somewhat uncooperative in her attitude, we do not think defendant was justified in its position. No case has been cited to us as precise authority for the situation herein. Analogous jurisprudence is contained in the cases of Young v. White Stores, 269 So.2d 266 (La.App. 3rd Cir., 1972) and Hendricks v. Air Lines, Inc., 234 So.2d 93 (La.App. 4th Cir., 1970). These cases held that company rules or policies as to procedures for issuing checks do not outrank or invalidate state law, that is, the continuing-wage penalty statute. Since the form was not required by law, we see little difference between the facts of those cases and the instant one. Accordingly, we conclude that defendant was not justified in withholding payment until the form was signed and/or completed.

Defendant contends the penalty is not applicable because there was no lack of tender in that plaintiff could have filled out the forms so as to reserve her rights to any wages in addition to those tendered. As previously noted, it is not clear that initially defendant wanted plaintiff to do anything other than sign the form. The check which he offered her and which was introduced in evidence, contains language that might be construed to estop her from claiming additional wages. Even if plaintiff could have filled out the form at the initial demand for wages and cashing the check would not have estopped her, defendant’s insistence on the signing and/or completion conditioned plaintiff’s right to her wages. This is what the statute seeks to avoid. We do not think the statute permits the employer’s desires, conveniences or procedures to condition the payment of wages. An equitable or good faith defense to payment of wages is a different thing.

Defendant contends it should not be cást for penalties and attorney fees because there was a dispute as to the amount of wages due. It is true that there was such a dispute but not as to the $84.79. This was admittedly due. Defendant has never claimed it did not owe this amount. Plaintiff’s claim for more than that amount does not make the $84.79 disputed wages. If defendant had paid the $84.79 without conditioning the payment, and, after trial, found to owe an additional amount which was in bona fide dispute, then defendant’s argument as to the wage dispute defense would be sound. The case of Krison v. Texas Industries, Inc., 253 So.2d 614 (La.App.1971, 2nd Cir.) relied on by defendant involved a bona fide dispute as to whether any termination pay whatsoever was due. It was held that the employer was not obligated to tender anything. Here there is a dispute only as to the amount in excess of the $84.79. That $84.-79 was undisputed but never tendered unconditionally. See the Clevy case, supra, wherein an employer paid admittedly due wages and unsuccessfully resisted additional wages but was not liable for penalties and attorney fees because there was a bona fide dispute as to the additional wages.

Because of the additional efforts and time in this appeal, we think that an increase in the attorney fee ward is warranted. Considering all the factors especially the small amount involved, we will increase the award by $150 to a total of $500.

Accordingly, for reasons assigned, the judgment of the district court is amended so as to increase the award for attorney fees to $500 and as thus amended it is affirmed.

AMENDED AND AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge

(concurring).

I conclude that the defendant’s manager was in good faith in believing that he could cause the employee to sign the form as a condition to receiving the check. This is not, however, an equitable defense against the penalty which the jurisprudence recognizes. I find the remedy harsh in this case, but it is for the legislature and not the courts to mitigate the harshness of this penalty for nonpayment of wages when found without contradiction to be due.


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    Jerry O. SMITH v. UNIROYAL, INC., et al.
    No. 7322.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Charles M. Stevenson, Metairie, for plaintiff-appellant.
    Montgomery Barnett, Brown & Read, Wood Brown, III, New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

This appeal arises from a dismissal by the district court of a damage action alleging production and sale of a defective tire, brought by plaintiff, Jerry O. Smith, against defendants, Uniroyal, Inc. (Uniroyal) and World Tire and Supply Company, Inc., a/k/a Delta World Tire Company, Inc. (World Tire).

On September 24, 1971 plaintiff purchased from World Tire two F/60 X IS Delta Trans AM tires manufactured by Uniroyal for his 1967 Chevrolet Corvette. On May 15, 1972, while driving this vehicle in St. Charles Parish, plaintiff was involved in a one car accident which resulted in personal injuries and extensive property damage. Plaintiff alleges that the accident was caused by tire failure resulting from a manufacturing defect.

Plaintiff sued World Tire and its insurer, Gulf Insurance Company, and Uniroyal and its insurer, Reliance Insurance Company. Thereafter, Government Employees Insurance Co., plaintiff’s collision insurer, intervened in the suit alleging it was entitled to recover the sum of $1,195.-00 for funds it had paid out in repairing plaintiff’s vehicle. Gulf Insurance Company and Reliance Insurance Company were subsequently dismissed from the suit after findings by the trial court that their policies did not afford coverage under the factual situation set forth in the petition.

After trial on the merits, judgment was rendered in favor of defendants, Uniroyal and World Tire, dismissing plaintiff’s suit. Plaintiff appeals. We affirm.

The sole issue confronting the trial court and before us on this appeal is the determination of whether the tire which failed and caused the accident was defective at the time it left the manufacturer’s possession. A total of three experts, two for plaintiff and one for defendants, testified on this point.

The first expert to testify for plaintiff was Dr. Clayton Callahan, a professor of chemical engineering at Louisiana State University. Dr. Callahan testified that he caused to be performed two chemical analyses on sections of the tire and found that the tire was composed of at least 10% ethylene propylene rubber (EPR). He stated that EPR was an inferior type of rubber which would not fasten properly to the cords of a tire. His opinion as to the cause of the tire failure was that the presence of EPR resulted in poor binding of the treads to the cords thereby causing a separation. He admitted, on cross-examination, however, that his tests were not sufficiently discriminatory to tell exactly where in the tire the EPR was located, and that if it were in an area other than the bind area, its presence would not explain the failure.

Plaintiff’s other expert witness was Dr. Gerald Whitehouse a professor of mechanical engineering at Louisiana State University. His inspection of the tire was wholly visual and his opinion was that the failure of the tire was caused by a tread separation in the vicinity of the outer plies. Although he noted a puncture in the tire, he did not believe that could have caused the separation. He could not conclude though, based strictly upon his personal observations, that the tire was defective when it left the manufacturer.

Defendants’ expert was Mr. William Briscoe, UniroyaPs manager of tire reliability. Mr. Briscoe testified that Uniroyal makes no tires with EPR, but noted that there are other ethylene propylene materials utilized by all tire manufacturers which give chemical reactions similar to EPR. He further stated that even if EPR was present in the tread, it would still not have been the cause of the failure due to the fact that the separation occurred between the belts. He believed that the tire was perfectly sound when it left the Uniroyal factory and that its failure resulted from a puncture. He opined that a “cratering effect” around the puncture area indicated that a puncturing object had stayed in the tire for some period of time causing a slow air loss. When the air pressure in the tire got down to approximately 6-8 pounds, the temperature rose to above 400 degrees and the structure destroyed itself in the upper shoulder area. He believed this conclusion was supported by the fact that plaintiff testified that he heard no sound prior to the tire going flat. He testified that normally, when a fully inflated tire goes flat and pieces fly off, a loud bang would be heard.

Although no written reasons for judgment were provided, the trial court confronted with this conflicting expert testimony apparently concluded that the inferences drawn by defendants’ expert as to the cause of the failure were more credible than those drawn by plaintiff’s experts. After a careful review of the record, we cannot say that this conclusion is manifestly erroneous.

The judgment of the trial court is affirmed.

AFFIRMED.


author: SARTAIN, Judge.

text:
    James W. GIBBENS et al., Plaintiffs-Appellants, v. Carroll EDGENS et al., Defendants-Appellees.
    No. 10593.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    John S. Thibaut and G. W. Jarman, Baton Rouge, for plaintiffs-appellants.
    Gerald L. Walter, Jr., Baton Rouge, for defendants-appellees.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   SARTAIN, Judge.

Plaintiffs, parents of decedent Michael Gibbens, bring this appeal from judgment rendered against them in favor of defendants, Carroll Edgens, Carroll’s Promotions, Inc., and Hartford Accident & Indemnity Company, dismissing plaintiff’s claim for damages resulting from the death of their fourteen year old son. We affirm for reasons stated herein.

The record before us shows that defendants, Carroll Edgens and Carroll’s Promotions, Inc., are the owners of a race track located in the northern portion of East Baton Rouge Parish near Baker, Louisiana. On August 9, 1973 Edgens was operating a two ton tanker truck insured by defendant Hartford and which was frequently used at the track in spraying oil on the dirt surface to obtain proper soil consistency. Defendant had also allowed three young boys to ride on the truck during these particular oiling operations, two on the outside running board on the passenger side, and the other atop the truck in the “crow’s nest”. The boys played no significant part in the oiling procedure but were members of a group of boys that frequented the track to aid defendant Edgens in various minor tasks. Edgens reciprocated by allowing the boys free admission at the track’s events and performing other favors. On the day of the accident defendant Edgens had allowed the boys to ride on the truck during the oiling process as a “reward” for assistance given him earlier.

Accounts of events leading up to the accident varied, but the evidence is clear that at some point the decedent left his position on the running board of the truck and then attempted to overtake the moving truck, then traveling approximately five miles per hour, from behind and again mount its running board whereupon he slipped and fell beneath the truck’s right rear wheels and died within hours of the incident.

Plaintiffs now contend that defendant Edgens was negligent in allowing decedent to ride on the outside running board of a moving truck. In the alternative, plaintiffs argue under the facts of this case that the court should apply a doctrine of strict liability and impose responsibility on defendant regardless of the conduct of any of the persons involved. With these contentions in mind we look to the evidence.

Defendant Edgens testified that the track is oval in shape and runs north and south in length. On the day of the accident he was spraying the track, proceeding in a counter-clockwise direction. He stated that he stopped in the southeastern turn and let Gibbens off the truck whereupon Gibbens walked across the track to the southwestern turn to converse with Bobby Slaven, Rick Westmoreland and several other persons standing in that area. Defendant then proceeded around the track and as he approached the southwestern turn he noticed Gibbens standing with the aforementioned group. As he traveled past decedent he received no indication that decedent wished to regain his position on the truck. Proceeding through the southwestern and into the southeastern turn, defendant felt a bump and was informed by Terry Baggett, the other boy who occupied a position on the outside running board, that decedent had been run over by the truck. Mr. Edgens estimated that the truck was traveling less than five miles per hour, or the pace of a fast walk, at the time the accident occurred. Defendant Edgens never saw decedent approaching the truck according to his own testimony. When asked if he had given any specific instructions about getting on and off moving vehicles, the following testimony was elicited:

“Q. The — let me ask you this specifically, Mr. Edgens. Have you instructed Mikey and his group of friends, those that came to the race track, with regard to getting on and off of this particular vehicle while it was in motion ?
A. Yes, sir.
Q. What were the instructions specifically that you gave ?
A. Just like I had told them all the time on anything else that we had running, don’t never get off of anything running and don’t never get on anything running, wait until it stops.
Q. To your knowledge had Mikey or any of the other boys ever violated those instructions with you on this piece of equipment?
A. No sir.”

Terry Baggett testified that he and Gib-bens were standing on the running board opposite the driver’s side with himself in front. He stated that the window was down and that they were each holding on to the inside of the door. As the truck approached the southwestern turn and was about to enter the turn, Gibbens jumped off and proceeded to a group standing on the side of the track. The truck made a complete revolution of the track and passed Gibbens. As Baggett glanced back he noticed Gibbens running up to the truck. Baggett testified that he shook his head in a negative fashion to indicate to the approaching Gibbens that he should not attempt to mount the moving vehicle. Bag-gett then turned his attention back to defendant Edgens. He never told Edgens that Gibbens was approaching and when Baggett glanced back to check on Gibbens’ progress, he realized that Gibbens had been run over by the truck. Baggett too estimated the speed of the truck at the time of the accident as equivalent to that of a fast walk. When questioned as to instructions given by defendant Edgens, the following testimony appears:

“Q. O. k. Before you got on the truck did Mr. Edgens instruct you that it was dangerous and that you should be careful?
A. He did.
Q. What did he tell you about it, do you remember exactly?
A. Yes, he said if you get on the truck stay on the truck, if you wanted off to tell him and he would stop and let us off.”

Mike Kippers was also present on the truck at the time of the accident and was riding in the “crow’s nest”. He stated that Gibbens jumped from the truck as it approached the southwestern turn, spoke briefly with a group of people standing there, and immediately ran to catch up with the truck as it completed the southwestern turn. He stated that Gibbens jogged up to the truck on the passenger side, got one foot on the running board and slipped. Kippers, too, remembered Ed-gens’ instructions:

“Q. O. k. Did Mr. Edgens tell you anything about whether or not it was dangerous for you to be riding on the truck and to be careful ?
A. Yes, he told us not to hop off and hop on the truck, if you are going to ride stay on the truck, if you ain’t, stay off.
Q. Now, were there occasions when somebody would get off the truck and get back on ?
A. No, sir, not until we got through running all the oil out and we would hop off and take the things off.
Q. So he never stopped at any point except when he ran out of oil ?
A. No, sir.
Q. How fast was the truck going around the track during the oiling operations ?
A. I don’t know exactly, but it was going real slow—
Q. Could you—
A. —it was idling, just about.
O. Pardon me?
A. Idling, just about.
Q. Could you keep up with the truck by walking?
A. Yes, sir.
Q. Did you at any time get off the truck other than when it was stopped ?
A. No, sir.”

Richard Westmoreland testified at trial that he was among the group standing on the side of the track with whom Gibbens had had the discussion immediately prior to the accident. Westmoreland’s description of the accident was essentially the same as Kippers’, that Gibbens dismounted the truck as it approached the southwest turn, spoke briefly, and then immediately tried to catch up with the vehicle. West-moreland watched Gibbens run back to the truck and saw the boy disappear behind it leaving only his legs viewable from West-moreland’s vantage point. He saw both of the boy’s legs disappear above the level of the bottom of the truck and then saw the boy fall to the track and roll under the truck’s wheels.

“Q. Mr. Westmoreland, when you said that you told him not to get on and off, were you the only one who said to him, ‘Don’t get on and off the truck’ ?
A. No, sir.
Q. Who else said something to him at that time, that is, at the time that he came to talk to you all ?
A. All of us.
Q. Hou did you say it to him ?
A. I told him not to be jumping on and off the truck, he was going to get hurt.
Q. Now, when he turned to run or to jog back out to the truck did you or the others yell after him to stop again or holler after him ?
A. Yes, sir.
Q. Did he heed any of you at all ? Did he stop or appear to stop at all when you hollered after him?
A. No, sir.
Q. When you called to him or hollered to him to stop, did you tell him, ‘Don’t get on the truck’ or words to that effect?
A. Yes, sir.
Q. Do you remember what was said when he came over to where you were standing, what did he say?
A. No, sir.
Q. Do you remember any of that conversation, that is, between — did he enter into a conversation ?
A. Not really, no, sir, he just ran up and I think the first thing that was said was to stop jumping on and off the truck, to the best of my recollection, that’s all that was said concerning, you know, as far as hearing the conversation.
Q. Do you remember which one of the three of you were standing there, if you recall, first told him that? Was it you or one of the others?
A. It was one of the others.
Q. Do you remember which one of the other said that to him ?
A. If I am not mistaken it was Bobby Slaven.
Q. Did he indicate in any way by his action or his words or response, some response to that instruction given by Mr. Slaven, did he acknowledge it in any way or say anything like ‘Mind your own business’ or ‘Yes, I will’ or anything?
A. Not that I remember,-no, sir.”

Bobby Slaven’s statements corroborating the above testimony was as follows:

“Q. After he got off at that location where did he go and what did he do?
A. Well, he came over there where we were and then I asked him to not get on the truck, which was the second time, -and then, you know, not be getting on and off the truck, you know, if he was going to ride, you know, get in the truck and ride, you know, and something like that, I don’t know just the words, you know, I said to him at the time, you know, hut he said something like, ‘O. k.’ or something or the other and then he started down the top of the track on that side, you know, and he went on down there and I hollered at him again, you know, and—
Q. What did you holler at him ?
A. Well, to not get back on the oil truck again, you know, and then right after that, you know, the accident happened.
Q. Do you know whether anyone else in the group that you were standing with said anything to him about getting on or off that truck ?
A. Yes, sir, me and Rick—
“Q. Go ahead and answer, please.
“A. Right, well, me and Rick West-moreland both had told him whenever he got off the truck and come over there, you know, to not be getting on and off the truck and then I was the onliest one that told him whenever he went down the track, I think I was, it has been so long ago it is hard to remember, you know, but we were asking him not to get back on the truck, you know.
Q. As he went down the track or around the track could you tell whether he walked or ran or jogged or how did he proceed down the track ?
A. Well, he was running.”

We conclude, as did the trial judge, that the testimony in the record is to the effect that adequate warning had been given to young Gibbens to apprise him of the inherent dangers in mounting and dismounting a moving vehicle. Under these circumstances the trial judge was correct in not holding Edgens guilty of negligence.

Assuming, arguendo, that the question of Edgen’s negligence is debatable, we quote with approval that portion of the district judge’s written reasons for judgment relating to defendant’s plea of contributory negligence on the part of young Mike Gib-bens, to-wit:

“While the Court does not find any fault assessable Edgens, it must comment that it would be difficult to conceive of a stronger case of contributory negligence than the one presented herein. Mike Gibbens was not a child as counsel for the plaintiff wishes to have the Court believe. Rather, he was fourteen years of age and of reasonably average intelligence. Consequently, he possessed the ability to be aware of ordinary risks and accept responsibility for his failure to discern obvious dangers. In view of the fact that he had been adequately warned not to do the very thing which precipitated his accident, there can be no question but that the plea of contributory negligence must be accepted as a valid assertion.”

On the issue of strict liability, the trial judge stated:

“While submitted under an alternative plea, it is evident from his brief that the ‘heart and soul’ of plaintiffs’ argument for recovery is predicated upon the doctrine of strict liability. There can be no question that, as evidenced by the recent jurisprudence, the majority on the Louisiana Supreme Court is moving toward strict liability and expanding its application. In this vein are Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971); Reymond v. State Department of Highways, [255 La. 425, 231 So.2d 375] supra; and Theriot v. Transit Casualty Company, 263 La. 106, 267 So.2d 211 (1972).
Generally, in the past, the courts have restricted the imposition of strict liability to those cases where the defendant was conducting an ‘ultrahazardous activity’, which foreseeably could result in the kind of injury complained of. In Lan-glois for instance, the defendant permitted poisonous gas to escape from its plant and injured the plaintiff who had answered a call at the adjoining property in the exercise of his duties as a fireman. Obviously the inherent properties of poisonous gas cause its use to be ul-trahazardous and the injury to the plaintiff was exactly the kind which could be anticipated in the event of its misuse. In Reymond, the defendants were held liable for damages to plaintiff’s home resulting from the use of a pile driver being operated on adjoining property by the defendants in a highway construction project. There is little question but that a pile driving machine, used in close proximity to adjacent structures, could be considered as a ultrahazardous activity insofar as posing a possible risk to adjoining property.
“It therefore appears to the Court that, at this stage in jurisprudential time, strict liability plays no part in the case where the instrumentality causing the injury is not inherently ultrahazardous. Of course, any piece of equipment, depending upon the manner of its use and operation, can become ultrahazardous, but it is difficult to assume that within normal operation, a motor vehicle falls in the category of an ultrahazardous instrumentality calling for the application of strict liability. Further, the application of strict liability should be sparingly imposed when the complaining party knowingly and actively brings about his own injury. In fact, the writer finds the use of strict liability most appropriate where an innocent bystander is injured. See Theriot, supra. In those cases, he did not put into motion any forces contributing to his injury and, consequently, should be entitled to recover damages. The Court determines, however, that under the prevailing circumstances which exist in this case, the application of strict liability is not appropriate herein.”

We also agree that the facts in the case at bar do not warrant the application of strict liability.

Accordingly, for the above reasons the judgment of the district court is affirmed at plaintiffs’ costs.

AFFIRMED.


author: PONDER, Judge.

text:
    Edison A. CAMPANELLA v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS et al.
    No. 10608.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      Dennis A. Pennington, Baton Rouge, for appellant.
    Arthur J. O’Keefe, New Orleans, for Houston General Ins. Co.
    William J. Goliwas, New Orleans, for State Highway Dept.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

This is a suit under the Workmen’s Compensation Act. The plaintiff, Edison A. Campanella, was injured in the course and scope of his employment on July 12, 1973, when he slipped and fell while crossing a bridge being dismantled. As a result of the accident he suffered 15 to 20% permanent disability to his left arm. Plaintiff was paid compensation for forty-one weeks at the rate of $50.99 per week, plus $1,191.-65 in medical expenses.

Plaintiff brought this suit seeking recovery of maximum compensation benefits based on the allegation that he is totally and permanently disabled and that his wages at the time of injury were such that sixty-five per centum thereof exceeded $65.00 per week. Defendants are the State of Louisiana, through the Department of Highways, and its insurer, Houston Gener- al Insurance Company.

The trial court, with oral reasons for judgment, found in favor of defendants, rejecting plaintiff’s demands and dismissing his suit. The plaintiff has appealed seeking a reversal of that judgment or alternatively holding defendants liable for statutory penalties because of their alleged erroneous computation of plaintiff’s weekly salary.

At the time of the accident plaintiff admittedly was a part-time summer employee of the Highway Department, assigned the duties of a rodman. It was stipulated that the accident occurred while plaintiff was acting in the course and scope of his employment.

The issues presented by this appeal are as follows:

(1) Is plaintiff totally and permanently disabled within the terms of Workmen’s Compensation law?

(2) Were defendants arbitrary and capricious in computing plaintiff’s weekly compensation benefits at a rate of $50.00 per week based on an average weekly wage of $78.46?

The treating physician, Dr. Thomas Campanella, an orthopedic surgeon and plaintiff’s uncle, saw plaintiff on the day of the accident at Our Lady of the Lake Hospital. Examination revealed “a severe laceration of the forearm with damage to the vascular bundle.” The wound was cleaned of debris and torn veins and nerves were repaired. The ulnar and median nerves were not cut. Plaintiff was discharged from the hospital within three or four days of the accident.

Dr. Campanella saw plaintiff again on March 5, 1974. At that time plaintiff was told to go back to work. Dr. Campanella estimated plaintiff’s disability as 20% loss of use of the left arm. Plaintiff is right-handed.

Plaintiff’s uncle saw him again October 17, 1974. Plaintiff was having some difficulty with weakness of his wrist and hand grip and soreness over the scar. This was attributed to atrophy from disuse. Dr. Campanella was still of the opinion that plaintiff was able to return to work, and in fact, this was his expert opinion the day of the trial.

On appeal, the plaintiff argues that Dr. Campanella was not apprised of the duties of a rodman, when he gave his expert opinion that his nephew could go back to work. The evidence is clearly to the contrary. That Dr. Campanella was fully aware that plaintiff had to do some heavy work is indicated by his testimony in the trial transcript, the pertinent part of which reads as follows:

“Q. Did Edison Campanella describe to you his duties as a rodman with the Louisiana State Department of Highways ?
A. I know that he had to do some heavy work, and other than that, no, I do not know .
Q. Did he describe
A. . specifically, you know, what he had to do in his job.
Q. Did he describe to you the, at times he was required to lift weights of forty to fifty pounds?
A. Yes.”

Furthermore, plaintiff admitted upon cross-examination that he informed his uncle of the duties required by the Department of Highways.

“Q- In the course of the treatment rendered by Dr. Campanella to you, Edison, did you inform the doctor of your, of the duties required by your employment with the State of Louisiana, Department of Highways?
A. Yes, I did.
Q. You told him what what you had to do?
A. I told him what I had been doing.”

Dr. Campanella’s expert testimony that plaintiff could resume employment as a rodman is contradicted only by the testimony of plaintiff. The trial court evidently chose to believe the testimony of plaintiff’s uncle. There is evidence in the record which, upon its reasonable evaluation of credibility, furnished a reasonable factual basis for the trial court’s finding, and this court will not disturb the trial court’s factual finding, in the absence of manifest error. Canter v. Koehring Company, La., 283 So.2d 716. Therefore, the court will not set aside the trial court’s finding that plaintiff is not totally and permanently disabled.

The jurisprudential principle of appellate review that the reviewing court must give great weight to factual conclusions of trier of fact, and where there is conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, Canter v. Koehring Company, supra, is particularly applicable in the case at bar, where the trial court chose to believe undisputed expert medical testimony.

The plaintiff argues, in the alternative, thát if the court finds that he has a permanent, partial disability, as the court below found, then payment of the sum of $50.99 per week for forty-one weeks was not sufficient to discharge defendant-appellees’ statutory obligation to plaintiff, in that said weekly payment was erroneously determined by using an average weekly wage of $78.46, instead of $85.00.

At trial he testified that he earned either $360.00 per month or $340.00 per month. It thus appears that it was established that plaintiff was making at least $340.00 per month or $85.00 per week, as computed under the statute.

Using $85.00 per week as a base, it is clear that plaintiff was owed a total of $2,210.00 in workmen’s compensation benefits in accordance with R.S. 23:1221(4) (f) and (o). However, plaintiff was paid only $2,090.59 in workmen’s compensation benefits. It is on this difference of $119.41 that plaintiff seeks statutory penalties and attorney’s fees.

It is to be noted that the record does not indicate that the erroneous use of $78.46 as a weekly base was objected to by plaintiff in the court below, or at any time prior thereto. This issue was evidently first raised on this appeal. In view of this, together with the smallness of this weekly deficiency, the court is unwilling to equate an apparently good faith mathematical error with arbitrary and capricious action. Therefore, statutory penalties and attorney’s fees are denied.

For these reasons assigned, the judgment appealed from is amended by allowing plaintiff an additional $119.41, and thus amended, the judgment appealed from is affirmed. *

Defendant-appellee to pay all costs of this appeal.

Amended, and as amended, affirmed.

      . In a workmen’s compensation proceeding, the question of disability is one of fact. Franklin v. Cashio, 111 So.2d 536 (La.App. 1st Cir.1959).

      . R.S. 23:1021(7) “Wages” means weekly wage at the time of the accident. The average weekly wage shall be determined as follows: “(b) If the employee is paid on a monthly basis, his monthly salary divided by four


author: PER CURIAM.

text:
    Robert B. CROUSE v. George BOGIL.
    No. 10616.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Robert J. Mack, Hammond, for appellant.
    Iddo Pittman, Jr. and Ron S. Macaluso, Hammond, for appellee.
   PER CURIAM.

Trial was held below in this matter on December 5, 1974. The judge below signed the judgment complained of herein on February 19, 1975, dismissing plaintiff’s suit at his cost. On February 25, 1975, plaintiff-appellant filed a motion for a new trial. The court set the rule to show cause why a new trial should not be granted for March 7,1975.

The minutes reflect that on March 7, 1975, the motion for a new trial was called, and no one appearing, the judge below denied the motion. On March 10, 1975, plaintiff-appellant filed a motion to continue the March 7, 1975, hearing on the motion for a new trial. The motion for a continuance is not signed by the judge below.

In a letter dated March 19, 1975, the Clerk of Court of St. Tammany Parish notified plaintiff-appellant that the motion for a new trial had been denied on March 7, 1975, and, thus, the motion for continuance was not timely.

Plaintiff-appellant procured an order for a devolutive appeal on May 30, 1975, returnable on July 25, 1975, and filed a bond in proper amount on June 9, 1975.

La.C.C.P. Art. 2087 establishes the delay within which an appellant may perfect an appeal as being within ninety days of:

(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 application 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.” (Emphasis added)

Plaintiff-appellant was not entitled to notice under La.C.C.P. Art. 1914 because the lower court did not take the motion for new trial under advisement and plaintiff-appellant had not filed a written request for such notice.

Therefore, the ninety day delay allowed plaintiff-appellant to perfect his appeal began on March 7, 1975, the date the motion for a new trial was denied, and ended on June 5, 1975. The bond filed on June 9, 1975, was not timely.

Accordingly, we dismiss the appeal ex proprio motu as the record establishes that we have no jurisdiction.

Appeal dismissed.


text:
    J. E. LaCOSTE, Sr., Plaintiff-Appellee, v. C & C CONTRACTORS et al., Defendants-Appellants.
    No. 10597.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      E. Clark Gaudin and Edwin Smith, III, Baton Rouge, for defendants-appellants.
    Felix R. Weill, Baton Rouge, for plaintiff-appellee.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   SARTAIN, Judge.

This is a suit on a rental contract for a piece of mobile equipment coupled with a claim for special damages caused to the equipment while it was in the possession of one of the defendants. Defendant, Wilbert M. Carbo, appeals from a judgment rendered against him in the amount of $1,382.-95. For reasons hereinafter stated, we reverse and remand.

Plaintiff’s petition alleges, inter alia, that in April of 1970 one Carey Stevens arranged for the rental of the equipment on the basis of $1,081.60 per month; that Carey Stevens was acting either individually or on behalf of Magnolia Construction Company, Inc. or C & C Contractors, a commercial pertnership composed of Wilbert M. Carbo and Ernest C. Donnell, Jr. The equipment was delivered to Carey Stevens and/or Magnolia Construction Company and/or C & C Contractors on April 25, 1970 and was used by these named defendants from that date through June 25, 1970. On or about May 25, 1970, plaintiff received a check from C & C Contractors in the amount of $1,081.60, leaving a balance due in the same amount for the rental period of May 25, 1970 to June 25, 1970. In addition, plaintiff averred that defendants or their agents damaged the equipment to the extent of $301.35.

We quote the prayer in its entirety:

“WHEREFORE, PETITIONER PRAYS that a copy of this petition, together with citation to appear and answer same be served upon the defendants, and that after all legal delays and due proceedings had, there be judgment herein in favor of petitioner, J. E. La-Coste, Sr., and against the defendants, Carey Stevens, C & C .Contractors, and Wilbert M. Carbo and Ernest C. Donnell, individually, and Magnolia Construction Company, Inc., jointly and in solido, in the full sum of ONE THOUSAND THREE HUNDRED EIGHTY TWO AND 95/100 ($1,382.95) DOLLARS, together with legal interest from date of judicial demand until paid and for all costs.”

Service of process was made on each of the parties named in the prayer, above.

Prior to trial on the merits, Carey Stevens, Magnolia Construction Company, Inc. and Ernest C. Donnell, Jr., were released on various exceptions. C & C Contractors and Wilbert M. Carbo filed an answer in the nature of a general denial with certain exceptions which will be more fully discussed hereinafter.

On the date this matter was set for trial on the merits defendant, Wilbert M. Carbo, did not appear. Plaintiffs then produced evidence in support of their claim and judgment was rendered as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs, Rowena Poche LaCoste and J. E. LaCoste, Jr., and against the defendant, Wilbert M. Carbo, d/b/a C & C Contractors, in the full sum of ONE THOUSAND THREE HUNDRED EIGHTY TWO AND 95/100 ($1,382.95) DOLLARS, together with legal interest from date of judicial demand until paid, and for all costs.”

Defendant, Wilbert M. Carbo, now appeals and contends (1) that he was sued only in his capacity as an alleged partner of C & C Contractors and in the absence of any proof as to the existence of the partnership he can not be held individually; and, (2) that he was not given adequate notice of trial. C.C.P. Art. 1571.

Counsel for plaintiffs argues that Carbo was joined, served and cited separately from that of C & C Contractors and the judgment against him is proper and should be affirmed.

However, when we consider the law relating to the liability of a partner, the pleadings herein, and the proof offered by plaintiffs, we are confronted with certain basic propositions that are mutually exclusive.

First, in Louisiana a partnership is a separate legal entity, distinct from the persons comprising it. Gulf Union Mtg. Corp. v. Michael & Barber Const. Co., 251 So.2d 459 (La.App.1st, 1971). A partner’s liability is dependent upon the type of partnership involved. In an ordinary partnership, the liability of a partner is only for his virile share; whereas, in a commercial partnership, the liability of a partner is in solido. C.C. Art. 2872. Accordingly, in a suit against a partner for a partnership obligation, the partnership itself is an indispensable party to the action. C.C.P. Art. 737; Stone v. Stone, 293 So.2d 523 (La. App.4th, 1974).

Carbo’s first assignment of error, above, is premised on these rules of law relating to liability of a partner. In Williams v. Ralph R. Miller Shows, 15 So.2d 249 (La.App.1st, 1943), this court held that failure to prove the existence of a partnership was fatal to plaintiff’s claim for damages against certain alleged partners.

On the other hand, plaintiffs contend that personal service on Carbo of the petition which contained all the salient facts identifying the contract sued upon put him on notice of possible liability. They argue that the fact that they started out with one “theory” of Carbo’s involvement in the rental transaction (through a partnership) and ended up with another basis for liability (under a trade name) is not a defect in their case. They cite Cox v. William M. Heroman & Co., Inc., 298 So.2d 848 (La., 1974) which stated that:

“So long as the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the fact pleadings and evidence; the ‘theory of the case’ is abolished as a pleading requirement or restriction. Articles 862, 1154, 2164.”

We agree that under Cox, above, plaintiffs would have been privileged to offer evidence concerning Carbo’s exact involvement in the transaction. Had plaintiffs done this their contention would have merit. There is not one scintilla of evidence in the testimony given at the hearing which can be reasonably construed to support the conclusion that Carbo was doing business under a trade name or as the sole proprietor of C & C Contractors. The testimony throughout speaks of “Carbo of C & C Contractors”. The check received for one month’s payment was from C & C Contractors. The true identity of and Carbo’s relation to C & C Contractors are left in absolute limbo.

The issue here should not be confused with our practice of fact pleadings on the one hand and the theory of the case pleading on the other. We adhere to the former and reject the latter. What is at issue here is the requirement that there be contained in the record a fundamental element of proof. The fact that the petition put Carbo on notice of “possible liability” does not relieve plaintiff of the burden of proving the extent of his liability.. This burden-can only be satisfied when the true identity of C & C Contractors is shown.

The joint answer filed by C & C Contractors and Carbo sheds no light as to the identity of C & C Contractors. Yet, the answer does admit to the existence of the contract and to liability thereunder to the extent of $275.05. The pretrial order states that the only issue to be litigated is the actual term of the agreement. It generally negates the possibility that the identity of C & C Contractors would ultimately be an issue. Under these circumstances we feel that justice will best be served by a remand of this matter.

Inasmuch as this matter is to be remanded it is not necessary that we address ourselves to defendant’s second assignment of error, above, relating to his contention that he did not receive adequate notice of trial.

Accordingly, for the above reasons, the judgment of the trial court is hereby annulled and set aside and this matter is remanded for further proceedings in accordance with the views herein expressed. The assessment of costs is to await a final determination on the merits.

Judgment annulled and case remanded.

      . On the morning of the trial, Mrs. Rowena Poche LaCoste and J. E. LaCoste, Jr., the widow and the only surviving heir, respectively, of J. E. LaCoste, Sr., were substituted as party plaintiffs. C.C.P. Art. 801.

      . On rehearing on other grounds, 17 So.2d 67 (La.App. 1st 1944) and on writs granted on the same, 17 So.2d 389 (La.App. 1st 1944).

      . Prepared by Carbo’s previous attorney.

      . Ibid.


text:
    Lula Mae Allemand MARIE, Plaintiff-Appellee, v. J. T. (Jimmy) DOUCETTE and Yvonne Champagne Doucette, Defendants-Appellants.
    No. 10450.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      A. Deutsche O’Neal, Sr., Houma, for defendants-appellants.
    Robert Prejeant, and Ernest A. Kelly Houma, for plaintiff-appellee.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   SARTAIN, Judge.

This suit was instituted by plaintiff, Lula Mae Allemand Marie, against defendants, J. T. (Jimmy) Doucette and Yvonne Champagne Doucette, to recover the balance on a promissory note secured by a mortgage on immovable property sold to the Doucettes by plaintiff Marie. Defendants failed to answer timely and default judgment was entered against them on November 25, 1974. Following confirmation, the judgment was signed on November 29, 1974 from which defendants have perfected this appeal.

On December 27, 1974, Patricia Daigle LaRose and Frederick S. LaRose, styling themselves as third party defendants, filed a “Motion to Annul Judgment” alleging fraud and ill practices and obtained an order staying the judgment pending further proceedings. The LaRoses alleged interest in the suit based upon their purchase from the Doucettes of the immovable property encumbered with the mortgage and assumption of the obligation on the note. Plaintiff filed a motion to dissolve the stay order on grounds that there is no provision in the law for the issuance thereof and further sought an award of reasonable attorney’s fees for its wrongful issuance. In addition, plaintiff filed exceptions of no right of action and no cause of action. A hearing was held on February 13, 1975 on the motion and exceptions filed by plaintiff, as well as on the motion filed by defendants and the matter was taken under advisement.

Subsequently, judgment was rendered on February 18, 1975 wherein the trial judge dissolved-the stay order, finding it improvidently issued, denied plaintiff’s request for reasonable attorney’s fees, and sustained plaintiff’s exception of no right of action. From this judgment the LaRoses have appealed, which appeal has been consolidated with that of the Doucettes (the LaRoses have joined in that appeal also) for determination before this court. Plaintiff has answered the appeal of the LaRoses seeking modification in the February 18th judgment insofar as it denied his request for reasonable attorney’s fees for wrongful issuance of a stay order.

We turn first to the appeal of the default judgment itself. Defendants argue that the default judgment rendered herein is invalid upon the face of the record due to an insufficiency in the sheriff’s return appearing on the back of the citation of defendant Yvonne Champagne Doucette. Said citation is addressed to Yvonne Champagne Doucette, dated November 6, 1974 and complies with all requirements of La.C.C.P. Art. 1202. On the back of the citation appears the sheriff’s return, which states that domiciliary service was made November 7, 1974, “. . . on J. T. Jimmy Doucette, the defendant, at his dwelling house or usual place of abode by leaving same with wife, person of suitable age and discretion residing therein as a member of defendant’s domiciliary establishment.”

Defendants argue that the return does not indicate Mrs. Doucette was ever served since it states it was served on “J. T. Jimmy Doucette”, rather than upon Yvonne Champagne Doucette.

La.C.C.P. Art. 1292 states that the sheriff shall endorse on a copy of the citation the date, place and method of service and sufficient other data to show service in compliance with law. It is clear from the citation that service was made upon the wife of J. T. Doucette. Mrs. Doucette does not argue that she did not receive the citation, and there is no showing that the “wife” of J. T. Jimmy Doucette who received the citation was anyone other than the defendant herself. Accordingly, we conclude the data recorded in the citation is sufficient to show service in compliance with law, specificially, personal service pursuant to La.C.C.P. Art. 1232.

Defendants further argue the invalidity of the default judgment on allegations that plaintiff failed to comply with La.C.C.P. Art. 1702 in that the confirmation was less than two (2) days following the entry of the preliminary default. This argument is based upon the minute entries in the record which show that on November 26, 1974, one day following the entry of the preliminary default, the testimony of one Paula Langford was heard on the confirmation with additional evidence to be produced later. On November 29, 1974, the testimony of Lula Mae Allemand Marie was heard, and upon the conclusion of her testimony, judgment was signed.

We need not determine whether the taking of testimony on November 26, 1974 was in violation of La.C.C.P. Art. 1702, since there was testimony taken in the matter on November 29, 1974, or at least two days after the entry of the preliminary default, and there is no showing that that testimony by itself would be insufficient to sustain the judgment. The testimony adduced at the confirmation does not appear in the record. The Louisiana Supreme Court stated in Ascension Buildings, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972), citing La.C.C.P. Arts. 2130 and 2131, that there is no requirement that a party confirming a default have the testimony reduced to writing and if such a narrative is desired, it is the appellant’s responsibility to obtain it. The court stated further that where there is no note of the parol testimony taken, the judgment is, nevertheless, presumed to be well founded and based upon sufficient evidence, unless the contrary be shown. No such showing has been made in the present case.

We turn now to the appeal of the LaRoses from judgment against them maintaining plaintiff’s exception of no right of action. We note that defendants have by motion attempted to annul the judgment on the grounds of fraud and ill practices. It is well settled that such grounds for annulment may only be raised through a direct proceeding and may not be raised collaterally. Pontchartrain Park Homes, Inc. v. Sewerage & Water Board, 246 La. 893, 168 So.2d 595 (1964); Nethken v. Nethken, 307 So.2d 563 (La.Sup.Ct., 1975). The court stated in Nethken, at page 565:

“A judgment, although founded on ill practices, must be presumed to have been regularly obtained until the contrary is shown in direct proceedings. By a direct action is meant that the party praying for the nullity of a judgment, before the court which has rendered same, must bring his action by means of a petition; and the adverse party must be cited to appear, as in ordinary suits. La.Code Civ.P. art. 1201, 2001-2006; cf. La.Code Practice art. 610; Garnett v. Ancar, 203 So.2d 812 (La.App.1967).
A collateral attack, on the other hand, is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it. Brigot v. Brigot, 47 La.Ann. 1304, 17 So. 825 (1895); * * * ”

We conclude that the motion to annul in the present suit is a collateral attack on the prior judgment inasmuch as it is an attempt to impeach the default judgment in the default proceedings rather than in a separate proceeding brought by petition for the express purpose of annulment. Defendants have no right to demand a nullity on grounds of fraud and ill practices in these proceedings. Thus we sustain the exception of no right of action.

With respect to plaintiff’s answer seeking a modification in the trial court’s judgment insofar as it denied him reasonable attorney’s fees claimed for wrongful issuance of the stay order, we find such modification warranted on the face of the record which indicates that the hearing wherein plaintiff sought dissolution of the order commenced at 9:00 o’clock A. M. on February 13, 1975, and concluded on that day at 5:45 o’clock P. M. Accordingly, pursuant to La.C.C.P. Art. 3608 , for services rendered in connection with the dissolution, we award attorney’s fees as an element of damages in the amount of $350.00. All other claims for damages in connection with the stay order are denied as they are unsupported by the record.

Accordingly, for the above and foregoing reasons, the default judgment in favor of plaintiff, Lula Mae Allemand Marie, against J. T. Jimmy Doucette and Yvonne Champagne Doucette is affirmed. The judgment of the trial court in favor of plaintiff, Lula Mae Allemand Marie, against defendants, Patricia Daigle LaRose and Frederick S. LaRose, maintaining plaintiff’s exception of no right of action is affirmed. Judgment against plaintiff, Lula Mae Allemand Marie, in favor of Patricia Daigle LaRose and Frederick S. LaRose dismissing plaintiff’s claim for reasonable attorney’s fees is reversed and the same is hereby rendered in favor of plaintiff in the amount of $350.00. All costs of these proceedings are assessed against defendants-appellants.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Which mortgage contained a pact de non alienando thereby enabling the mortgagee to ignore subsequent sales of the mortgaged property and to proceed only against the mortgagor. See Freedman v. Ratcliff, 183 La. 1, 162 So. 783 (1935).

      .Art. 1202. Form of citation.
      The citation must be signed by the clerk of the court issuing it with an expression of his official capacity and under the seal of his office; must be accompanied by a certified copy of the petition, exclusive of exhibits, even if made a part thereof; and must contain the following:
      (1) The date of issuance;
      (2) The title of the cause;
      (3) The name of the person to whom it is addressed;
      (4) The title and location of the court issuing it; and
      (5) A statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in Article 1001 under penalty of default.

      . Art. 1232. Personal service.
      Personal service is made when a proper officer tenders the citation or other process to the person to be served.

      . Art. 1702. Confirmation of default judgment.
      A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.

      . Art. 3608. Damages for wrongful issuance of _ temporray restraining order or preliminary injunction.
      The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.


author: PAVY, Judge.

text:
    Velma Lewis WASHINGTON, Administratrix of the Successions of Sam Lewis and Oshia Morris Lewis, Plaintiff-Appellee, v. SABINE STATE BANK & TRUST CO., Defendant-Appellant.
    No. 5348.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.

      E. L. Edwards, Jr., Many, for defendant-appellant.
    Davis & Simmons by Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

This is a claim by an administratrix against a bank for $5,197.84 representing a savings account balance as of May 1, 1974, the death date of Sam Lewis, one of the decedents. On May 3rd, at the instance of Harvey Lewis, the bank paid $2,972.32 to a funeral home for its burial expense claim. On May 9th, it paid the balance to said Harvey Lewis. The district court entered judgment for plaintiff in the amount of the last withdrawal of $2,225.52, and plaintiff does now seek to hold the bank liable for the payment directly to the funeral home. The defendant bank has appealed.

MOTION TO DISMISS THE APPEAL

Appellee moves to dismiss the appeal on the ground that the appellant has failed to comply with Code of Civil Procedure Article 2126 requiring an appellant to pay costs of preparing the record and the appellate court’s filing fee within three days prior to the return date. The filing fee required has been transmitted and received by this court. Affidavits attached to the motion to dismiss and the opposition show that the Sabine Parish Clerk of Court never bills litigants or their attorneys for appeal costs until the responsibility for said costs is firmly determined by the appellate court decree and that said clerk has a credit arrangement with appellant’s attorney under which it monthly bills his law firm for any amounts incurred during the month, including the cost and fees required by the aforementioned Code of Civil Procedure article. The said affidavit further shows that said law firm’s account with the clerk of court is and has been for several years current and nondelinquent.

We do not think the practical and convenient bookkeeping arrangement which existed between the clerk of court and appellant’s attorneys can be construed as a failure to comply with Code of Civil Procedure Article 2126. Even if there is such failure, it could not be imputable to appellant so that it must suffer loss of its appeal.

In Howard v. Hardware Mutual Co., 286 So.2d 334 (S.Ct.La.1973) the Court of Appeal had dismissed an appeal for failure to pay the appellate court’s filing fee based on an affidavit by the lower court clerk that appellant had not paid such fee. (See 251 So.2d 642). It appeared from evidence taken on remand by the Supreme Court that the appellant had been assured by the clerk of court that there were sufficient funds on hand to cover the costs of appeal. The Supreme Court held the dismissal of appeal by the court of appeal was improper saying:

“Article 2161 of the Louisiana Code of Civil Procedure provides:
‘An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.’
In the present case, no ‘irregularity, error or defect’ appears in the record. The Howard appeal, with the completed record, was timely lodged in the Court of Appeal. The sole dispute centers around the failure to pay the necessary filing fees.
We have found that the failure to timely pay the filing fee was due to no fault of the appellant. She has been ready and willing to pay an accurately determined cost deficit at any time. Moreover, once the appeal has been timely lodged in the appellate court, the non-payment of the filing fee within the three-day period fixed by Article 2126 LSA-C.C.P., is no longer fatal to the appeal. See Suire v. Patin’s Tire Service, La.App., 251 So.2d 182, writ ref., 259 La. 811, 253 So.2d 68 (1971); Delaware Imp. Corp. v. Shall, La.App., 243 So.2d 75 (1971). See also Vogt v. Wheat, La.App., 222 So.2d 579 (1969).
The respondents rely upon our decision in La. Power and Light Co. v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970). In that case, however, the appeal was not timely lodged in the Court of Appeal. Hence, the case is distinguishable.”

Similarly distinguishable from this case are the cases of Succession of DeHart, 272 So.2d 781 (La.App. 3rd Cir., 1973), Thibodeaux v. St. Paul Mercury Ins. Co., 310 So.2d 860 (La.App. 3rd Cir., 1975) and Martin v. Travelers Ins. Co. et al., 313 So.2d 342 (La.App. 3rd Cir., 1975) all of which involved untimely lodgings of the records. Here the record was lodged three weeks before the return date. Accordingly, the motion to dismiss the appeal is denied.

MERITS

The savings account passbook was not available for trial. The ledger sheet for this savings account showed it to be in the following style:

In case of death Pay to Sam Lewis Qr Harvey, Ovie, Clara, La. Clarence, Allie Lewis or Dalmie Jackson

Appellant bank takes the position that this account was a joint account within the meaning of R.S. 6:32 so that the bank was relieved of responsibility for the payment to Harvey Lewis in accordance with that provision which at the pertinent time read in part as follows:

“When a deposit is made in any bank, savings bank or trust company under the names of two or more persons, payable to each of such joint depositors, this deposit or any part of it, or any interest or dividend on it may be paid to any such joint depositor, whether the other joint depositor or depositors be living or not, and the receipt or acquittance of the person paid is a full release and discharge of the bank, savings bank or trust company for any payment made with respect to anyone; . . . ”

For its said position, appellant relies on a dictionary definition of the word “or” and the opinion of its bank officials that said work characterized the account as a joint one within the intent of the quoted statute despite the death-contingency language in the style of the account.

Appellee-administratrix relies on the cases of Vercher v. Roy, 171 La. 524, 131 So. 658 (S.Ct.1930); Bordelon v. Brown, 84 So.2d 867 (1956, La.App. 2d Cir.); Bascoe v. Central Bank & Trust Co., 231 So.2d 425 (1970, La.App. 3d Cir.) and Succession of Grubbs, 170 So.2d 256 (1964, La.App. 2d Cir.).

A close reading of these decisions reveals that they do not involve an interpretation of R.S. 6:32. The accounts or deposit involved in those cases were strikingly similar to that herein but in none of those decisions did a bank make payment and invoke the protection of R.S. 6:32. However, those cases do clearly stand for the proposition that a bank account or deposit is an incorporeal and can only be donated by notarial instrument and that the forms for donations, inter vivos or mortis causa, must be complied with to effect either a present donation or one in contemplation of death.

The language of R.S. 6:32 does not purport to establish property rights. See Northcott v. Livingwood, 10 So.2d 401 (La.App.l942). Its purpose is to protect the bank from liability in making payments after the decease of one of the joint depositors. Thus, to apply the statute to cases involving a death contingency would extend the statute beyond its aim and perhaps tend to defeat instead of serve its purpose.

The language of the act clearly contemplates a present, noncontingent right of either of the named persons to withdraw from the account or deposit. Herein no such right existed. Under the language controlling the deposit, it was only on the death of Sam Lewis that another person would have the right to withdraw the deposit.

Additionally, R.S. 6:32 is in effect a departure from the basic provisions of our law requiring certain formalities for the making of present donations and testaments and a drastic impairment of the probate procedures protective of creditors and heirs. To give that statute application herein, we think the facts must clearly come within the precise language (a present right of each of the named persons to withdraw) of the statute. Therefore, we hold that the account or deposit herein was not subject to the provisions of R.S. 6:32 and the bank was not relieved of responsibility in making the payment to Harvey Lewis.

Accordingly, for reasons assigned the judgment of the district court is affirmed. All costs of this appeal are to be borne by the appellant.

AFFIRMED.


text:
    Jefferson D. PENNINGTON v. Philip PANEPINTO et al.
    No. 10604.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      Gerald A. Bosworth, Houma, for appellant.
    Donald L. Peltier, Thibodaux, for Pane-pintos.
    Ralph L. Barnett, Gretna, for A. Williams.
    Larry P. Boudreaux, Thibodaux, for State Farm & Casualty Ins. Co.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

This is a suit for damages for a battery arising out of a shooting incident that occurred in the early afternoon of October 27, 1973, at the Rainbow Inn located at Pointe-Aux-Chien, Louisiana. Plaintiff, Jefferson D. Pennington, was the victim of the shooting. Defendants are Abdon Williams, Lane Panepinto and his father, Philip Panepinto, and Mr. Panepinto’s insurer, State Farm Insurance Company.

The court below, noting that “plaintiff and his principal witness . . . were extremely careless with the truth,” held that plaintiff did not bear his burden of proof and decided in favor of defendants. Plain-tiff appeals dismissal of his suit. We affirm.

The sequence of events leading to plaintiff’s injury are not so clear as plaintiff-appellant contends. Particularly, even plaintiff’s “eye-witnesses” contradicted each other on a number of important aspects. The stories of what happened will be shown by juxtaposing them as the variations occurred.

On the day of the incident, at approximately 2:30 p. m., plaintiff parked his truck in front of the Rainbow Inn. He allegedly stopped to buy some soda water for his children who were in the truck. The children and plaintiff’s wife remained in the truck while plaintiff went inside. As plaintiff was entering, he met with a friend, Gary Verdin, a S' 11", 195 pound-tugboat captain, a man whose physical capabilities plaintiff held in high esteem.

According to plaintiff, he and Verdin were at the bar when the two boys, Williams and Lane Panepinto, strangers to plaintiff and Verdin, entered. Plaintiff who stated that “you can hold just about all I drink in your hand” testified that he was just standing there and was not drinking. According to Verdin, he had ordered plaintiff and himself beers and they were drinking them when the boys came in. Plaintiff, had not ordered any soda water. In fact, he never did.

The two boys went into an adjacent pool room but a few minutes later came back to the bar. Plaintiff testified that the two boys approached the bar and “they ordered us a beer and with a fellow with a gun you are not going to do much arguing.” Yet, according to another part of plaintiff’s testimony, no gun had been exposed at this point. In fact, he testified that a few moments later, after the beers were served, Williams pulled a gun on Verdin and demanded that Verdin take the two boys to Grand Bois, a settlement some twenty to twenty-five miles away. Verdin, according to plaintiff, unafraid of the gun being brandished, walked over to Williams and grabbed the gun. Verdin and Williams scuffled. Panepinto then allegedly jumped onto Verdin’s back.

According to Verdin, he never got the gun away from Williams. This assertion, however, was contradicted by his statement in deposition that he got the gun away.

Carroll Naquin, a young man who had been in the adjacent pool room when the incident began, testified that he was going into the bar when the fight between Ver-din and Williams began. When confronted with a statement he gave the Terrebonne Parish Police Department, he admitted there had been an argument before the actual scuffling began. Plaintiff’s testimony implied that there had been no prior argument. Naquin allegedly saw Verdin, Williams and Panepinto fighting.

Yet, even though Williams supposedly had a gun, plaintiff, Verdin’s friend, testified that he did not get involved in the fight.

Peter Dupre, owner of the bar, came from around the bar and hit Verdin in the head with a billy. According to plaintiff, Verdin and Naquin, this broke up the fight.

At this point, according to plaintiff, he went to see about his family. He walked out of one of three front doors. One of the boys yelled that he was going to kill plaintiff and shot him as he stood in the door. Plaintiff at first did not want to identify which boy shot him but later said it was Williams. He also denied ever shaking his finger in Williams’ face and demanding that the boys buy him a beer.

Verdin testified that after he was hit in the head, Williams and Panepinto exited from the bar through two different front doors. Plaintiff then proceeded to leave the bar through the same door that Williams had used. Verdin was supposedly right behind plaintiff. He saw Williams shoot plaintiff as Williams stood in front of the steps. He heard no conversation after plaintiff exited the inn.

Naquin testified that after Verdin was hit in the head, Williams went outside and plaintiff followed. He said he saw Williams shoot plaintiff.

Peter Dupre’s version of the incident raises serious doubts as to the veracity of plaintiff’s other witnesses. He testified that he saw no gun in his bar. He never saw Williams fighting with Verdin, only Panepinto. He estimated that everyone had been in the bar twenty-five to thirty-five minutes before the shooting. Plaintiff’s other witnesses placed the time lapse of the entire episode at five to fifteen minutes.

Dupre testified that Verdin and Panepin-to were on the floor on their knees “press-ing each other down” when he hit Verdin with the billy. Plaintiff was already outside with Williams. As Dupre was breaking up the fight between Verdin and Pane-pinto, plaintiff was already coming up the steps. Plaintiff opened the door and said he was shot. Verdin could not have seen the shooting, as he was still fighting. Carroll Naquin was not in the bar.

Delores Pennington, plaintiff’s wife, cast doubt on her husband’s version that he did not chase after or grab Williams. She testified that her husband was in the Rainbow Inn seven to eight minutes before he came out and was shot by Williams. She stated that no words were spoken and that her husband did not grab Williams. She denied that she was related to Verdin.

On cross-examination Mrs. Pennington was confronted with a statement she had given the Lafourche Parish Sheriff’s Office at Terrebonne General Hospital about an hour after the shooting in which she stated that a boy with black hair (Williams) came out onto the step and pulled a gun. (According to plaintiff, Verdin and Naquin, the gun had been “pulled” in the bar.) Her husband came out and grabbed the boy’s arm. Her husband then released the boy’s arm and was shot. Mrs. Pennington also called Verdin her cousin in the statement.

After the shooting, Panepinto, unarmed, ran into the bar and got two motorcycle helmets. He and Williams began driving off on a motorcycle.

Verdin testified that Panepinto fired a shot back at the bar as the boys drove away. This was contradicted by his statement given to the Terrebonne Parish Sheriff’s Office wherein he stated that it was Williams who shot at the bar. Verdin denied that anyone shot at the two boys as they drove away. This was contradicted by his statement in deposition in which he stated that “Tony’s son-in-law” shot a shotgun at the boys and hit one.

Carroll Naquin also testified that Pane-pinto fired a shot with the pistol back at the bar. Under cross-examination he admitted talking to plaintiff’s attorney as to who fired the second shot, and even though he was shown a statement given to the Terrebonne Parish Police Department wherein he said it was Williams who shot at the bar, he stuck to his assertion that it was Panepinto who fired the second shot. However, Naquin admitted that he heard a shotgun blast from the direction of the bar as the boys drove off. He also testified that he found lead holes in a helmet used by one of the boys.

The defense offered one witness, Lane Panepinto. He testified that he and Williams, a friend of about six months, entered the bar and went into the pool room. After a few minutes they went into the bar and plaintiff requested that they buy him a beer. An argument erupted between Williams and plaintiff. Williams stepped back and plaintiff started shaking his finger in Williams’ face. Plaintiff then went toward Williams who pushed him off. At this point, according to Panepinto, someone took a swing at him. He and Verdin and another fellow scuffled. A shot was fired. Panepinto ran outside but had to go back into the bar to get some helmets. He testified that as he and Williams were driving away someone shot him. He did not shoot back at the bar. It was his motorbike and he knew that Williams had a gun. He further testified that Williams had bandages on both his hands. One hand had stiches.

Williams did not take the stand. The lower court stated that “his counsel did not put him on the stand since there is a criminal action for the shooting pending against him.” The lower court also noted “that plaintiff made no attempt to examine Williams as he did not avail himself of the-privilege of calling the defendant for cross-examination.”

Plaintiff was a robust oil field worker weighing some 235 pounds with an IQ of approximately 73. Verdin, a man who apparently knew no fear, was 5 feet 11 inches tall and weighed 195 pounds. Peter Dupre had a billy. There were at least three other local people in the bar. Yet, in spite of this, plaintiff would have the court believe that two boys, who were outsiders, one with both hands bandaged, the other standing 5 feet 8 inches and weighing 130 pounds, provoked the fight. Plaintiff would also have the court believe that the shooting was unnecessary.

The lower court noted that “the truth of the ‘facts’ depends upon the credibility of the witnesses. The number of witnesses testifying for a side does not determine credibility of a presentation.” We agree.-

The judge below viewed the witnesses as they testified. He evaluated their demeanor and seriously questioned the credibility of the plaintiff’s witnesses. He was in a better position than this court to weigh credibility and his determination is thus entitled to great weight. Where there is substantial conflict in testimony, reasonable evaluation of credibility and reasonable inferences of fact made by trier of fact should not be disturbed on appeal in absence of manifest error. Branch v. Watkins Realty Corp., 289 So.2d 381, (st Cir. 1973). No error has been shown.

Affirmed.

Appellant to pay all costs.


author: COVINGTON, Judge.

text:
    Guy J. ROCKFORD, Indv., etc. v. Willard McANDREWS, Jr., et al.
    No. 10657.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Arthur Cobb, Baton Rouge, for appellant.
    David Robinson, Baton Rouge, for Sus-key.
    Daniel R. Atkinson, Baton Rouge, for Allstate and Musso.
    Wm. H. Cooper, Baton Rouge, for Wicker.
    Peter E. Duffy, Metairie, for Wildlife.
    John B. Noland, Baton Rouge, for Smith.
    Kenneth E. Barnette, Baton Rouge, for Police Jury.
    Ben W. Lightfoot, Baton Rouge, for McAndrews.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any motion been filed for continuance. On motion of counsel for appellant, the brief filed on November 17, 1976, had been withdrawn.

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.


author: COVINGTON, Judge:

text:
    Lawless COMEAUX v. Judson C. SIMS et al.
    No. 10605.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      Stanley J. Jacobs and Edward J. Bran-dao, New Orleans, for appellant.
    R. Bradley Lewis and John W. Anthony, Bogalusa, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This case arises out of an automobile accident which occurred on January 10, 1973, at approximately 6:00 o’clock A.M. on an overpass bridge on U.S. Highway 11 just north of the city of Slidell in St. Tammany Parish, Louisiana. All three of the vehicles which were involved were travelling in a southerly direction on said highway and the accident occurred on the bridge which was iced over due to freezing weather and light rain.

Judson C. Sims, the driver of the first vehicle, lost control as he descended the overpass bridge and after striking the left side of the bridge, his car was knocked back over and stopped with the rear of the car against the right hand guard rail, bringing his vehicle to rest in a generally east-west direction, completely blocking the south-bound lane and with approximately one foot of his car over into the northbound lane. Mr. Sims had the flasher lights operating on his vehicle. The Sims vehicle was rendered inoperable by the damage and in response to a warning shouted from the bottom (south side) of the bridge, he ran down there to safety because of the fact that another vehicle was approaching.

The second vehicle was operated by the plaintiff, Lawless Comeaux, with his wife, Agnes Comeaux, as a guest passenger therein. It struck the Sims car. A few minutes later, a third vehicle, driven by Richard Wallace, struck both the Comeaux and Sims vehicles.

The plaintiff-appellant brought this action against Sims, his insurer, Allstate Insurance Company, and against Reliance Insurance Companies, the insurer of Wallace. Prior to trial, the action against Reliance was dismissed. Defendant-appellees, Judson C. Sims and Allstate Insurance Companies, answered the petition and filed a reconventional demand against Comeaux for the property damage done to the Sims vehicle.

The trial judge found that both Mr. Sims and Mr. Comeaux were guilty of negligence which contributed to the accident; therefore, he denied judgment on the main demand and his judgment is silent as to the reconventional demand of the defendants. In such instances, it is the settled jurisprudence that it is assumed that the reconventional demand was likewise denied. From that judgment, Co-meaux perfected this devolutive appeal.

Comeaux contends that the trial judge committed manifest error in holding that he was contributorily negligent when all of the evidence revealed that the dangers confronting him were not reasonably foreseeable and were therefore, unavoidable. He argues in his brief that the record is devoid of any testimony suggesting that any of the drivers involved were aware of the iced roadway. However, Mr. Comeaux testified on cross examination as follows; Tr. 87:

“Q. I believe you had lived up in Chicago for some time, hadn’t you?
A. Yes, sir.
Q. And you were familiar with driving on bridges from your experience in Chicago, weren’t you ?
A. Yes, sir.
Q. When you got on that bridge, as soon as you got on the bridge you realized that there was ice on the bridge, didn’t you ?
A. Well, I realized when I had it on my car and the way it was traveling I knew there had been rain on that bridge and I knew they had ice on the bridge.
2. As soon as you got on the bridge you knew there was ice on the bridge ?
A. Yes, I felt that.”

The trial judge in his written reasons for judgment stated that:

“The court also believes that Comeaux was negligent. He knew the bridge was iced when he went on it and he realized the danger. He testified the speed at which he travelled was a speed necessary to get him to the crest of the bridge. Yet, after observing the wreck, he knew enough of icing conditions to know that he could not even apply his brakes to attempt to stop because his vehicle would have gone into a slide. Even at the speed he was travelling, on the downhill incline in the ice it would be speculation to attempt to ascertain how far it would have taken him to stop.”

Obviously, it does not necessarily constitute negligence for a person to go up on an iced bridge. Many factors, including the design of the structure and the speed of the vehicle, enter into the determination of the reasonableness of the driver’s actions. However, in this case, the trial court could validly find from the testimony adduced, including Comeaux’s own testimony, that he was contributorily negligent; as a reviewing court we must give great weight to the factual conclusions of the trier of facts and reasonable inferences of fact should not be disturbed upon review; Canter v. Koehring, 283 So.2d 716 (La. 1973).

In a supplemental trial memorandum the counsel for Comeaux contended that Sims was negligent per se because of his violation of particular portions of the Louisiana Highway Regulatory Act and specifically R.S. 32:64 A, 32:141 A and B. These have to do with control of the vehicle, lack of visibility and obstruction of more than one-half of the roadbed (the testimony had indicated that the Sims vehicle extended into the north-bound lane of traffic a distance not in excess of one foot).

The violation of a penal statute does not automatically constitute negligence. Reference may be had to the penal statute, however, in determining the reasonableness. of a person’s behavior under existing circumstances; Weber v. Phoenix Assurance Co. of New York, 273 So.2d 30 (La.1973).

The defendants have neither appealed nor answered the appeal; therefore, the denial of recovery on the reconventional demand is final.

Accordingly, the judgment of the lower court is affirmed at appellant’s cost.

Affirmed.


author: ELLIS, Judge:

text:
    Melvin D. BURNS, v. DEPARTMENT OF PUBLIC SAFETY, DRIVER’S LICENSE DIVISION.
    No. 10641.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    A. Foster Sanders, III, Baton Rouge, for appellant.
    Foye L. Lowe, Jr., Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

On September 10, 1973, Melvin D. Burns appeared in the Baton Rouge City Court and entered a plea of guilty to driving while intoxicated, first offense, and the court assessed a fine. On December 12, 1974, Mr. Burns entered a plea of guilty to driving while intoxicated, first offense, in the 19th Judicial District Court, and the court assessed a fine.

On January 7, 1975, Mr. Burns was notified by the License Control and Driver Improvement Division of the Department of Public Safety that his driver’s license was suspended for a period of one year for “Driving While Intoxicated (2nd offense).” An administrative hearing was requested, and was held on March 24, 1975. After the hearing, the suspension was affirmed by the License Control Officer who conducted the hearing.

This proceeding for judicial review was filed by Mr. Burns on May 2, 1975, and heard on June 9, 1975. Judgment was signed on July 18, 1975, affirming the action of the Department of Public Safety and dismissing plaintiff’s suit. From that judgment, plaintiff has appealed.

Plaintiff alleged that the trial court was in error in a number of respects. First, he contends that R.S. 32:414, under which his license was suspended, requires that he be convicted as a second offender before his license can be suspended for one year. The contention is without merit. The statute only requires that he be convicted of the offense twice, not that he be convicted as a second offender. See R.S. 32:414 (B)(2) and (E); Norman v. Waguespack, 295 So.2d 820 (La.App. 1 Cir. 1974); Celestin v. Department of Public Safety, 316 So.2d 139 (La.App. 3 Cir. 1975).

It is further contended that the action of the Department in suspending plaintiff’s license is a denial of liberty and of property without due process of law, and constitutes a penal sanction based on a conviction which is unconstitutional because uncounselled. These contentions have been considered by this court as well as other intermediate appellate courts of this state, and decided adversely to plaintiff’s contentions. See Berger v. Department of Public Safety, 327 So.2d 705 (La. App. 1 Cir. 1976); Whitaker v. State, Department of Public Safety, Drivers License Division, 264 So.2d 725 (La.App. 1 Cir. 1972).

In the Berger case, we said:

“Plaintiff’s constitutional rights are amply protected by the judicial review provided by R.S. 32:414. The right to drive is a privilege granted by the state, and it may impose such reasonable conditions thereon as it may see fit. The suspension of the ■ driving privileges of those who are serious violators of the traffic laws is such a reasonable condition, imposed for the protection of the driving public.”

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

AFFIRMED.


author: CULPEPPER, Judge.

text:
    NEW IBERIA COMMUNITY IMPROVEMENT AGENCY, Plaintiff and Appellee, v. Carmen O. WALET et al., Defendants and Appellants.
    No. 5373.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Rehearing Denied April 7, 1976.
    Writ Refused May 28, 1976.

      D. A. McGovern, III, New Orleans, for defendants and appellants.
    Armentor & Wattigny by Minos H. Ar-mentor, New Iberia, for plaintiff and ap-pellee.
    Mestayer & Simon by Ray F. Mestayer, New Iberia, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

The plaintiff, New Iberia Community Improvement Agency, was created under Act 32 of 1972 and Section 22, Article XIV, Louisiana Constitution of 1921, to redevelop slums and blighted areas in the City of New Iberia. Plaintiff filed this suit to expropriate a strip of land and buildings thereon owned by defendants. The trial judge awarded defendants $35,000 for the land and improvements thereon. Defendants appealed.

The issues on appeal are: (1) Did the trial judge err in refusing to give retroactive effect to the provisions of LSA-La. Const.1974, Article 1, Section 4, which gives to all parties in expropriation actions the right to trial by jury to determine compensation? (2) Does the evidence reasonably support the trial judge’s factual finding that the property involved is a “blighted area” within the meaning of Act 32 of 1972?

The pertinent facts are that this suit was filed on December 27, 1974. The defendant, Mrs. Walet, was served on December 31, 1974 and the defendant, Mrs. Dauen-hauer on January 3, 1975. Both defendants answered demanding trial by jury to determine compensation in accordance with LSA-La.Const.1974, Article 1, Section 4.

The trial judge denied the demands for trial by jury and defendants were ordered to proceed to trial without a jury. Application for supervisory writs was then made to this court. We denied that application, stating: “Theré appears to be no error or abuse of discretion in the ruling complained of.” (3rd Cir. 1975). (Docket No. 4997) The defendants then applied for cer-tiorari to the Louisiana Supreme Court. That court too denied the application stating: “There is adequate remedy by appeal.” 309 So.2d 355 (S.Ct.La.1975).

Following the denial of these applications, trial on the merits was held in the district court. The district judge rendered judgment of expropriation in favor of plaintiff and awarded defendants $35,000 in compensation as the market value of the land and improvements taken.

The first issue is defendants’ right to trial by jury. We recently considered this identical issue in Louisiana Intrastate Gas Corporation v. Edwards, 315 So.2d 380 (La.App. 3rd Cir. 1975). There we stated:

“The trial court denied defendants’ motion for a jury trial, apparently because the petition for expropriation was filed on July 9, 1974, which of course was prior to midnight, December 31, 1974, the effective date of the Constitution of 1974.
“Defendants have appealed, contending that the right to trial by jury is a procedural and remedial right which should have retroactive effect and thus be available in this suit.
“Plaintiff-appellee concedes that remedial and procedural legislation should be given retroactive effect in the absence of language to the contrary but contends that the Constitution of 1974 contains specific language to the contrary in Article 14, Sections 23 and 26:
“ ‘Section 23. All writs, actions, suits, proceedings, civil or criminal liabilities, prosecutions, judgments, sentences, orders, decrees, appeals, rights or causes of action, contracts, obligations, claims, demands, titles and rights existing on the effective date of this constitution shall continue unaffected. All sentences as punishment for crime shall be executed according to their terms.’
“ ‘Section 26. Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.’
“Plaintiff-appellee also urges the language of Act 11 of the Ex. Session of 1974, an expropriation statute, which provides in sections 3 and 4 as follows:
“ ‘Section 3. This act shall become effective on January 1, 1975.
“ ‘Section 4. This act shall not affect any action, suit, or proceedings filed prior to the effective date hereof.’
“The importance of the right to a jury trial in expropriation cases to the redactors of the Constitution is shown by the fact that this provision is contained in Article 1, the ‘Declaration of Rights’, of the Constitution. Section 1 of Article 1 provides in the last sentence that:
“ ‘The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.’
“However, the Constitution itself declares in plain words, as quoted above, that it is not retroactive except as specifically provided. Also it provides that existing suits shall continue unaffected.
“This is not a matter of statutory interpretation. The plain words of the Constitution, as framed by the delegates and adopted by the people, should be given their obvious meaning.
“For the foregoing reasons, the judgment of the trial court denying defendants’ motion for a trial by jury is affirmed.”

Defendants argue that the present case is distinguished from Louisiana Intrastate Gas Corporation v. Edwards on the basis that the defendants in that case were cited and served with notice of the suit before the new Constitution took effect on December 31, 1974. Here, one of the defendants was not served until after the new Constitution took effect. We find no basis in law for such a distinction. LSA-La.Const. Article 14, Section 23 states in clear and unambiguous language that “All . . . actions, suits, proceedings, . . . existing on the effective date of this constitution shall continue unaffected.” Although one of defendants was not served until after the new Constitution took effect, this expropriation suit was filed on December 27, 1974 and, therefore, was “existing on the effective date of this Constitution.”

The next issue is whether the evidence reasonably supports the finding of fact of the trial judge that the plaintiff proved the property involved is an “area of urban blight” within the meaning of Act 32 of 1972. The record fully supports the following finding of fact by the trial judge on this issue:

“There is abundant testimony in the record however, that the majority of the buildings in the area affected were unoccupied by tenants and had been vacant for a considerable period of time. There is evidence in the record that the properties were not being kept up but were being allowed to deteriorate. There is no evidence to contradict this by anyone. From this evidence, the Court has no problem in finding that the area involved herein was a blighted area, as declared by the City, and had been so for a number of years prior to the institution of this project.”

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.


text:
    James WILLIAMS, Sr., Plaintiff-Appellant, v. Dennis SONGY, Chief of Police, Town of Plaquemine, Louisiana, and St. Paul Fire & Marine Insurance Company, Defendants-Appellees.
    No. 10712.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Alfred E. Mitchell, Plaquemine, for plaintiff-appellant.
    Kenneth E. Barnette, Baton Rouge, for defendant-appellee St. Paul.
    Joseph B. Dupont, Sr., Plaquemine, for defendant-appellee Songy.
   ON MOTION TO DISMISS APPEAL

Before SARTAIN, BLANCHE and EDWARDS, JJ.

SARTAIN, Judge.

This matter is before us on a motion to show cause why plaintiff’s appeal should not be dismissed for the untimely filing of the appeal bond.

The record before us shows that the trial judge, after taking the matter under advisement, rendered and signed the judgment on March 26, 1975. A copy of said judgment was sent to counsel for plaintiff by certified mail on a date not ascertainable from the record and received by him on March 31, 1975. There was no application for a new trial, and subsequently, on June 17, 1975, the trial court granted a devolutive appeal. The appeal bond was ultimately filed on August 5, 1975.

The case of Aetna Insurance Company v. Robinson, 199 So.2d 369 (La.App., 1st Cir., 1967) is dispositive of the present case. Citing La.C.C.P. Art. 2087 therein, we noted that security for a devolutive appeal must be furnished within 90 days of the expiration of the delay for applying for a new trial .when none has been applied for. We further noted that the filing of the appeal bond is jurisdictional. Unless it is timely filed, appellate courts cannot acquire jurisdiction.

In the present case, the delay for applying for a new trial commenced to run under La.C.C.P. Art. 1974 on the day after the notice of signing was mailed since pursuant to La.C.C.P. Art. 1913 plaintiff was entitled to such notice inasmuch as the matter had been taken under advisement. We note, however, that the record does not reveal the date of mailing.

We conclude that this otherwise serious omission is of little significance in the present case. In any event, the notice could have been mailed no later than March 31, 1975 since that is the date it was received by plaintiff’s counsel. Even assuming a position most favorable to plaintiff, that March 31, 1975 was the date of mailing, the seven legal day period within which to apply for a new trial would have terminated April 9, 1975. The delays for perfecting a devolutive appeal commenced the following day and terminated ninety days thereafter. Since plaintiff did not file his bond until August 5, 1975, or 118 days following the commencement of the delay within which to perfect his devolu-tive appeal, he was at least 28 days late. Hence, this court is without jurisdiction to consider the merits of this case.

For the above and foregoing reasons the motion to dismiss is hereby granted and said appeal is herewith dismissed at appellant’s cost.

Appeal dismissed.