author: MARVIN, Judge.

text:
    Arthur NELSON, Jr., et ux., Plaintiffs-Appellants, v. Dr. Ronald H. MARRUS et al., Defendants-Appellees.
    No. 13140.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.

      George T. Anderson, and C. Don McNeill, Shreveport, for plaintiffs-appellants, Arthur Nelson, Jr. and Mrs. Corine Nelson.
    Cook, Clark, Egan, Yancey & King, by Sidney E. Cook, Shreveport, for defendants-appellees, Dr. Ronald H. Marrus, et al.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

In this medical malpractice action, plaintiffs appeal the dismissal of their demands on defendants’ motion for summary judgment. We find the summary judgment to have been improperly granted and reverse and remand.

The 32-year-old plaintiff wife, Mrs. Nelson, was a patient of defendant, Dr. Mar-rus, during and after her pregnancy. She miscarried on August 1, 1974, about the fifth month of her term, as she had done in five previous pregnancies. She saw Dr. Marrus four or five times during the next 35 days for hemorrhaging and fever. When the hemorrhaging became more profuse (“massive”), a hysterectomy became necessary and was performed on September 6, 1974, by Dr. Marrus’ partner, Dr. Dyess. Mrs. Nelson’s recovery from the surgery was uneventful.

Plaintiffs do not contend Dr. Marrus was negligent with respect to his treatment before the miscarriage or with respect to the hysterectomy. Plaintiffs’ contentions of negligence generally relate to Dr. Marrus’ treatment of Mrs. Nelson during the 35-day period before the hysterectomy and specifically in his allowing the placental material to remain in the womb a prolonged time following the miscarriage, the presence of which medically necessitated the hysterectomy.

In support of the motion for summary judgment, defendants (Dr. Marrus and his malpractice liability insurer) filed affidavits with hospital and medical records attached. Essentially, Mrs. Nelson’s treatment was shown to be as follows:

Because of her history and symptoms, Dr. Marrus performed a “cerclage of cervix” on July 17, 1974, in an effort to bring Mrs. Nelson’s pregnancy to term. This procedure did not succeed and on August 1, Mrs. Nelson was readmitted to the hospital where she delivered a stillborn fetus. Manual removal of some placental material was thereafter accomplished. Suction curettement was then performed to remove an even larger quantity of placental material. Dr. Marrus contends he prescribed birth control pills thereafter at the request of Mrs. Nelson for prophylatic purposes to prevent any further pregnancy until Mrs. Nelson was physically able to undergo a tubal ligation which she requested to be performed.

Mrs. Nelson contends she saw Dr. Marrus about August 5, 1974, at which time he advised her to sit in a tub of hot water twice a day for her complaints of excessive hemorrhaging; that she saw him with similar complaints about August 9 and August 14; that he took a tissue sample for laboratory examination and gave her a 21-day supply of birth control pills, she says for the purpose of “pushing out” the placental material; that on September 3, Dr. Marrus gave her an additional 21-day supply of birth control pills; and that on September 5, her hemorrhaging greatly increased, causing Dr. Marrus to recommend the hysterectomy. Dr. Marrus performed suction and then sharp curettage on Mrs. Nelson on September 5 in an attempt to stop the hemorrhaging and avoid the hysterectomy. Mrs. Nelson denies she requested or that she had any conversation with Dr. Marrus about a tubal ligation, and contends that Dr. Marrus knew of her constant blood loss and that she was not having sexual relations with her husband at any time during the 35-day period.

Besides the joint affidavit of Dr. Marrus and Dr. Dyess, defendants submitted the affidavit of a Shreveport gynecologist and the affidavit of the hospital pathologist. The gynecologist based his affidavit on the medical records of Mrs. Nelson. He stated:

“Mrs. Nelson apparently had a condition which could be diagnosed as placenta ac-creta which means that the placental material has grown to the wall of the uterus and will not separate spontaneously or through accepted medical procedures.”

The gynecologist then says if the placenta accreta does not atrophy then a hysterectomy is necessary to prevent further bleeding.

The pathologist, by affidavit, states that his examination of the placental material in the uterus after the hysterectomy reveals features which “are consistent with the diagnosis of placenta accreta.” He concludes on this point that the “proper diagnosis” in Mrs. Nelson’s case is “not limited to . . ” but “. . . includes placenta accreta.” The pathology report, made some six months before the pathologist’s affidavit, summarizes the pathological findings or diagnosis to include,

“Retained placenta . . . and possible partial accreta appear indicated by the gross and microscopic findings.”

Plaintiffs submitted in opposition to the motion for summary judgment the affidavit of a medical doctor in general practice with 18 years “fairly exclusive” experience in obstetrics and gynecology. He opined, from the operative and pathology reports, that the first curettage of Mrs. Nelson “was not adequately done . . . and that it fell below the standard of care which required a reasonably good cleaning out of the uterus.” It was his opinion that “. [too] much retained placenta was left behind.”

The trial court was of the opinion that the sole problem was placenta accreta and that plaintiffs’ affidavit did not approach the issue of placenta accreta, but was limited to the issue of retained placenta, which as we understand, requires a different course of treatment because, unlike placenta accreta, the retained placenta does not continue to grow into the wall of the uterus. The record does not support the lower court’s conclusion that there was no genuine issue of a material fact on the question of the doctors’ negligence.

The fact that a trial judge has grave doubts that a litigant will meet his burden of proof at a trial is not sufficient to sustain a motion for summary judgment. Warden v. Southwest Louisiana Hospital Association, 300 So.2d 590 (La.App.3d Cir. 1974).

We have recognized that C.C.P. 967 is patterned after Rule 56 F.R.C.P. and that decisions of the federal courts on the question of summary judgments may be appropriate for our consideration. Jones v. Davis, 233 So.2d 310 (La.App.2d Cir. 1970). See also Hidalgo v. General Fire & Casualty Company, 254 So.2d 493 (La.App.3d Cir. 1971). In the latter case, the affidavit of a medical expert expressing his opinion as to medical causation on the basis of his training and experience was held hot to meet the “personal knowledge” requirement of C.C.P. 967. Thus, it was improper for the lower court to have considered the opinion affidavits of defendants’ gynecologist and plaintiffs’ gynecologist based solely on their respective training and experience and review of the medical records, even though their opinions would have been admissible at trial. See also Warden v. Southwest Louisiana Hospital Association, supra. The affidavit of defendants’ pathologist, to the extent based on his examination of the tissue, was within his “personal knowledge,” but as noted, it is not limited to either diagnosis (placenta accreta or retained placenta) exclusive of the other.

It has also been held that a litigant’s motion for a summary judgment may not be supported [solely] by the litigant’s own affidavit.

* * * the mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury as a question of fact.’ ” Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 64 S.Ct. 724, 729 (1944).

In McWhiney v. Travelers Insurance Company, 343 So.2d 736 (La.App.2d Cir. 1977), rendered this date, we recognized the holding in Odom v. Hooper, 273 So.2d 510 (La.1973):

“ * * * All doubt concerning dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. . . . It is well settled that a motion for summary judgment is not to be used as a substitute for trial. If there is any doubt concerning an absence of dispute as to a material fact, a motion for summary judgment must be denied and the matter resolved in favor of trial on the merits . . .” 273 So.2d 510, 515.

At defendants’ cost, the judgment below sustaining defendants’ motion for summary judgment is reversed. We remand for further proceedings.

Reversed and remanded.

      . C.C.P. 967 reads in part:
      “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits * * * ”


source: Caselaw Access Project

author: STOULIG, Judge. LEMMON, Judge,

license: Public Domain

text:
    Charles J. SCHEXNAYDRE, Sr. v. M. W. KELLOGG COMPANY et al.
    No. 8172.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Charbonnet & Charbonnet, New Orleans, Kenny M. Charbonnet, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendants-appellees.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Charles J. Schexnaydre, Sr., has appealed a judgment dismissing his tort claim on “exceptions of no right of and/or no cause of action.”

The petition alleges this basis for his tort claim: Plaintiff was employed as a welder by M. W. Kellogg Company and/or Pullman, Incorporated. Upon reporting for work his foreman informed him that he had been fired on the orders of James Redell. Plaintiff then proceeded to Redell’s office to learn the reasons for his dismissal. Plaintiff felt the reasons were so unfair he cursed Redell. As he was walking out, Redell called him back, threw a cup of hot coffee in his eyes and then began beating him with his fists. While plaintiff ambiguously refers to himself as an employee in his tort action, the pleading when read as a whole clearly seeks damages in tort under the respondeat superior theory that Redell, Kellogg’s employee, inflicted a battery on plaintiff after he had been fired and was no longer in the employ of the defendants.

Plaintiff’s petition, in the alternative, demanded workmen’s compensation benefits, should it be determined factually that his employment had not legally terminated when the incident occurred.

Named as defendants in this suit were plaintiff’s employer or former employer and their liability and workmen’s compensation insurer, The Travelers Insurance Company. In addition Redell was cited individually.

Clearly the petition states a cause of action in tort against Redell individually. Under C.C.P. art. 892, plaintiff is entitled to bring his action in damages against his employers and their insurer in the same suit in which he alternatively seeks workmen’s compensation benefits. That article provides:

“Except as otherwise provided in Article 3657, a petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive. In such cases all allegations shall be made subject to the obligations set forth in Article 863.”

Whether petitioner was within the course and scope of his employment at the time of the alleged battery is a question that must be determined by the individual circumstances of this case. In Danielsen v. Security Van Lines, Inc., 245 La. 450, 158 So.2d 609, 611 (1963), the Court observed:

“When the employment begins or ends cannot be determined by reference to an exact formula. Each case must be resolved by a consideration of the particular facts and circumstances. It is, of course, well settled that the statute must be given a liberal interpretation to effectuate its beneficent purpose of relieving the workmen of the crushing economic burden of work-connected injuries by diffusing the cost in the channels of commerce.”

Of necessity, plaintiff can only maintain his remedy in tort or compensation if he asserts a claim within one year of the incident. Without trial on the merits to develop facts determinative of his status as employee or ex-employee, it is inappropriate to dismiss his suit on the hypothesis that because he was still on the premises at the time of the battery he was still in fact an employee.

For the reasons assigned, the judgment maintaining the exceptions of no right or cause of action is reversed and this matter is remanded for further proceedings consistent with the views herein expressed. Defendants are to pay the cost of this appeal.

REVERSED AND REMANDED.

LEMMON, Judge,

concurs and assigns reasons.

Plaintiff has alleged a single set of facts in his petition, but has set forth alternative theories of recovery under those facts. For the purposes of the exception of no cause of action, we must accept the pleaded facts as true.

Under the pleaded facts plaintiff was an employee as a matter of law and is entitled to recover compensation benefits if he can prove these facts at trial (and can prevail against defendants’ affirmative defense, which apparently is the reason benefits are not being paid). Therefore, the petition states a cause of action.

If plaintiff were being paid workmen's compensation and had filed this suit only to recover tort damages, I would be inclined to hold that the facts alleged in the petition do not state a cause of action for which relief can be granted (because under those facts plaintiff was an employee as a matter of law). However, when a petition states a cause of action as to any ground or portion of the demand, or in any respect, the exception of no cause of action should be overruled and the entire case tried on the merits. Louisiana & Ark. Ry. v. Goslin, 258 La. 530, 246 So.2d 852 (1971). Employment of the exception of no cause of action to decide a dispute as to relief under one theory of recovery does not serve a useful purpose when a complete trial on the merits will still be required to determine whether plaintiff is entitled to the relief under another theory of recovery for which the petition does state a cause of action.

Accordingly, while I tend to agree with the basis of defendant’s argument and the trial judge’s conclusion, I concur in overruling the exception.

      . See Articles II and ) II of plaintiff’s petition.


author: HALL, Judge. PER CURIAM.

text:
    Maurice L. BROWN, Plaintiff-Applicant, v. ALICE-SIDNEY OIL COMPANY and Franks Petroleum, Inc., Defendants-Respondents.
    No. 13226.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1977.
    En Banc. Rehearing Denied March 21, 1977.

      Wilkinson, Carmody & Peatross by Samuel W. Caverlee, Shreveport, Taylor, Porter, Brooks & Phillips by J. Clayton Johnson, Baton Rouge, for applicant.
    Hargrove, Guyton, Ramey & Barlow by Ray A. Barlow, Joseph L. Hargrove, Jr., David L. Smelley, Shreveport, for respondents.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

A writ of certiorari was granted on the application of plaintiff, Maurice L. Brown, in order to review a judgment of the district court sustaining defendants’ exception of lack of jurisdiction and/or improper venue, dissolving a temporary restraining order obtained by plaintiff, denying plaintiff’s petition for a preliminary injunction, and awarding defendants attorney’s fees in connection with the dissolution of the temporary restraining order. After review, it is this Court’s conclusion that the judgment is correct and the writ should be recalled.

The dispositive issue is whether plaintiff’s application for injunctive relief constitutes a collateral attack on an order of the Commissioner of Conservation so as to vest exclusive “jurisdictional venue” in the district court for East Baton Rouge Parish under LSA-R.S. SOiDL We hold that under the circumstances of this case, the injunctive relief sought is so broad and sweeping in scope as to prevent entirely the implementation of the Commissioner’s order. It is, therefore, a collateral attack on that order, and the exclusive venue to grant the relief sought is the Parish of East Baton Rouge.

Plaintiff filed suit in the Twenty-Sixth Judicial District Court for Webster Parish, seeking a declaration of his rights under certain assignments of oil, gas and mineral leases affecting land located in Webster Parish. Named as defendants were Alice-Sidney Oil Company and Franks Petroleum, Inc., alleged to be claiming interests in conflict with the interests claimed by plaintiff. The petition alleged that defendants had applied to the Department of Conservation to establish a field-wide secondary recovery unit without recognition of plaintiff’s interest in the unit.

Defendants filed an exception of lack of jurisdiction and/or improper venue insofar as the petition attacked the validity of an order of the Louisiana Department of Conservation, averring that the exclusive jurisdiction or venue for such an action lies in the Parish of East Baton Rouge under LSA-R.S. 30:12.

Plaintiff filed a supplemental and amending petition alleging that subsequent to the filing of the original petition, the Department of Conservation issued Order No. 457-EE establishing a field-wide unit for secondary recovery purposes affecting the land and leases involved in this suit; that certain rights including management decisions are given to working interest owners by the unit agreement and unit operating agreement approved' by the' said order, which rights are being denied plaintiff; that if plaintiff owns the working interests he claims, he would have effective control of management decisions under the agreements; and that plaintiff will suffer irreparable injury unless defendants are enjoined from taking any action pursuant to the Commissioner’s order, the unit agreement, or the unit operating agreement. Plaintiff prayed that defendants be restrained from taking any action under or pursuant to the unit agreement or the unit operating agreement until a final determination of the rights sought to be recognized in this suit.

Pursuant to plaintiff’s supplemental petition a temporary restraining order was issued. Defendants moved to dissolve the temporary restraining order and defended against the issuance of a preliminary injunction with the same jurisdiction/venue contention made in their exception and on the basis that, in any event, there would be no irreparable injury to plaintiff.

A hearing was held on the motion to dissolve the temporary restraining order and on the application for a preliminary injunction. After considering the pleadings, arguments of counsel, and some documentary evidence, but without allowing testimony which plaintiff was prepared to offer, the district court ruled that the action for injunctive relief was a collateral attack on the Commissioner’s order, venue for which lay in East Baton Rouge Parish. The court also held that plaintiff could not establish irreparable injury because any dam-' age which he might sustain pending the outcome of the litigation would be compen-sable in money damages. Judgment was rendered (1) denying the preliminary injunction; (2) dissolving the temporary restraining order; (3) awarding defendants attorney’s fees in the amount of $3,000 for wrongful issuance of the temporary restraining order; and (4) sustaining the exception of lack of jurisdiction and/or improper venue and dismissing plaintiff’s action for injunctive relief.

The record discloses that plaintiff objected to the proposed unitization at the conservation hearing on the basis of lack of notice and lack of recognition of his claimed interests. Plaintiff filed suit in the district court for East Baton Rouge Parish seeking to enjoin the implementation of the Com-ftiissioner’s order. After hearing, the injunction was denied by that court and that judgment is presently pending on appeal to the First Circuit Court of Appeal.

Both sides agree that the district court for Webster Parish is the proper venue for plaintiff’s declaratory judgment suit seeking a declaration of his rights under certain oil and gas leases and assignments affecting property located in Webster Parish. Defendants contend, however, that the ancillary action for injunctive relief which seeks to enjoin implémentation of the Commissioner’s order is a collateral attack on the order, venue of which is vested exclusively in the district court for East Baton Rouge Parish. Plaintiff contends the action for injunctive relief is merely ancillary to the declaratory judgment suit and seeks only to maintain the status quo pending final determination of plaintiff’s main demands. Plaintiff argues that he is conceding the validity of the Commissioner’s order and is only asserting rights under the order and the unit agreement and unit operating agreement approved by the order.

Numerous cases hold that any suit attacking, directly or collaterally, an order of the Commissioner must be brought at the domicile of the Commissioner (East Baton Rouge Parish), as the venue provided in LSA-R.S. 30:12 is akin to the nonwaivable venue provided in LSA-C.C.P. Art. 44, and consequentially, jurisdictional in nature. Breaux v. Apache Oil Corporation, 240 So.2d 589 (La.App. 3d Cir. 1970); Vincent v. Hunt, 221 So.2d 577 (La.App. 3d Cir. 1969). However, contractual rights not contrary to or inconsistent with an order of the Commissioner are properly subject to judicial review and litigation between the contracting parties without intervention of the Commissioner and without regard to the venue requirements of the statute. Monsanto Chemical Company v. Southern Natural Gas Company, 234 La. 939, 102 So.2d 223 (1958). The exclusive venue of LSA-R.S. 30:12 is limited to those cases where the substance of the Commissioner’s order is attacked, directly or collaterally. United Gas Pipeline Company v. Watson Oil Corporation, 306 So.2d 731 (La.1975).

At first blush, it might appear that plaintiff’s contentions have merit. He does not attack the validity of the Commissioner’s order, but expressly concedes its validity. He is asserting rights which he has under the order and unit agreements, if he is, in fact, the owner of the working interests he claims. He seeks injunctive protection of these rights pending adjudication of his claim of ownership.

It is necessary, however, to look not only at the right plaintiff asserts but at the substance and effect of the relief he seeks. He seeks to prevent entirely the implementation of the Commissioner’s order. The injunction sought is broad and sweeping in scope. It would enjoin the unit operator and the adverse claimant to the disputed working interests from taking any action whatsoever pursuant to the Commissioner’s order and the unit agreements approved by the order. Plaintiff basically seeks the same relief which was denied to him by the Commissioner and the District Court for East Baton Rouge Parish in other litigation.

The sweeping injunctive relief sought, while expressed as an assertion of rights under the order, is actually an attack on the substance of the order itself. The Commissioner, having determined that the field-wide unitization for purposes of secondary recovery is in the public interest, retains an interest in the implementation of the order. Any action seeking to prevent entirely implementation of the order is adverse to the Commissioner. Venue of such an action lies exclusively in East Baton Rouge Parish under the statute. The District Court for Webster Parish correctly held that it did not have venue of the action to enjoin implementation of the Commissioner’s order.

For the reasons assigned, the writ of cer-tiorari issued herein is recalled and set aside. This action is remanded to the Twenty-Sixth Judicial District Court for further proceedings.

Writ recalled and case remanded.

ON APPLICATION FOR REHEARING ON WRIT OF CERTIORARI

Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.

PER CURIAM.

This Court’s opinion states that plaintiff “is conceding the validity of the Commissioner’s order” and “expressly concedes its validity.” In his application for rehearing, plaintiff correctly points out that in the application for writs he admitted the validity of the Commissioner’s order “for purposes of the injunctive relief.” In plaintiff’s supplemental petition for injunctive relief, it was alleged that 'he does not “in this suit" challenge the validity of the Commissioner’s order. With this clarification of this Court’s opinion, the application for rehearing is denied.

      . LSA-R.S. 30:12 provides:
      “An interested person adversely affected by any law of this state with respect to conservation of oil and gas, or both, or by a provision of this Chapter, or by a rule, regulation, or order made by the commissioner hereunder, or by an act done or threatened thereunder, and who has exhausted his administrative remedy, may obtain court review and seek relief by a suit for an injunction against the commissioner as defendant. Suit shall be instituted in the district court of the parish in which the principal office of the commissioner is located and shall be tried summarily. The attorney representing the commissioner may have a case set for trial at any time after ten days’ notice to the plaintiff or his attorney of record. The burden of proof shall be upon the plaintiff and all pertinent evidence with respect to the validity and reasonableness of the order of the commissioner complained of shall be admissible. The law, the provision of this Chapter, or the rule, regulation, or order complained of, shall be taken as prima facie valid. This presumption shall not be overcome in connection with any application for injunctive relief, including a temporary restraining order, by verified petition or affidavit of or in behalf of the applicant. The right of review accorded by this Section shall be inclusive of all other remedies, but the right of appeal shall lie as hereinafter set forth in this Chapter.”


author: GUIDRY, Judge.

text:
    Nelda Jean SEAL, Plaintiff-Appellee, v. MARCO’S, INC., Defendant-Appellant.
    No. 5825.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Hunt, Godwin, Painter & Roddy by F. A. Roddy, Lake Charles,- for defendant-appellant.
    Jackson, Smith & Ford by John C. Ford, Leesville, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Plaintiff, Nelda Jean Seal, instituted this suit against Waffle House Inc. her former employer for unpaid wages, penalties, and attorney’s fees under the provisions of LSA-R.S. 23:631 and 632. After a trial on the merits judgment was rendered in favor of plaintiff and against the defendant, Marco’s, Inc. in the amount of $720.00, representing penalty wages of 90 days, plus legal interest from the date of judicial demand. In addition the trial court awarded plaintiff attorney’s fees in the amount of $700.00. Defendant appeals. Plaintiff answers the appeal asking for an increase in the amount of penalties and attorney’s fees.

The pertinent facts of this case are as follows. Hired as a waitress by defendant on Friday, October 3,1975, plaintiff worked for defendant until Sunday, October 12, 1975 when her employment was terminated. Plaintiff, who worked eight hours a day, five days a week, was paid $1.00 per hour plus a guaranteed $1.00 per hour in tips. Plaintiff was employed in defendant’s Lees-ville restaurant operation.

After calling in sick on Saturday, October 11, 1975, plaintiff upon her return to work the next day was informed by a co-employee Gail Simmons Michiels, that she had been fired by the manager. The co-employee, Simmons, stated that she had been instructed to tell this to plaintiff by the manager, Bobby Toups, who was not there. Plaintiff testified that at this time she asked for her pay, but was told by Simmons to come in on Monday when she could talk with Mr. Toups. Gail Simmons testified that plaintiff did, on Sunday, October 12, ask for her check but since she was without authority asked plaintiff to return the next day. On the following day, Monday, October 13, 1975, plaintiff consulted an attorney to represent her in this matter. After consultation with the attorney, plaintiff went with a friend, Walter Williams to defendant’s restaurant. At the restaurant plaintiff returned her uniform and asked the manager, Bobby Toups for her check. Plaintiff testified that Toups told her she would have to come in on Thursday to get her check. Walter Williams corroborated plaintiff’s testimony in this regard. We observe that plaintiff, who had received one check from defendant in payment of her first day’s work, which day was the last day of a pay period, admitted she knew that defendant’s employees were paid on Thursday. The defendant’s employees pay period ended every Friday, payment for that period being made on the following Thursday.

On Tuesday, October 14, 1975 plaintiff again returned to the restaurant, this time with a girlfriend, Doris Orrie Gluege. The testimony of both plaintiff and Ms. Gluege reflects that on this occasion plaintiff again demanded her check but was again told to come back on Thursday. Plaintiff did not return to pick up her check on Thursday, nor did she return to the restaurant at all until January of the following year. Plaintiff testified that she was specifically advised by her attorney not to return to defendant’s place of business to pick up her check on Thursday, October 16, 1975.

The manager, Bobby Toups, denied that plaintiff ever demanded her wages. He stated that had plaintiff asked to get paid he was in a position to make a withdrawal from petty cash and pay her the amount due in cash. Robert King, President of the defendant corporation, testified that it is company policy, upon discharge of any employee, to ask them if they will wait until the end of the week’s pay period for their check, otherwise, if payment is demanded the restaurant manager is authorized to make a cash disbursement from petty cash. All the checks issued by the defendant in payment of wages are prepared in defendant’s home office in Lake Charles. The checks are thereafter sent to various outlets for delivery to the employees.

Introduced in evidence as Plaintiff’s Exhibit 2 is a check issued by defendant to plaintiff in the amount of $40.29. The check is dated October 14, 1975, and represents the amount owing and due the plaintiff as of the date of her discharge on October 12, 1975. Plaintiff testified that she had never seen nor received this check or payment of any kind from the defendant. The record reflects that plaintiff’s check was received on Thursday, October 16, 1975 at defendant’s operation in Leesville. The check remained there unclaimed for a considerable period of time until it was finally deposited by defendant in its account.

Bobby Toups testified that after- receipt of the check he made several attempts to deliver the check to plaintiff by calling at the residence address given on her employment application but to no avail. Toups testimony in this regard although not corroborated is uncontradicted. Toups lived on Herring Street in Leesville, just down the street from the address given by plaintiff on her employment application and W-4 form. Plaintiff stated that the address furnished on her employment application and W-4 form was incorrect, since she had moved just after starting work with defendant. Plaintiff admitted that she never supplied defendant with her correct address. However plaintiff stated she notified the Post Office of the change, and in that connection said she was receiving mail at her new residence which had been addressed to her former residence. Plaintiff had no telephone.

Plaintiff admitted that she was informed that her check was available at defendant’s restaurant about two weeks after the Thursday payday. She received the information from a friend, Doris Gluege. Gail Michiels testified that she informed the plaintiff on Saturday, October 18,1975, that her check was waiting for her. Plaintiff denied this, stating that she was not so informed by Gail Michiels until two months after her discharge.

There is no dispute over the amount of wages owed by defendant to plaintiff or that this sum is due to her. Question remains however, as to whether the defendant under the circumstances of this case breached the duty imposed upon it under LSA-R.S. 23:631 and if so the amount due plaintiff for penalties and attorney’s fees. LSA-R.S. 23:631 and 632 read as follows:

LSA-R.S. 23:631:
“It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.”
LSA-R.S. 23:632:
“Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety day’s wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation. As amended Acts 1964, No. 422, § 1.”

We are of the opinion that the record clearly supports the trial court’s finding that plaintiff, upon termination of her employment on October 12, 1975 demanded payment of her wages on that day and on the following two days. The record also supports the trial court’s finding that the defendant did not then pay or tender payment as a result of plaintiff’s demand but instead requested plaintiff to return to the place of business on pay day, Thursday, October 16, 1975. This being considered there can be no question that defendant violated the provisions of LSA-R.S. 23:631 which requires it to pay a discharged employee within 24 hours after demand at the place where the discharged employee is usually paid. The sole remaining issue for determination is whether the trial court’s award of penalties and attorney’s fees, under LSA-R.S. 23:632 is correct.

The courts of this state, in interpreting the provisions of LSA-R.S. 23:632, have consistently held that due to the statutes penal nature it must be strictly construed. Accordingly, our courts have allowed the employer to interpose equitable defenses against a claim for penalties. Bielstein v. Hawkins, 50 So.2d 523 (La.App. 1st Cir. 1951). In Becker v. Choate, 204 So.2d 680, 683 (La.App. 3rd Cir. 1967), writs refused, 251 La. 751, 206 So.2d 96, this court defined these equitable defenses thusly:

“While cases on this point generally state that R.S. 23:632 is subject to ‘equitable defenses’, we are of the opinion that the word ‘defenses’ does not mean a ‘defense’ in the strict sense of the word. Rather, the tenor of these cases seems to indicate that the court will refuse to assess penalties and attorney’s fees where the facts of the particular case strongly indicate that greater justice will be attained by such refusal. These facts then become equitable considerations, or ‘defenses’ in a loose sense of the word, which will move the court to deny the penalties.”

Clearly then resolution of the issue of penalties and attorney’s fees must depend on whether an examination of the facts shows any equitable justification for the employer’s failure to pay the wages demanded.

As stated hereinabove the facts show there was no dispute over the amount of wages due and owing to plaintiff; that plaintiff demanded her wages immediately upon discharge, and for several days thereafter; and that defendant continually informed plaintiff that she would receive her check on pay day. Defendant did not offer plaintiff an immediate cash payment.

Further review of the evidence clearly establishes that the defendant acted in good faith and did not arbitrarily refuse or deliberately delay the payments to plaintiff, and in fact obtained plaintiff’s check as soon as practicable in the normal course of its business. However, we agree with the findings of the trial court that defendant’s action in this regard, which were in contravention of its own policy to make cash payments to discharged employees who demand their wages, cannot excuse defendant for its lack of diligence in effecting the immediate delivery to plaintiff of her wage check, or in making an immediate cash payment as per company policy. To hold otherwise would be to allow a company payroll policy to supersede the positive provisions of the statute. Hendrix v. Delta Air Lines, Inc., 234 So.2d 93 (La.App. 4th Cir. 1970), writs refused, 256 La. 364, 236 So.2d 498 (1970); Young v. White Stores, Inc., 269 So.2d 266 (La.App. 3rd Cir. 1972).

We conclude that plaintiff is entitled to penalty wages pursuant to the provisions of LSA-R.S. 23:632.

The trial court in awarding penalties to the plaintiff found that since no payment or tender was made by defendant the plaintiff was entitled to receive the maximum amount recoverable, i. e., ninety days wages at the employee’s daily rate of pay. We do not agree with the trial court’s determination as to the period for which these penalties are due.

In considering the amount to be awarded plaintiff in penalties we note that the trial court correctly found that there was a failure on the part of plaintiff to take positive action to secure her wages, although she knew, some two weeks after her discharge that her check was available at defendant’s place of business. The evidence bears this out. Plaintiff was informed by defendant that payment of her wages would be received from the home office on Thursday, four days following her discharge and demand. Plaintiff admitted that she was aware that Thursday was pay day, yet after her original demand she did not return those few days later to pick up her check. The evidence showed that the check was received at defendant’s business and there remained for several weeks, unclaimed. Plaintiff stated that following her discharge on Sunday she consulted an attorney on Monday morning, who told her not to pick up the check on Thursday. Plaintiff conceded that her repeated demands on Monday and Tuesday were simply to establish proof in this matter. She was well aware that her check would not be in until Thursday, and was never led to believe otherwise.

We find that the record clearly contradicts the trial court’s conclusion that defendant made no real effort to see that plaintiff was tendered the wages due her. Plaintiff admitted never having furnished defendant with her correct address. The evidence in this regard shows that defendant’s manager, immediately following receipt of the check, made several unsuccessful attempts to deliver plaintiff’s check to the address given on her employment application. Plaintiff had no telephone. Plaintiff admitted that about two weeks following the Thursday pay day she was informed by a friend that her check could be picked up at defendant’s place of business. Plaintiff did not return to defendant’s place of business to secure her wages. Although plaintiff consulted her attorney the day after her discharge, no demand was ever made by the attorney upon defendant until the institution of these proceedings some three months after plaintiff’s discharge.

Considering the foregoing we find that the evidence establishes a calculated attempt on the part of plaintiff to avoid tender of the wages due her by the defendant. As previously set forth the defendant herein is liable under the provisions of LSA-R.S. 23:632 for ninety (90) days wages or alternatively for full wages from the time of the employee’s demand for pay until the employer shall pay or tender the amount of unpaid wages. We recognize that it is the employer’s duty and responsibility to pay or tender payment to a discharged employee. However, under the peculiar facts of this case, where the employer’s several attempts to tender the wages are unsuccessful because the employee gives incorrect information on an employment application, the defendant having no other information regarding her whereabouts, the employee is not entitled to maximum recoverable penalties under LSA-R.S. 23:632.

Our conclusion in this regard is not to be considered as a holding that a discharged employee must accept or refuse tender only at the employer’s business place in order to claim penalties, yet on the other hand, this court cannot sanction actions by a discharged employee which the evidence shows to be a calculated attempt to frustrate and avoid tender of the wages due by the employer. We therefore determine that penalties accruing against the defendant should have ceased after plaintiff’s admitted receipt of the information that her check was at defendant’s establishment, plus we grant plaintiff a reasonable time thereafter in which to collect her pay. We will award plaintiff penalties accruing up to 3 weeks after her discharge and demand, or 15 work days, at $16.00 per day. Accordingly the judgment of the trial court will be amended so as to reduce the award of penalty wages from $720.00 to $240.00.

The judgment of the trial court inadvertently omits an award to plaintiff for the unpaid wages admittedly due her on her discharge and which she has never received. Accordingly, we amend the trial court judgment to include this amount.

The trial judge awarded plaintiff $700.00 as attorney’s fees. Since we determine that plaintiff is entitled to judgment for her unpaid wages and for 15 days penalty wages we conclude that an award of attorney’s fees was proper. Plaintiff has answered the appeal and contends that such award should be increased so as to compensate him for the additional legal work necessitated by this appeal. We have reviewed the record in this case and find the amount awarded by the trial court as attorney’s fees to be reasonable and sufficient to compensate plaintiff’s counsel for work on both the trial and appellate level.

For the above and foregoing reasons the judgment of the trial court is amended in the following particulars:

(a) judgment is rendered in favor of plaintiff, Nelda Jean Seal, and against , the • defendant, Waffle House, Inc.;
(b) the award to plaintiff is amended so as to include therein the amount of plaintiff’s unpaid wages, i. e., the sum of $40.29; and,
(c)the award of penalty wages to plaintiff is reduced from the sum of $720.00 to $240.00.

Except as amended the judgment of the trial court is affirmed. The costs incurred in this appeal are to be borne equally by the parties.

AMENDED AND AFFIRMED.

      . Waffle House, Inc. is the owner and operator of the establishment known as “Marco’s Waffle House”, which name was subsequently changed to “Marco’s Pitt Grill”. Plaintiff’s suit originally incorrectly named her former employer as “Marco’s Inc.” however, this error was corrected by an amending petition. We note that the formal judgment signed in this matter cast Marco’s Inc., in judgment, riot the defendant, Waffle House, Inc..

      . The trial court determined that plaintiff’s wages amounted to $8.00 per day.

      . The trial court determined that plaintiffs daily wages amounted to $8.00 and made a total award of $720.00. We find the trial court’s conclusion as to plaintiff’s daily wage rate in error. The record clearly establishes and defendant admitted that plaintiff was employed at a guarantee of $16.00 per day.


author: DOMENGEAUX, Judge.

text:
    The WILDA, INC., Plaintiff and Appellee, v. DEVALL DIESEL, INC., et al., Defendants and Appellants.
    No. 5832.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Scofield, Bergstedt & Gerard, Richard E. Gerard, Jr., Lake Charles, for defendant-appellant.
    Kimball, McLeod & Dow by Robert L. Dow, Lake Charles, for plaintiff-appellee.
    Karl E. Boellert, Camp, Carmouche, Palmer, Carwile & Barsh, Lake Charles, for defendant-appellee.
    Before HOOD, CULPEPPER and DO-MENGEAUX, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellee, The Wilda, Inc., brought this action to recover damages resulting from the malfunction of a marine diesel engine previously overhauled by defendant-appellant, Devall Diesel, Inc. The trial judge awarded plaintiff the sum of $15,874.21 against Devall Diesel, Inc., representing the costs of repairing the engine as well as lost profits due to “down time”.

Defendant has appealed suspensively to this court alleging the trial court’s error in the following particulars:

1. Finding that plaintiff sustained its burden of proof,
2. Failing to draw a negative inference from plaintiff’s failure to call certain witnesses,
3. Failing to find that plaintiff waived its right to claim damages for “down time”, and
4. Failing to find that plaintiff violated a long-standing custom in the marine repair industry.

THE FACTS

On or about May 31, 1974, plaintiff contracted with defendant (Devall Diesel, Inc.) for the major overhaul of the starboard engine of the former’s vessel, the M/V Wilda. The repairs were completed on June 5, 1974, at a cost of $7,031.78, and the vessel was returned to active service. Shortly thereafter, several minor problems developed concerning the Wilda’s starboard engine. These difficulties were remedied by an employee of the defendant, and the vessel continued to operate. However, in October of 1974, the engine in question began to lose power and emit a considerable amount of smoke. The vessel’s captain shut the engine down and operated solely on its port engine for a short period of time. On October 14, 1974, the vessel was docked near Bolivar, Texas, where mechanics from the nearby area attempted to repair the engine. The record indicates that the consensus of opinion at that time was that the vessel’s starboard engine was suffering from only a minor difficulty and that no serious repair work was required, nor was any performed.

Plaintiff contacted Anchor Engine Service of Houston, Texas, who sent two mechanics, Grady Sunday and Beato Thomas, to Bolivar, Texas, to examine the engine. Sunday and Thomas were unable to ascertain the cause of the engine’s malfunction, and a third mechanic, Eric Rabalais, was dispatched by Anchor Engine Service. After attempting minor repairs, these mechanics opined that the engine would have to be removed from the vessel and transported to their shop at Houston. On October 21, 1974, Sunday, Rabalais, and their supervisor at Anchor Engine Service, Charles Harbison, proceeded to dismantle the malfunctioning engine at their shop. Also present was Donald Hale, a marine surveyor from Groves, Texas. In the course of their work the Anchor Engine Service personnel as well as the marine surveyor discovered and noted numerous defects and discrepancies in the manner in which the engine had been overhauled shortly prior thereto (by the defendant).

CAUSATION

Charles Harbison testified that the bolt securing the camshaft idler gear contained three or more lock washers and that, in his opinion, this condition precipitated the breakdown of the engine. Eric Raba-lais, who also worked on the engine, remembered seeing at least two lock washers on the idler gear bearing bolt and concurred in the opinion of his supervisor relative to causation. Donald Hale, the marine surveyor, stated that he observed three lock washers on the camshaft idler gear. The testimony indicated that the idler gear bearing bolt should have contained one flat washer and not two or three lock washers. Apparently, this improper installation of the camshaft idler gear bearing bolt set into motion a chain of events which eventually caused a total breakdown of the vessel’s starboard engine.

Voluminous testimony was adduced concerning numerous technical aspects of the engine’s assembly, repair and function. There was conflicting testimony concerning the effect and condition of the idler gear bearing assembly in the engine in question. However, the trial judge found the improper installed idler gear assembly to be the culprit and stated:

“The court concludes the plaintiff has established by a preponderance of the evidence that the subject engine failed in October, 1974, because of the faulty installation by the defendant’s mechanic of the idler gear assembly. . . ”

After a careful review of the evidence we are of the opinion that a sufficient basis exists therein to sustain this finding of fact on behalf of the district judge. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

FAILURE TO CALL CERTAIN WITNESSES

Defendant complains that the two mechanics from Anchor Engine Service, Beato Thomas and Grady Sunday, who originally inspected the engine at Bolivar, Texas, were not called to testify. Defendant contends that the plaintiff’s failure to call these witnesses should raise a presumption that their testimony would have been adverse to the latter’s cause. We disagree.

The record clearly indicates that neither Sunday nor Thomas performed any major or substantial work on the engine until it was removed to the Anchor Engine Service shop in Houston. Thereafter, Har-bison, Rabalais and Sunday dismantled and properly reconstructed the engine. The supervisor on the job, Harbison, testified, as well as did Rabalais, one of the mechanics. We are of the opinion that the testimony of Beato Thomas was not necessary and crucial to plaintiff’s case and that Sunday’s testimony would have been merely cumulative and repetitious of the evidence adduced from Harbison and Rabalais. A party is not required to produce each and every witness with knowledge of an occurrence in order to be successful in bearing his burden of proof. See Williams v. MacRobert, 308 So.2d 532 (La.App. 4th Cir. 1975); Motors Insurance Corporation v. Boling, 262 So.2d 156 (La.App. 3rd Cir. 1972).

PLAINTIFF’S “WAIVER” OF HIS RIGHT TO CLAIM COMPENSATION FOR DOWN TIME

The District Judge awarded plaintiff the sum of $8,200.40 representing lost income for the period during which Anchor Engine Service repaired the damaged engine. At the very bottom of the invoice for the original overhaul work performed by defendant on plaintiff’s vessel, the following statement is found:

“We fulfill our warranty but are not responsible for down time due to failures.”

We are of the opinion that to be effective, a waiver of this type must be express, explicit, and strictly construed. See LSA-C.C. Article 1764(A)(2). Guillory v. Morein Motor Company, Inc., 322 So.2d 375 (La.App. 3rd Cir. 1975) and numerous cases cited therein. We find that defendant’s attempted disclaimer fails to meet the necessary standards for validity and that same is ineffective. Furthermore, the record contains no evidence that anyone on behalf of plaintiff corporation ever signed the invoice in question, although there is a signature space for that purpose.

PLAINTIFF’S ALLEGED VIOLATION OF CUSTOM

Defendant contends that plaintiff failed to adhere to a well established custom in the marine repair industry that the original repairer be notified of any defect in his work so that he may remedy same. The existence and validity of this custom was sufficiently established by the evidence. The issue rests on a simple matter of credibility. The president of plaintiff’s corporation testified that he called the owner of the defendant corporation on October 21, 1974, notifying him of the breakdown of the engine and of its location at the Anchor Engine Service. On the other hand, the president of defendant corporation testified that he was not notified until October 24, 1974, after the engine had already been repaired. While the trial judge did not specifically rule on the issue, we find a sufficient basis in the record to sustain a finding that plaintiff was not in violation of the aforementioned custom.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . The suits against Devall Towing and Boat Service and Fidelity and Casualty Company of New York were dismissed, and those defendants are not parties to this appeal.

      . As aforementioned, several additional deficiencies existed in the engine, apparently all being the result of faulty workmanship on behalf of defendant. However, the evidence indicates that the improper installation of the idler gear bearing assembly was the precipitating cause of the engine’s demise.

      . Apparently Thomas did not participate on the teardown and reassembly job which is actually at issue here.


author: FORET, Judge. GUIDRY, Judge,

text:
    STATE FARM MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 5833.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Gist, Methvin & Trimble, Alonzo P. Wilson, Alexandria, for plaintiff-appellant.
    Polk, Foote, Randolph, Percy & Ledbetter by William P. Polk, Alexandria, for defendant-appellee.
    Before HOOD, GUIDRY and FORET, JJ.
   FORET, Judge.

This case involves a suit by State Farm Mutual Insurance Company (hereinafter called State Farm), the liability insurer of a vehicle which Louis Wayne Johnson (hereinafter called Johnson) drove which was involved in a collision at the intersection of Masonic Drive and Yale Street in the City of Alexandria, on September 26, 1975. From judgment rendered in favor of defendant, plaintiff appeals. We affirm.

Prior to the accident in question, South Central Bell parked three motor vehicles facing west in the middle of the lanes of Masonic Drive. (Masonic is a four-lane, divided street within the city limits of the City of Alexandria.) In the rear of such vehicles, safety cones had been placed. Some of defendant’s employees were working beneath Masonic Drive at that particular location. Such employees descended through manholes located nearby and ventilation and light, etc. were supplied to them through hoses and other apparatus in the trucks.

On the date of the accident, Carolyn Melder traveled westerly along Masonic Drive. Johnson, a fifteen-year-old, with the permission of his father, drove the latter’s vehicle on Masonic Drive in an easterly direction. At the intersection of Masonic Drive and Yale Street, Johnson, fully cognizant of the fact that the South Central Bell trucks obscured his vision of vehicles approaching the intersection from the east, stopped and turned his auto to the left to make a turn. In the west-bound traffic lane of Masonic Drive a collision occurred between the two vehicles.

A compromise settlement was reached between State Farm, the insurer of the Johnson vehicle, and the Melders, whereby State Farm paid $5,025.87 to the Melders, and in consideration therefor obtained a receipt, release and assignment of rights by which the Melders assigned all of their rights against South Central Bell Telephone Company to State Farm. State Farm has filed suit for the $5,025.87 as the assignee of the Melders, and alternatively contending that at least the telephone company’s negligence contributed to the accident, and that therefore State Farm is entitled to recover one-half of what it paid, i. e. $2,512.93. At argument in this Court, counsel for State Farm conceded that its insured, Louis Wayne Johnson, was at least contributorily negligent and that therefore State Farm is really relegated to the amount of $2,512.93, which represents one-half of the amount paid to the Melders.

WHAT WAS SOUTHERN BELL’S DUTY TO THE MELDERS?

In accordance with the recent Louisiana Supreme Court jurisprudence (Shelton v. Aetna Gas. & Surety Co., 334 So.2d 406 (La.1976); Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970); Dixie Drive-It-Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962)), we shall limit our review of this case to the duty-risk doctrine. In order for a plaintiff to be successful in such a case as this, he must prove by a preponderance of the evidence, that defendant’s conduct was a cause-in-fact of the accident; that there was a duty imposed upon defendant under the circumstances of the case; that the risk of the particular injury which plaintiff suffered was within the scope of the protection of that duty; that defendant breached that duty; and that such breach of duty requires a response in damages.

A cause-in-fact is a substantial factor in the chain of events culminating in an accident. It is a “necessary antecedent”. Without it the accident would not have taken place. If the accident would have occurred, regardless of such cause, such cause is not a cause-in-fact. Dixie Drive-It-Yourself System v. American Beverage Co., supra.

At the outset, it is very questionable as to whether the parking of defendant’s vehicles in the street was a cause-in-fact of the collision which resulted. However, the question arises: Was such conduct a substantial factor? We think not. The defendant’s vehicles had remained in their parked position for some time. Johnson had observed them prior to the time that he came to the intersection where he stopped and then turned left. Alternatives remained open to him: he could have gone straight and turned left at another intersection some 250 feet away; his passenger could have disembarked and viewed the oncoming traffic situation; he could have gone straight ahead. Even though his vision was obstructed, Johnson steadfastly chose the wrong alternative — he made a left turn blindly and recklessly into the path of an oncoming car.

. .1 couldn’t see anything . I waited there over a minute, maybe more, and when I left, I inched out a little bit to see and I still couldn’t see maybe but ten feet past, so I decided to just go ahead and that’s when I looked to my right and there was the car coming at me . . (Tr. pg. 49)

It is true that one who stops his motor vehicle in the paved portion of a street or highway owes the duty to warn approaching motorists of a stationary vehicle upon the highway or street. He must take whatever precautionary measures are necessary to so warn. The risk of injury to be prevented is that of an oncoming motorist, who, for lack of caution, confusion, inattentiveness or other similar reason collides with the stationary motor vehicle or with other vehicles which had previously stopped because of the stationary vehicle. Pierre v. Allstate Insurance Co., supra; Dixie Drive-It-Yourself System v. American Beverage Co., supra.

It should be noted that in Pierre and Dixie the stationary vehicle blocked all or part of a traffic lane and the accidents involved occurred because of this lane blockage, and other causes, such as failure to put out flares, etc. Simply stated, these cases involved clear showings of negligence on the part of the stationary vehicle, which negligence was a cause-in-fact of the accident.

The ultimate issue in this case is whether or not South Central Bell owed Mrs. Melder a duty to protect her against a left-turning motorist who turns blindly and recklessly into her lane of traffic. We think that there was no such duty. Defendant had placed its trucks in the particular position in which they were through the necessity of furnishing lifelines and equipment to its personnel working in underground facilities. There is no evidence in the record that defendant was in violation of any State statute or ordinance of the City of Alexandria. Defendant had obtained permission from the Police Department of the City of Alexandria to park its trucks in the manner in which it did. East and westbound traffic was not unduly impeded by the parking of the said trucks, and indeed, the only danger created by the parking of the trucks was the obstruction of view of east-bound traffic wishing to make a left turn onto Yale Street.

We are of the opinion that no more danger was created by defendant than would have been created (hypothetically speaking) by a large van-type truck headed in a westerly direction and desiring to make a left turn, at the same intersection, stopped to let oncoming traffic clear, in the same position as defendant’s trucks, obstructing the view of east-bound motorists desiring to make a left turn onto Yale Street, and then the said east-bound left-turning motorist making a blind turn into the west-bound lane just as happened in this particular case. Could it then be said that the truck so stopped to make a left turn owed a duty to west-bound traffic guarding against the risk of an east-bound left-turning vehicle turning blindly and recklessly onto the west-bound traffic lane? We think that under no rule of law could the left-turning west-bound truck be held to owe such a duty to other west-bound traffic following behind it. To hold otherwise would be to make an insurer of a stopped or parked vehicle which blocks the view of another vehicle.

Accordingly, the judgment of the trial court dismissing plaintiff’s suit is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge,

concurring.

I do not agree that the action of the telephone company was not a cause-in-fact of the collision. However, finding that the risk of the particular injury sustained by plaintiff’s assignor was not within the scope of the duty imposed on the telephone company, I concur in the result.


author: PER CURIAM.

text:
    Murray ARDOIN, Plaintiff-Appellee, v. Jimmy LaFLEUR, Defendant-Appellant.
    No. 6024.
    Court of Appeal of Louisiana, Third Circuit.
    March 14, 1977.
    Richard W. Vidrine of Fruge & Vidrine, Ville Platte, W. J. Wise, Jr., Lake Charles, and Herschel E. Richard, Jr., of Cook, Clark, Egan, Yancey & King, Shreveport, for defendant-appellant.
    John Rixie Mouton, Lafayette, La., for plaintiff-appellee.
   PER CURIAM.

On February 17, 1977, we issued, ex pro-prio motu an Order to Show Cause addressed to the defendant-appellant, Jimmy LaFleur, ordering him to show cause why the appeal in the above captioned case should not be dismissed for failure to timely post his appeal bond.

The appellant has answered the Order to Show Cause admitting that his bond was not timely posted, but pleading that in the interest of justice the appeal should be maintained.

We must dismiss the defendant-appellant’s appeal, as it is well settled that an appellate court does not acquire jurisdiction of a devolutive appeal unless the bond is filed within the time prescribed. Pan-American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968) and cases cited therein; Frank v. Travelers Insurance Company, 322 So.2d 834 (La.App.1975); Freeman v. Liberty Mutual Insurance Company, 289 So.2d 875 (La.App. 3rd Cir. 1975).

APPEAL DISMISSED.


text:
    Geneva Irene HARRIS v. William Charles HARRIS, Jr.
    No. 49531.
    Supreme Court of Mississippi.
    March 9, 1977.
    Smith, Downs, Coleman & Ross, Orma R. Smith, Jr., Wendell H. Trapp, Jr., Corinth, for appellant.
    Joe Ray Langston, Thomas H. Comer, Jr., Ed W. Jenkins, Booneville, for appellee.
    Before INZER, SMITH and WALKER, JJ.

      . This case was assigned to Chief Justice Gillespie for whom Presiding Justice Inzer substituted at oral argument.

   GILLESPIE, Chief Justice, for the Court:

This case involves the question whether the Chancery Court may lawfully deprive a mother of the custody of her child because of her adherence to a particular religious belief. From an adverse decree of the Chancery Court of Tishomingo County in favor of William Charles Harris, Jr., his former wife, Mrs. Geneva Irene Harris appeals to this Court.

Mrs. Harris was granted an absolute divorce from William Charles Harris, Jr., by a decree of the Chancery Court of Tishomin-go County on July 10, 1973. Mrs. Harris was granted the primary custody of the minor child of the parties, William Charles Harris, III, now seven and one-half years old. The divorce decree prohibited Mrs. Harris from maintaining the presence of the child in any place where poisonous snakes were handled. On April 22, 1975, Mrs. Harris filed proceedings charging that Mr. Harris was illegally holding custody of the child contrary to the provisions of the original divorce decree. Mr. Harris filed his answer and petition to modify the original decree.

After a full hearing the court entered a decree modifying the divorce decree so as to grant primary custody of the child to his father and providing for Mrs. Harris to have limited visitation rights at the home of her former husband. The chancellor found, among other things, in his opinion that there had been a material change in circumstances. He also found that the mother is a fit and proper person in every respect. It is manifest to this Court, after closely examining the record, that there had been no material change in circumstances and that the reason for the modification of the former decree and depriving the mother of the custody of this child was because Mrs. Harris was a practicing member of the Free Will Holiness Pentecostal Church in Red Bay, Alabama. The chancellor found in his opinion as follows:

Though the mother is a fit and proper person in every respect, the surroundings in said home and the fact that she and her mother are both members of a religious sect which, in the opinion of this Court, adhere to doctrines detrimental to the growth, welfare and intellectual development of a five year old chjld; that when this child reaches an age when he can decide for himself, he may select which religion he wishes to embrace; but until then, it is the opinion of the Court that the best interest of said child, being paramount consideration of this Court, will best be served by awarding his primary custody to his father, William Charles Harris, Jr.
The mother of said child, Geneva Irene Harris, stated upon oath from the witness stand that she is a member of the Free Will Holiness Pentecostal Church. It is without dispute that said child, William Charles Harris, III, has been permitted, against the former decree of this court, to attend religious services where reptiles were handled in close proximity to said •child, where there was some shouting, speaking in the unknown tongue, and generally a situation which could do nothing but disturb and scare a small child.

There is no proof that the child was ever taken to a religious service where snakes were handled except on one occasion when Mr. Harris himself insisted on attending and taking the child to the service at Payne’s Chapel located near Scottsboro, Alabama. The record shows without dispute that Mrs. Harris did not want to take the child to that service because she thought snakes might be handled. The testimony shows that snakes have never been handled by any of the regular members at the church usually attended by Mrs. Harris. The testimony further shows without dispute that Mrs. Harris and the child have never attended a service at the church in Red Bay when snakes were handled, although snakes are kept at the service in a cage. There is no proof that this child was subjected to any danger of being bitten by a poisonous snake.

The case is reduced to this proposition: Could the chancellor lawfully change the custody of this child because the mother and child attended the Free Will Holiness Pentecostal Church? Or to state the question differently, does Mrs. Harris have the constitutional right to attend the church of her choice and bring up her child in accordance with her religious beliefs?

The Free Will Holiness Pentecostal Church is a fundamentalist sect that bases its belief concerning handling snakes on Mark 16:18, which states: “They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands' on the sick, and they shall recover.”

It is said that this sect originated in Grasshopper Valley, Tennessee, in 1909, when George W. Hensley was reading the sixteenth chapter of Mark and came upon the quoted passage. After reading this verse, Hensley is said to have captured a large rattlesnake, after which he called a meeting of his neighbors and exhorted them to express their belief in the Bible by passing the snake among themselves and no one was hurt. Consequently, the word quickly spread. The founder’s faith caused his death in 1955 at Lester’s Shed, Florida, when he was fatally bitten by a diamondback rattlesnake during a prayer service. It is reported that his death was almost fatal to the movement as well as to Hensley, but there are still a few churches that adhere to Hensley’s belief. The church at Red Bay, Alabama, which Mrs. Geneva Harris and her mother attend, adheres to the doctrine originally taught by Hensley, but the proof shows that snakes were never handled at the services in this church by any of the regular members. One of the members of the congregation was in charge of keeping a snake in a cage and bringing it to the services .in a locked cage, which was usually placed on top of the piano or on a table. The church members believe that a person anointed by God to handle a snake can do so without harm. But so far it appears that none of the members of the Red Bay Church has ever felt so anointed. Mrs. Geneva Harris stated that she had never handled a snake and would not do so.

The First Amendment to the Constitution of the United States provides in the first sentence thereof that “Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; . .

Article 3, section 18 of the Mississippi Constitution of 1890 provides in part as follows: “. . . the free enjoyment of all religious sentiments and the different modes of worship shall be held sacred.”

The free and undisturbed enjoyment of religious opinion, whatever it may be, is guaranteed by the Constitution of the United States and the Constitution of Mississippi. It was no accident that the First Amendment to the Constitution, in the first sentence thereof, guaranteed religious liberty. Many of the early immigrants to this country came to escape religious persecution, and the leaders of the Republic in its early years knew that in Europe the existence of two or more religious denominations generally preceded the advent of religious liberty. And it is doubtless true today that the existence of several denominations promotes religious liberty. The Constitutions protect every variety of religious opinion.

Mrs. Harris believes in the doctrine of her church and she has a right to practice her faith as she believes it, and to indoctrinate her child in her religious beliefs so long as she has his custody. Likewise, the father has a right to teach the child concerning religious matters while the child is in his lawful custody. These rights, of course, do not include the right to expose the child to physical danger, and in this case there is no proof that Mrs. Harris’ attendance at her church exposed the child to the risk of being bitten by a snake. It is significant that she, along with other members of the congregation, had never felt “anointed by the Lord” with the power to handle snakes. The doctrine of Mrs. Harris’ church apparently does not require members to handle snakes, an obviously wise provision, and Mrs. Harris’ testimony indicates that she not only has never been anointed with the power to handle snakes, but does not expect to be so anointed.

The chancery court had no authority to dictate to Mrs. Harris what religion she should teach her child so long as it did not involve exposing him to physical danger or to what society in general deems immoral practices.

The decree modifying the original divorce decree is reversed and the petition to modify it is dismissed and the original decree is reinstated in all of its provisions.

REVERSED AND RENDERED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Fox ARRINGTON v. HARRISON COUNTY BOARD OF SUPERVISORS.
    No. 49266.
    Supreme Court of Mississippi.
    March 23, 1977.
    Fox Arrington, pro se.
    Boyce Hollem an,' Gulfport, for appellee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Before INZER, P. J., SUGG and LEE, JJ., and W. W. BROWN, Commissioner.

AFFIRMED.


text:
    Patricia Cox BELL v. Reta Dortch KUHN et al.
    No. 49308.
    Supreme Court of Mississippi.
    March 23, 1977.
    Edward L. Cates, Earl R. Cruthirds, Jackson, for appellant.
    Marshall E. Hanbury, Jackson, for appel-lees.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before GILLESPIE, C. J., SMITH and WALKER, JJ., and BERT H. JONES, Commissioner.

AFFIRMED.


text:
    Marlys Ann SKELTON v. E. C. SKELTON.
    No. 49219.
    Supreme Court of Mississippi.
    March 23, 1977.
    Bogen & Bogen, J. Rabun Jones, Jr., Greenville, for appellant.
    Mansour & Kilpatrick, Stephen L. Thomas, Greenville, for appellee.
   Appeal from Chancery Court, Washington County; Ernest Kellner, Chancellor.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    Robert JONES v. STATE of Mississippi.
    No. 49576.
    Supreme Court of Mississippi.
    March 23, 1977.
    John C. Webb, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge..

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Les BROOM, Jr. v. STATE of Mississippi.
    No. 49582.
    Supreme Court of Mississippi.
    March 23, 1977.
    Roger W. Mathes, Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; B. B. Wilkes, Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    Otha Lee SPRUELL v. STATE of Mississippi.
    No. 49813.
    Supreme Court of Mississippi.
    March 23, 1977.
    McBee, Dulin & Carpenter, Robert M. Carpenter, Greenwood, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; Arthur B. Clark, Judge.

Before GILLESPIE, C. J., and SUGG and WALKER, JJ.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, BROOM and LEE, JJ., concur.


text:
    Jessie James HAYNES v. STATE of Mississippi.
    No. 49879.
    Supreme Court of Mississippi.
    March 23, 1977.
    John C. Webb, Adelyn B. McKamy, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Arthur B. Clark, Judge.

Before GILLESPIE, C. J., and SUGG and WALKER, JJ.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, BROOM and LEE, JJ., concurring.