author: LEMMON, Judge. GULOTTA, Judge,

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. MARSH INVESTMENT CORPORATION.
    No. 7795.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied April 13, 1977.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Raymond J. Salassi, Jr., and James P. Lambert, New Orleans, for plaintiff-appellee.
    James J. Morrison, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

In this expropriation proceeding the sole issue raised by defendant landowner on appeal is the sufficiency of plaintiff’s evidence as to the necessity of expropriating the subject parcel of land.

South Central Bell Telephone Company had proposed to expand its existing long distance toll service between New Orleans and Houma. In the system used on this route, amplifiers or repeaters are required at about three-mile intervals along the toll cable to boost the strength of the signal which would otherwise gradually lose strength, causing failure of the system.

In the area of the subject property the toll cable and repeater sites were located just inside the right of way of Highway 90. The existing amplifier equipment was housed in three cabinets at each repeater site. When additional equipment was needed because of increased demand for service in the area, the design engineer recommended that the additional amplifiers be placed in 8 x 12-foot huts or buildings and that the existing amplifiers be moved into the buildings. These facilities were expected to be sufficient to handle whatever equipment would be required in the next 15 years.

The Department of Highways had allowed South Central Bell to place the cabinets on the highway right of way, but objected to more than three cabinets at any one location. Because of this objection and because South Central preferred to have the equipment off the right of way and less subject to damage, the company purchased servitudes measuring 50 x 50 feet on the private property immediately adjacent to each point where the existing repeater sites were located. This suit followed defendant’s refusal to grant the requested servitude.

We believe that the evidence adequately supports the trial court’s finding of necessity. Defendant virtually admits that South Central was reasonable in choosing the location where a supply point had already been established, but principally attacks the decision to locate the equipment off the right of way. South Central, however, did not arbitrarily choose to locate off the right of way. South Central could not place this particular equipment on the right of way without the consent of the Department of Highways (R.S. 45:781 notwithstanding), and the additional equipment exceeded the limit imposed by the Department. Furthermore, the safer location off the right of way afforded South Central an opportunity to keep the area around the equipment free of tall grass, trash and fire hazard and provided a desirable parking area for service vehicles.

The expropriating authority is vested with considerable discretion as to the location of a servitude, and the selection will not be disturbed unless made arbitrarily or in bad faith. Greater Baton Rouge Port. Comm. v. Watson, 224 La. 136, 68 So.2d 901 (1953); Louisiana Power & Light Co. v. Lasseigne, 256 La. 919, 240 So.2d 707 (1970); Dakin & Klein, Eminent Domain in Louisiana, Ch. VI, § 1 A 2 b ii (1970). Here, the uncontradicted evidence established that the location selected fulfills South Central's needs and meets sound engineering and economic standards, and there is no evidence to suggest that the location was chosen arbitrarily or without reasonable basis. We conclude that the necessity of taking this parcel was adequately supported by the evidence.

South Central answered the appeal, seeking amendment of the judgment to cast defendant with court costs pursuant to R.S. 19:12, which provides:

“If a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation, the costs of the expropriation proceedings shall be paid by the owner.”

Prior to filing suit South Central’s appraiser wrote a letter to defendant offering $3,187.50 for the property in accordance with an appraisal of the value of the property to be taken and the damages to the remainder of the property. The trial court adopted this appraisal and awarded this exact amount.

The offer did not constitute a “tender” as contemplated by R.S. 19:12. In order to require assessment of costs against the owner, the expropriating authority must unconditionally submit the true value of the property to the owner prior to filing suit, or perhaps may offer the true value and, if refused, deposit that amount into the registry of court at the time of filing. In any event the authority must show that the owner was afforded an opportunity to accept an amount, which the authority has reasonably determined to be the true value, without prejudice to the owner’s right to seek additional compensation. Louisiana Power & Light Co. v. Ponder, 127 So.2d 1 (La.App. 1st Cir. 1961), cert. den., State of La. through Dept. of Highways v. Rownd, 119 So.2d 282 (La.App.Orl.1960), cert. den.

In the present case the record does not establish that South Central made an unconditional tender of the amount which was subsequently determined judicially as the true value. The letter offer, which was refused, only fulfilled R.S. 19:2’s condition for expropriation “(w)here a price cannot be agreed upon with the owner . . . .” Under these circumstances the trial court’s assessment of costs was correct.

The judgment is affirmed.

AFFIRMED.

GULOTTA, J., concurs and assigns reasons.

GULOTTA, Judge,

concurring.

I concur with the result but do not subscribe to the majority’s reasons for denial of South Central’s claim for assessment of court costs against the landowner. The majority concludes that no “unconditional tender” was made of the amount which was subsequently determined judicially as the true value.

I am persuaded, as is the majority, towards the conclusion assessing costs against South Central Bell; but, for a different reason.

It is true, as pointed out by the telephone company, that the amount awarded is the same as that offered; however, the offer was made in payment for full ownership of the parcel to be expropriated. The trial judge granted a servitude only to the telephone company. Ownership is retained by the landowner. The trial judge awarded less than that sought by plaintiff for the same amount offered. Under the circumstances, the expropriating authority bears the responsibility for payment of costs.

      . In the Rownd case the authority did deposit the true value into the registry of court, but was unsuccessful in imposing costs on the owner because of failure to make an offer prior to filing suit.
      Inasmuch as legal costs in expropriation proceedings come within the constitutional guarantee of just and adequate compensation, any statute charging costs to the owner must be strictly construed.

      . See Humble Pipe Line Company v. Wm. T. Burton Industries, Inc., 253 La. 166, 217 So.2d 188 (1968) for recognition of servitude apart from ownership in expropriation cases.


source: Caselaw Access Project

author: BEER, Judge. REDMANN, Judge,

license: Public Domain

text:
    CHIN SEE FUN v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al.
    No. 7834.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Refused June 3, 1977.

      Curet & Curet, Douglas T. Curet, LeRoy R. Curet, New Orleans, for plaintiff-appellant.
    Bruce J. Borrello, Stephen L. Huber, Robert A. Katz, George J. Richaud, A. Miles Pratt, III, Metairie, for defendants-appel-lees.
    Before SAMUEL, REDMANN and BEER, JJ.
   BEER, Judge.

Appellant, Chin See Fun, brought suit against Louisville and Nashville Railroad Company (hereafter “L&N”), John Doe and XYZ Insurance Company on March 7, 1975, for damages allegedly resulting from an accident on March 7, 1974, caused, in part, by an improperly parked trailer owned by L&N. Plaintiff alleged that the negligence of John Doe (an unknown motorist), as well as negligence on the part of L&N in parking the trailer, were causes of the accident. On July 15,1975, he amended his petition to add, as defendants, Republic Freight System, Inc. (now known as Yellow Freight System, Inc. but hereinafter, for our purposes, “Republic”) and its insurer Liberty Mutual Insurance Company (hereafter “Liberty”), Consolidated Express, Inc. (hereafter “Consolidated”) and his liability insurer All State Insurance Company (hereafter “All State”). He contends that the parked trailer “was being used” by Republic who employed Consolidated as its delivery agent. Republic and Liberty, its insurer, filed a peremptory exception of prescription on September 3, 1975, contending that there was no relationship between Republic and L&N supportive of a finding of solidary obligation such that prescription could have been interrupted by the timely filed suit against L&N.

Judgment was rendered maintaining the peremptory exception of prescription and dismissing plaintiffs suit as to Liberty and Republic. Chin See Fun has devolutively appealed, urging that the trial court erred in maintaining the peremptory exception of prescription and that the trial court “. exceeded the purview and intent of the trial on said exception of prescription, by allowing the issue of ‘joint liability’ to be decided.”

In response, Republic and Liberty submit that evidence is admissible at a hearing on an exception of prescription and that the ruling was proper in all respects.

The trial court may hear a peremptory exception of prescription in advance of trial and, at such a hearing, evidence may be taken. LSA-C.C.P. Arts. 929 to 931; Hollingsworth v. General Accident & Life Ins. Corp., Ltd., 297 So.2d 446 (La.App. 3rd Cir., 1974); Calzavara v. Biehl & Co., 181 So.2d 809 (La.App. 4th Cir., 1966).

Thus, the trial judge acted within his discretion in admitting and considering evidence bearing ultimately on the relationship (or lack thereof) between L&N and Republic since, in this case, the exception of prescription necessarily hinged upon the determination of solidary liability. At that hearing, the trial judge was obliged to consider evidence which may be said to touch on the merits of the case, yet such evidence was indispensable with regard to his ability to effectively and fairly decide the question of solidarity. In administering this flow of evidence, the trial judge should exercise discretion and consider only that evidence necessary to resolve the prescriptive issue. We have no reason to believe that this was not done. The only evidence admitted at the hearing on the exception was the testimony of Clifford E. Cooney, Jr., district manager of Republic. That testimony supports the factual conclusion reached by the trial judge.

We find no reason to intrude upon the trial court’s preserve as an original fact finder whether that function is exercised in a trial on the merits or in a hearing on an exception as long as the record supports the conclusion and the trial court has not manifestly erred. This remains the rule when the trial court has reached a similar conclusion with respect to a “Joe Doe” defendant. If, upon consideration of the pleadings and the evidence, the trial court concludes that the record does not support application of the rule announced in Commercial Union Ins. Co. v. Bringol, 262 So.2d 532 (La.App. 4th Cir., 1972), we will not interfere absent a showing of manifest error in reaching the factual conclusions which are supportive of the ruling.

The test announced by the Supreme Court in Majesty v. Comet, 296 So.2d 271 (La., 1974), was, we believe, properly applied by the trial court whose ultimate conclusions — based upon that proper application — are supported by the record.

This case is, we believe, distinguishable from Pearson v. Hartford Accident & Indemnity Company, 281 So.2d 724 (La.Sup.Ct., 1973), in view of the fact that the factual issues regarding the prescriptive contention were squarely met and ultimately resolved by the trial court. The record contains a transcript of the testimony of the witness whose factual descriptions form the basis for the trial court’s judgment. Granted the premise that the party pleading prescription has the burden of proving same, we observe that, in the opinion of the trial court, such burden was carried.

We find no manifest error in such a conclusion on the part of the trial court and, accordingly, affirm its judgment at appellant’s cost.

AFFIRMED.

REDMANN, Judge,

dissenting.

When an alleged co-tortfeasor is added as a defendant to an existing suit against another alleged tortfeasor, at a time when prescription has accrued unless interrupted by the suit against the other alleged tort-feasor, may the added alleged co-tortfeasor obtain discharge on a plea of prescription, by introducing evidence that the first-sued alleged tortfeasor was not a tortfeasor (especially when that alleged tortfeasor’s motion for summary judgment of dismissal is refused)?

The question is whether the merits of the first demand can be tried on the exception to the second, although only insofar as the exception is concerned. Had the trial judge treated the trial as one on the merits for the first demand and dismissed the first defendant on the merits (or on the motion for summary judgment), then a ruling that the second demand was prescribed would have been correct.

But we cannot rule on the merits of the first demand: there has been no appealable judgment as to it. We must therefore recognize that the original demand against an alleged co-tortfeasor remains alive. Filing that demand interrupted prescription as to all co-tortfeasors. Unable to reject that demand (and therefore its prescription-interruption), we should reverse.

      . Cooney’s testimony described the relationship (or, more specifically, the lack thereof) between Republic and L&N.


author: GULOTTA, Judge.

text:
    John M. LOB v. HERITAGE INSURANCE COMPANY OF AMERICA.
    No. 7880.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied April 13, 1977.
    Writ Refused June 8, 1977.
    Andry & Andry, Edwin R. Pillault, Jr., New Orleans, for plaintiff-appellant.
    Frank J. Varela, Henry W. Kinney, III, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   GULOTTA, Judge.

Plaintiff appeals from an adverse summary judgment. We affirm.

John Lob, a resident of Florida, was en route to Louisiana when his automobile became disabled in Mississippi. Borrowing a friend’s vehicle, he continued traveling to Louisiana but became involved in an automobile accident and sustained injuries. Pri- or to the accident, Lob had obtained, in Florida, an insurance policy containing a “personal injury protection” clause referred to as the “no fault” provision, permitted under Florida law. This suit resulted from the insurer’s failure to make any payment under the policy provisions despite plaintiff’s submission of proof of medical expenses and loss of wages in excess of $5,000.00, the policy limit.

In essence, the Florida “no fault” insurance statute requires automobile owners to purchase medical and income loss insurance payable to persons injured as the result of an automobile accident, irrespective of proof of fault. The Florida statute (Insurance Code) further provides, in Title 35, Section 627.736(4)(d), as follows:

“The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
(1) Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a motor vehicle or motorcycle if the injury is caused by physical contact with a motor vehicle.
(2) Accidental bodily injury sustained outside this state but within the United States of America, its territories or possessions, or Canada by the owner while occupying the owner's motor vehicle. . .” (Emphasis ours)

Pursuant to the Florida statute, defendant issued an insurance policy providing coverage for damages sustained by the named insured in an automobile accident. The particular policy provision under which plaintiff asserts his claim is the “personal injury protection” clause. With respect to personal injury protection (“C” in footnote), coverage

“. . . applies only to accidents which occur during the policy period.
(a) in the State of Florida, and
(b) as respects the named insured or a relative, while occupying the insured motor vehicle outside the State of Florida but within the United States of America, its territories or possessions or Canada . . ..” (emphasis ours)

Based on plaintiff’s allegations that the accident occurred in the State of Mississippi while the named insured was driving a “borrowed” or “substitute” vehicle, the trial judge maintained defendant’s motion for summary judgment and dismissed plaintiff’s suit.

We reject plaintiff’s contention, on appeal, that his countervailing affidavit, filed in answer to the motion for summary judgment, establishes his (Lob’s) right to a summary judgment or alternatively establishes genuine issues of material fact which prohibit disposition of the matter by summary judgment. See LSA-C.C.P. art. 966. In his affidavit, plaintiff merely avers that he sustained injury while driving a borrowed vehicle in Mississippi and that he has submitted proof of loss under the “no fault” provision of the policy. No factual dispute is raised; the only issue is the interpretation of the insurance contract, i.e., whether the “no fault” provision applies to the undisputed facts. Accepting all of the statements made by Lob in the affidavit and the allegations contained in the petition as true, the allegations do not disclose a basis for recovery under the language of the insurance policy. Quite to the contrary, the allegations of the petition and the statements made in the affidavit negate coverage.

We reject also plaintiff’s contention that personal injury protection (“no fault”), under this policy, applies to the named insured whether or not he was driving his own automobile ot a “temporary substitute automobile”. It is true that the policy provides coverage for bodily injury liability, property damage liability, medical payments and uninsured motorist protection (see footnote 1. for “A”, “B”, “D” and “E” coverages) when damages occur in the named insured’s automobile or a “temporary substitute automobile”. However, noticeably omitted is coverage under the personal injury protection coverage provision (Coverage “C”) upon which plaintiff bases his claim. Moreover, under the definitions section of the policy with respect to “Coverage C”, an “insured motor vehicle” is defined as a “motor vehicle of which the named insured is the owner ..” This omission, when read with the other pertinent provisions from the definitions contained in the policy, supports the trial judge’s conclusion that the personal injury protection provision of the policy (“no fault”) is applicable only to injuries sustained in an automobile owned by the named insured when the accident occurs outside of the State of Florida. Accordingly, we conclude the trial judge properly maintained defendant’s motion for summary judgment.

In defendant’s answer to the appeal, Heritage Insurance Company reurges its exception, filed in the trial court, of lack of jurisdiction over the subject matter. While acknowledging personal jurisdiction, defendant asserts lack of jurisdiction over the subject matter on the ground that plaintiff has no right of action under the “direct action” statute to file suit in Louisiana when an accident occurred outside of the State of Louisiana and the insurance contract was written in a foreign state. See LSA-R.S. 22:655; Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (1967); Morse v. Hartford Casualty Insurance Company, 301 So.2d 741 (La.App.3d Cir.1974); Grinnell v. Garrett, 295 So.2d 496 (La.App.3d Cir.1974).

Because we have affirmed the judgment of the trial court dismissing plaintiff’s petition by summary judgment, no necessity exists to consider the exception of lack of jurisdiction over the subject matter. Accordingly, the judgment is affirmed.

AFFIRMED.

      , The policy includes coverage under:
      A — Bodily Injury Liability . . ..
      B — Property Damage Liability . . ..
      C — Personal Injury Protection . . ..
      D — Automobile Medical Payments . . ..
      E — Uninsured Motorists . . ..

      . In the “Definitions” section of the policy, “With Respect to Coverages A, B, D . . . ”, “automobile” is defined as:
      “(3) Temporary Substitute Automobile — under coverages A, B and division 1 of coverage D, an automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”
      “With Respect to Coverage E”, an “insured automobile” is defined as:
      “an automobile . . .
      (2) while temporarily used as a substitute for an insured automobile as described in sub-paragraph (1) above when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;”
      The definitions “With Respect to Coverage C” do not mention “substitute” or “borrowed” vehicles.


author: SCHOTT, Judge.

text:
    ESTATE of Martin SCHWEGMANN v. Edmond SCHWEGMANN.
    No. 7886.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied April 13, 1977.

      Louis C. Philips, New Orleans, for plaintiff-appellant.
    Donelon, Cannella & Donelon, James J. Donelon, Metairie, for defendant-appellee.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

This case is before us after a trial on remand pursuant to the judgment of the Supreme Court in Estate of Schwegmann v. Schwegmann, 298 So.2d 795 (1974). The trial judge found that Lot E8C had a value of $28,772 as of April 12, 1966, when it was sold by decedent to his son, Edmond Schwegmann, for $6,500 and then concluded that Edmond Schwegmann must collate the difference to the succession. The judgment provided “It is ordered that Edmond collate the sum of $22,272 to the estate of his father, Martin Schwegmann, with further succession proceedings to reflect this collation.” Only the administrators of the succession have appealed from this judgment. Edmond Schwegmann did not perfect an appeal or answer the appeal of the administrators.

It is appellants’ contention that they are entitled to have the property returned to the succession in kind. They contend that the lot sold to appellee was the frontage of property which remains in the succession, and the value of the remainder was reduced by the sale of the lot in question by considerably more than the value of the lot itself. They rely on LSA-C.C. Art. 1229:

“The obligation of collating is founded on the equality which must be naturally observed between children and other lawful descendants, who divide among them the succession of their father, mother and other ascendants; and also on the presumption that what was given or bequeathed to children by their ascendants was so disposed of in advance of what they might one day expect from their succession.”

While it is arguable that this article with its general ideal of promoting equality should under the peculiar circumstances of this case require a return of the property in kind the articles of the Civil Code which follow this article specifically provide otherwise. In discussing how collations are made it is said that they are made in kind or by taking less, C.C. Art. 1251. A distinction is made as to movables or immovables, C.C. Art. 1254, and if an immovable has been given the donee has a choice to collate in kind or take less, C.C. Art. 1255. Thus, if this property is subject to collation appellants do not have the right to demand collation in kind since the choice rests solely with appellee.

The evidence adduced at the trial on remand established that the price was less than one-fourth the value of the property at the time of the sale in 1966, so that it was a donation in disguise pursuant to C.C. Art. 2444. Under these circumstances the property is subject to be collated. Schwegmann v. Schwegmann, supra, and Milano v. Milano, 243 So.2d 876 (La.App. 1st Cir. 1971).

However, under the Supreme Court judgment and the law, we believe the trial court erred in ordering that appellee collate the difference between the value of the property at the time of the sale and the amount paid by him in 1966. The judgment of the Supreme Court provided:

“It is therefore appropriate to remand this case to the district court to take evidence on the question of the value of this parcel of land on April 12, 1966, to determine whether plaintiff is entitled to collation.”

Pursuant to this mandate the trial court correctly established the value of the property in April, 1966, but this led only to a conclusion that appellants were entitled to collation or, stated otherwise, that the property was subject to be collated. As to the amount to be collated, this is governed by LSA-C.C. Art. 1269, which provides as follows:

“When the donee has elected to collate the immovable property given him by taking less on the part which comes to him from the succession, the collation must be made according to the value which the immovable property had at the opening of the succession, a deduction being made for the expense incurred thereon, in conformity with what has been heretofore prescribed.” (Emphasis supplied)

Thus, if appellee elected to collate, the amount would be based upon the property’s value on April 22, 1970, when the succession was opened.

Art. 1269 speaks of the time when the donee “has elected to collate the immovable property.” It must be read in conjunction with C.C. Art. 1237, which provides the donee with another alternative to that election as follows:

“If children, or other lawful descendants holding property or legacies subject to be collated, should renounce the succession of the ascendant, from whom they have received such property, they may retain the gift, or claim the legacy to them made, without being subject to any collation.
“If, however, the remaining amount of the inheritance should not be sufficient for the legitimate portion of the other children, including in the succession of the deceased the property which the person renouncing would have collated, had he become heir, he shall then be obliged to collate up to the sum necessary to complete such legitimate portion.”

Thus, when faced with a judgment of the trial court properly limited to a finding that this property was “subject to be collated” appellee could renounce the succession. Following a renunciation he may retain the property subject to the rights conferred on appellants to seek a reduction in the event that the legitime was impinged upon, pursuant to the second paragraph of Art. 1237.

When he filed his brief in this court on July 26, 1976, (judgment appealed from having been signed on January 27, 1976, and the appeal lodged in this court on May 25) appellee made the following argument:

“Throughout this entire proceeding Edmond Schwegmann, Defendant-Appellee, has taken the position that the transaction in question is a valid act of sale, not subject to the laws of Collation. However the Trial Court has determined that in fact the transaction is subject to Collation. Therefore, Edmond Schwegmann, Defendant-Appellee, at this time has decided to exercise his right to renounce the Succession of his parents, and thereby not be subject to the laws of collation, under the provisions of Louisiana Revised Civil Code of 1870, Article 1237.” (Emphasis supplied)

Appellee subsequently filed a certified copy of an act of renunciation of his parents’ succession dated July 23, 1976.

Appellants argue that this act of renunciation is outside of the record and should not be considered on appeal. However, since we have considered the judgment of the trial court to be nothing more than an adjudication that this property is subject to be collated with a corresponding election available to appellee to either collate under Art. 1269 or renounce under Art. 1237, we see no basis for ignoring the alleged renunciation. Appellants, in their brief and argument, have alleged that this attempted renunciation is ineffective because appellee has tacitly accepted the succession. It is therefore appropriate to remand the case to have the issue of the validity of the renunciation decided by the trial court.

Accordingly, the judgment appealed from is reversed and set aside, except to the extent that there is judgment in favor of Succession of Martin Schwegmann and against Edmond Schwegmann to the effect that Lot E8D is “subject to be collated” by Edmond Schwegmann to the Succession of Martin Schwegmann.

It is further ordered that this case be remanded to the District Court for further proceedings consistent with this opinion in order that LSA-C.C. Arts. 1237 and 1269 might be implemented.

All costs of this appeal are to be borne by the succession.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.


author: BEER, Judge. SAMUEL Judge, REDMANN, Judge,

text:
    HIBERNIA NATIONAL BANK IN NEW ORLEANS v. Mable LEE. Mable LEE v. HIBERNIA NATIONAL BANK IN NEW ORLEANS.
    Nos. 7935, 7936.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 23, 1977.
    Rehearings Denied April 13, 1977.

      Fabacher & Murov, Mark G. Murov, New Orleans, for defendant-appellant.
    Favret, Favret & Demarest, Thomas J. Lutkewitte, New Orleans, for plaintiff-ap-pellee.
    Before SAMUEL, REDMANN and BEER, JJ.
   BEER, Judge.

Appellant, Mable Lee, purchased an automobile on November 25, 1974, and, in connection therewith, executed a promissory note for $3,308.10, payable to “Bearer at the main office of Hibernia National Bank” (hereafter, “Hibernia”). She made several payments to Hibernia by checks drawn on her checking account at Bank of Louisiana, and, then, on August 30, 1975, opened a checking account with Hibernia, signing, at that time, a signature card which contained the proviso that:

“2. Bank shall have right to charge against Account any liabilities whatsoever of any Depositor to Bank . . .”

She made some further payments to Hibernia from her Hibernia checking account but then missed the payments due in September and October, 1975. However, she made a payment “in the range of $40.00” on or about October 31, 1975, for the privilege of deferring the two past due payments until November. No payments were made in November or December of 1975. Lee contends that she sought to make a payment on her loan account on January 2, 1976, at the Mid City office of Hibernia, but Miss Ann Marie Lodato, a drive-up window teller at that branch, testified that, on January 2, Lee presented two checks (one for $110.27 and a payroll check for $200.47) totaling $310.74, and a deposit slip for $175.00. Lo-dato treated this as a “cash transaction,” and paid Lee $135.74 in cash, and a credit to her checking account for $175.00. Thus, the bank had no record of a January, 1976 loan payment (none having been made as far as their records were concerned), and the transaction showing on their records only as a cash transaction and checking account deposit.

Having received no loan payments, the bank warned Lee on January 20, 1976, and, again, at the end of January, that she was delinquent. Apparently these efforts on the part of the bank caused Lee to forward a check dated January 30, 1976, in the amount of $220.54, which appears to have been cashed on February 4, 1976. If this payment was attributed to the past due payments for September and October, it, nevertheless, left unpaid the installments due in November and December of 1975 and January of 1976. Thus, on February 27, 1976, Hibernia “froze” a balance of $686.08 in Lee’s checking account, having already (February 5, 1976) instituted suit on the note and seizure of the automobile.

Lee filed suit against Hibernia on March 6, 1976, seeking damages for wrongful seizure and wrongful dishonor of her checks (which resulted from the freezing) and also sought injunctive relief. Her claims against Hibernia were consolidated for trial with Hibernia’s hypothecary action via executiva. All of Lee’s claims were dismissed by the trial court, but she devolu-tively appeals the rejection of her demand for damages arising from the allegedly improper freezing of her checking account. Thus, the issue here is whether Lee has waived her LSA-C.C. Art. 2210(2) rights as well as her constitutional procedural due process rights to “hearing” and “notice” by the signing of the signature card containing the waiver proviso. We answer this affirmatively under the particular facts of this case.

The signature card refers on its face to the written terms on its reverse, and Lee admits to having signed it. The terms, germane to this case, are clear, unambiguous and unequivocal. Lee is presumed to understand these terms and is bound by the waiver she effectuated. Lama v. Manale, 218 La. 511, 50 So.2d 15, 23 A.L.R.2d 1312 (1950); Consumer Money Order Corp. of America v. Kfati, 320 So.2d 251 (La.App.4th Cir., 1975).

Hibernia’s action of offset or compensation does not amount .to “state action” but, rather, is private action, and thus is not subject to the procedural due process requirements of the Fourteenth Amendment. See “Post-Sniadach Status of Banker’s Right To Set Off Bank’s Claim Against Depositor’s Funds,” 65 A.L.R.3d 1284, which cites Fletcher v. Rhode Island Hospital Trust Nat. Bank, (1974, C.A. 1, R.I.) 496 F.2d 927, cert. den. 419 U.S. 1001, 95 S.Ct. 320, 42 L.Ed.2d 277. Also note Nietzel v. Farmers & Merchants State Bank of Breckenridge, Minn., 238 N.W.2d 437.

When Lee signed the obverse side of the Hibernia Bank signature card on August 20, 1975, she knew that monthly installment payments were already being made by her on a monthly basis to Hibernia covering her automobile loan. That signature card specifically referred on its obverse side to an agreement on the part of the signatory (herself) to be bound by the terms on its reverse side. Those terms set up the bank’s right to proceed, without prior notice, as it did here.

Charged with this knowledge, Lee continued to maintain her checking account at the bank. She cannot now be heard to say that her lack of inquiry and/or understanding of her agreement with the bank obviates its effectiveness. Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed at appellant’s cost.

AFFIRMED.

SAMUEL Judge,

concurring.

I write this concurrence for the purpose of hopefully clearing up what appears to be differing factual conclusions between the writers of the majority and dissenting opinions.

The crucial issue is whether Mable Lee paid a monthly installment on the note in suit by means of her January 2, 1976 check. If that installment was so paid, in which event there would be no delinquent indebtedness due the bank, her checking account should not have been “frozen”, the foreclosure was improper, and the trial court judgment should be reversed. If that installment was not so paid, and there is no contention that it was paid in any other manner, she was delinquent in making the installment payments called for by the note, under the provisions of the note and the checking account signature card the bank was within its rights to foreclose and to “freeze” the checking account, and the judgment appealed from should be affirmed.

The January 2 check is payable to “Hibernia Bank” in the amount of $110.27 (the amount of an installment payment), contains Miss Lee’s loan account number on a line in the lower left corner, and is stamped “CASHED” by the bank. The transaction involving the check took place at a drive-up window of one of the bank’s branches. It included two checks, the January 2 check in question and a payroll check for $200.47, and a deposit slip for $175. Although a payment coupon is customarily included when an installment payment is made in this fashion, no such coupon was presented by Miss Lee. Only two witnesses testified as to the factual details, Miss Lee and the bank teller who handled the transaction, and their testimony is conflicting.

Miss Lee testified she received about $40 in cash as a result of the transaction, an amount which indicated to her the installment payment had been made. On the other hand, the bank teller testified as follows: She had not noticed the account number in the lower left corner of the check because such lines are usually used for the drawer’s convenience and future information (such as groceries, laundry, etc.) and because of the absence of the usual coupon. Accordingly, she treated the check as a cash item, totaled the two checks ($310.74), credited Miss Lee’s account with a deposit of $175, subtracted $175 from the $310.74, and paid Miss Lee $135.74. She also testified that after the usual rechecking by herself and, later, other employees at the downtown bank her accounts showed she was short $3.44 for the day. A tape from her teller machine was offered in evidence and that tape substantiates her testimony. Thus, the teller’s testimony is that Miss Lee received in cash the full amount of her January 2 check for $110.27.

I am satisfied the trial judge accepted the testimony of the bank teller and rejected the testimony of Miss Lee. As there is ample evidence to support this finding, we must accept his conclusion.

Accordingly, I respectfully concur.

REDMANN, Judge,

dissenting.

Imagine paying your bank a loan installment with a $110.27 check payable to its order and annotated “Consumer Credit” and “For # 11-016596” (the bank’s number on your note), and thereafter being told by the bank that you did not pay that loan: that you cashed that check!

Imagine sending another check for $220.54 for two installments and being told that it was not received until February 5 despite the bank’s own date stamp of February 4. (Forget your assertion that you left the check in the bank’s night depository on Friday, January 30.) Imagine the bank then instituting mortgage foreclosure proceedings on February 5, when you have paid all installments of the loan then due (although you were warned to bring the loan current by January 31, including paying again the installment the bank said you cashed).

Finally, imagine that on February 27, after having seized your mortgaged automobile in the foreclosure, the bank also blocks your checking account balance of $686.08, claiming to act under some fine-print right to charge your liabilities against the account — a right the bank did not exercise in order to keep your loan current.

Those are the facts of this case.

On January 2, 1976, defendant presented to plaintiff Hibernia her check for $110.27 —the exact amount of her loan installment — payable to the order of “Hibernia Bank”, “Por # 11-016596” “Consumer Credit”. Hibernia, however, did not treat this check as payment of an installment on Loan No. 11-016596 in its consumer credit department, because, in addition to stamping the bank’s indorsement on the reverse side of the check, Hibernia’s teller stamped it “cashed” and made an entry on her accounting machine describing it as a check she had cashed (as if it were payable to cash or to bearer).

That check was not payable to bearer in fact or in law. In fact, it was payable to Hibernia. In law, it was not bearer paper because its designation of “Hibernia Bank” as order-payee is not one of the designations of payee that make the check payable to bearer under La.R.S. 10:3-111 [U.C.C. 3-111]. The former La.R.S. 7:9(3) [unlike N.I.L. § 9(3)] made bearer paper of an instrument “payable to the order of a . living person not intended to have any interest in it, and such fact was known to the person making it so payable . . ..” Under that now-repealed law, it was not unheard of that a drawee bank should accept for encashment checks on which it was itself the payee (although the only example this author has heard of is Fidelity & Cas. Co. of N. Y. v. United States F. & G. Co., La.App. 2 Cir. 1955, 81 So.2d 576, writ refused). Today, however, plaintiff Hibernia cannot claim that checks drawn on itself and payable to itself are payable to bearer because present law, R.S. 10:3-111, does not admit such a classification of such an instrument.

If a bank can assert that it “cashed” checks payable to itself, then so can every other creditor whom the debtor claims to have “paid” by check. “Your cancelled check is your receipt” must, in the future, be ridiculed rather than preached as it is by so many businessmen today. No payment by check will assure anything; the debtor who pays by check can still face a swearing contest with a dishonest or mistaken creditor or creditor’s employee. (Our creditor’s teller’s own accounting-machine convicts her of being mistaken —although in a net amount only, and in an amount other than $110.27.) Public policy demands that a bank itself abide banking law as its depositors must when that law’s harsh technicality protects the bank against liability even for charging forgeries to a depositor, as did our plaintiff Hibernia in Victory Elec. Wks. Inc. v. Maryland Cas. Co., La.App. 4 Cir. 1970, 230 So.2d 287, writ refused 255 La. 814, 233 So. 251.

Far worse, far more insufferable — indeed reprehensible — is plaintiff Hibernia’s behavior after January. Hibernia claims, under the fine-printed agreement on its signature cards, the “right to charge against Account any liabilities whatsoever of any Depositor to Bank.” Yet Hibernia did not charge defendant’s account with the three installments totalling $330.81 which it deemed due at the end of January (including the installment that should be counted paid by the January 2 check of $110.27 payable to Hibernia which it claims to have cashed). Nor, after defendant’s admitted February 5 (or 4) payment of $220.54, did Hibernia charge the one $110.27 installment which it (insupportably) counted still due.

No. Hibernia elected to forego such simple measures, and instead elected on February 5 to foreclose its chattel mortgage. And that election may, indeed, have been its privilege, not subject to valid criticism (pretermitting that defendant had paid every installment that was then due!).

But then, to cap the car-foreclosure climax, Hibernia on February 27 “froze” defendant’s checking account and its $686.08 balance, and thereafter dishonored defendant’s checks! Thus Hibernia first bypassed its alleged authority to charge against defendant’s account when to do so would have saved defendant from foreclosure, but then Hibernia, after beginning foreclosure, still not charging its claim against defendant’s account, somehow supposed itself entitled to abuse its depositor by “freezing” her account and dishonoring her checks — all without any notice to defendant, and with full knowledge of the dispute between defendant and itself over the check payable to itself as a loan installment which it asserted it cashed.

This blocking of defendant’s checking account is impermissible as a matter of simple civil law.

The civil law is that one obtains a pledge by bargaining for it — by contract, C.C. 3133. Hibernia had no pledge. It had a right to charge, which it could have exercised when it had a fixed dollar amount to levy ($110.27, $220.54 or even $330.81). However, after Hibernia elected to foreclose on its mortgage and thereby deprive defendant of her automobile, it had no right to pledge to itself its depositor’s checking account balance, as a security for any deficiency of debt over foreclosure proceeds. Hibernia had no authority under civil law to “freeze” defendant’s account: to the contrary, Hibernia’s obligation was that of every bank, namely to pay its depositor’s funds to its depositor’s order. Hibernia breached its obligation.

We should order injunction to issue, on bond fixed by the trial judge, prohibiting Hibernia from blocking defendant Lee’s checking account; and we should remand for trial of Lee’s demand for damages in ordinary course.

      . See Canter v. Koehring, La., 283 So.2d 716.

      . Hibernia’s counsel stipulated (T-7) that the October 31, 1975 $40 payment “was paid for the privilege of deferring two installments to the rear of the contract” — “in other words, the terms of the loan were extended by two months.” Thus in January 1976 the only installments due were those for November, December and January.

      . An instrument is payable to bearer when by its terms it is payable to
      (a) bearer or the order of bearer; or
      (b) a specified person or bearer; or (c)“cash” or the order of “cash” or any other indication which does not purport to designate a specific payee.

      . Hibernia’s hindsight position that compensation under C.C. 2207 took place and extinguished defendant’s checking account balance is self-contradictory and self-defeating. If compensation occurs between a bank’s claim for its loan and its loan customer’s checking or savings account, then compensation would have occurred when each installment became due and therefore the loan could not have been overdue.

      . The law’s prohibition against compensation in case of “a demand of restitution of a deposit C.C. 2210, is not applicable. A bank account is not a deposit within C.C. 2926’s definition because the bank receiving a depositor’s cash or check “deposit” does not bind itself “to preserve it and return it in kind.” The bank’s liability is simple debt; see Matthews, Finley & Co. v. Their Creditors, 1855, 10 La.Ann. 342. Moreover, Hibernia never charged a compensation or set-off against defendant’s account, but merely “froze” it.


author: CULPEPPER, Judge.

text:
    HANCOCK BANK, Defendant and Appellee, v. R. W. ALEXANDER et al., Defendants and Plaintiff in Reconvention, Appellants.
    No. 5783.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Daniel J. McGee, Mamou, for defendants and plaintiffs in reconvention, appellants.
    Donald Soileau, Mamou, for defendant-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   CULPEPPER, Judge.

This is an appeal from a judgment awarding damages and attorney’s fees to plaintiff in reconvention, W. Ray Alexander, for the wrongful seizure of his automobile by defendant in reconvention, Hancock Bank. Alexander seeks an increase in both the damages and attorney’s fees and an award of legal interest on his judgment.

The substantial issues are: (1) Did the trial court abuse its discretion in awarding damages of $250 and attorney’s fees of $1,500? (2) Should the judgment of the trial court be amended to add an award of legal interest as prayed for in Alexander’s reconventional demand? (3) Did the trial court err in overruling Hancock Bank’s dec-linatory exception that the court has no jurisdiction over its person?

The history of this litigation is shown by the decision of this Court at 227 So.2d 183 (1969) and the decision of our Supreme Court at 256 La. 643, 237 So.2d 669 (1970).

The Supreme Court remanded the case to the district court for a determination of the amount of damages and attorney’s fees due to Alexander for the wrongful sequestration of his automobile.

DAMAGES AND ATTORNEY’S FEES

The evidence as to damages shows that Mr. Alexander went to Vietnam in October of 1967. When he left the country, the 1965 Cadillac automobile belonging to the community remained in the possession of his wife. Upon returning to Louisiana in July of 1968, Mr. Alexander made no effort to locate either his wife or the automobile, apparently being content to allow his estranged wife to use the automobile.

The unlawful seizure of the Cadillac by the mortgagee Hancock Bank occurred on July 25, 1968, about one month after Mr. Alexander’s return. At the time of the seizure, the automobile was in the possession of Mrs. Alexander, who was living in Ville Platte. Mr. Alexander lived in Iowa, Louisiana at that time. He was not using the car when it was seized, nor did he see the seizure. He acquired his first knowledge of the seizure when an attorney representing his wife in divorce proceedings sent him a letter concerning it. Thereafter, the same attorney added Mr. Alexander as a plaintiff in reconvention in a demand against the Bank for wrongful seizure. The reconventional demand against Hancock Bank was originally filed only in the name of Mrs. Alexander.

The trial court is vested with broad discretion in setting the amount of damages and attorney’s fees. In the present case, our review of the record discloses no abuse of discretion in this regard.

As stated above, the evidence shows that Mr. Alexander did not have possession of the automobile when it was seized. He did not know where the car was, nor had he made any effort to locate it. He did not depend on the automobile as a source of transportation. He did not witness the seizure. Mr. Alexander was apparently content to allow his estranged wife to use the automobile as long as she wished. Clearly, Mr. Alexander suffered little if any damage as a result of the seizure. Therefore, the relatively low damage award of $250 for humiliation, embarrassment, loss of use of the automobile, resulting from the wrongful seizure, is reasonable under the circumstances.

The award of $1500 for attorney’s fees does not amount to an abuse of the broad discretion granted trial courts in setting attorney’s fees. Accordingly, we will disturb neither the amount awarded for damages, nor the amount awarded for attorney’s fees.

JURISDICTION

Hancock Bank, a resident and domiciliary of Mississippi, argues that the trial court erred in overruling its declinatory exception of no jurisdiction over its person. The Bank argues that the requisite minimum contacts did not exist between Louisiana and Hancock Bank. There is no merit in this argument.

“Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. . . . ” LSA-C.C.P. Art. 6. Personal jurisdiction may be based on “the submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto.” LSA-C.C.P. Art. 6(3). Hancock Bank made a general appearance and submitted itself to the jurisdiction of Louisiana courts when it filed suit against Mr. Alexander in a Louisiana court. Furthermore, it waived any objection to jurisdiction when it answered Alexander’s reconventional demand for damages for wrongful seizure. LSA-C.C.P. Arts. 6 and 7; Imperial v. Hardy, 302 So.2d 5 (La.1974).

LEGAL INTEREST

Alexander argues that the trial court erred in failing to include in its judgment an award for legal interest. We agree.

Article 1921 of our Code of Civil Procedure provides:

“The court shall award interest in the judgment as prayed for or as provided by law.”
LSA-R.S. 13:4203 states:
“Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’, which may be rendered by any of the courts.”

Alexander prayed for legal interest and is entitled to it. The rate of interest to be applied is 5%, the rate which was in effect on the date of judicial demand. LSA-C.C. Arts. 1938 and 2924; Brouillette v. State of Louisiana, 275 So.2d 196 (La.App. 3rd Cir. 1973) and cases cited therein. Under the express provisions of LSA-C.C.P. Art. 3506, attorney’s fees for dissolution of the writ are “an element of damages.” Therefore, Alexander is entitled to legal interest on his entire damages, including attorney's fees, from date of judicial demand until paid.

For the reasons assigned, the judgment of the district court is amended to include an award of 5% legal interest on the entire award of $1750 from date of judicial demand until paid. In all other respects, the judgment of the district court is affirmed. All costs in both the trial and appellate courts are assessed against Hancock Bank.

AFFIRMED, AS AMENDED.


text:
    Succession of Antoinette Broyard, wife of Mike GABRIEL, Jr. (a/k/a Michael Gabriel, Jr.)
    No. 7623.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearings Denied April 13, 1977.
    Writ Refused June 3, 1977.

      D. A. McGovern, III, New Orleans, for Mike Gabriel, Jr.
    Thomas L. Giraud and Jones, Walker, Waechter, Poitevent, Carriere & Denegre, Ignatz G. Kiefer, Edward M. Heller, New Orleans, for Herbert Gabriel, Testamentary Executor for the Succession of Antoinette Broyard Gabriel.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

Involved in this litigation is a dispute over the proceeds of a sale of immovable property, which was sold pursuant to an option granted jointly by the decedent’s surviving spouse in community and the executor of her succession under court authority. This appeal questions the trial court judgment which ruled that, under the facts of this case, the surviving spouse’s perfect usufruct did not terminate with the sale, but attached as an imperfect usufruct to the proceeds of the sale.

Mrs. Antoinette Gabriel died on April 4, 1969 and was survived by her husband, ten of their children and the children of a predeceased child. The succession assets consisted entirely of community property.

Mrs. Gabriel’s will established a special legacy of the family home and some surrounding acreage to the two children who lived there with their father. The remaining property, which was left by will to the testatrix’ descendants subject to her husband’s usufruct, consisted of the 24-acre tract whose sale is now in dispute, a few other parcels of vacant ground with relatively small value, and various items of movable property, including a relatively small amount of cash.

During the administration of the succession the executor and oldest son, Herbert Gabriel, sold some lots and shares of bank stock and mortgaged part of the 24-acre tract in order to pay the taxes and other debts and charges of the succession. Herbert testified that his 80-year old father, Mike Gabriel, wanted to sell the 24-acre tract to eliminate paying bank interest on the mortgage loan and that they agreed to place the approximately 1,000,000-square foot tract on the market for a price of $1.00 per square foot, with the proceeds of the sale to be divided equally between Mike Gabriel and Mrs. Gabriel’s heirs. Mike Gabriel did not dispute that he agreed to the sale, but did deny that he promised to divide the proceeds.

After a series of negotiations over several years, the above mentioned option was executed. The property was sold on August 24, 1974 for $998,942.07, of which $249,-710.51 was paid in cash, and two notes in the sum of $374,565.78 each were given for the balance of the purchase price. The surviving spouse received half of the cash and one of the notes, and the remainder of the cash and the other note were placed with the succession assets. At the time of the sale the balance on the mortgage loan was approximately $67,000.00.

After the sale the surviving spouse refused to execute a formal renunciation of his usufruct. He ultimately filed a rule demanding delivery of the remainder of the cash and the other note.

After an evidentiary hearing the trial court rendered judgment ordering delivery to the usufructuary of the note and of the net cash proceeds after payment of the debts and charges of the succession. In his reasons for judgment the trial judge concluded that the opponents to the rule had failed to prove an express renunciation of the usufruct and also found that the opponents had hoped for, rather than relied upon, any indication Mike may have given that he would renounce the usufruct. As to the effect of the voluntary sale by agreement between the usufructuary and the naked owners, the trial judge relied on the decision in Succ. of Russell, 208 La. 213, 23 So.2d 50 (1945), which held that a sale of the decedent’s interest in succession property, when necessary to pay succession debts, does not terminate the usufruct as to any residue of the proceeds.

Herbert Gabriel filed separate appeals individually and as executor. We reverse on the basis that the Russell decision is not controlling, because it was not necessary in this case to sell the entire tract in order to pay the succession debts and because both the usufructuary and the naked owners voluntarily participated in the sale of the property in excess of that necessary to pay debts.

Most of the evidence in the voluminous record was directed at the questions of whether Mike Gabriel promised to renounce any claim to a usufruct after the sale and whether certain of the children withheld opposition to the sale (or at least to the sale of the entire property) in reliance on this promise. The evidence is conflicting as to whether or not Mike Gabriel made such a promise. Because of the result we otherwise reach, it is not necessary that we resolve this conflict or that we determine the enforceability of that promise.

The evidence, however, even if insufficient to prove a promise or to prove reliance on that promise, certainly established that (1) the usufructuary and the naked owners voluntarily participated in the sale of the entire tract, (2) the 24-acre tract, consisting of several parcels, could have been sold in part (and therefore either the usufructuary or the naked owners could have opposed the sale of the entire tract), and (3) the parties did not agree that the usufructuary would have a usufruct over the proceeds of the sale. The crucial issue thus framed by these facts is: What was the legal effect of the sale in which the usufructuary and the naked owners voluntarily participated without any agreement as to the continuation of the usufruct or other disposition of the succession’s half of the sale proceeds?

The parties in the present case obviously agreed to sell the property free of the usufruct in order to get a better price. Furthermore, the naked owners could only have forced the usufructuary to sell succession assets in an amount sufficient to pay succession debts. Since all parties voluntarily agreed to the sale of the entire tract, there were three possibilities as to the disposition of the succession’s half of the proceeds: (1) the usufructuary could renounce the usufruct and take none of the proceeds (which would require the express renunciation the trial judge found missing in the evidence); (2) the usufructuary and naked owners could act as co-sellers and divide the proceeds, the usufructuary getting an amount proportionate to the value of the usufruct at the time of the sale; or (3) the usufructuary could continue to enjoy his usufruct over the proceeds.

Prior to the amendment of C.C. art. 616 by Act. No. 103 of 1976, there was no positive law providing for continuation of the usufruct when property subject to the usufruct was sold by voluntary agreement between the usufructuary and the naked owner. Rather, such a sale is viewed as essentially an assignment for consideration made simultaneously by the usufructuary and the naked owner, usually for the purpose of conveying the property free of the usufruct. In the absence of a contrary agreement, the proceeds of a sale in which the usufructuary and naked owners join as co-sellers are apportioned between the usu-fructuary and the naked owner in proportion to the value of their respective interests. Bauman v. George, 154 La. 680, 98 So. 85 (1923). See also comments following C.C. art. 616, as amended in 1976.

We distinguish those cases involving exceptional situations in which the usufructu-ary did not voluntarily participate in the sale. In Succ. of Russell, supra, it was necessary for the executor-usufructuary to sell the succession assets in order to pay succession debts, and thus one could not reasonably say that the usufructuary freely participated in the sale. The court merely held that the fact it became necessary to sell all of the succession property to pay succession debts did not terminate the usu-fruct as to any residue of the proceeds.

In Succ. of Singer, 208 La. 463, 23 So.2d 184 (1945) the executrix-usufructuary also sold some of the succession assets for the purpose of paying debts. In Succ. of Dielmann, 119 La. 101, 43 So. 972 (La.1942) shares of bank stock were converted into money when the bank liquidated its stock, without any voluntary act by the usufruc-tuary, and the court held that the usufruct attached to the proceeds. And in State through Dept. of Highways v. Costello, 158 So.2d 850 (La.App. 4th Cir. 1963) immovable property was expropriated for public purposes, and the court held the usufruct attached to the compensation paid.

The sale in the present case, however, cannot reasonably be construed as anything but a completely voluntary sale in which both the usufructuary and the naked owners freely participated. We conclude the legal consequence of this sale, in the absence of a contrary agreement, is that the usufructuary is entitled to that part of the decedent’s half of the sale price proportionate to the value of his usufruct over the 24-acre tract (after payment of the debts and charges of the succession).

There is no evidence in the record bearing on the value of the usufruct or of the naked ownership. However, R.S. 47:2405 does provide the method for determining the value of a usufruct for the purpose of fixing the inheritance tax due a person inheriting naked ownership of property. In order to achieve final disposition, we apply this method and determine the value of the usufruct and of the naked .ownership.

The usufructuary was 80 years old when he sold his usufruct. According to the tables in R.S. 47:2405, the present value of a life usufruct at that age is 22.5392 cents on each dollar value of the property in perfect ownership. Therefore, the decedent’s one-half of the proceeds of the sale (net cash portion and credit portion) should be apportioned between the usufructuary and the naked owners in the proportion of 22.5392% and 77.4608% respectively as the value of their respective interests.

For these reasons, the judgment of the trial court is amended (1) to order that the executor of the Succession of Antoinette Broyard Gabriel deliver to Mike Gabriel, Jr. 22.5392% of the amount remaining from the succession’s one-half of the cash portion of the sale price of the sale of August 22, 1974 after payment of the proper debts and charges of the succession, and (2) to recognize Michael Gabriel, Jr.’s 22.5392% interest in the promissory note, dated August 22, 1974, in the amount of $374,565.78 and in any payments already made or to be made on the note. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

GULOTTA, J., concurs and assigns reasons.

GULOTTA, Judge,

concurring.

I concur with the result. I cannot conclude that the result reached by the majority is unreasonable. However, I find equally reasonable the persuasive reasons of the trial judge and argument of the surviving spouse that Michael Gabriel, Jr. (the father), did not make an express renunciation of the usufruct. As a matter of fact, he specifically refused to renounce. Further persuasive is the logic behind the argument that when the heirs joined in the sale of the property (which constituted almost the entire succession property), they acquiesced in the conversion from a perfect usufruct to an imperfect one.

Nevertheless, considering all of the circumstances, and particularly the delay (not conducive to the interest of the 82-year-old surviving spouse) which would result were I to reach a different conclusion, I concur with the result reached by the majority.

      . The attorney named in the will handled the succession and testified Mike Gabriel had agreed, from the time the decision was made to sell the 24-acre tract, that the children would receive their share of the proceeds and had confirmed this verbally on several occasions. Another attorney, who represented three of the children, testified he advised his clients not to oppose the sale only after being assured by the succession attorney that Mike had made this promise.
      On the other hand, Mike Gabriel insisted that he never promised to give up his usufruct, although “people” tried to get him to do so. And Mike Gabriel’s attorney testified that as early as April, 1971 Mike had told him he “wasn’t going to divide anything”. Nevertheless, in numerous discussions thereafter neither Mike Gabriel nor his attorney communicated to the succession attorney or to the executor Mike’s unwillingness to give up any claim to a usufruct.

      . The three children, who (in addition to the executor) claimed their consent to the sale of the entire tract was given in reliance on Mike’s promise, did not oppose the rule and did not appeal from the judgment on the rule.

      . Of course, the usufructuary could sell his right, C.C. art. 555, and the naked owner could sell the thing subject to the usufruct, C.C. art. 605, but the sale by the owner made no alteration in the right of the usufructuary, C.C. art. 617. But in logical analysis an offer of separate sale by either the usufructuary or the naked owner, acting alone, would attract only speculators; only an offer of joint sale by agreement between the usufructuary and the naked owner could expect to bring market value.

      . This analysis is supported by the following doctrinal writings:
      “If the usufructuary is a coseller of the thing subject to usufruct, his participation in the sale can not be considered a renunciation of his right, but rather an assignment of the usufruct for consideration, made simultaneously with the sale of the naked title. The usufructuary is then entitled to the portion of the price which represents the value of the usufruct in comparison with the naked ownership; he is not enti-tied to exercise his usufruct on the whole price.” 2 Civil Law Translations — Aubry & Rau, Property § 234, p. 508 (La.St.L.Inst.Trans. 1966)
      “If the usufructuary merely consents to the sale of the things free of his enjoyment, he does not thereby renounce his usufruct. The transaction involves, ordinarily, a simultaneous sale of the naked ownership and of the usufruct to the third purchaser for a single price. Upon completion of the sale, the usufructuary shall have a right to the part of the price corresponding to the value of his enjoyment, unless, of course, he has expressly renounced this right in favor of the naked owner. The usufructuary and the naked owner may agree that the usu-fructuary shall have the enjoyment of the entire price for the period of the usufruct; but, in the absence of agreement, the price of the sale is apportioned between the parties in proportion to the value of their respective interests.” 3 Louisiana Civil Law Treatise — Yiannopoulos, Personal Servitudes § 88, pp. 284-284 (1968).

      . LSA-C.C. art. 624, in pertinent part, provides as follows:

      “In all cases the renunciation of the usufruc-tuary can not be inferred from circumstances; it must be express.”


author:
BOUTALL, Judge.
      GULOTTA, Judge,

text:
    STATE of Louisiana v. Joseph G. MADERE. Joseph G. MADERE v. STATE of Louisiana et al.
    Nos. 7677, 7678.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearings Denied April 13, 1977.
    Writ Granted May 26, 1977.
    Howard P. Elliott, Jr., Baton Rouge, Richard L. Bodet, New Orleans, for State of La. through the Dept, of Public Safety, plaintiff-appellant.
    Daniel E. Becnel, Jr., Reserve, for Joseph G. Madere, plaintiff-appellee.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   BOUTALL, Judge.

Certain officers of the Louisiana State Police obtained a search warrant for the house and garage of Joseph G. Madere and in execution of the warrant seized 62 slot machines and parts belonging to Madere. The articles seized were stored and application was made to the 29th Judicial District Court, Parish of St. John the Baptist, whence the warrant issued, for a declaratory judgment to ascertain whether the machines could be immediately destroyed by the State Police without a court order under the provisions of LSA-R.S. 15:31. The trial court held that there must be a determination whether or not the machines were being used for illegal gambling within a reasonable time of the seizure and found as a fact that the seized property was taken from Madere’s garage where it had been in storage for several years. The State’s motion for declaratory judgment was dismissed. The State has appealed.

We agree with the facts found herein that the machines were not “used for gambling”, and, as a result they are not subject to confiscation and immediate destruction under LSA-R.S. 15:31.

There is no basic dispute here as to the facts. According to Madere, the machines were stored for 10 years or more, were covered with dust and cobwebs, were in many cases inoperable and were not being used. The State concedes that the machines were in storage and not being used for gambling, but asserts some were being repaired by Madere. No criminal charges have been filed against Madere.

The issue here is the application of the law set out in LSA-R.S. 15:31 as amended by Act 130 of 1972, particularly the interpretation of that portion of Subsection A which mandates law enforcement officers to confiscate and immediately destroy “all gambling devices or machines used for gambling”. The State contends that the phrase “used for gambling” modifies only the word “machines”, and reasons that gambling devices are not required to be used for gambling. Madere contends that the phrase “used for gambling” modifies both words “devices or machines” and hence his non-used slot machines are not subject to destruction.

In the interpretation of statutory law we are governed by certain basic rules provided by the legislature itself. Where the language is clear and unambiguous, a statute must be held to mean what it plainly expresses in accordance with its context. The court cannot give its language a different interpretation from that which the words used clearly import. R.S. 1:3, L.C.C.Art. 14. We cannot disregard the letter of a law under the pretext of pursuing its spirit. R.S. 1:4, L.C.C.Art. 13.

An examination of LSA-R.S. 15:31 as presently enacted reveals that the words “machines and devices” are used interchangeably and as synonyms, and that the phrase “used for gambling” modifies both. This is not only the plain interpretation of the statute but is the only one clear and free from ambiguity. The statute clearly provides for three classes of devices or machines and the procedure governing each class. The first is set out in subsections A & B: those devices or machines (slot machine, etc.) described in B are to be immediately destroyed: § A when used for gambling. The second is subsection C: those devices or machines designed primarily for use in connection with gambling, when used in gambling are to be immediately destroyed after conviction of any person for the crime of gambling by their use. The third is subsection D: those devices or machines not designed primarily for use in connection with gambling, when used in gambling are to be immediately destroyed after conviction of any person for the crime of gambling by their use.

In each class, it is the use of the device for gambling which creates its illegal status and causes its subsequent destruction. The separation into three classes is consistent with the nature of the device and the conditions of its destruction. The first class includes by definition those devices which by their construction automatically arrange a pay-off or provide for a return of winnings, and when used for gambling the device itself completes the illegal act. The second and third classes require the activity of some person to complete the illegal act of gambling, but differ in their intended primary use.

To maintain the suggested statutory construction or interpretation proposed by the State not only destroys the consistency and clarity of the statute, but it creates ambiguity and an insoluble dilemma. Subsection A provides for mandatory destruction. It cannot be said to provide this destruction only for gambling devices because the plain wording also provides for immediate destruction of “machines used for gambling”. Yet subsections C and D would prohibit immediate destruction and require criminal conviction. Such a direct conflict places law enforcement officials in the position of having to choose one of two opposite courses of action. Arguably, this conflict is solved by simply reading those words “machines used for gambling” right out of the statute and ignoring them. It is not reasonable to conclude that the legislature intended these words to be meaningless.

Both parties have referred us to the prior statutory and jurisprudential authorities considered pertinent for aid in interpretation of the statute. Appellant relies strongly on .the prior legislative history of R.S. 15:31, and appellee equally as strongly on Gascon v. State, 263 So.2d 81 (La.App. 1st Cir. 1972). Suffice it to say that the change in R.S. 15:31 from its composition under Act 311 of 1966 to its present composition under Act 130 of 1972 was more than a simple deletion of the phrase “and that they may find in operation”. The change was a broad revision of the entire prior law, setting up an entirely new system, which we must consider on its own. The legislative history of a statute is only pertinent where there is ambiguity or uncertainty in the meaning of the present statute. For similar reasons, the case of Gascon v. State is not controlling here. It interpreted a greatly different statute.

In summation, we find LSA-R.S. 15:31 should be interpreted under its clear definition of three classes of machines or devices which are used for gambling as outlined above. The facts in this case show no use for gambling and we hold that these machines or devices are not subject to mandatory immediate destruction.

Based on this finding, and in consideration of the procedural posture of this case, there is no basis to consider the constitutional question of due process. The police in this case did obtain a warrant from the court and did provoke a court hearing.

For the reasons assigned above, the judgment of the trial court is affirmed.

AFFIRMED.

GULOTTA, Judge,

dissenting.

I dissent.

I agree with the State’s contention that a slot machine is a “gambling device” as defined in Section B. of the applicable statute; and, that the State Police are mandated to seize and destroy these machines although not in “use” or “used for gambling” at the time of seizure.

LSA-R.S. 15:31(A) empowers and mandates the State Police to “immediately destroy all gambling devices or machines used for gambling that come to their attention.” LSA-R.S. 15:31(B) defines the term “gambling device" as either a “slot machine” or a machine “with a cash automatic payout device” or “a pinball or other ball machine, mechanical or electronic device” with mechanisms to release and record free games or free plays. No provision for a hearing prior to destruction of the machines is required in these two sections. LSA-R.S. 15:31(C) however, provides that “any other machine, mechanical or electronic device designed and manufactured primarily for use in connection with gambling” can only be destroyed pursuant to a court order “following the conviction of any person for the crime of gambling by use of any such machine or device.” Similarly, LSA-R.S. 15:31(D) provides for post-conviction destruction pursuant to a court order of “any machine or other mechanical or electronic device of any kind whatsoever, not designed and manufactured primarily for use in connection with gambling.”

Reading these sections in pari materia, I conclude that the Legislature contemplated a distinction between “gambling devices” and “machines used for gambling”. The category of “gambling devices” defined in Section B. consists of machines which can only be used for the unlawful purpose of gambling. Slot machines are specifically included in this category. On the other hand, the category of “machines used for gambling” consists of any other machines, not exclusively illegal, that can be used, “primarily” or otherwise, for gambling purposes. The statutory provisions defining and differentiating the two types of devices lead to a conclusion that the Legislature did not intend to provide for a hearing prior to destruction of such devices which can only be used for illegal purposes (in this case, slot machines). I find further manifestation of this Legislative intent in Act 130 of 1972, amending LSA-R.S. 15:31, which provides in its title as follows:

“. . . to define the term ‘gambling device’ and to provide for confiscation and destruction of such devices; to provide for the destruction of machines and devices not primarily designed for gambling after conviction of any person for the crime of gambling by use of such machine or device. . . . ” (emphasis supplied)

The machines seized in the instant case were housed in the owner’s garage and dwelling; and the State admits that the devices were not in actual operation at the time of seizure. Accordingly, the owner argues that the machines were not susceptible to seizure and destruction because the phrase “used for gambling” in the statute modifies the phrase “gambling devices or machines” and, therefore, the statute requires that the devices be actually in use for gambling purposes in order to be destroyed. I disagree. I interpret the phrase “used for gambling” to modify the word “machines” immediately before it and not, as contended by Madere, the phrase “gambling devices or machines”.

In support of his argument that the machines must be in operation at the time of seizure, Madere relies on Gascon v. State, Department of Public Safety, 263 So.2d 81 (La.App. 1st Cir. 1972). The decision in Gascon, however, was based on Act 311 of 1966, as incorporated in LSA-R.S. 15:31, which provided for the seizure and destruction by the State Police of “all gambling devices or machines used for gambling that may come to their attention and that they may find in operation ” (emphasis supplied). The court, in Gascon, concluded that machines covered with cobwebs were not “in operation” as required by the statute as a prerequisite to destruction and could not be seized.

In Act 130 of 1972, however, the Legislature amended LSA-R.S. 15:31 by deleting the phrase “and that they may find in operation” and added the provisions differentiating “gambling devices” from “machines used for gambling”. In view of this statutory change, Gascon is no longer authority in support of Madere’s claim. I conclude that LSA-R.S. 15:31 provides for destruction of the slot machines seized under the circumstances of this case, though they were not in use. Accordingly, under the statute the machines can be summarily destroyed by the police without the necessity of obtaining a court order authorizing destruction.

However, a more serious question is whether the statute violates the due process clauses of the U.S. and State Constitutions because of the failure to provide a hearing prior to destruction of the gambling devices.

In State v. Ricks, 215 La. 602, 41 So.2d 232, 234 (1949), the Louisiana Supreme Court was confronted with a due process attack on the constitutionality of Act 231 of 1928 which authorized and mandated police officers “to confiscate and immediately destroy all gambling devices known as slot machines that may come to their attention, or that they may find in operation”. Act 231 of 1928 contained no provisions for notice or hearing. In upholding the constitutionality of the statute, the court noted that slot machines are “contraband” and, therefore, “proper subjects for summary confiscation and destruction under the police power of the state”. Because contraband is property which is not susceptible to ownership, the court concluded that the possessor of it has no due process rights in it. Citing Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894); Samuels v. McCurdy, 267 U.S. 188, 45 S.Ct. 264, 69 L.Ed. 568 (1925) and Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887), the court reiterated the principle that a state under its police power has the right to summarily destroy nuisances and other things obnoxious to the public good. Applying this doctrine to slot machines, the court said:

* * * Suffice it to say that the legislative intent is clear that gambling devices of that character [slot machines] are outlawed as contraband and their summary confiscation is ordered as an effective means of carrying out the mandate of the Constitution for the suppression of gambling.
“In addition, it is plain that the Legislature, in the exercise of its police power, had the right to declare that gambling slot machines should be confiscated. * *
“And the fact that destruction of the slot machine is ordered without notice or hearing does not render the statute unconstitutional as depriving any claimant thereto of due process — as he cannot have or acquire property rights in the condemned article.”

I subscribe to the holding in Ricks. The subsequent amendments to the statute, including Act 130 of 1972, have not lessened the authority of the Ricks case. Accordingly, I would conclude that the statute’s provision for the summary destruction of slot machines does not violate the due process provision of the Federal and State Constitutions.

I further find no merit to the owner’s contention that summary destruction of the seized machines will deprive him of his “day in court”. In the rare instance that properties seized were not slot machines, the owner would still have the opportunity to bring a suit against the individual police officers and the Department of Public Safety for damages resulting from their wrongful seizure. As the court stated in Ricks:

“ * * * In the first place, there cannot be any mistake about the type of device declared contraband by the statute and it is not to be presumed that any officer would seize and destroy anything other than the gambling slot machines condemned by the Legislature. But, should he do so, his act would not render the statute unconstitutional. In such case the offending officer would be amenable to prosecution for violation of the criminal statutes of the State respecting offenses against property * * * and would also be civilly liable for his unlawful act.”

The Louisiana Legislature has seen fit to condemn gambling as a vice and LSA-R.S. 15:31 as amended by Act 130 of 1972 has been passed as a means to suppress that vice. Slot machines, according to this statute, are to be summarily destroyed. The authority rests within the police power of the State. La.Const. Art. 1, Sec. 4. See Vaughan v. Dowling, 243 La. 390, 144 So.2d 371, 376 (1962).

Accordingly, I would reverse the judgment of the trial court and would render judgment in favor of the State of Louisiana, declaring that LSA-R.S. 15:31 empowers and mandates the proper authority to confiscate and immediately destroy, without a hearing, slot machines.

      . The companion suit is by Madere against the State for damages. It was agreed that this suit should remain dormant until the declaratory judgment suit should be decided.

      . The pertinent provisions of LSA-R.S. 15:31 are as follows:
      “31. Confiscation and destruction of gambling devices

      “A. All law enforcement officers of municipal forces, sheriffs’ departments and the division of state police are hereby authorized and empowered and it is made mandatory and compulsory on their part to confiscate and immediately destroy all gambling devices or machines used for gambling that come to their attention.
      “B. As used in this section the term ‘gambling device’ means: (1) any slot machine; or (2) any machine, mechanical or electronic device of any sort whatsoever with a cash automatic payout device; or (3) a pinball or other ball machine, mechanical or electronic device equipped with a mechanism to release the number of free games or replays and a mechanism to record the free games or free plays so released.
      “C. Whenever any other machine, mechanical or electronic device, including but not limited to roulette wheels and similar devices, designed and manufactured primarily for use in connection with gambling, and (1) which, when operated, may deliver, as the result of the application of an element of chance, any money or property, or (2) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling.
      “D. Whenever any machine or other mechanical or electronic device of any kind whatsoever, not designed and manufactured primarily for use in connection with gambling, including specifically but not limited to coin-operated bowling games, shuffle alleys, mechanical baseball games, pinball games, mechanical guns, electronic ray guns, digger type machines, iron claws, and all similar types of coin-operated games, is used to conduct gambling, then following the conviction of any person for the crime of gambling by use of any such machine or device, the court wherein the verdict of guilty was returned shall order the immediate destruction of the machine or device by the proper law enforcement agency of the parish wherein the machine or device was used for gambling.”

      . See Schimpf v. Thomas, 204 La. 541, 15 So.2d 880 (1943), where the provision of the slot machine statute (Act 231 of 1928) was substantially similar to the pertinent provision Of Act 130 of 1972. The court held that the machines could be confiscated whether they were in operation or not.

      . U.S.Const., XIV Amendment, Sec. 1; La. Const, of 1974, Art. 1, Sec. 2.


author: BOUTALL, Judge.

text:
    Rodney JOHNSON v. NEW ORLEANS PUBLIC SERVICE, INC. and Edward S. Foster. Doris JACKSON, natural tutrix of daughter Alberta Jackson v. NEW ORLEANS PUBLIC SERVICE, INC., et al. Harry BERNARD, Individually and as Administrator of the Estate of minor child, Keith Bernard v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    Nos. 7896-7898.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearings Denied April 13, 1977.
    Writ Refused June 3, 1977.

      Romualdo Gonzales, New Orleans, for Harry Bernard and son, Keith Bernard, defendant-appellee.
    Pitard, Pitard & Porobil, Gregory M. Po-rotal, New Orleans, for Rodney Johnson and Checker Cab Co., plaintiffs-appellants.
    C. B. Ogden, II, New Orleans, for New Orleans Public Service and Edward S. Foster, defendants-appellees.
    Arthur J. O’Keefe, New Orleans, for Alberta Jackson, petitioner-appellee.
    Before REDMANN, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

These consolidated suits arise from a collision between a New Orleans Public Service, Inc. bus and a Checker Cab Company taxi driven by Rodney Johnson. Suit 7896 was brought by Rodney Johnson against NOPSI for property damage and personal injuries. Suit 7897 was brought by a passenger on the bus, Alberta Jackson, against NOPSI, Checker Cab Company and Johnson. Suit 7898 was brought by another passenger on the bus, Keith Bernard, against NOPSI and Johnson. It was stipulated in this matter that Checker Cab Company would stand as defendant in place of Johnson. The trial court found the Checker Cab driver, Johnson, to be guilty of negligence which was the proximate cause of the collision and rendered judgment in favor of the bus passengers against Checker Cab Company, dismissing all plaintiffs’ suits against NOPSI. Checker Cab Company appeals.

At the trial, the parties stipulated as to the damages sustained by the passengers and as to the capacity of the various parties in suit. The issue presented was the negligence of NOPSI and of Checker Cab Company. With this procedural posture, Checker Cab Company asked for a continuance because of the absence of its driver, Rodney Johnson. Continuance was refused and trial was begun by Checker Cab Company. It is argued that the trial judge erred in this ruling, relying on Code of Civil Procedure, Article 1602 which states:

“A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.”

The record discloses that the trial judge found that the party seeking continuance had failed to exercise the due diligence in locating Johnson although it had known of the approaching trial date for a long period of time, and had some knowledge of where Johnson was working. We find nothing in the record which would indicate that this ruling was in error. We note that Johnson was both a plaintiff and a defendant in these suits, and indeed in one suit was a defendant without Checker Cab Company being joined. We agree with the trial judge in ordering the trial to proceed.

The trial proceeded with the Checker Cab Company calling the two plaintiff passengers as witnesses. The testimony of both of these witnesses were not favorable to the Checker Cab Company. Alberta Jackson testified that the bus was stopped at the bus stop when struck by the taxi cab, however the trial judge disregarded her testimony, considering it to be incoherent, and noting that she had apparently taken ill during the course of her testimony. Keith Bernard testified that although he did not see the taxi until immediately before the time of the impact, the bus had been stopped and moved forward only a little bit before the collision took place.

NOPSI also produced two witnesses, its bus driver Edward Foster, and another passenger, Oscar Williams. The bus driver testified that he was stopped on Canal Street at the intersection with Galvez Street to discharge and take on passengers and that the traffic signal for Canal Street was red at that time. After his passengers boarded the light turned green and he looked into his side view mirror to see the traffic situation. He saw the taxicab in the lane alongside the bus positioned somewhere between the middle and the rear of the bus. He noted that there was no indication of the taxi driver’s intent to make a turn, nor was any horn sounded. He therefore began to roll forward intending to let the taxi get ahead of him and eventually maneuver to enter the moving traffic lane. The bus stop is located some eight or nine feet back from the corner and he had stopped three or four feet back from that position. He rolled forward approximately 20 to 25 feet when the taxi made a sudden right turn in front of him and his left front collided with the right side of the taxi, approximately in the middle of Galvez Street. He had not yet attempted to change lanes from the parking lane into the outside traffic lane and did not anticipate any turn from the taxi. His testimony is substantially corroborated by Oscar Williams, who is not a party to this suit and was characterized by the trial judge as a disinterested witness.

In his reasons for judgment given from the bench, the trial judge found the testimony of the bus driver to be uncontradicted and to be corroborated by the witnesses’ testimony, found that the taxi took a right turn in front of the bus, and that the negligence of the taxi driver was the proximate cause of the collision. We are in full agreement with the finding of the trial judge as to the negligence of the taxi driver, but we differ with his application of the law as it applies to the bus driver.

We refer to the case of Payton v. New Orleans Public Service, Inc., 285 So.2d 344 (La.App. 4th Cir. 1973) recently decided by this court. In a quite similar factual situation, we found that the action of the bus driver in proceeding in the parking lane constituted negligence and found liability on the part of the public carrier in favor of its passengers. We are of the opinion that the same rule of law applies to this case.

We are also cognizant of the case of Alphonse v. New Orleans Public Service, Inc., 138 So.2d 610 (La.App. 4th Cir. 1962) in which the facts were even closer to the situation here and in which we arrived at a different result. We note that in a recent case, Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1974), also arising from this circuit, the Supreme Court of Louisiana has apparently cited the Alphonse case with approval. As we pointed out in Payton, supra, we distinguish this case from the Alphonse case because of the intervening adoption of a City Ordinance in 1968 which makes the action of the bus driver illegal. Similarly there was no showing of illegal driving on the part of the bus operator in the Carter case.

For the above reasons, we hold that the bus operator was negligent in proceeding forward in. the parking lane when an overtaking vehicle was attempting to make a right turn, that this negligence is concurrent with that of the negligence of the overtaking vehicle who exhibited no signals, and that the negligence of both drivers caused the collision and the resulting injuries.

Accordingly, we would amend the judgment of the trial court to include New Orleans Public Service, Inc. as a defendant cast in judgment along with Checker Cab Company, in solido. Since the operator of the taxicab is guilty of contributory negligence, no recovery may be had by him or Checker Cab against New Orleans Public Service, Inc.

IT IS ORDERED that the judgment appealed from is now amended in cases # 7897 and 7898 to cast in judgment Checker Cab Company and New Orleans Public Service, Inc. in solido and as thus amended is affirmed.

AMENDED AND AFFIRMED.