author: BEER, Judge.

text:
    James L. HIGHSTREET v. REGENCY APARTMENT HOTEL and Reliance Insurance Company.
    No. 7743.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Rehearing Denied Oct. 13, 1976.

      Charles J. Pisano, New Orleans, for plaintiff-appellant.
    O’Keefe, O’Keefe & Berrigan, Peggy M. Yicknair, New Orleans, for defendants-ap-pellees.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, James Highstreet, claims total and permanent disability due to injuries resulting from an on-the-job fight with his co-employee, Harold Habighorst, on January 20, 1974. He was paid compensation benefits totalling $500.50 from January 23, 1974 through April 9, 1974. Defendant-appellees, Regency Apartment Hotel and Reliance Insurance Company (hereafter, “Employer”), thereafter resisted his claim, asserting that Highstreet willfully precipitated the encounter and, further, that he was not disabled thereby.

At trial, the only direct testimony concerning the incident was that given by plaintiff. Harold Habighorst did not testify. Instead, Employer offered Habighorst’s deposition in lieu of his appearance. Over Highstreet’s counsel’s timely objection to its introduction on the ground that the taking of the deposition had been improperly noticed, it was admitted into evidence. The facts relative to the taking of the deposition are not seriously controverted. On the day it was taken, Highstreet’s counsel received telephone notice but was unable to attend. There had been previous unsuccessful attempts to locate Habighorst, and both counsel were generally aware of the fact that his deposition might have to be taken on short notice. Nevertheless, cross-examination was, thus, foreclosed, and the resistance to the introduction was substantially well grounded.

Joseph Fuller, the supervisor of High-street and Habighorst, testified regarding his conversations with Highstreet and Habi-ghorst on the day following the accident. This testimony, also, was admitted over timely objection.

After trial, the court dismissed High-street’s suit and indicated, in written reasons, that the Employer had sufficiently met its burden of proof required by LSA-R.S. 23:1081, which provides, in pertinent part:

“No compensation shall be allowed for injury caused (1) by the injured employee’s willful intention to injure himself or to injure another .
“In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injuries sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer.”

The record discloses that James High-street, a 74-year old engineer, became upset due to the fact that Habighorst was 2V2 hours late in relieving him from his 7-3 shift on January 20, 1974. At 5:25 p. m., Highstreet tried to reach his supervisor, Joseph Fuller, but was successful in only contacting the latter’s wife. He asked that Fuller be informed that he (Highstreet) intended to finish Habighorst’s shift and, toward that end, he was going to “pull” Habi-ghorst’s time card. At 5:30 p. m., Habi-ghorst showed up, located Highstreet and, after a brief but apparently bitter exchange of words concerning Habighorst's tardiness and Highstreet’s intentions to finish the shift, Highstreet maintains Habighorst commenced to beat him up. This is totally contradicted by Habighorst’s deposition which indicates that as the verbal exchange between himself and Highstreet heated up, Highstreet reached for a mace device and attempted to squirt mace in his eyes, which caused him to attempt to subdue him with as much force as was required in the circumstances.

Parts of Highstreet’s testimony, not dealing with the incident itself, are contradicted by his supervisor, Fuller. For example: Highstreet testified that he had been chief engineer and that Fuller granted him authority to “pull” time cards as in the instant case. Fuller flatly contradicts this assertion as well as Highstreet’s claim that at the post incident meeting which took place in Fuller’s office, Habighorst raised his hand against Highstreet and threatened him. In the same vein, Dr. Robert A. Robinson states he never treated Highstreet, while Highstreet, in his testimony, indicates the contrary. These examples were supported by competent evidence and properly considered by the trial court in making its credibility assessment.

Although LSA-R.S. 23:1317 calls for relaxation of the technical rules of evidence within discretionary limits, such use of hearsay evidence is generally tempered. We find it most often allowed in cases which involve a claim for death benefits due the dependents of deceased employees who testify as to statements of the decedent just prior to his death. See, generally, Arrington v. Singer Sewing Machine Company, 16 So.2d 145 (La.App. 2nd Cir., 1943); Clifton v. Arnold, 87 So.2d 386 (La.App. 1st Cir., 1956); Allen v. Milk Haulers, Inc., 278 So.2d 871 (La.App. 1st Cir., 1973); Montgomery v. Delta Concrete Products Company, 290 So.2d 769 (La.App. 1st Cir., 1974), not considered 294 So.2d 823 (La.); Johnson v. Cajun Enterprises, 293 So.2d 617 (La.App. 3rd Cir., 1974); and Doss v. American Ventures, Inc., 224 So.2d 470 (La.App. 4th Cir., 1969), writs refused 254 La. 829, 227 So.2d 373, appeal after remand 248 So.2d 358 (La.App. 4th Cir., 1971) reversed on other grounds 261 La. 920, 261 So.2d 215.

The deposition of Habighorst is, also, of substantially diminished evidentiary value. Reasonable written notice of the deposition was lacking and cannot be substituted by oral communication with plaintiff’s attorney’s office. The requirements of LSA-C.C.P. Articles 1428 and 1451 were not met. See: Silva v. Allen, 256 So.2d 447 (La.App. 4th Cir., 1972). Since the source of the discovery articles are, generally, the similar provisions in the Federal Rules of Civil Procedure, we look to them: In Associated Transport, Inc. v. Riss and Company, 8 F.R.D. 99 (N.D.Ohio, 1948), the court, in suppressing use of a deposition, stated:

“The purpose of Rule 30(a) is plainly to give a party full notice of the time and place that a deposition is to be taken. If the other party is required to postpone the taking of the deposition for any . . . reason, then the notice originally given becomes meaningless and a new notice is needed. There is nothing in the Rules to indicate that one written notice satisfies the requirement even though the deposition is not taken until a later date .
“One of the very purposes of the rule with respect to written notices is to make it unnecessary to go to such lengths, as here, to determine whether or not one of the parties knew a deposition was to be taken.”

The question of “reasonable notice” was addressed in RCA v. Rauland Corporation, 21 F.R.D. 113 (E.D.Ill., 1957), which held that:

“The Federal rules do not specify any minimum notice of the taking of depositions, and the court must determine in any case what is reasonable under all of the circumstances.”

While the trial judge has even greater discretion than usual in Workmen’s Compensation cases and is not bound by formal rules of evidence (see Boudreaux v. Rossen, 19 La.App. 188, 139 So. 706 (1st Cir., 1932), the “courts are not authorized to disregard the rules of evidence and rely on evidence that is clearly inadmissible.” Williams v. Jahncke Service, 217 La. 1078, 48 So.2d 93 (1950).

Thus, the admission into evidence of the hearsay testimony of Fuller and, to an even greater extent, the admission into evidence of the deposition of Habighorst was, in our view, questionable. Without this evidence, there is little support for the contention that Employer has met its evidentiary burden with respect to the LSA-R.S. 23:1081 defense as required by the Supreme Court in Velotta v. Liberty Mutual Insurance Company, 241 La. 814, 132 So.2d 51 (1951).

Yet, even if we completely disregard Habighorst’s questionably admitted deposition and markedly limit the eviden-tiary impact of Fuller’s testimony so as to consider it only from the standpoint of its effect on the credibility determinations that the trial court has made with respect to Highstreet’s testimony, we are still obliged to agree with the result reached by the able trial judge. It is apparent from his written reasons that he has made a generally negative credibility determination with respect to Highstreet, and we have no reason to take issue with that determination in view of the wide discretion that is left to the trial court in exercising this important judicial function. This credibility determination becomes extremely important as we turn to a consideration of the case from the following standpoint: Even if the Employer failed to carry the burden of proof required by Section 1081, Highstreet must, nevertheless, establish his disability claim by a preponderance of the evidence. The evidence, as a whole, must indicate, more probably than not, that his disability results from a work-connected incident. In making this determination, we are much guided by both the medical evidence and the trial court’s estimate of the claimant’s general credibility (see: Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769, Toomer v. Highlands Insurance Company, 295 So.2d 844 (La.App. 1st Cir., 1974). Benefits can not be paid if the plaintiff fails in his proof that the incident about which he complains is the cause of his disability — even if he is, in fact, disabled and even if the facts relative to the incident are resolved in his favor.

Dr. William A. Roy, a board certified general surgeon, found no indication of any disability ascribable or attributable to the occurrence of Mr. Highstreet’s being beaten up by Mr. Habighorst. His findings indicated that prior to the incident in question, Mr. Highstreet suffered from long standing arthritic degenerative changes which, though limiting and perhaps serious, were not in any way related to the incident which forms the basis of this litigation. Although Dr. Roy found that Mr. High-street was disabled from most types of labor as a result of these arthritic degenerative changes, he, nevertheless, was categoric in his unwillingness to associate this disability with the beating described by Mr. Highstreet. He makes the determination “without a shadow of a doubt” that the degenerative arthritic changes which form the basis for Mr. Highstreet’s disability are not the result of the beating that he allegedly experienced.

Dr. Morris Klinger saw Mr. Highstreet soon after the incident and prior to Dr. Roy’s examination. Although he believed that the beating experienced by Mr. High-street could take somewhat more time to heal because of his arthritic condition, he was also firmly of the view that High-street’s degenerative arthritic condition was one of long standing and not caused or, for that matter, clearly aggravated by the beating except to the extent that a person suffering from such degenerative disease could and, perhaps in this instance, did require a longer period for recovery. Dr. Klinger’s opinion is further conditioned by his observation that he had no actual knowledge of Highstreet’s condition prior to the beating incident but was obliged to observe that the degenerative changes were long term and not traumatically induced.

When the testimony of the physicians is considered in light of the trial court’s general credibility determination with respect to Highstreet’s testimony, it causes us to conclude that the trial court’s judgment in dismissing Highstreet’s suit was not in error. The payment of compensation to Highstreet from January of 1974 through April of 1974 covered the time required for him to recuperate from the effects of the altercation with Habighorst. Furthermore, a determination that he was thereafter, as able as he had been before the altercation to proceed with the work at hand was not erroneous.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed. Each party is to bear its own costs of this appeal.

AFFIRMED.

      . According to Habighorst, Highstreet’s habit of carrying the mace device, which apparently was of the “cylindrical” or “fountain pen” variety, was generally known, Highstreet having previously indicated that he lived in a neighborhood that required him to carry the device for protective purposes.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    L. G. PITTMAN, Plaintiff-Appellant, v. Robert E. ROBERTS, Defendant-Appellee.
    No. 12967.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.

      J. Peyton Moore, Shreveport, for plaintiff-appellant.
    Wiener, Weiss & Madison by John M. Madison, Jr., Shreveport, for defendant-ap-pellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Pittman and Roberts are Bossier City dentists whose business deals prompted this litigation. Before their business deals arose, Dr. Pittman had loaned $6,300 to a Shreveport dentist who died while the debt was still owed.

Dr. Pittman obtained the patients’ records of the deceased Shreveport dentist and gave them to the younger Dr. Roberts, who was to attempt to professionally serve these patients. The principal dispute between Roberts and Pittman concerns their agreement as to how much and in what manner Roberts was to pay for the patients’ records and the benefits he would derive from the records.

Pittman sued on a promissory note dated in 1972 for $6,300 plus interest and attorney fees. He contends Roberts executed the note for the amount that had been owed by the deceased Shreveport dentist in return for the patients’ records.

Roberts contends that the note was evidence of only a contingent debt because the true agreement was that he agreed to pay Pittman 20 percent of the amount Roberts grossed from the patients whose records were given him by Pittman, up to the maximum amount of $6,300. Roberts further contends that the transaction was consummated in 1973 and not in 1972, and that he did not agree to pay, and that the note did not provide for any interest or attorney fees. Roberts alleged and established that 20 percent of the funds collected from his professional services in accord with the agreement amounted to $3,317.60 and admitted this was owed to Pittman.

Roberts reconvened against Pittman for $1,100 which he had given Pittman in another business deal. Roberts and others were interested in a particular property in Bossier City which was desirably located. Pittman suggested he was more favorably connected with the owner of the property to negotiate for and obtain an option to purchase. Roberts obtained $1,100 and gave it to Pittman to purchase the option as undisclosed agent for Pittman and another. Pittman acquired the option and, according to Roberts, would not and did not convey it to Roberts so that the option could be timely exercised.

The trial court expressly noted the evasiveness and contradiction in Pittman’s testimony and the corroboration by other evidence and witnesses of Roberts’ testimony. The trial court resolved all of the credibility issues in Roberts’ favor and against Pittman and awarded judgment for Pittman for $3,317.60, plus legal interest from judicial demand (which Roberts admitted owing); otherwise rejected Pittman’s demands for interest and attorney fees as the note provided, and awarded Roberts as plaintiff in reconvention, judgment for $1,100 against Pittman with legal interest from judicial demand. Pittman appeals. We affirm.

THE MAIN DEMAND

Plaintiff contends, on appeal, that Roberts was in fact presenting an affirmative defense to his suit on the note which was not properly set forth in the pleadings. The trial court specifically found that the pleadings were broad enough to permit proof of the note defense made by defendant. There is no error in the ruling of the trial court.

The purpose of the Code of Civil Procedure Article 1005 is to prevent surprise by giving plaintiff fair notice of the nature of the defense, thereby preventing interjection of unexpected issues. Bank of Coushatta v. Evans, 313 So.2d 644 (La.App. 2d Cir. 1975); Scott v. Behrman, 273 So.2d 661 (La.App. 4th Cir. 1973); Bates v. Stewart, 262 So.2d 591 (La.App. 3d Cir. 1972).

In paragraph 1 of defendant’s answer he admits his name and domicile as alleged in paragraph 1 of plaintiff’s petition but denies all of the remaining allegations thereof. Defendant further answers in the following manner:

“Further answering this allegation, respondent shows that he did sign an instrument presented to him by plaintiff but denies that it was on the date shown. In addition, respondent had no intention of this instrument being a promissory note and there was no agreement for respondent to pay interest or attorney’s fees. Respondent shows that another dentist, Dr. John Grogan, died owing plaintiff $6,300.00 and his succession was insolvent. Plaintiff took Dr. Grogan’s dental records since payment could not be made on his debt. Plaintiff and respondent agreed that since respondent had previously worked for Dr. Grogan that perhaps he could see some of Dr. Gro-gan’s patients and respondent would pay plaintiff 20% of the gross amount he received from these patients up to $6,300.00. The instrument signed by respondent was only for the purpose of showing the maximum amount respondent might be called upon to pay plaintiff. As of January 1, 1975 20% of the accounts from former patients of Dr. Grogan amounted to $3,317.60. Respondent has offered to pay this sum to plaintiff less amounts plaintiff owed respondent and he has offered to pay plaintiff 20% of the amounts he continues to receive from these accounts up to the $6,300.00 in accordance with their agreement. Plaintiff has refused this payment.”

It cannot be contended that plaintiff was not adequately apprised of the defense to be presented by defendant and the issues that would arise as a result of that defense.

Nor can we agree with plaintiff’s contention that parol evidence was improperly admitted to vary the terms of the promissory note. The trial court concluded, as noted in his written reasons for judgment, that “the writing is only a part of the entire oral contract between the parties.” In the case of Gulf States Finance Corporation v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965), the Louisiana Supreme Court noted the following rule with respect to parol evidence:

“ ‘ * * * Many of the exceptions to the parol evidence rule are quite as well settled as the general rule and require only a mere statement. It may not be contended for example, that, as between the parties to an instrument parol evidence is incompetent to show fraud, mistake, illegality, want or failure of consideration, to explain an ambiguity when such explanation is not inconsistent with the written terms, or to show that the writing is only a part of an entire oral contract between the parties.’ 3 R.C.L. 869, Sections 52 and 53 . . . ” (Emphasis supplied by the court). Id. at 181 So.2d page 38

Just as the note in Gulf States Finance Corporation, supra, did not purport to integrate or embody in full all of the agreements of the parties at the time it was made and delivered, the note executed by Roberts did not constitute the entire agreement between Roberts and Pittman and, therefore, does not preclude proof of the real terms of that agreement.

We cannot agree with the plaintiff’s contention that defendant did not sustain his burden of proof of the agreement actually existing between the parties. The trial court’s written reasons for judgment clearly reflect his evaluations of the credibility of the various witnesses presented by the parties. There is ample support in the record for the trial court's findings of fact and we conclude that the lower court’s reasonable evaluation of credibility and reasonable inference of fact should not be disturbed. See Canter v. Koehring, 283 So.2d 716 (La.1973).

The trial court was obviously impressed by Dr. Roberts’ testimony that such medical records are generally of very little value after having been inactive for several months. Dr. Pittman also testified that the overhead of a dentist approaches the sixty percent range. The trial court noted that twenty percent of the gross would amount to roughly half of the expected profit from the medical records in question. We further note that there is no evidence that Pittman relinquished any rights to payment from the succession of the deceased creditor nor from the deceased creditor’s widow in connection with his arrangement to acquire the dental records which he delivered to Roberts. He vastly improved his chances of full payment by arranging the contingency plan with Roberts while at the same time maintaining the possibility of payment from the succession of his principal debtor, or his debtor’s widow, if the contingency plan failed. These facts — when considered with the insolvent condition of the succession and the very real possibility that, despite the assurances of the deceased’s wife, Pittman would not collect on his outstanding obligation — convinces us that the trial court did not err in its evaluation of the evidence.

The trial court found that the note was incomplete when Roberts signed it and that Pittman had no authority to complete the note with respect to interest and attorney’s fees. The Negotiable Instrument Law in effect the date the note was signed provides that a note which is filled in beyond the amount or terms authorized is valid only as to the terms authorized. See LSA — R.S. 7:14. Since Pittman was unauthorized to complete the note with respect to interest and attorney’s fees, those amounts are not recoverable by him.

THE RECONVENTIONAL DEMAND

Pittman contends that the evidence does not support a conclusion that Pittman refused to put the option in Roberts’ name and that Roberts failed to prove any damage. We find no merit in these contentions.

The trial court’s conclusion was based upon its evaluation of the evidence presented by the parties with respect to the circumstances surrounding the purchase of the option by Dr. Pittman. The trial judge stated in his written reasons for judgment:

“We are convinced well beyond a preponderance of the evidence that Dr. Roberts’ version of the events is the correct one.
“Dr. Pittman’s testimony in this regard was contradictory. At one point he stated that he had no use personally for the option; then later he conceded that he obtained two renewals of the option subsequent to the demise of its original term, which he received without additional consideration. He claims he was doing this for the convenience for another physician. Furthermore, he apparently obtained a title opinion on this property while he still enjoyed an extension on the option. At one point, he admitted that the title opinion was requested while the option was still in force and later on he stated that he does not recall when the title opinion was requested.
“The testimony of the co-partners of Dr. Roberts in the ill-fated option venture lend credence to his version. Additionally, Dr. Pittman’s evasiveness and contradictions on cross-examination lead us to discredit his testimony in this regard.”

After Pittman refused to transfer the option to Roberts and his partner, Joel Anderson, Roberts reimbursed Anderson for the $550 that Anderson had contributed toward the acquisition of the option. Although there may have been additional damages sustained by Roberts because of Pittman’s failure to fulfill his contractual duties with respect to the purchase and transfer of the option, Roberts seeks only return of the purchase price of the option. Since there was no possibility of his exercising any rights under the option, he certainly sustained a loss of at least the purchase price of the option. We, therefore, find that there is no merit in Pittman’s contention that Roberts failed to prove any damage.

For the foregoing reasons, the judgment of the lower court is affirmed at appellant’s costs.

Affirmed.


author: MARVIN, Judge.

text:
    The Andrew and Sandra QUERBES TRUST, Plaintiff-Appellant, v. The CITY OF SHREVEPORT et al., Defendants-Appellees.
    No. 12968.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.
    Smitherman, Smitherman, Lunn, Hussey & Chastain by Merritt B. Chastain, Jr., Shreveport, for plaintiff-appellant.
    Roland J. Achee, Shreveport, for City of Shreveport, defendant-appellee.
    Goode, Goode & Overdyke by Donald F. Overdyke, III, Shreveport, for Jesse C. McLemore, defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

The Querbes plaintiffs appeal the rejection of their demands

(1) Against the City to rezone property from residential (R-l) to business (B-2) classification for particular use as a retail gasoline service station;

(2) Against the City for specific performance under its contract in 1969 with plaintiffs for the placing of fill dirt on the property; and in the alternative if specific performance be denied against the City, then

(3) For damages against defendant, Jesse C. McLemore, a surveyor and an alleged agent of plaintiffs, to whose satisfaction the fill-dirt contract of 1969 was to be performed by the City.

We affirm the lower court.

The property concerned in this litigation comprises approximately one acre situated in the southeast quadrant of the Southfield Road and East Kings Highway intersection in Shreveport. Almost .7 acre lies in the bed of Old River while .34 acre is above the bank of Old River and is immediately suitable for development. On the south of the Querbes property is a fenced tract belonging to SWEPCO, on which is situated a transformer station of SWEPCO’s power distribution system.

Pertinent details and surrounding zoning classifications from plats in the record are reproduced on this drawing by the court, roughly to scale:

Plaintiffs propose to lease the tract in question for use as a Texaco service station. It is a policy of the City Planning (Zoning) Commission and the City Council to consider the proposed use of property where rezoning is sought. It is obvious from the plat, and the City readily admits, that the plaintiffs’ tract is effectively removed from commerce when the R-l residential classification is continued.

The City agrees that the property should be designated commercial but for a use other than a retail gasoline service station. Plaintiffs acknowledge that they are privileged, under the City zoning procedures, to apply for rezoning for other commercial uses at six month intervals.

The City declines to rezone the property for use as a service station because of factors such as the size, shape and location of the property; the existing traffic load on the adjacent streets (a service station being a “high traffic use”); and because of the existence of the six-foot fence surrounding the SWEPCO tract south of the property. This fence affects the sight-distance requirements under the zoning regulations for service stations. These factors generally relate to traffic and pedestrian hazards and public safety. Neighboring residential property owners appeared at the zoning hearings to oppose the rezoning, contending the nuisance effect of a service station. Possible pollution of Old River, and the prospective decline of value in residential properties.

The Louisiana Supreme Court in a recent case stated the applicable law.

“The authority to enact zoning regulations flows from the police power of the various governmental bodies; zoning is a legislative function . . . Courts will not and cannot substitute their wisdom for that of a legislative body or other zoning authority except when there is an abuse of discretion or an excessive use of power. However, the exercise of a police power in zoning cannot be made without substantial relation to the health, safety and general welfare of the public.” Four States Realty Co. v. City of Baton Rouge, 309 So.2d 659, 672 (La.1975). (citations omitted).

See also Archer v. City of Shreveport, 85 So.2d 337 (La.App.2d Cir. 1956).

Plaintiffs complain that the City was unduly influenced by the vocal opposition of the neighboring residential property owners. The trial court found that plaintiffs failed in the burden of showing the action of the City had no real or substantial relation to the public health, safety or general welfare. We find no manifest error in this respect because of the several factors affecting public safety summarized above.

THE FILL-DIRT ISSUES

In 1968, the Querbes family, including plaintiffs, donated property in the area to the City with several conditions. One of these conditions was the City would “fill and bring up to grade [the property sought to be rezoned] . . . satisfactory to donors or J. C. McLemore . ..” McLemore is the defendant against whom plaintiffs seek a judgment for his alleged neglect in not requiring the City to completely fill to grade the property in question.

The City formally accepted the conditional donation by resolution in 1969 and proceeded to fulfill the conditions. The fill-dirt issue arises because the obligation to “fill and bring up to grade” does not explicitly state whether it was to apply only to the area of the property above the high bank of Old River or as well, to the area of the property below the high bank of Old River.

When the donation, acceptance and implementation of the conditions occurred, this property was owned with other properties by the Querbes family and was under the management of Justin Querbes. Defendant McLemore, a surveyor, was a friend of Justin Querbes and was often employed by him with respect to Justin Querbes’ management of family properties. In September, 1969, the Querbes family partitioned its properties and the tract in question became owned exclusively by the plaintiffs in this action (Andrew Querbes, Jr. and his family). Andrew Querbes, Jr. then assumed the responsibility of managing this and other property.

Defendant McLemore consulted with Justin Querbes regarding the 1968 donation to the City. He testified that it was his understanding that only the portion of the property above the high bank of Old River was “useable” (the 13,300 square ft., .34 acre) and would be brought to grade. McLemore inspected the property after the City had placed fill dirt on it and said he considered the City had fulfilled its obligation. McLemore testified he did this as a “favor” to Justin Querbes and did not know he was named in the donation until plaintiffs sought rezoning in 1972. Engineers or former engineers for the City testified essentially in accord with McLemore’s understanding. The project or fill-dirt work was accepted by the City in February, 1969. Andrew Querbes, Jr. testified that he was aware of the condition of the property in February, 1969, after the fill dirt was placed on it.

The lower court observed that no complaint about the grade of the property was made by any member of the Querbes family until mid-1972 when the Texaco lease prospect arose. The lower court also thought it of “great significance” that Justin Querbes, who managed the property until the family partition in September, 1969, was not called as a witness. We agree. See Culverhouse v. Travelers Ins. Co., 332 So.2d 894 (La.App.2d Cir. 1976) and Marion v. New Orleans Public Service, 306 So.2d 758 (La.App.4th Cir. 1975), writ refused, La., 310 So.2d 843. We find no error in the lower court’s conclusions that plaintiffs failed to show (1) the City breached its obligation as to the area of the property brought to grade by fill dirt, and (2) any neglect or breach of any obligation by defendant McLemore to plaintiffs so as to warrant an award of damages against him.

At appellants’ cost, judgment is

AFFIRMED.

      . Southwestern Electric Power Company.

      . The SWEPCO fence exists as a legal nonconforming use under the zoning laws because it was erected much longer than two years prior to the time of this litigation. Neither the City nor the plaintiffs requested SWEPCO to remove or modify this line-of-sight obstacle.


text:
    In the Matter of Gary W. GEIGER, Plaintiff-Appellant.
    No. 12969.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.

      Hal V. Lyons and Glen H. Smith, by Glen H. Smith, Shreveport, for plaintiff-appellant.
    John Gallagher and Charles C. Grubb, by Charles C. Grubb, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiff — classified under Civil Service as a Driver for the Shreveport Fire Department — appeals his discharge from employment. The Municipal Fire and Police Civil Service Board of Shreveport, after a hearing, sustained plaintiff’s discharge and the lower court affirmed the Board. We affirm the lower court.

LSA-R.S. 33:2501 provides that a regular employee in classified service who feels he has been discharged “ . . . without just cause” may demand and obtain a hearing and investigation by the Board. The appeal from the Board’s decision is to the district court, and eventually to this court, where the determination is confined to whether the decision of the Board “was made in good faith for cause under the provisions of [law].” See Parker v. City of Bossier City, 276 So.2d 375 (La.App.2d Cir. 1973).

After being employed for about eight years, plaintiff was discharged on August 8, 1973, because of violations of regulations of the Department concerning moustaches and hair and for insubordination or discourtesy to a superior.

The record compiled before the Board fully supports the results below. The regulation (General Order of October 1, 1970) of which plaintiff primarily complains requires sideburns to be closely trimmed and not to extend below the earlobe and moustaches not to extend more than one-fourth inch outward and not beyond the corners of the mouth. Reasons for the requirements are given in the order. These reasons include the need for good taste, appearance, uniformity, because of frequent contact with the general public and also to make certain that there be no impediment in the use of masks or other emergency equipment. Testimony before the Board explained and elaborated upon the latter reason.

Plaintiff’s sometimes immediate superior (Assistant Chief Fouts) testified that he had required several firemen to trim their moustaches to bring them to regulation since the adoption of the 1970 general order. He estimated he had done this on about 20 separate occasions and that several times he had required plaintiff to comply with the regulation. On each occasion until the 1973 incidents with plaintiff, all firemen, including plaintiff, promptly complied.

In April, 1973, Chief Fouts, required plaintiff to go before the Shreveport Fire Chief regarding plaintiff’s moustache. The Fire Chief suspended plaintiff one day and told him he could return to work as soon as he got his moustache trimmed. Plaintiff allowed several days to elapse before trimming his moustache and returning to duty. When he returned to work he attempted to persuade Fouts and other personnel that the moustache regulation should be modified or rescinded and that plaintiff was being “singled out” with respect to complying with its requirements. About one month after plaintiff returned to duty, his moustache was noticed by Assistant Chief Fouts, who told plaintiff to have it trimmed. Plaintiff again attempted to persuade Fouts that the regulation should be rescinded or modified and again Fouts and plaintiff went to the Fire Chief where plaintiff suggested some change in the regulation. The Fire Chief did not discuss plaintiff’s contentions, but told plaintiff to get his moustache properly trimmed and return to work. Plaintiff complied.

About July 30, 1973, plaintiff declared that he had seen other firemen whose moustaches were not trimmed to regulation and that he was going to let his moustache grow as he wanted it. On August 8, 1973, Fouts noticed plaintiff’s moustache and told him to trim it to regulation. Plaintiff lost his temper, used profanity, said he was tired of being “picked on” and discriminated against, and said he was not going to cut his “g_ d_ moustache . . . ” but was going to “fight” the regulation and if necessary fight with his fists. Fouts then required plaintiff and several other firemen to come into his office. There plaintiff repeated much of what he had said before the other firemen, including some of the profanity, which indirectly referred to Assistant Chief Fouts. Fouts verbally dismissed plaintiff. Outside the fire station to others, plaintiff threatened that he should go back “inside” and whip a portion of the “s. o. b.’s” anatomy [abbreviation and paraphrasing supplied].

Plaintiff was formally discharged the next day by written order recommended by the Fire Chief and approved by the Commissioner of Public Safety and the Chairman of the Fire and Police Civil Service Board.

Plaintiff contended here and below discriminatory and arbitrary application of the regulation toward him. The record does not support plaintiff in this contention, but is to the contrary.

Plaintiff also contends the record (more than 250 pages of testimony by fire department personnel at all levels of service, plus exhibits and pleadings) does not support either the allegations in the written discharge or the decision of the Board. We cannot agree. With statements of the incident of August 8, 1973, attached, the written order, and the Board’s decision of February 20, 1974, make specific reference to the moustache violations and to the insubordination.

Plaintiff’s remaining contentions are (1) that the record does not show that plaintiff’s conduct had a “substantial relationship to” or impeded the “efficiency” of the “public service” of himself or the department; and (2) that his “constitutional rights” were violated.

Cause, as used in the civil service statutes, was defined by the Supreme Court in Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5, 9 (1962).

“Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Of course there must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service; otherwise legal cause is not present, and any disciplinary action by the commission is arbitrary and capricious.”

Leggett’s conduct in question occurred when he was conducting a private business when he was not on duty as a civil service employee. Since Leggett, employees who have been discharged or disciplined have contended that the violation must be supported by independent evidence that it impaired the efficiency of the public service. Such a contention was made in Jones v. Louisiana Dept. of Highways, 259 La. 329, 250 So.2d 356 (1971). There the offending conduct occurred on the job. The Supreme Court said:

“Unlike the case of off-the-job conduct, such as that in the Leggett case, disciplinary action for the violation of Civil Service Rules need not be supported by independent evidence of impairment of the efficiency of the service . . . ” 250 So.2d 359. (Emphasis supplied).

We interpret the pronouncement to establish the rule that the offending con-' duct need not be shown to have impaired the efficiency of service if the offending conduct occurred on the job. Under this interpretation, while it would not be necessary to show that plaintiff’s conduct with respect to his moustache impaired the efficiency of the service, we nonetheless feel that it has been shown in this case.

Plaintiff allowed his moustache to extend beyond the corners of his mouth and to exceed the length or thickness proscribed by the regulation. Testimony on this point included statements to the effect that “ . . . a long moustache would . . . affect the face piece [of a gas mask] and keep it from adhering to the skin, and the hair would not let it lock in safely and it would let poisonous gas in . . ."

The requirement of the department relating to appearance and uniformity, given as reasons in the order, were noted with approval by the United States Supreme Court in Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976). A similar regulation- of a county police department (moustache shall not extend over the top of the upper lip or beyond the corners of the mouth) was at issue. The United States Supreme Court said:

“ . . . (deference is due) Suffolk County’s choice of an organizational structure for the police force. Here the county has chosen a mode of organization which it undoubtedly deems the most efficient in enabling its police to carry out the duties assigned to them under state and local law. Such a choice necessarily gives weight to the overall need for discipline, esprit de corps, and uniformity.” 96 S.Ct. 1445.

While the broad allegation of “unconstitutionality” is a mere conclusion and is insufficient for lack of specificity to properly raise the issue, we shall nonetheless consider plaintiff’s contentions to this effect. In Kelley, supra, the United States Supreme Court granted certiorari for the express purpose of considering the constitutional issues. The United States Supreme Court said:

“ . . . The constitutional issue to be decided by these courts is whether petitioner’s determination that such regulations should be enacted is so irrational that it may be branded ‘arbitrary,’ and therefore a deprivation of respondent’s ‘liberty’ interest in freedom to choose his own hair style. Williamson v. Lee Optical Co., 348 U.S. 483, 487-488, 75 S.Ct. 461, 464-465, 99 L.Ed. 563, 571-572 (1955). The overwhelming majority of state and local police of the present day are uniformed. This fact itself testifies to the recognition by those who direct those operations, and by the people of the States and localities who directly or indirectly choose such persons, that similarity in appearance of police officers is desirable. This choice may be based on a desire to make police officers readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity is felt to inculcate within the police force itself. Either one is a sufficiently rational justification for regulations so as to defeat respondent’s claim based on the liberty guaranty of the Fourteenth Amendment.” 96 S.Ct. 1446.

CONCLUSION

Should we disagree with the Board’s decision as to the moustache issue (which we do not), we would affirm the Board in upholding the discharge on the ground of insubordination. Plaintiff was clearly insubordinate on August 8, 1973, to his superior officer in violation of the regulations of the Shreveport Fire Department and R.S. 33:2500, subd. A(4).

At appellant’s cost, judgment is

AFFIRMED.

      . Applicable provisions for hearings, appeals and standards of review at each level of hearings are found in Art. 14, § 15.1, Louisiana Constitution, 1921, and in LSA-R.S. 33:2471, et seq. See particularly Art. 14, § 15.1(31), Louisiana Constitution, 1921, and LSA-R.S. 33:2501.

      . The Board’s decision reads in part: “The Board sustains the action of the Appointing Authority and further finds on its own motion that the evidence presented at the hearing in this matter showed such a continuing pattern of incidents and confrontations between this employee and superiors over the issue of his moustache and hair finally resulting in the episode involving Chief Fouts at Fire Station No. 16 on or about August 8, 1973, which the Board holds to have constituted insubordination, as to have made termination of employment in the public interest for the best interests of the departmental service.”

      . “It is a well settled rule that before a court will consider the constitutionality of a law, he who urges its unconstitutionality must show specifically wherein it is unconstitutional, (citations omitted). A general allegation to the effect that an entire statute is unconstitutional without specifying the relationship of this issue to the determination of the case at bar does not meet the requirements . . . ” Michell v. Louisiana State Board of Optometry Exam., 146 So.2d 863, 869 (La.App.3rd Cir. 1962).


text:
    Joe BONOMO and Maurice Glorioso, Plaintiffs-Appellants, v. LOUISIANA DOWNS, INC., et al., Defendants-Appellees.
    Nos. 12964, 12965.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.

      Gamm, Greenburg & Kaplan, by Jack H. Kaplan, Shreveport, for plaintiffs-appellants.
    John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, for La. State Racing Commission, defendant-appellee.
    Lunn, Irion, Switzer, Johnson & Salley, by Charles W. Salley, Shreveport, for Louisiana Downs, Inc., defendant-appellee.
    Smith & LaGrone by Dewey J. Smith, and Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for Southern Research, Inc., defendant-appel-lee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

The issue in these consolidated cases is whether persons who have been convicted of the crime of bookmaking may be barred from attending horse races at a race track operating under license of the Louisiana State Racing Commission. As did the lower court, we answer affirmatively.

In 1974, Joe Bonomo and Maurice Glorio-so of Bossier City pleaded guilty and were sentenced by the U. S. District Court in Shreveport for the crime of conspiracy to commit illegal gambling, bookmaking on football games (18 U.S.C. § 1955).

In January, 1975, private security officials at the track (Louisiana Downs) told Bonomo and Glorioso they were not welcome and caused them to leave the track. In August, 1975, a successor private security. agency (Southern Research, Inc.) for Louisiana Downs informed Glorioso at its Shreveport offices that he and Bonomo would not be allowed to attend races during the forthcoming racing season. In both instances the reason given for the barring was the bookmaking conviction. •

Shortly after the August, 1975, incident, Bonomo and Glorioso filed separate suits against (1) the race track (Louisiana Downs, Inc.); (2) the private security company (Southern Research, Inc.); and (3) the Louisiana State Racing Commission. Each petitioner sought to enjoin his being barred from the track and sought damages under the federal civil rights law (42 U.S.C. § 2000a, et seq.) and under Art. 1, Section 12, Louisiana Constitution 1974.

After the suits were filed but before trial, the stewards of the track on December 5, 1975, informed Bonomo and Glorioso of a hearing at which time the stewards would consider a formal order of ejection against them under R.S.4:172(D) because of “your present convictions in federal court and your previous criminal record.” After obtaining a brief delay, counsel for Bonomo and Glorioso informed the stewards by letter that inasmuch as suits had been filed and that “exhaustion of state legal or equitable remedies is not necessary to an action under the Civil Rights Act . . Bo-nomo and Glorioso would not attend the hearing. The hearing was held and the stewards formally barred Bonomo and Glo-rioso from the track and notified them in writing of the stewards’ action.

Defendants excepted to the petitions under several labels (prematurity, jurisdiction, no cause and no right of action), the primary thrust of which was that petitioners had not exhausted the administrative remedies available to them under Title 4 (governing racing) and under R.S. 49:951, et seq. (the Administrative Procedure Act, especially applicable by reason of R.S. 4:154).

The cases were consolidated below and were heard in the district court two days after the stewards held their hearing. The lower court referred all exceptions to the merits and eventually rejected the demands of Bonomo and Glorioso.

Expert testimony established that bookmaking is an element of organized crime; that it saps the ability of a race track to successfully operate and to maintain public confidence; that bookmaking siphons away revenues from the pari-mutuel betting pool, various amounts and percentages of which are statutorily dedicated to a number of worthy public purposes; that funds derived from bookmaking are not reported as income and produce no revenues for services to our citizens; and that bookmaking, especially on race track premises where the bookmaker is accompanied by his own customers, is almost impossible to detect and police.

Horse racing in Louisiana is regulated by law (Act 276 of 1940 as amended, now R.S. 4:141, et seq.). The Legislature has delegated authority to the Louisiana State Racing Commission to adopt uniform rules and regulations for the “holding, conducting and operating of all race tracks, race meets and races held in Louisiana . . . ” R.S. 4:147(6). This delegation of authority was generally upheld in Dudoussat v. Louisiana State Racing Commission, 133 So.2d 155 (La.App. 4th Cir. 1961). See also 18 La.L.R. 79.

Part I of Title 4 of the Revised Statutes (Horse Racing), contains many expressions of State policy. Section 141 states in part:

“It is the policy of the State of Louisiana in furtherance of its responsibility to provide revenues for the operation of state government for its people, to encourage forceful and honest state-wide control of horse racing for the public health, safety and welfare by safeguarding the people of this state against corrupt, incompetent, dishonest and unprincipled horse racing practices.”

Racing Commission members are required to be persons of “good moral character” (Section 144). The commission is authorized to make rules, regulations and conditions for the operation of race tracks and providing against “conduct detrimental to the best interest of racing” (Section 148(A)(53)) and to suspend the license of anyone who violates any rule or condition of the commission “. . . when the violation is detrimental to the state’s interest in the regulation of horse racing . . . ” (148(B)). In this same paragraph the Legislature has declared two instances by way of illustration, which are detrimental to the state’s interest. They are: “(1) not properly policing the grounds; and (2) violations which will unjustly deprive the state of revenue.”

Section 149 limits wagering on horse races to “pari-mutuel wagering . within the race meeting grounds” and further declares:

“. . . All other forms of wagering on the result of horse races are illegal, and all wagering on horse races outside the enclosure where horse races have been licensed by the commission is illegal.”

Section 150 concerns the granting, refusing, suspending and withdrawing of licenses to “anyone,” involved in racing operations, with the provision that “. . . no license shall be revoked without just cause.” Under this section an applicant for a license is required to be “. . . of good character and reputation . . . [who] has not knowingly associated with any . . . persons who have been convicted of a felony or . with bookmakers, touts, or persons of similar pursuits . . .”

Among the duties imposed on stewards in the daily conduct of races is the duty to “. . . order ejected from the grounds any improper or objectionable persons.” Section 172(D).

The Rules of Racing adopted by the Racing Commission provide in part in its preface:

“No sport is more closely supervised than the racing of thoroughbred horses and quarter horses. The main purposes of this close supervision are to assure the spectator public and competing owners of horses:
“1. That the association conducting a race meeting is operated by responsible management; * * * ”

The Rules generally track the legislative policy contained in R.S. Title 4 and provide that “any person making a handbook or betting with a handbook shall be ejected from the grounds and denied any further admission.” Rule 20 (w—1). This Rule also prohibits “ . . . petty games of chance” on the grounds of the track. The Louisiana State Racing Commission in the Preface and Foreword of its Rules of Racing declares itself to be a member of the National Association of State Racing Commissions and bound by the constitution and by-laws of the national organization.

It is not contended here and no evidence was introduced to show that Bonomo and Glorioso were guilty of any violation of rules against illegal wagering while on the track premises during the January, 1975, incident. It is shown here that it is the policy of Louisiana Downs, Inc. and other race tracks across the nation to bar from attendance those persons known to be or who have been convicted of bookmaking. Indeed some states, unlike Louisiana, make it a crime for a person who has been convicted of bookmaking to be present in any area where pari-mutuel wagering is conducted. See People v. Licata, 28 N.Y.2d 113, 320 N.Y.S.2d 53, 54, 268 N.E.2d 787, 788 (1971) and Flores v. Los Angeles Turf Club, Inc., 55 Cal.2d 736, 13 Cal.Rptr. 201, 202, 361 P.2d 921, 922 (1961).

The contentions of Bonomo and Glorioso on appeal may be generally summarized:

(1) Defendants’ actions in barring them from the track violates 42 U.S.C. § 2000a(a), the 14th Amendment of the federal constitution, and Art. 1, Section 12 of the Louisiana Constitution;

(2) R.S. 4:172(D) and Rule 40(a) of the Rules of Racing adopted by the Louisiana State Racing Commission are unconstitutionally vague and indefinite; and

(3) Administrative remedies need not be exhausted before courts take jurisdiction where civil rights violations are alleged.

While these contentions are made against all defendants, the first contention relates primarily to the action of the track and its security arm in barring Bonomo and Glorio-so before they filed suit. The second and third contentions relate primarily to the action of the stewards in formally barring Bonomo and Glorioso after the suits were filed in a hearing which they determined not to attend, apparently on advice of counsel.

THE CIVIL RIGHTS ISSUE

Applicable jurisprudential principles, whether derived from the state constitution, the federal constitutions or from the federal civil rights law are well established and are essentially the same. No person shall be denied access to or enjoyment of public facilities or accommodations because of that person’s race, color, religion or national ancestry. It is conceded by defendants that the defendant race track is a place of public accommodation under the Civil Rights Law (See Miller v. Amusement Enterprises, Inc., 394 F.2d 342 (C.A. 5th La. 1968)).

The federal and state authorities prohibit any discrimination based on race, religion or national ancestry. They do- not prohibit discrimination based on other reasons which are not arbitrary, capricious, or unreasonable, or which are not applied in that fashion, under particular circumstances which may be in question.

The Louisiana Constitution (1974) recognizes that discrimination based on “age, sex or physical condition” which is not “arbitrary, capricious or unreasonable” may lawfully exist. See Art. 1, Section 12. Examples which immediately come to mind as a reasonable discrimination (1) based on sex is the civilized custom and practice, at least in this nation, of having separate restrooms in public places for men and women (2) based on age is the practice of excluding persons below or above particular ages from riding upon thrill rides in amusement parks and (3)based on physical condition is the practice of requiring participants in other public amusement or accommodation functions to be of minimum ' (or maximum) heights, weights and to be free of debilitating ailments such as cardiovascular diseases. See also our opinion of this date, In re Geiger, 337 So.2d 549 (La.App.2d Cir. 1976), upholding as not unreasonable, hair length and moustache regulations of the Shreveport Fire Department.

The barring of convicted bookmakers from a race track is not discrimination based on race, religion or national ancestry which is proscribed by the authorities mentioned. Plaintiffs concede that they were not barred on any of these grounds. Thus we are to determine whether the barring of plaintiffs from Louisiana Downs under the circumstances mentioned, constitutes unreasonable, or arbitrary discrimination on other accounts. See Annotation, “Exclusion of Person (for reason other than color or race) from place of Public Entertainment,” 1 A.L.R.2d 1165. See also In re Cox, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992 (1970).

The exclusion of convicted felons such as Bonomo and Glorioso, or even known bookmakers, from race tracks has been upheld in most states where racing is legal. The Supreme Court of our sister state has correctly stated the controlling rules of law in this area as “ . . . firmly settled by many decisions in many jurisdictions. The proprietor of a privately owned . . . race track ... is not under a common carrier’s duty to render service to everyone who seeks it. It is uniformly held that the proprietor may refuse to admit, or may eject from his premises [undesirable persons] . . . ” See Griffin v. Southland Racing Corporation, 236 Ark. 872, 370 S.W.2d 429, 430 (1963) and cases cited in 1 A.L.R.2d 1165, as supplemented, from New York, New Jersey, California and other states. The basis for excluding persons of a particular category from a business open to the public (other than because or race, religion or national ancestry) is done at the proprietor’s risk, and must be done for a purpose which is reasonable and not contrary to public policy or constitutional principles.

The purpose to be achieved by barring convicted bookmakers from a race track is to maintain the public’s confidence in horse racing and pari-mutuel betting. This purpose is reasonable. It is not against public policy or constitutional principles.

In People v. Licata, 28 N.Y.2d 113, 320 N.Y.S.2d 53, 55, 268 N.E.2d 787, 788 (1971), where a convicted bookmaker was barred from Aqueduct Race Track, the court said:

“The rule is well established that the operator of a race track can ‘exclude a person from attending its races * * * as long as the exclusion is not founded on race, creed, color or national origin.’ * * * Moreover, the rules and regulations of the New York State Racing Commission specifically provide: ‘[Undesirable persons to be ejected] No person who is known or reputed to be a bookmaker or a vagrant within the meaning of the statutes of the State of New York, * * * shall enter or remain upon the premises of any licensed association conducting a race meeting under the jurisdiction of the commission; and all such persons shall upon discovery or recognition be forthwith ejected * * * ’ The regulation imposes upon the licensed association the burden of carefully screening its patrons, and excluding or expelling any undesirable persons.” (Emphasis supplied).

While Louisiana is not as explicit as New York in making it a crime for a bookmaker to enter a race track, the public policy of Louisiana is to the same effect as the policy of New York. See our comments on Title 4 of the Revised statutes, supra. The exclusion of convicted bookmakers from a race track is in keeping with the public policy of this state. Louisiana Downs, through its security agency (Southern Research) in this instance, did not unreasonably discriminate against plaintiffs. Plaintiffs do complain that other bookmakers known to them who have not been convicted of the crime, have been seen at the track from which they were excluded. The record shows that Louisiana Downs has barred other convicted bookmakers and that its policy in this respect is uniform and not unreasonably discriminatory against plaintiffs. While R.S. Title 4 and the Rules of Racing adopted by the Racing Commission could be much more explicit, their letter, spirit and policy impose upon Louisiana Downs, Inc., as a race track operator, a general duty to exclude convicted bookmakers from the race track and pari-mutuel premises because their exclusion is in the interest of racing and the state’s interest in racing.

THE ISSUES ARISING FROM THE STEWARDS’ ACTION

Plaintiffs’ primary contention here is that the term “improper and objectionable persons” in R.S. 4:172(D) and Rule 40(a) of the Rules of Racing is unconstitutionally vague and indefinite. There is a distinction in construing civil statutes where admittedly vague words are employed and where no criminal penalty is imposed (with terms such as just cause, good moral character, financial ability) from criminal statutes. See Annotation of U.S. Supreme Court cases on this subject, 40 L.Ed.2d 823 (1975).

On the basis of the evidence and our analysis of R.S. Title 4, made supra, we can and do deduce that the term improper and objectionable person has acquired a definite and recognized meaning within thoroughbred racing associations and state racing commissions who are affiliated with the National Association of State Racing Commissioners and that within the accepted meaning of the term is a person who has been convicted of bookmaking. We need not, however, conclude with this finding, because plaintiffs’ contentions regarding the action of the stewards can and should be resolved against plaintiffs because they did not exhaust administrative remedies which were available to them.

Federal cases which accept jurisdiction notwithstanding available administrative remedies, do so because of alleged arbitrary and unreasonable discrimination in violation of the 14th Amendment and the federal Civil Rights Law. See Salkay v. Williams, 445 F.2d 599 (C.A. 5th Fla.1971). In the instant case, after a hearing below, we have initially held that the proprietor of a race track is not in violation of the anti-discrimination provisions of the state or federal constitutions or the Civil Rights Law by barring convicted bookmakers from attending horse races.

We are concerned then, not with alleged discrimination under state or federal law, but with plaintiffs’ contentions as to indefiniteness of the state racing law and rules adopted thereunder by the Commission and the authority of the stewards generally, and specifically the stewards’ exercise of authority in this instance. The stewards’ action occurred after suit was filed and was based on Bonomo and Glorioso being improper and objectionable persons under R.S. 4:172(D) and Rule 40(a) of the Commission’s Rules of Racing.

The stewards’ action, after the hearing which plaintiffs elected not to attend, was appealable to the Racing Commission. Plaintiffs did not appeal the stewards’ decision to the Commission (or failed to timely appeal as plaintiffs themselves contend in appellate briefs) and the Commission did not have the opportunity to decide whether convicted bookmakers were objectionable and improper persons within the meaning of its rules. The Commission did not have the opportunity to decide whether two of the three stewards at Louisiana Downs could conduct a hearing as plaintiffs complain they did. The Racing Commission is superior to the stewards and is empowered to correct errors of the stewards. If the stewards were in error, the Racing Commission was afforded no opportunity to correct them. The appeal from action or a decision of the stewards lies not to the courts, but to the Racing Commission.

R.S. 49:963, 964 provide for judicial review of the Commission’s actions. Courts are empowered to reverse or modify the Commission’s adjudication only for stated reasons:

“ * * * G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon lawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues. Acts 1966, No. 382, § 14, eff. July 1, 1967.”

In McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969), the United States Supreme Court said:

“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. See generally 3 K. Davis, Administrative Law Treatise § 20.01 et seq. (1958 ed., 1965 Supp.); L. Jaffe, Judicial Control of Administrative Action 424 — 458 (1965). The doctrine provides ‘that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.’ Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). The doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.”

The “understanding” of the doctrine, to use McKart terminology was summarized in Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 865-866 (C.A. 5th La. 1975):

“Moreover, we note that the doctrine of administrative exhaustion is not a strict jurisdictional matter but a flexible concept tailored to the administrative statutes and circumstances ... It does dictate a balancing of interests in which the previous availability of a corrective administrative procedure weighs heavily. The criteria used in the balancing process were explicated in McKart, supra, and they include the following factors: 1) how harsh is the penalty that plaintiff will suffer if barred from asserting his claims in court; 2) even if the penalty is not overwhelmingly harsh, will allowing a by-pass of administrative procedure seriously impair the ability of the agency to perform its functions; 3) does the issue upon which the decision turns involve matters of particular agency expertise; (4) would judicial review be significantly aided by an additional administrative decision, through allowing the agency to make a factual record, apply its expertise or exercise, its discretion; 5) how likely is it that the judiciary will be overburdened with suits stemming from the same administrative failure when such suits might have been resolved through the administrative process; and 6) how significant is the role of administrative autonomy — the notion that the courts should not usurp powers and duties entrusted to the agency, and the related notion that ‘the agency [ought to] be given a chance to discover and correct its own errors’?”

See also O’Meara v. Union Oil Co. of California, 212 La. 745, 33 So.2d 506 (1947); State Board of Education v. Anthony, 289 So.2d 279 (La.App. 1st Cir. 1974), writs refused, La., 292 So.2d 246; and Bagert v. Moreau, 325 So.2d 702 (La.App. 4th Cir. 1976).

In view of our holding that Louisiana Downs may exclude Bonomo and Glori-oso, as convicted bookmakers from the race trace in the first instance, we find no “harsh penalty” factor or other McKart factors which will warrant our concluding that Bonomo and Glorioso should not be required to exercise available administrative remedies before complaining to a Louisiana court about the actions of Louisiana Racing stewards. The trial court was correct in rejecting plaintiffs’ demands, even as against the Louisiana Racing Commission on this basis.

At appellants’ cost, the judgment in each consolidated case is

AFFIRMED.

      . 42 U.S.C. § 2000a(a) provides that all persons shall be entitled to enjoy any place of public accommodation . . without discrimination or segregation on the ground of race, color, religion or national origin.”
      Art.l, Section 12 of the Louisiana Constitution provides that in access to public facilities, every person shall be free from discrimination based on “. . . race, religion or national ancestry, and from arbitrary, capricious or unreasonable discrimination based on age, sex or physical condition."

      . R.S. 4:147 provides that the racing commission shall name three stewards who shall have supervision of the daily conduct of racing. R.S. 4:172 provides in part:
      “A. . . . The stewards have full authority to investigate, inspect, search and inquire into all matters under their supervision.
      “B. Should any case occur which may not be covered herein or by the Rules of Racing, it shall be determined by the commission and implemented by the stewards but only insofar as such determination is consistent with justice, the best interest of racing and with powers and authority herein granted; .
      * * * * * *
      “D. The stewards shall order ejected from the grounds of the association any improper or objectionable persons.

      * * * * * *
      “Q. In addition to the above, the stewards shall have those authorities, powers and duties as are prescribed and conferred by the commission not inconsistent with this Part, including by way of illustration those provided by the rules of racing.”
      (Emphasis ours)

      . Art. 103.1(A)(4), La.Cr.C., provides that a person may be guilty of the crime of disturbing the peace when he “refuses to leave the premises of another when requested to do so by any owner, lessee, or any employee thereof . ” In the absence of a refusal to leave the race track premises when requested to do so by track officials, a bookmaker has not violated any provision of Title 4 or of the Criminal Code which would impose criminal sanctions on him.

      . R.S. 4:156 reads in part:
      “A. A final appeal, in the case of any person penalized, or disciplined by the stewards, may be taken to the commission.
      “B. Such an appeal must be filed in writing at the office of the commission within five days of the date of said penalty or imposition of said discipline. * * *
      “D. An appeal from the decision of the stewards to the commission shall not affect such decision until the appeal has been acted upon by the commission. * * * ”
      R.S. 4:154 provides:
      “The commission’s hearings, practice and procedure and rule making procedure are as provided in Title 49, Chapter 13, Administrative Procedure, R.S. 49:951 et seq.”


text:
    Leo H. HUHN et al., Plaintiffs-Appellants, v. MARSHALL EXPLORATION, INC., Defendant-Appellee.
    No. 12975.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.
    Writ Refused Dec. 3, 1976.

      Rothell & Lawson by David A. Rothell, Mansfield, for plaintiffs-appellants.
    Colvin, Hunter, Brown & Plummer by D. Scott Brown and Robert E. Plummer, Mansfield, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiffs appeal the rejection of their demands for cancellation of an oil and gas lease granted by their deceased ancestor for whom they were substituted as plaintiffs after suit was filed.

Leo Huhn, plaintiffs’ ancestor, granted the lease on an M. L. Bath Company lease form, Louisiana Spec. 14 BR1 2A (1-63), for a six month primary term beginning June 1, 1969. Huhn’s lessee assigned the lease to defendant, Marshall Exploration, Inc. Marshall assigned a fractional interest in the lease to White Shield Oil and Gas Corporation in 1969, but reacquired this interest on June 5, 1973.

On November 14, 1969, the State Department of Conservation granted a permit to Marshall’s assignee to reenter and deepen an old, but non-productive and plugged well on the leased property known as the Huhn No. 1 well. Marshall’s engineer and the company records establish that Marshall set up a drilling rig and conducted operations at the Huhn well site between November 26 and November 30, 1969, including eight hours of drilling through the cement plug in the old well on November 30. The record establishes that the operations on the Huhn well continued without significant lapse or interruption through a Schlumberger test on December 12 and the well being made productive about December 27, 1969. Once productive, the well was connected to a pipeline about July 22, 1970, and has since produced gas and distillate in small quantities.

Plaintiffs contended below, and urge as specifications of error here, that the lease should have been cancelled or forfeited because of

(1) The lessee’s failure to engage in drilling operations within the six-months primary term;

(2) The lessee’s failure to maintain production for a consecutive four-month period; and

(3) The lessee’s failure to pay production royalty for a thirteen-month period when the well was producing.

The lower court rejected each contention of plaintiffs and we affirm for reasons hereafter given.

DRILLING WITHIN THE PRIMARY TERM?

Plaintiffs had two witnesses — a brother and a nephew of original plaintiff— who testified they were often hunting on the property in late November and in December 1969, but saw no activity at the old well site until mid-December, 1969. Trial was held in June, 1975. The lower court said it “could only conclude that [these witnesses] were in error as to the dates [they were on the property].” The lower court accepted the contrary testimony of Marshall’s engineer and the business records of Marshall, summarized above. We find no error in the lower court concluding that Marshall was engaged in drilling operations at the expiration of the primary t.erm of the lease on December 1, 1969.

Paragraph five of the lease expressly contemplates such a situation in this language:

“. . . If at the expiration of the primary term oil, gas or other mineral is not being produced . . . but lessee is then engaged in drilling or reworking operations . the lease shall remain in force so long as operations are prosecuted with no cessation of more than thirty (30) consecutive days, and if they result in the production of oil, gas or other mineral, so long thereafter as oil, gas or other mineral is produced from said land . .

The setting up of a rig and drilling through a cement plug of an old well on the last day of the primary term does constitute being “engaged in drilling operations” within the intendment of paragraph five of the Bath 14 BR1 2A (1-63) lease form so as to maintain the lease in force beyond the primary term.

FAILURE TO MAINTAIN PRODUCTION OR TO PAY PRODUCTION ROYALTY

After the well was made productive and before it was placed on the pipeline, Marshall mailed three checks for $12.50 each as shut-in royalty payments to the original plaintiff. Huhn refused to accept or to cash the shut-in royalty checks. Huhn’s correspondence and writings on checks returned to Marshall show that Huhn was dissatisfied with the lease and contested its validity as soon as it was known that the well was made productive. Huhn’s position was that the production unit for the well should not encompass 640 acres, but only the leased property of slightly less than 160 acres. Huhil also refused to cash some of the production royalty checks which were mailed to him by Marshall’s assignee and would not sign a division order specifying his royalty interest in the unit, all because of his contentions against the size of the unit and the validity of the lease.

The lower court expressly noted in its written opinion that this was the “real reason” Huhn was seeking cancellation of the lease.

Marshall’s assignee, White Shield, paid or attempted to pay production royalty periodically to Huhn through May of 1973. From February until May, 1973, the compressor and other equipment near the well site became the subject of repeated vandalism by persons unknown. Eventually Marshall caused the manually operated valves at the well site to be immobilized in an attempt to avoid deliberate interference with production. The well was still productive but because of the vandalism, the production equipment was not operating for about three months to force the gas into the high-pressure marketing pipeline. After complaints to local law enforcement authorities by Marshall, and a complaint to Huhn’s attorney, the vandalism ceased and repeated repairs were no longer necessary. The flow of gas into the marketing pipeline resumed in May, 1973. On June 5, 1973, Marshall formally reacquired the fractional interest earlier assigned to White Shield.

Paragraph 12 of the lease contemplates that things beyond the control of the lessee, such as vandalism and deliberate interference with production, will not cause automatic termination or forfeiture of the lease.

Paragraph 5 of the lease provides in part that if production should cease from any cause, the lease shall not terminate if lessee commences operations for additional drilling or reworking within sixty days thereafter. Marshall and its assignee repeatedly made attempts to protect against vandalism and to restore and repair the compressor and other production equipment for about three months. Without a compressor to force the gas into the pipeline which was of greater pressure than the well, the gas simply could not be marketed during this time. There was no cessation of production and no necessity for drilling or “reworking” of the well in the technical sense of paragraph 5 because the well was capable of producing. See House v. Tidewater Oil Company, 219 So.2d 616 (La.App.3d Cir. 1969).

Under our interpretation of the lease and contrary to plaintiffs’ contentions, we hold paragraph 5 inapplicable because production does not cease when production equipment is damaged by vandalism and a reasonably diligent and timely effort is made by the lessee to protect against vandalism and to repair the equipment necessary to market the gas.

Once White Shield formally reassigned its interest in the lease back to Marshall on June 5,1973, White Shield delayed for some six months in getting all of its production and royalty payment records to Marshall. When Marshall acquired these records in January, 1974, Marshall was aware of its experience with Huhn in 1970 when Huhn returned and refused to cash shut-in royalty checks. Marshall became aware from writings in Huhn’s White Shield file that Huhn had refused to cash production royalty checks sent to him by White Shield and that his position as to invalidity of the lease and the size of the production unit had not changed. Marshall consulted with its attorney about the matter and' on the attorney’s advice, Marshall mailed to Huhn on July 12, 1974, a check for production royalty ($188) which had accrued to his account since Marshall formally acquired White Shield’s interest. Huhn did not cash Marshall’s check.

The uncashed checks from Marshall (including $37.50 for shut-in royalty) and from White Shield for production royalty which were sent to Huhn and held or returned by him totaled less than $400, according to testimony of Marshall’s vice-president at the trial.

On August 4, 1974, Huhn’s attorney made written demand on Marshall for cancellation on the sole ground that the well had not “produced” for more than 60 days as provided in paragraph 5 of the lease during the four-month period prior to June, 1973. This is the period of time the vandalism discussed above was occurring. Huhn’s demand letter in August, 1974, made no mention of Marshall’s failure to pay production royalty.

Suit was filed on August 21, 1974, seeking cancellation on the grounds of (1) failure to drill within the primary term; (2) failure to pay shut-in royalty; and (3) failure to produce for the four-month period in 1973. No complaint about failure to pay production royalty was made in the original petition. On October 24, 1974, by supplemental petition filed that date, Huhn first asserted Marshall’s failure to pay production royalty for the thirteen-month period beginning June 5, 1973. Before the case was tried on June 17, 1975, Huhn died.

The Supreme Court in Wilson v. Sun Oil Company, 290 So.2d 844, 847 (La.1973) succinctly summarized the law in such cases:

“Our jurisprudence has developed the rule that failure to pay production royalties under an oil and gas lease for any appreciable length of time without justification amounts to an active breach of such lease which entitles the lessor to a cancellation thereof without the necessity of placing the lessee in formal default . (citations omitted)
“However, in cases where the failure to pay production royalties is justified under the facts and circumstances, the breach is considered passive, requiring a putting in default . . . (citations omitted).”

Among the cases cited in Wilson was Alvord v. Sun Oil Company, 271 So.2d 561 (La.App.2d Cir. 1972) writ refused. There we had occasion to consider and analyze the several cases which had considered the effect of the lessee’s failure to pay production royalty. We held in Alvord, the sublessee’s failure to pay production royalty for. more than twelve months was not an active breach by the sublessee of the lease contract under the circumstances there presented.

Cases which have considered the issue indicate that there are a number of factors to be weighed in determining whether the failure to pay royalties was justified so as not to constitute an active breach of the lease. These factors include (1) length of time; (2) the amount involved; (3) special circumstances outside the control of the lessee; (4) motive of the lessee (such as coercion to obtain unitization or division order agreements from lessor); (5) when and under what circumstances and frequency the lessor did or did not make inquiries or demands for the royalty; (6) whether the person to whom royalty was due was knowledgeable about the industry or was on relatively unequal footing with lessee. One factor, of course, does not control but each factor is to be weighed according to the circumstances of the individual case.

Here, we think it important that Huhn returned or refused to cash checks for shut-in and production royalty sent to him by Marshall and White Shield for the period prior to June 5, 1973; that the amount involved since June 5, 1973, was relatively small; that as soon as Marshall became aware that Huhn had not signed a division order for White Shield it contacted its attorney, followed the attorney’s advice, and mailed or tendered the production royalty more than three months before Huhn made any inquiry or demand about it; and that Huhn’s principal complaint during the entire time from initial production at least until Huhn’s supplemental petition was filed, concerned the size of the unit and whether the well was “drilled” during the six-month primary term.

Under these circumstances we hold Marshall’s failure to timely pay production royalty not to constitute an active breach of its lease obligation.

PROCEDURAL QUESTIONS

Appellants contend the lower court should not have allowed, because of timely objection, one of Marshall’s employees to testify as to the extent of the vandalism which caused Marshall not to be able to market gas from February through May of 1973. Appellants argue that the cause of nonproduction is an affirmative defense under Article 1005, LSA-C.C.P. which was not specifically pleaded and that the testimony should not have been allowed over their objection. They also argue that the employee should not have been allowed to testify because his name was not included in an answer to an interrogatory asking for the name and address of all witnesses Marshall planned to use at the trial.

Other employees or principals of Marshall testified regarding the vandalism and a complaint or inquiry made about the vandalism to law enforcement officials and to plaintiffs’ attorney. When plaintiffs’ attorney objected to testimony by other employees on hearsay grounds and was sustained, Marshall’s attorney then called to the stand the employee who was in the field and periodically observed the effect of the vandalism. Under these circumstances we find no abuse of the discretion afforded the lower court in allowing this particular employee to testify.

LSA-C.C.P. Art. 1005 requires that the answer set forth certain enumerated affirmative defenses,". . . and any other matter constituting an affirmative defense.” In effect, plaintiffs’ counsel is contending that a general denial by defendant limits the defendant’s evidence solely to matters which plaintiff has pleaded.

As we have discussed and found, production from this well did not cease within the intendment of paragraph 5 of the lease simply because no gas was marketed during the period of vandalism. Plaintiff alleged, and Marshall denied, cessation of “production” during the period in question.

Whether the well was “producing” during the time in question was an issue under the pleadings and it was not error for the lower court to allow testimony on this issue. Special allegations or affirmative defenses in the answer are not necessary to authorize the introduction of evidence, the direct tendency of which is to disprove what plaintiff alleges. See Williams v. Fisher, 79 So.2d 127, 128 (La.App. 1st Cir. 1955). Whether the evidence was within the general issues raised by the pleadings is usually a matter which is left to the discretion of the trial court. See Mouledous v. Poirier, 221 So.2d 291 (La.App. 4th Cir. 1971).

Under our Code of Civil Procedure, plaintiffs had the opportunity to call rebuttal witnesses to rebut defendant’s evidence in this respect. The lower court had the discretion but was not requested, to allow plaintiffs some delay or continuance for the purpose of obtaining rebuttal evidence or rebuttal witnesses. See Williams v. Garner, 268 So.2d 56 (La.App. 1st Cir. 1972). We find no procedural error in the action of the lower court.

CONCLUSION

At appellant’s costs, the judgment is

AFFIRMED.

      . Paragraph four of this lease provides that if “operations for drilling are not commenced” on or before one year from the date of the lease, the lease shall terminate unless lessee pays delay rentals to lessor. Blanks are provided in this paragraph for the amount to be paid and for the name and location of a bank to receive payment for lessor’s credit. The blanks in this paragraph were not completed obviously because the primary term of the lease was only six months and the parties did not intend that payment of delay rentals would extend the lease during the primary term without drilling. Cases which have construed the language regarding commencement of drilling operations (as distinguished from “engaged in drilling operations”) have consistently held that acts in preparation for drilling were sufficient to satisfy the requirement that drilling operations commence. See Crye v. Giles, 200 So. 155 (La.App.2d Cir. 1941) and Texas Co. v. Leach, 219 La. 613, 53 So.2d 786 (1951).

      . These things are covered by the term “Force Majeure” in paragraph 12:
      “12(a) . . ‘Force Majeure’ as used herein shall mean . . control by governmental authority . . . war . delay in obtaining materials or equipment; Acts of God; insurrection; flood; strike, or other thing beyond the control of lessee.

      “(b) If by reason of Force Majeure . lessee is prevented from . . . producing . then while so prevented . this lease shall not be subject to cancellation

        for failure of lessee ... to produce . . .

      “(c) If while this lease is in force, lessee cannot maintain same in effect because prevented by Force Majeure from fulfilling the particular requirement (operations on or continued production from the leased premises, as the case may be) . . then while so prevented and for six months thereafter this lease shall nevertheless continue in effect; and if within such six months lessee . . resumes production from the leased premises . . . this lease shall continue in effect thereafter as though Force Majeure had not intervened .
      “(d) The specification of causes of Force Majeure herein enumerated shall not exclude other causes from consideration in determining whether lessee has used reasonable diligence wherever required in fulfilling any obligations or conditions of this lease, express or implied, and any delay of not more than six months after termination of Force Majeure shall be deemed justified.” (Emphasis supplied)

      . Bailey v. Meadows, 130 So.2d 501 (La.App.2d Cir. 1961), cert. refused.

      . Herbert v. Sun Oil Company, 223 So.2d 897 (La.App.3d Cir. 1969).

      . Bailey v. Meadows, supra.

      . Melancon v. Texas Company, 230 La. 593, 89 So.2d 135 (1956).

        . Pierce v. Atlantic Refining Company, 140 So.2d 19 (La.App.3d Cir. 1962), cert. denied.

      . Fontenot v. Sunray Mid-Continent Oil Company, 197 So.2d 715 (La.App.3d Cir. 1967), cert. denied.


author: PRICE, Judge.

text:
    COMET DRILLING COMPANY, Plaintiff-Appellant, v. TRI-STATE OIL TOOL INDUSTRIES, INC., et al., Defendants-Appellees.
    No. 12989.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.

      Davidson, Meaux, Onebane, Donohoe, Bernard, Torian & Diaz by Edward C. Abell, Jr., Lafayette, for plaintiff-appellant.
    Shuey, Smith & Carlton by J. William Fleming, Shreveport, for Tri-State Oil Tool Industries, Inc., defendant-appellee.
    Taylor, Porter, Brooks & Phillips by J. Clayton Johnson, Baton Rouge, for Aetna Casualty & Surety Co., defendants-appel-lees.
    Before BOLIN, PRICE and JONES, JJ.
   PRICE, Judge.

Comet Drilling Company has appealed from the judgment sustaining an exception of no right of action and dismissing its suit against Tri-State Oil Tool Industries and its liability insurer, Aetna Casualty & Surety Company, for damages for breach of contract.

Comet engaged the services of Tri-State, a specialist in the oil industry, to provide assistance in recovering a broken drill string from an oil and gas well being drilled by it in Iberville Parish. The drill string was lost and Comet sought to recover from Tri-State and its insurer the damages sustained from the incident. Comet contends Tri-State contracted to furnish an experienced man with proper instructions to direct operations to retrieve the drill string and that it was negligent in sending an unqualified man who did not follow the proper procedure for a successful recovery of the pipe.

The action was initially filed in the Eighteenth Judicial District Court for Iberville Parish, but was transferred to the Twenty-Sixth Judicial Court for Bossier Parish pursuant to the sustaining of an exception of improper venue. Tri-State is a California corporation whose principal business establishment is in Bossier Parish.

After the transfer of the suit to Bossier Parish, Tri-State and Aetna filed exceptions of no cause of action and no right of action. The exception of no cause of action was overruled and the exception of no right of action was sustained. Comet has appealed from the judgment dismissing its action pursuant to the sustaining of this exception.

The sole issue presented for review is whether the trial court improperly sustained the exception of no right of action which is based on an exculpatory clause in the contractual agreement, and on an alleged practice in the oil industry which precludes liability under the circumstances of this case.

Comet contends the action of the trial court in effect required it to try the merits of the case on the trial of the exception of no right of action which is contrary to the prevailing jurisprudence restricting the use of this exception to situations where the plaintiff is shown to be without an interest to bring the action.

Tri-State and Aetna contend Comet has no right to bring this action based on the failure of Tri-State’s employee to properly supervise the fishing operation for the drill string as the “job tickets” of Tri-State accepted by Comet personnel at the rig site provide in part:

All tools, equipment, parts and supervisors are furnished in accordance with the prices, terms and conditions of Tri-State’s Published Price List. No guaranty of any kind is made as to rental tools and services. The customer assumes all responsibility for tools in his possession and for supervisors on the job and agrees to hold Tri-State harmless for injuries to persons or property resulting therefrom. * * *

On trial of the exception, Tri-State and Aetna were allowed to present evidence to establish the validity and effect of such an exculpatory clause. Comet timely objected on the basis that Tri-State and Aetna were offering evidence in support of an affirmative defense which could only be presented on trial of the merits of the case.

Comet’s position is well taken and the trial court was in error in sustaining the exception of no right of action.

LSA-C.C.P. Article 927(5) provides in part:.

The objections which may be raised through the peremptory exception include, but are not limited to, the following:
(5) No right of action, or no interest in the plaintiff to institute the suit.

In Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir. 1967), the restrictions on the use of the exception are concisely summarized as follows:

The essential function of this exception is to provide a threshold device for terminating a suit brought by one without legal interest to assert it. Reporter’s Comment (b) 5, LSA-C.C.P. art. 927;
* * * * * *
However, the exception of no right of action is not available to urge a defense to the effect that the plaintiff is without interest simply because the defendants have a defense to the plaintiff’s action. Wischer v. Madison Realty Co., 231 La. 704, 92 So.2d 589; Termini v. McCormick, 208 La. 221, 23 So.2d 52.
The want of interest raised by the exception relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit, with the factual evidence admissible being restricted as to whether this particular plaintiff does or does not fall within the general class having legal interest to sue upon the cause of action asserted.
* * * * * *
In short, the objection of no right of action raises the question of whether the plaintiff has a legal interest in the subject matter of the litigation, assuming (for purposes of deciding the exception) that a valid cause of action is pleaded by the petition. LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727.

The pleadings filed by Comet allege a contractual obligation undertaken by TriState to perform services for Comet which were negligently performed causing the damages to Comet for which it Seeks redress. There is no question that Comet has alleged a sufficient cause of action and that it is within the particular class of persons to which the law affords a remedy for such a cause. Whether or not Comet is barred from exerting its claim against Tri-State by reason of the contractual exculpatory clause is a matter óf affirmative defense which cannot be decided on an exception of no right of action.

The judgment appealed is reversed, the exception of no right of action is overruled, and the case is remanded to the district court for further proceedings consistent with the views expressed herein and in accord with law. Costs of this appeal are assessed to defendants.