author: CALOGERO, Justice. SUMMERS, Justice

text:
    Sidney J. BARRAS et al. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 56954.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Concurring Opinion May 14, 1976.
    Rehearing Denied March 26, 1976.
    James J. Cox, Cox, Cox & Knapp, Lake Charles, for plaintiffs-appellants.

      Marshall B. Brinkley, Gen. Counsel, Baton Route, for La. Public Service Commission.
    Law Offices of Theo F. Cangelosi, John Schwab, Baton Route, for Assoc, of La. Elec., Cooperatives.
    Andrew P. Carter, Eugene G. Taggart, New Orleans, J. Wayne Anderson, Me-taire, William T. Tete, Monroe & Lemann, New Orleans, for La. Power & Light Co.
    William O. Bonin, Landry, Watkins, Cousin & Bonin, New Iberia, for Central La. Elec. Co., Inc.
    Arthur R. Carmody, Jr., Samuel W. Caverlee, Wilkinson, Carmody & Peatross, Shreveport, for Southwestern Elec. Power Co.
    William J. Dodd, Floyd J. Falcon, Jr., Dodd, Barker, Avant, Wall & Thomas, Baton Rouge, for International Brotherhood of Elec. Workers Union No. 2286.
   CALOGERO, Justice.

Plaintiffs, electrical contractors, their trade association, and members of the rate paying public who may or may not be affiliated with the other plaintiffs, appealed unsuccessfully to the Nineteenth Judicial District Court, Parish of East Baton Rouge, following various orders of the Louisiana Public Service Commission which had been entered in a proceeding which they had brought. They now appeal directly to this Court under the provisions of Article 6, Section 5, Louisiana Constitution of 1921.

Apparently several other complainants, including the Governor’s Office of Consumer Protection, had initially joined with these plaintiffs before the Commission. The Governor’s Office of Consumer Protection did not appeal to the district court, nor thereafter appear in this litigation because, according to counsel for Louisiana Public Service Commission, they were satisfied with the orders of the Commission.

Plaintiffs originally complained to the Commission concerning certain practices of the investor owned utilities and the electric cooperatives doing business in the State of Louisiana, including their installing, free or below actual cost, electric systems and facilities on the private property of their customers, and their engaging in promotional practices involving the financing and sale of electric appliances. While plaintiffs’ petition before the Louisiana Public Service Commission mentions the free installation, its prayer does not seek relief in connection therewith. However, it was considered by the Commission in their deliberations, and is admitted to be at issue in the briefs of the Commission.

The Commission thereafter entered an order (of Dec. 18, 1973), a clarification of that order (dated 2/13/74) and a general order implementing the Dec. 18, 1973 order (dated March 12, 1974).

The pertinent portions of the orders are as follows:

December 18, 1973: Order—in re: Promotional Practices and Electrical Work on Private Property by Electric Utilities. The commission ruled as follows :
“The Commission finds that it lacks jurisdiction to prohibit electric utilities subject to its jurisdiction from constructing electric facilities on private property, unless the construction is a promotional practice that will be a burden to the general rate payer. The Commission has instructed the Staff to prepare a General Order that will direct all utilities subject to the Commission’s jurisdiction to cease all promotional practices offered to customers to the detriment of the general rate payer. It is therefore
“ORDERED, that this proceeding be and hereby is DISMISSED for lack of jurisdiction.”

February 13, 1974: Clarification of Order of December 18, 1973. This clarification stated in part:

“On December 8, 1973, this Commission issued an Order . dismissing the complaint . . . for lack of jurisdiction.
“Exceptions of jurisdiction and standing to sue were filed by respondents and the Order of the Commission of December 18, 1973 maintained those exceptions of jurisdiction and standing to sue.
“It was and is the holding of this Commission that the complainants are not entities subject to the regulatory authority of this Commission and the Commission does not have jurisdiction to entertain their claim for the exclusive right to perform any work which involves providing electrical service to customers. The extension of electrical service to the improvements of customers is a public utility function and the responsibility of the electrical public utilities subject to the authority and jurisdiction of this Commission.”

March 12, 1974: General Order implementing the order issued by the commission on December 18, 1973. This general order provided:

It is the opinion of the Commission that in order to effect economies in the services provided by public utilities and thus keep rates as low as possible, promotional practices exclusive of advertising the services, rates and goodwill of the public utility should be eliminated. Accordingly, it is
ORDERED that:
A) No public utility shall, individually, or through agents, persons, firms, or corporations acting on its behalf, directly or indirectly, grant, give, or permit any payment, rebate, preference or prize, or discrimination of any sort, including the granting or denial of any utility service, for the purpose of enticing, persuading or causing a utility subscriber or potential subscriber to deal with or take any service of such public utility or any of its affiliates in preference to the service of any other public utility, including, but not by way of limitation:
1) Waiver of any tariff provision requiring the posting or payment by any means of service charges, line extension charges, facilities charges of any sort, or deposits;
2) Purchasing from any person property, goods, or services of any sort;
3) Performing or causing to be performed services of any sort.
B) No public utility shall offer or provide services or any other thing of value to any subscriber or potential subscriber, developer, architect, builder, investor, or other person which offering of service has not been previously approved by the Louisiana Public Service Commission.
C) The term public utility shall include electric cooperatives and public utility activity or service under the jurisdiction of the Commission.

Plaintiffs’ appeal to the district court, filed on April 4, 1974, was from these three orders of the Louisiana Public Service Commission. Several interven- or/respondents, by exception to the jurisdiction of the district court re-urged here, complain that because the appeal was not filed within 90 days of the December 18, 1973 order, it was not timely and the petition should therefore have been dismissed. This contention was based upon the constitutional provision contained in Article VI, Section 5, paragraph 2 of the Louisiana Constitution of 1921 (which was in effect at the time this litigation commenced). This provision reads as follows:

“The orders of the Commission shall be enforced by the imposition of penalties as hereinafter provided, and any party in interest may appeal from orders and decrees of the Commission to the courts by filing suit, within ninety days from the date of the Commission’s order, and not thereafter, against the Commission at its domicile.”

In the case of Teche Lines, Inc. v. Louisiana Public Service Commission, 203 La. 604, 14 So.2d 460 (1943), this Court declared invalid a rule of the Public Service Commission which attempted to extend the appeal period. The rule allowed appeals to be taken within ninety days of a denial of rehearing. Under the same provision of the Constitution which we are considering here, the Court held that the rule violated a clear constitutional provision that appeals must be applied for within ninety days of the order “and not thereafter.” See also Texas and Pacific Ry. Co. v. Louisiana Public Service Commission, 201 La. 853, 10 So.2d 641 (1942).

In Groendyke Transport, Inc. v. Louisiana Public Service Commission, 304 So.2d 340 (La.1974), this Court with reference to the same constitutional provision held as follows:

“This constitutional provision is clear and unequivocal. This case is determined by counting off ninety days on the calendar from date of the commission’s order. The appellant did not file his suit within the ninety day period, and, therefore, the appeal was not timely. The order of the Public Service Commission became final at the expiration of the ninety day period. The appeal must be dismissed.”

While the contention that the plaintiffs’ appeal in the case before us was not timely might arguably be supported by the jurisprudence discussed above, we conclude that this case is distinguishable, and that the appeal was timely. Here there were three orders issued sequentially, which the Commission itself, in brief before this Court, asserts “should be read together” in order to determine their full import. The first order upon which the defendant would have us rely as commencing the 90 day appeal period, itself indicated that a general order to be prepared by its staff would follow. Then the Commission issued the clarification order of February 13, 1974 and there followed, as promised, the general order of March 12, 1974: The appeal to the district court was not filed within 90 days of the December 18, 1973 order, but it was filed less than 90 days after both the clarification order and the general order. We treat the initial order, the clarification, and the general order as a single Commission disposition for purposes of both timeliness and the merits, and conclude that the appeal therefore was timely.

We turn now to the merit of plaintiffs’ contention, that the trial court erred in its judgment dismissing their suit. They had' contended in the district court that the Commission erred in dismissing their complaint for lack of jurisdiction, rather than entertaining and deciding the merits of their complaint. They are purportedly only seeking to have this litigation remanded or returned to the district court for treatment of their complaint on the merits.

Counsel for the Commission argues that all of the relief sought by plaintiffs which was within the power of the Commission has been given and that the language employed in the order and clarification order concerning lack of Commission jurisdiction and/or lack of plaintiffs’ standing to sue was a perhaps inarticulate way of saying that the Commission lacked the power (1) to go beyond barring promotional practices on the part of defendants which burden the general rate payer, and (2) to grant complainants an exclusive work territory by ordering electric utilities to stop any and all construction, free or otherwise, at the subscriber’s property line.

We believe the Commission’s position is well taken. As the district judge said:

“The Court has quoted the above at length because the language used by the Commission has apparently caused considerable difficulty, particularly with respect to the use of legal terminology in phrases such as ‘dismissal of the complaint’, ‘standing to sue’, ‘lack of jurisdiction’ and ‘maintaining the exceptions.’
“Part of the difficulty arises from the fact that petitioners were apparently seeking relief, on the one hand, as business competitors of the public utilities, and, on the other hand, as members of the general rate-paying public. The failure of the Commission to particularize these distinctions and the somewhat imprecise use of the procedural legal terms in its orders added to the difficulty and caused the ambiguity. The substance of the orders, however, clearly shows that the Commission recognized the differences in the claims and disposed of them separately.
“Insofar as the petitioners appeared as members of the general rate-paying public and asserted that certain promotional practices adversely affected their interests, the Commission affirmatively exercised its jurisdiction over this claim. The General Order of March 12, 1974, provided for the elimination of such promotional practices and prohibited the offering of services without prior approval of the Commission.
“However, insofar as the petitioners appeared as business competitors of the public utilities in the field of construction and installation of electrical facilities on private property, the “Clarification” of February 13, 1974, stated the Commission’s position that such activities were proper public utility functions and would not be prohibited simply because economic competition with the private sector resulted therefrom.”

The Commission’s focus in their order and clarifying order principally upon plaintiffs’ seeking an exclusive work territory is understandable in light of the manner in which the petition before them was drawn. As indicated earlier in the opinion the prayer of that petition does not seek to bar free or below actual cost electric systems and facilities on private property by the utilities. Rather it sought principally to enjoin the utilities from “designing, installing, maintaining or otherwise investing in electric equipment and installations on the private property of its customers beyond the private property line . . . . ”

In any event we read the Commission’s order, clarification order and general order as did the trial judge. The Commission entertained plaintiffs’ complaint, afforded them an extensive hearing and ruled in effect that free and below actual cost electric systems and facilities on private property installed by the utilities (to the detriment of the general rate payer) should cease, when it directed in the 12/13/73 order that their staff “prepare a General Order that will direct all utilities ... to cease all promotional practices offered to customers to the detriment of the general rate payer,” and when they issued the general order on March 12, 1974 directing that

“A) No public utility shall . . . directly or indirectly, grant, give or permit any payment, rebate, preference or prize, or discrimination of any sort, including the granting or denial of any utility service, for the purpose of enticing, persuading or causing a utility subscriber or potential subscriber to deal with or take any service of such public utility . . .
“B) No public utility shall offer or provide services or any other thing of value to any subscriber or potential subscriber, developer, architect, builder, investor, or other person which offering of service has not been previously approved by the Louisiana Public Service Commission.”

The purpose of this general order was to implement the commission’s ruling in the December 18, 1973 order that they had authority to prohibit utilities from constructing electric facilities on private property when “the construction is a promotional practice that will be a burden to the general rate payer.” The language of the general order prohibiting public utilities from offering “rebates, preference or prize, or discrimination of any sort” for the purpose of persuading or enticing persons or corporations to engage the services of their company rather than the services of any other company, we therefore read to be the Commission’s definition of “promotional practices that will be a burden to the general rate payer.” The broad language of the order includes within its terms a prohibition of the alleged practices of public utilities in which they provide free or below cost services on private property to developers or engage in the below cost sale and financing of electric appliances.

Furthermore the possibly inarticulate “jurisdiction” language of the order and clarifying order effectively declared, and correctly so, that the Commission may not legally prevent electric utilities from constructing electric facilities on private property, and, having no regulatory authority over electrical contractors, nor jurisdiction, as such, over work by them on private property, may not by the effect of barring electric utilities grant electric contractors (by default) the exclusive right to perform any work which involves providing electric systems and facilities on private property.

If plaintiffs have any complaints that one or more electric utilities are in fact providing or continuing to provide free or below actual cost electric systems and facilities on the private property of one or more customers (notwithstanding the Commission orders) they have the right to institute anew complaints of this nature, and the Commission surely has jurisdiction to hear them out and take appropriate action. The orders of the Commission complained of in this litigation do not (contrary to plaintiff’s assertions herein) bar such future action by these plaintiffs in whatever capacity (rate payers or otherwise) notwithstanding the portions of the controversial orders which declared the Commission without jurisdiction and plaintiff without standing to sue. This language by the Commission was merely part of the order which concluded the complaint before them at the time.

For the foregoing reasons the judgment of the district court dismissing plaintiffs’ petition is affirmed at plaintiffs’ cost.

Affirmed.

SUMMERS, J., concurs and will assign reasons.

SUMMERS, Justice

(concurring).

Although I feel that the Court’s opinion does reach the contention of plaintiffs, I would prefer a more precise articulation of a uniform policy requiring equal charges for equal services, or, absent this, more precise guidelines should be promulgated for extension of services onto private property.

I respectfully concur.

      . The sole defendant herein is the Louisiana Public Service Commission. Intervenors are sixteen electric cooperatives, five electric companies and one labor union who align themselves with defendant. The intervenors excluding the labor union (I.B.E.W. Local 2286) were the companies whose practices and procedures were complained of by plaintiffs before Louisiana Public Service Commission. Members of that Local (2286) apparently work for some or all of the companies. I.B.E.W. Locals 130, 194, 446, 576, 861, 901, 995 and 1077 intervened on behalf of the plaintiffs. Members of these locals apparently work for various electrical contractors.


source: Caselaw Access Project

author: TATE, Justice. SANDERS, Chief Justice MARCUS, Justice SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Ezzard Charles THOMPSON, Appellant.
    No. 57111.
    Supreme Court of Louisiana.
    March 29, 1976.
    Dissenting Opinion May 14, 1976.
    Richard N. Ware, Kelly, Seaman & Ware, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to twenty-five years at hard labor. Upon his appeal, he relies upon two assignments of error.

Admission of Prejudicial Hearsay

A finance company was robbed shortly after ten o’clock in the morning. Acting on the basis of information that the defendant was one of the two robbers, the police went to his home and found certain incriminating evidence.

At the trial before the jury, the prosecutor produced a police witness to explain the basis for the search. The witness first established that he had received certain information from a confidential informant who had proven reliable on many past occasions.

The witness was then asked if he had received information from the informant as to the present robbery. His response to that question (without revealing the content of the information) and as to what he had done on the basis of the information received is, of course, not subject to the hearsay objection.

Here, however, the witness was further permitted to testify to the content of the information received from the anonymous informer.

After the objection to receiving hearsay witness from the police officer was overruled, these further questions by the prosecutor were permitted, with the following responses:

“Q. You received what information?
A. Who had committed the robbery?
Q. Who was it?
A. The man sitting right there.
Q. Ezzard Charles Thompson [the defendant] ?
A. Yes.”

The admission of this testimony was prejudicial hearsay. The effect of permitting the evidence was not only to prove that a statement was made, which would not be hearsay. The effect of admitting the testimony was to permit into testimony the content of the statement of this anonymous witness, not sworn on subject to cross-examination at the trial, to the effect that this defendant had committed the crime for which he was on trial.

In Louisiana criminal trials, hearsay is inadmissible except under recognized exceptions. La.R.S. 15:434. “The hearsay rule excludes out of court assertions offered to prove the matter asserted because they are not made under oath and their veracity cannot be tested by cross examination.” Pugh, Louisiana Evidence Law 388-89. The traditional exclusion of hearsay in Anglo-American jury trials is based upon historic considerations of unreliability and of potential unfairness to an accused to permit into evidence damaging out-of-court statements which cannot be tested as to their basis in fact, or by cross-examination of the out-of-court declarant. Pugh, 388-432.

Thus, in this jury trial on the merits of innocence or guilt, the testimony of the out-of-court information furnished by the anonymous informer could only be taken as evidence of the truth of its. content, the guilt of the accused. While the fact that a statement was made is not hearsay, the content of the statement is inadmissible. It constitutes prejudicial hearsay directly relating to the guilt of the accused and not admissible under any recognized exception to the hearsay rule. State v. Kimble, 214 La. 58, 36 So.2d 637 (1948).

Conclusion

Accordingly, we are required to reverse this conviction. State v. Murphy, 309 So.2d 134 (La.1975).

Since we have determined that reversal is required, it is unnecessary to discuss the defendant’s other assignment, except to note that it too represents probable error: A juror was not excused for cause, despite his repeated assertions that the defendant would not be on trial if he were not guilty, and despite his final reply seemingly indicating (somewhat ambiguously) that the innocence of the defendant was “going to have to be proved to me.”

For the reasons assigned, we reverse the conviction and sentence, and we remand for a new trial in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

SANDERS, Chief Justice

(dissenting).

The majority correctly holds that the testimony of the police witness is hearsay. However, under both state and federal law, it still must be determined whether the admission of the testimony was reversible error. See LSA-C.Cr.P. Art. 921; Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Favre v. Henderson, 464 F.2d 359 (5th Cir. 1972).

In this case, the record discloses that the independent evidence of guilt is overwhelming. The victims, Wayne Dew and Cheryl Catha, both identified the defendant as the armed robber. They saw the defendant a few minutes prior to the robbery when he entered the finance company to inquire about an account. His identity at this earlier time was also confirmed by a third witness, who attended school with the defendant and was personally acquainted with him.

At the time he perpetrated the robbery, defendant was armed with a small pistol, while his companion was armed with a sawed-off shotgun with a white stock. The defendant was wearing a knit cap. After the robbery, the police found the weapons and knit cap under the mattress of defendant’s bed.

During defendant’s conversation with the police officers, he advised them: “I’ll get the things returned.”

Although the defense was alibi, one of the defense witnesses took the stand on rebuttal to refute the alibi testimony.

In the light of the record, I am of the opinion that the ruling admitting the hearsay testimony was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

For the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

I agree that the admission of the police officer’s testimony identifying defendant as the person whom the confidential informant told him had committed the robbery was objectionable hearsay. However, I do not consider it reversible error. Positive identifications of defendant were made by two victims of the armed robbery, Wayne Dew, manager of Dew’s Loan Company, and Cheryl Catha, his secretary. Not only did they fully observe defendant during the commission of the crime but they also viewed him when he came into the loan office about fifteen minutes before the robbery and inquired about making a payment on a certain account, of which the company had no record. Defendant was also identified by a customer who, although not present at the time of the robbery, was present in the loan office at the time defendant made his initial visit to inquire about the account. This witness knew defendant because they had finished school together.

In view of the positive identifications of defendant by the victims and other incriminating evidence adduced at the trial of this matter, the error complained of, in my view, does not warrant the reversal of this conviction. Accordingly, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice and Mr. Justice Marcus.

      . Immediately thereafter, on cross-examination the officer was asked the name of the informer who had given this damaging out-of-court identification received in evidence. The State objected. A part of this assignment of error is the defendant’s contention that, under the circumstances, the privilege against revealing the identity of the confidential informer yielded to due-process requirements that the name be revealed for purposes of fair trial. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
      In view of our determination that reversible error resulted from the admission of the hearsay testimony quoted in the text, we do not reach consideration of this latter issue.

      . On a non-jury issue, such as determining the reasonableness of a police search on a motion to suppress, the evidence may have been relevant and admissible. See Pugh, 431-32. Here, however, the content of the out-of-court statement was not admissible for any relevant jury issue in this trial.


text:
    Girven A. MULLENS v. DEPARTMENT OF PUBLIC SAFETY, DRIVERS LICENSE DIVISION.
    No. 57866.
    Supreme Court of Louisiana.
    May 26, 1976.
   In re: Department of Public Safety, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 327 So.2d 492.

Writ denied. The judgment of the Court of Appeal is correct.

DENNIS, J., is of the opinion the writ should be granted.


text:
    In re Charles E. LOFTIN, Jr.
    No. 57896.
    Supreme Court of Louisiana.
    May 26, 1976.
   In re: City of Shreveport applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, parish of Caddo, 327 So.2d 543.

Writ denied. The judgment is correct.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.

DIXON, J., is recused.


author: EDWARDS, Judge.

text:
    Jerry D. BUNCH v. UNDERWRITER’S AT LLOYD’S, LONDON, et al.
    No. 10668.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    John V. Parker, Baton Rouge, for appellant.
    Charles W. Wilson, III, Baton Rouge, for appellees.

      Before SARTAIN, LOTTINGER and EDWARDS, JJ.
   EDWARDS, Judge.

Defendant, Anthony Charles Vanier Harden (substituted as defendant in the place and stead of “Underwriter’s at Lloyd’s, London”), appeals from the decision of the trial court in favor of plaintiff-appellee, Jerry D. Bunch, on a life insurance policy issued on a horse.

Plaintiff at the time of the trial was the owner of a quarter-horse gelding named “Copy Cajon”. During the summer of 1974 the horse became infected with equine infectious anemia, otherwise known as swamp fever. The issue here is whether the policy covers the intentional destruction of the animal.

The value of the horse is not in dispute, and it was conceded in argument that, if there is recovery by the plaintiff, the basic amount of $4,500.00 is correct.

Plaintiff sought from the trial court a judgment in his favor in the amount of the policy, plus judicial interest; and additional interest and attorney’s fees as damages. He alternatively sought a declaratory judgment in his favor authorizing him to euthanize the horse and declaring his rights under the policy.

Defendant-appellant contends principally that the trial court erred in holding that the policy provisions cover the intentional destruction of this insured animal. Pertinent to this contention is the following exclusionary provision:

1. This insurance does not cover intentional slaughter, whether by or under the order of any government or public or local authority or any person or body having jurisdiction in the manner, or otherwise; except that the Underwriters will not invoke this particular exclusion as a defence
(a) where the Underwriters shall have expressly agreed to the destruction of the animal, or,
(b) where an insured animal suffers an injury or is afflicted with an excessively painful disease and a qualified Veterinary Surgeon appointed by the Underwriters shall first have given a certificate that the suffering of the animal is incurable and so excessive that immediate destruction is imperative for humane reasons, or,
(c) where an insured animal suffers an injury and a qualified Veterinary Surgeon appointed by the Assured shall first have given a certificate that the suffering of that animal is incurable and so excessive that immediate destruction is imperative for humane reasons without waiting for the appointment of a Veterinary Surgeon by the Underwriters, (emphasis added)
The trial court in oral reasons stated that:
I agree with you that the contract between the parties is the, is the law of the case. We’re not dealing here with an ordinary horse or mule as referred in Merck’s treatise on equine medicine and the treatment of horses. Were dealing here with a very special horse, a specialized horse that has been shown on numerous occasions in quarter horse and cutting horse shows.
For all practical purposes I think, in July and August of 1974, when Copy Ca-jon underwent the acute stages of this, what is colloquially referred to as “swamp fever,” for all practical purposes the horse might as well have been dead at that particular time. Both Dr. Mc-Adams and Dr. Smith, with whose testimony the Court was particularly impressed, recommended euthanization at that time.
The attorney for the defendants made considerable to-do about the fact that neither of those doctors referred in their testimony to the words “imperative for humane reasons.” They both recognized that the horse had suffered from swamp fever and should be euthanized. They both were qualified as experts, and the Court has no doubt in its mind at all that both gentlemen knew what they were talking about when they testified on this witness stand.
The Court was also impressed by Dr. Hayne’s testimony, but by his own testimony, he only saw the horse one time on April 11, 1975, substantially after the acute stages of the swamp fever.
It’s the Court’s opinion that the interpretation of Subsections a, b, and c of Sec. 1 of the Exclusion Clause of this policy satisfactorily meets the requirement with regard to the recommendation by both Drs. Smith and McAdams.
* * * * * *

Accordingly, judgment was granted in favor of plaintiff in the amount of the policy plus judicial interest.

Defendant’s position is that, although equine infectious anemia may render a horse “economically dead” and, as a carrier, a danger to other animals, the suffering is not “incurable and so excessive that immediate destruction is imperative for humane reasons.” We agree, and for this reason we reverse.

Dr. Jimmy B. Smith, DVM, examined the horse on August 16, 1974 and took a blood sample. The sample proved positive for equine infectious anemia. He testified that, in the acute stages of this disease, a horse will undergo “considerable suffering.” However, Dr. Smith’s initial report and his testimony at trial as a whole indicate that his decision to recommend euthanasia was based on the threat of the disease spreading to other horses:

Q. I noticed, Doctor, that the report, progress report, that you rendered to the agent for the insurance company, concludes that Mr. Bunch’s horse, a more chronic form, and he may live a long time; however, he will be sick the rest of his life and is a threat to other horses. Now explain to the Court why he is a threat to other horses. And your conclusion is that quote it is my opinion that all EIA cases should be euthanized to prevent other horses from catching this disease. Do you recall including that statement in your report?
A. Yes, sir.
Q. And is that your opinion ?
A. Yes, sir.
Q. And that opinion is based upon, as you’ve stated here, to prevent other horses from catching the disease?
A. Yes, sir.

Further, Dr. Smith described the suffering of a horse with chronic equine infectious anemia as follows:

Q. Can you relate this suffering down, say to an animal that breaks a leg on a race track ?
A. Well, the suffering is not as acute as an animal with a broken leg, but let’s say, more like an abcess toothache he’s got to live with every day.

Dr. C. G. McAdams, DVM, examined the horse in June of 1974. He testified that in his opinion the horse should have been euthanized for humane reasons and that every horse that contracts EIA should be euthanized. Relative to the suffering of the horse and its effect on his recommendation, Dr. McAdams made the following observations:

Q. Now, if the report had come back from the laboratory that this horse was not suffering from EIA, but from something else, say distemper, is that a disease horses suffer from?
A. Yes.
Q. Would you have recommended that the horse be destroyed ?
A. No.
Q. At the time you saw the horse you were not sure what disease he had?
A. No.
Q. Well, if he had had some disease other than swamp fever, you would not have recommended that the horse be destroyed ?
A. Not if I felt like the disease was curable.
Q. Then your recommendation concerning the destruction of this animal is based upon the fact that the disease is incurable?
A. Right.
Q. And that the horse is a danger to other animal population ?
A. Right.
Q. So that the degree of suffering that the animal had in June 1974, would not have led you to say that the horse is suffering so bad that we can’t let him live any longer? As a matter of fact, you did not say that, did you?
A. No.
Q. And that’s never been your opinion, has it?
A. Well, yes, they suffer.
Q. I’m not talking about suffering. I’m talking about suffering so bad that it’s imperative that the horse be killed immediately because he’s in agony ?
A. When they are in the acute stages they are suffering bad.
Q. All right, let’s go back, Doctor. But you would not have recommended destruction of the animal if he had been suffering to the same degree that you saw him, but if you found out he was suffering from distemper?
A. That’s right.

Clearly, the import of the experts’ testimony is that their recommendations of euthanasia were based on the nature of the disease—that it is incurable and can be spread to other animals—rather than on any excessive degree of suffering visited upon the afflicted animal. In applying the undisputed facts of the case to the policy provisions quoted supra., the trial court therefore committed error of law.

For these reasons, the decision of the trial court is reversed, and judgment is rendered herein dismissing plaintiff’s suit. Costs of this appeal are to be borne by plaintiff-appellee.

REVERSED AND RENDERED.


author: SARTAIN, Judge.

text:
    Gayle Barrios JOHNSON, Plaintiff-Appellant, v. Kenneth Edward JOHNSON, Defendant-Appellee.
    No. 10669.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.
    Writ Refused July 2, 1976.

      Stanwood R. Duval, Jr., Houma, for plaintiff-appellant.
    Ronald L. Myers, Houma, for defendant-appellee.
    Before SARTAIN, EDWARDS and PONDER, JJ.
   SARTAIN, Judge.

Plaintiff-appellant brings this appeal seeking review of judgment on a rule filed by defendant granting a change in custody awarding defendant, plaintiff’s husband, permanent care of the couple’s three minor children. We reverse.

Plaintiff filed suit for separation against defendant on October 29, 1974 alleging abandonment and cruel treatment. Judgment by default granting plaintiff a separation a mensa et thoro and further awarding plaintiff the care, custody and control of the minor children as well as alimony and child support in the amount of $500.00 per month was rendered on December 18,1974.

On January 27, 1975 defendant was found in contempt for failure to comply with the separation judgment insofar as it required him to pay alimony and child support. The judgment sentenced defendant to sixty days in jail, which sentence would be suspended provided defendant made timely payments thereafter. It further ordered judgment in favor of plaintiff in the amount of $1100.00 as past due alimony and child support. Subsequently, on February 14, 1975 defendant filed a rule to reduce alimony and child support claiming to have insufficient income with which to pay the amount ordered in the judgment. This rule was continued at defendant’s request without date and no disposition of it appears in the record.

On June 25, 1975, defendant filed the present rule seeking custody of the children alleging adulterous relations on the part of his wife. The matter was set for hearing on July 14, 1975. On July 18, 1975, following the aforementioned hearing, judgment was granted in favor of defendant awarding him custody of the children.

It appears from testimony elicited at the hearing that Mrs. Johnson at that time was employed as a store detective at a local department store. She worked eight hours per day and sometimes as late as ten o’clock p. m. Robert Pontiff, her supervis- or at the store, testified that she was very dependable and a good employee.

Mrs. Johnson’s children, ages nine, eight and five, were left daily with the baby sitter, Mrs. Lorrie Frazier, from the time at which they left school in the afternoon until Mrs. Johnson returned from work. Mrs. Frazier testified that on several occasions the children would be left overnight. Mrs. Johnson corroborated this testimony herself stating that this was done about twice a month. The children were always picked up the next morning.

Mrs. Johnson admitted to having had sexual relations with one Lawrence Le-Bouef. Mr. LeBouef testified that he had known Mrs. Johnson for several months and had engaged in sexual relations with her on two occasions, once at her home in the early morning hours when the children were in a separate room asleep and on another occasion at an apartment. He stayed with Mrs. Johnson on one occasion overnight at which time he slept on the couch. Mrs. Johnson testified that this one occasion was prompted by troubles she was having with a neighbor which caused her to fear being home alone.

Several of Mrs. Johnson’s neighbors testified to the effect that Lawrence Le-Bouef’s car was seen at the Johnson residence at various times including early morning and late night hours. One Sandra Odom stated that she saw Mr. Le-Bouef leave at one time with a shaving kit and some clothes. Mrs. Odom’s son stated that he was involved in an altercation with Mr. LeBouef at a baseball practice session, which altercation, he stated, was in his opinion unprovoked.

Mr. Johnson testified that he was presently employed as a mud engineer and at times is required to work offshore but never more than seven consecutive days. He stated that his brother’s wife and his brother have agreed to watch the children for him on a daily basis and have also agreed to watch them during the weeks that he is required to be offshore. His brother has no children and he and his wife live in a two bedroom apartment. Mr. Johnson’s sister-in-law who would be watching the children stated that she had so agreed: When asked about her familiarity with the children she replied that she hardly knew them.

Upon conclusion of the testimony the trial judge rendered judgment in favor of the defendant ordering a change in custody to the husband.

There is no more solid principle found in our law than that which dictates in cases of child custody proceedings that the paramount consideration shall he a determination of what is in the best interest of the children themselves. La.C.C. Art. 157, Fulco v. Fulco, 259 La. 1122, 254 So.2d 603, (1971). In making this determination the law presently resolves the children’s best interest in favor of the mother where there has been no former considered decree of custody, unless she be shown morally unfit or otherwise unsuitable. See Fulco, supra. The trial judge’s assessment of these interests is entitled to great weight due to his close connexite with the parties involved, and it will not be disturbed absent a clear showing that he abused his great discretion in these matters. Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969). Fulco v. Fulco, supra.

In the present case we do not find the trial judge’s decision to change custody of the children from their mother to their father warranted on the face of the record. Furthermore, we are not guided by oral or written reasons setting forth the findings which may have influenced his decision.

At the outset we can not subscribe to appellee’s argument that the wife has been shown to be morally unfit. The record reflects that she engaged in sexual relations twice during a nine month period with the same man, once while the children were asleep in another room and once completely out of the children’s presence. Our jurisprudence has recognized that one or several acts of adultery with the same paramour does not, per se, render a mother morally unfit who is otherwise suited for custody. Daigle v. Daigle, 222 So.2d 318 (La.App. 1st Cir., 1969); Poole v. Poole, 270 So.2d 215 (La.App. 1st Cir., 1973), writ denied, 273 So.2d 295 (La.); Jordan v. Jordan, 294 So.2d 261 (La.App., 1st Cir., 1974), writ refused, 296 So.2d 835 (La.) As pointed out in Fulco, supra, determination of custody is not to be made simply in order to punish a spouse for past misconduct.

In the instant case we feel that the children’s best interest would be more appropriately served by remaining with their mother. As noted above, we do not feel that the mother has been shown morally unfit. Likewise, she has not been shown to be otherwise unsuited for custody. Mrs. Frazier, the baby sitter, stated that the children thought highly of their mother and never made reference to any man residing or staying in their mother’s household. Mrs. Johnson was well thought of by her employer as well. No testimony was offered to establish any deficiencies in her ability as a mother. She would leave the children with the sitter on occasion overnight, but this appears to be attributable to the sitter who testified that she requested Mrs. Johnson to leave the children overnight if she could not pick up the children before eleven o’clock p. m. In conjunction with this it should be noted that Mrs. Johnson would on occasion work a night shift which terminated as late as ten o’clock p. m.

The father, on the other hand, appears to have been derelict in his duty to support the children as evidenced by his being held in contempt for failure to pay child support. Furthermore, his job requires that he be away from the children for up to seven days at a time. This situation is further aggravated by the fact that his sister-in-law who offered to watch the children during these lengthy intervals was completely unfamiliar with the children and was practically a stranger to them.

On the basis of these facts we conclude that in the best interest of the children they should at this time remain with their mother. The evidence adduced at trial, m our opinion, can justify no other conclusion.

Accordingly, for the above and foregoing reasons the decision of the trial court is reversed and the same is hereby rendered in favor of appellant, Gayle Barrios Johnson, awarding her the permanent care, custody and control of the minor children, Melissa Rhea Johnson, Tracey Leah Johnson, and Kenneth Edward Johnson, Jr. All costs of these proceedings are taxed to the appellee.

REVERSED AND RENDERED.


author: ELLIS, Judge.

text:
    Mrs. Tatiana Turan DUE v. Paul H. DUE.
    No. 10725.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 24, 1976.

      John J. McCann, New Orleans, for appellant.
    David W. Robinson, Baton Rouge, for appellee.
    Before SARTAIN, ELLIS and LOT-TINGER, JJ.
   ELLIS, Judge.

This is a suit by Tatiana Turan Due against her former husband, Paul H. Due, for the rescission of a community property settlement entered into by them on April 2, 1974, and for the inventory, appraisement and partition of the community estate.

Various interrogatories were propounded to defendant by plaintiff, and objections thereto were filed by defendant. Some of these interrogatories related to the professional activities of defendant, who is a practicing attorney at law. The matter was submitted to the court under the following stipulation:

“It is agreed between the undersigned attorneys for the opposing parties in Due vs. Due that with regard to the pending objections to interrogatories and motions to compel answers to interrogatories, hearing thereon will be passed without date; that two issues will be presented to the court for determination: first, whether contingent fee contracts pending as of the date of the dissolution of the community are to be included in the accounting of the community assets, and, second, to what extent defendant is to be required to answer interrogatories 1(a), (e), and (f) of the original interrogatories propounded to him by plaintiff.”

The court held, inter alia, that contingent fee contracts between attorney and client do not form part of the community of acquets and gains existing between attorney and spouse, but that expenses incurred in the representation of the clients “may properly form a part of the community.”

In reaching his conclusion, the trial judge held that, since the right to the contingent fee did not vest in the attorney until the final successful disposition of the case, the community could have no interest in fees earned under contingent fee contracts in existence but unconsummated as of the date of the dissolution of the community. The trial judge relied on the case of Land v. Acadian Production Corporation of La., 57 F.Supp. 338 (W.D.La. 1941), reversed on other grounds 153 F.2d 151 (5th Cir. 1946), which dealt with the time of vesting of title to an undivided interest in an immovable which was received by an attorney under a contingent fee contract.

We granted writs in this case to review the ruling of the trial court relative to contingent fee contracts.

Contingent fee contracts confer various rights on both attorney and client. The attorney may have only an employment contract granting him a commission on the amount eventually recovered as his fee. He may be granted an interest in the client’s claim, under R.S. 37:218. Under that statute, the client’s right to settle, dismiss or discontinue his claim may be limited. In any case, the client can always discharge his attorney, but the attorney may be permitted recovery of the value of his services, on a quasi contractual basis, even if discharged for good cause. In some cases, if discharged without good cause, the attorney may be entitled to his full contingent fee. See Smith v. Westside Transit Lines, Inc., 313 So.2d 371 (La.App. 4 Cir. 1975) for an excellent review of the jurisprudence. If the attorney should die prior to consummation of a contingent fee contract, his succession participates in the fee eventually earned in the proportion of the value of his services to the total legal services rendered. Succession of Payne, 155 La. 177, 99 So. 29 (1924).

In all contingent fee contracts, the obligation of the client to pay the attorney is contracted subject to the suspensive condition that the claim be successfully concluded. Articles 2021, 2043, Civil Code. The right of the attorney to enforce the obligation of his client cannot arise until the happening of the condition. This does not mean that a species of right does not exist throughout the existence of the contract. The error of the trial judge in this case, and of the trial judge in the Land case, supra, rests in a failure to recognize the above distinction.

Article 2041 of the Civil Code provides:

“The condition being complied with, has a retrospective effect to the day that the engagement was contracted; if the creditor dies before the accomplishment of the condition, his rights devolve on his heirs.”

Commenting on the effects of suspensive conditions and of Article 1179 of the Code Civil, which is the same as Article 2041, supra, Planiol says:

“Its suspensive effect is much more far reaching than that of a term. The right dependent on the happening of a condition precedent has as yet no existence. The condition prevents its coming into being, and it is not even known whether the right will ever come into being. This doubt is the essence of the condition. The owner or the creditor where there is a condition precedent is not therefore, properly speaking, either an owner or a creditor as long as the condition is still pending.
“The simple possibility of the realization of the condition, nevertheless, constitutes a chance which is already considered an asset or a liability. And this is so even if it has not yet become a right. When speaking of credits suspended by a condition, the ancients said: 'Nihil adhuc debetur, sed spes est debitum iri.’ The conditional right is already transferable when in this state. Though existing only in futuro or in posse it passes to the heirs upon the death of the person who is the beneficiary. During his lifetime he could have ceded it or have renounced it. He is, moreover, allowed to perform such conservatory acts as his interests may require, as, for example, the recordation of a mortgage." 1 Plani-ol, Treatise on the Civil Law, § 319 (12th ed., Louisiana State Law Institute transí. 1959).
“The condition is a restriction more energetic than the term, since it suspends even the formation of the right. As long as the condition is still pending, one may say that the obligation which is suspends does not exist; one has only the hope that some day it will come into existence. As the ancients expressed it: 'Nihil adhuc debetur, sed spes est debitum iri.’ As a consequence, none of the effects which flow from obligations should be produced. Nevertheless, the future creditor already possesses something of which account must be taken: the hope that he has of one day becoming creditor, which is protected by the law and involves in various respects a juridical recognition.”
“According to French law the condition which has been fulfilled is retroactive (see Vol. 1). How does such retroactivity apply to obligations and what effects does it produce? The general idea is that the obligation is reputed to have arisen on the day of the contract and not on the day the condition was accomplished.” 2 Planiol, supra, §§ 375, 383.

See also 1 Civil Law Translations, § 302 at p. 73 (Louisiana State Law Institute Transí. 1965), in which Aubry and Rau’s Cours de Droit Civil Francais is translated as follows:

“Where the suspensive condition is fulfilled, the obligation and its correlative right are considered (in the absence of a contract to the contrary with respect to its effect on the relations between the parties) as having never been subject to a condition. Article 1179.”

We are of the opinion that, considering the foregoing, a property right is created by the fictional retrospective effect given to the obligation upon the happening of the suspensive condition. This does not mean that the entire fee is then considered as earned as of the date of the contract. It means that the right to the fee is retrospectively considered as unconditional, once the suspensive condition has occurred.

Under Article 2402 of the Civil Code, the community has an interest in the conditional right. However, the value of that right can be determined only upon the happening of the suspensive condition, because the obligation of the client to pay a fee is dependent on the successful disposition of his claim. In the event of the dissolution of the community, it will participate in the fee in the proportion that the value of services rendered as of the date of dissolution bears to the total services rendered in earning the fee. In the event of termination of the contingent fee contract by discharge of the attorney, the community interest in the fee will be determined in the same fashion once the compensation of the attorney has been determined. The interest of the community would be substantial in a case in which the legal services were complete, and negligible in cases in which the contingent fee contract was recently confected and little work done.

It must be kept in mind that, if the contingent fee contracts under consideration in this case are property of the partnership of which defendant is a member, they cannot be considered as assets of the community. As of the date of its dissolution, the value of the community’s interest in the partnership can be determined only after considering all assets and liabilities of the partnership, as well as the provisions of the partnership agreement. Articles 2801 et seq., Civil Code; Dubuisson v. Moseley, 232 So.2d 870 (La.App. 3 Cir. 1970); Cooley v. Slocum, 326 So.2d 491, 492 (La.1976).

Accordingly, the writ is made peremptory, and the case is remanded to the trial court for further proceedings not inconsistent with the expressions herein contained. All costs of this application are to be borne by defendant, and all other costs shall await the final disposition of the case.


author: MARVIN, Judge. PER CURIAM

text:
    Beatrice GRANT v. Lelia Caine Harrison ANDERSON.
    No. 12878.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    Rehearing Denied, En Banc, May 24, 1976.
    James B. Wells, Bossier City, for plaintiff-appellant.
    Henri Loridans, Bossier City, for defendant-appellee.
    Before BOLIN, MARVIN and SMITH, JJ.
   MARVIN, Judge.

In Grant v. Anderson, 306 So.2d 853 (La.App. 2d Cir. 1975), we held a purported sale of a truck from Mr. Anderson to Ms. Grant to have been a simulation and reversed a money judgment for damages awarded to Ms. Grant.

Before this court rendered its opinion reversing the judgment below awarding her damages, Ms. Grant caused a writ of fieri facias to issue in execution of the judgment against real estate owned by Ms. Anderson. This was done at a time when the judgment was not final and executory. The sheriff seized property under the writ. Ms. Anderson then sued Ms. Grant to dissolve the seizure and for damages, including attorney fees for dissolving the writ of fi fa. The lower court dissolved the writ and awarded Ms. Anderson $500 damages and $350 attorney fees. Ms. Grant appeals. We affirm.

Appellant does not contest the premise that damages may be due when a writ of fi fa wrongly issues and when property is seized thereunder.

Appellant contends (1) that Ms. Anderson did not meet the burden of proving damages for inconvenience or embarrassment, and (2) that in the absence of statutory or legislative authority, attorney’s fees cannot be assessed against her.

Here, the writ issued, the property was seized by the sheriff, and notice of the seizure was printed in the legal news publication which was sent to more than 50 law firms, lending institutions and realtors in the area in which plaintiff resided and sometimes worked. Appellant’s first contention addresses itself more properly to the issue of quantum. See Escat v. National Bank of Commerce, 256 So.2d 786, 787 (La.App. 4th Cir. 1972), first appeal.

Escat, on the second appeal, 284 So.2d 832 (La.App. 4th Cir. 1973), answers appellant’s second contention. Our earlier decision and reasoning in Gunn v. Credit Service Corporation, 46 So.2d 628 (La.App. 2d Cir. 1950) were cited there with approval. We see no reason here not to follow the reasoning in Gunn and we hold that attorney fees are recoverable for the dissolution of a wrongful seizure under a writ of fieri facias.

The amount awarded as attorney fees is also contested on appeal because there was no testimony below on which to base the award. Our recent case of James, Robinson, Felts & Starnes et al. v. Powell, 303 So.2d 229 (La.App. 2d Cir. 1974), answers this contention. We recognized there that the trial court should employ its own knowledge of the value of legal services and determine the award of attorney fees even in the absence of expert testimony. This is especially true when the services are performed by the attorney under the court’s eyes as they were here.

The amounts awarded as damages and as attorney fees were less than the amounts sued for in each respective instance.

Finding no error below, and at appellant’s cost, judgment is

AFFIRMED.

ON APPLICATION FOR REHEARING

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

PER CURIAM

On application for rehearing, appellant takes issue with the statement in the opinion that appellant “does not contest the premise that damages may be due when a writ of fifa wrongly issues and when property is seized thereunder.”

The basis for this statement comes from the syllabus of appellant’s brief on the original appeal. There appellant said:

“1. ... A party grieved by wrongful seizure of his property is entitled to recover not only the special damages caused him thereby, but also general damages for embarrassment, humiliation, mental anguish and the like . . .
* * * * * *
“3. . . . As a general rule a prevailing party is not entitled to recover attorney fees in the absence of contract or specific statutory authority . . .
“4. . . . We see no reason why a party who is the victim of an unlawful seizure should be penalized by being denied the right to recover the attorney fees which he incurs as a result of the wrongful action of the seizing party .
“5. . . . The Appellant creditor correctly points out that the prevailing party is not allowed to recover his attorney fees, in the absence of contract or statutes expressly authorizing him to do so. (citations omitted) Although statutory provisions do permit the allowance of attorney fees for dissolution of improper seizures under writs of attachment, sequestration or injunction Articles 3506 and 3608, we can find none authorizing the imposition of such damages for dissolution of the wrongful seizure under a writ of fieri facias.”
(Citations omitted);

In any event, what was said in the original opinion regarding the allowance of attorney fees where a writ of fifa wrongly issues and property is seized thereunder is also applicable to the award of damages. See Escat v. National Bank of Commerce, 284 So.2d 832 (La.App. 4th Cir. 1973) and authorities cited therein.

The thrust of appellant’s argument is that there is no statutory or legislative authority for allowing either damages or attorney’s fees in such cases. Escat on the second appeal, rejected this contention and expressly noted:

“. . . our courts have been consistent in awarding damages for wrongful seizure . . . under the writ of fieri facias . . .”
284 So.2d 832, 835.

Application for rehearing is denied.


author: LANDRY, Judge.

text:
    Johnny J. CASTON v. EXECUTIVE DEPARTMENT, DIVISION OF STATE BUILDINGS AND GROUNDS.
    No. 10660.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Floyd J. Falcon, Jr., Baton Rouge, for appellant.
    Phil E. Miley, Baton Rouge, for appel-lee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment of the Civil Service Commission (Commission) affirming Appellant’s dismissal from the classified State Civil Service position of Capitol Area Security Officer, effective March 27, 1975, following Appellant’s suspension on March 14, 1975. In affirming the dismissal, the Commission rejected Appellant’s contentions that Appellant was not dismissed by the proper appointing authority and that the grounds assigned for dismissal do not constitute good cause for such disciplinary action as required by the Commission’s rules. We affirm.

Appellant was employed by the Division of State Buildings and Grounds (Employer), a subdivision of the State Division of Administration which, in turn, is a department of the Executive branch of state government under the direct supervision and control of the Governor. By letter dated March 24, 1975, Appellant was discharged by R. N. Rizan, Sr., Superintendent, Division of State Buildings and Grounds. The dismissal, made effective March 27, 1975, listed the following grounds for removal:

“Pursuant to the authority contained in Civil Service Rule 12.3, you are hereby advised that you are being removed from your position as a Capitol Area Security Officer effective 3-27-75, following your suspension on 3-14-75.
The reasons are as follows:
Your continuous gripes, slanderous fiase (sic) accusations, dissatisfaction of your job, attitude toward your Supervisors, degrading the Department and Superintendent, use of profane language, and your referal (sic) to fellow employees as pimps and rats have been deterimental (sic) to the Department and Security Force causing low morale; all as more particularly described below.
On 3-12-75, you submitted two different Union Grievances which were completely out of order, showed poor judgment and contained mostly falsehoods. Copies of your statements are attached hereto and made a part hereof.
These grievances reflected your personal dissatisfaction, slanderous and false accusations toward your Supervisors, Superintendent and the Department.
Since your employment with the department on 10-12-69, your personnel folder shows your Yearly Service Ratings, and Increase Recommendations have notations, of attitude toward your Supervisor and cooperation with others, needed improvement.
Your latest Service Rating dated 4-19-74 —Remarks—You should strive to contain your remarks of dissatisfaction with duty related decisions.
Your increases of 10-21-72, and 10—10— 73, were disapproved and held up because of your attitude, resents authority, gets upset and looses (sic) self control. The following described letters of reprimand and suspension typify your work relationship:
1. A written recommendation concerning your promotion on 4-10-71, to a Capitol Area Security Supervisor I, states that you have the intelligence; but is a griper and fault finder.
2. On 2-16-72—Letter of reprimand on poor performance of duty and bad judgment on two different incidents.
3. On 12-29-72—A letter of suspension and demotion for conduct unbecoming an officer, that could have resulted in a dismissal.
4. In a letter dates September 19, 1973, you again were reprimanded for several incidents where your conduct and job performance was in question.
5. Your loss of self control and threat-ing (sic) a fellow employee resulted in a suspension on September 21, through September 25, 1973.
All the above described actions have consisted of false accusations, poor attitude and other actions lessening your efficiency and the efficiency of the Sécuri-, ty Force. Your actions have greatly damaged the morale of the Security-Force and the entire Department.”

Appellant correctly contends a classified employee in the State Civil Service may be disciplined and/or discharged only by action of his duly delegated appointing authority. Civil Service Rules, Chapter 12, 12.1.

Appointing authority, as defined by the Commission’s rules, means the agency, department, board or commission and the officers and employees thereof authorized by statute or lawfully delegated authority, to make appointments in the State Civil Service. Civil Service Rules, Chapter 1, 1.4.

Our jurisprudence has consistently held that Rule 12.1, above, means that a classified employee must be disciplined and/or discharged by his proper appointing authority. Young v. Charity Hospital of Louisiana at New Orleans, 226 La. 708, 77 So.2d 13; Day v. Department of Institutions, 228 La. 105, 81 So.2d 826; Miller v. State Department of Health, La.App., 135 So.2d 570.

Appellant contends his appointing authority was Charles Roemer II, Director, Division of Administration, or Roemer’s assistant Joseph Terrell. This argument is admittedly premised on the fact that in October, 1973, Terrell discharged Jerry Bennett from the position of Assistant Superintendent, Division of State Buildings and Grounds, and the Commission held in Bennett’s case, Number 1165 on the Commission’s docket, that Roemer was the proper appointing authority. It is contended the Commission reached this conclusion on the basis of Executive Orders 40 and 41, effective July 1, 1973, wherein the Governor delegated Roemer supervisory jurisdiction over Employer, including the right to hire and discharge employees, which authority Roemer delegated to Terrell.

Joseph Terrell, Assistant to Roemer, testified that prior to issuance of Executive Orders 40 and 41, effective July 1, 1973, Employer, as a branch of the Executive Department, was required to report directly to the Governor'. However, Orders 40 and 41 directed Employer and two other state agencies therein named to henceforth report to Roemer as head of the Division of Administration. The mentioned orders, appearing in evidence, so indicate. Terrell also noted that subsequent to July 1, 1973, Roemer, through Terrell, exercised the function of appointing authority for Employer but only for a period sufficiently long to enable the Division of Administration to become thoroughly familiar with all personnel problems in Employer’s department. After sufficient data was obtained, authority to handle Employer’s personnel matters and problems was returned to Ri-zan as Employer’s Superintendent. Terrell acknowledged that the Division of Administration retained “oversight responsibility” in “unusual cases.” He stated the return of authority to Rizan was effective prior to January 1, 1975, and has remained in Rizan continuously since. Lastly, Terrell stated that with the exception of the Bennett case, no appointing authority has been exercised by him over Department employees.

Rizan testified to having been Superintendent of Employer for several years during which time he has exercised the function of appointing authority in every instance except Bennett’s discharge, both prior to and since January 1, 1975. We note the record does not disclose the precise date on which Rizan was authorized to resume the role of appointing authority with respect to employees of Employer. We also note that La.R.S. 49:149, added to our Revised Statutes by Act 156 of 1974, creates the capítol police, the members of which “shall be appointed by the superintendent of state buildings.” Under the circumstances, it suffices to state that the record establishes beyond doubt that Rizan, as Superintendent of State Buildings and Grounds, was the proper appointing authority on the date of Appellant’s discharge.

The record reflects that Appellant is a steward in a local union to which approximately one-half of the Department’s employees belong. It is equally clear that in such capacity Appellant is most zealous in advancing the cause of unionism and securing maximum benefits for members of his union. Equally evident from the record is the fact that Appellant believes Ri-zan and Rizan’s assistants are hostile to the union and attempt to dissuade new employees from joining the union, for which reason Appellant is resentful of his superiors. Rizan and his assistants categorically deny any intention or attempts on their part to oppose the union.

Equally clear from the record is the fact that Appellant’s employment has been a matter of controversy virtually from the outset. On February 16, 1972, Appellant was reprimanded in writing by John Jennings, Assistant Superintendent, Division of State Buildings, for failure to properly investigate an alleged incident of attempted murder and rape which occurred while Appellant was on duty and for failure to cooperate with local authorities relative to the incident. At this same time Appellant was reprimanded for improperly permitting another officer to leave his post. The letter warned that Appellant must improve in his work or face disciplinary action. On September 21, 1973, Appellant was suspended through September 25, 1973 by Ri-zan for cursing, threatening and offering to fight a fellow officer named Mitchell. This incident occurred at the end of a shift when Appellant was signing out at 6:30 A.M. on the morning of the suspension.

In October, 1972, and again in October, 1973, Rizan rated Appellant for annual salary increases and in each instance disapproved raises because of Appellant’s exhibited poor attitude and resentment of superi- or authority and inclination for loss of self control. Subsequently, apparently because of intervention by higher authority, these disapprovals were rescinded and Appellant received the annual raises involved.

Appellant was evaluated on March 3, 1971, upon request of his superior, Mercy Cambre, in connection with Appellant’s proposed promotion by one grade. The evaluator, Fontaine Abbott, noted that while Appellant had sufficient intelligence for the promotion, Appellant was reputed to be a fault finder and griper. Abbott expressed the opinion that Appellant possessed a “negative attitude” and requested more time to study Appellant’s case.

On or about March 10, or 12, 1975, Appellant submitted to his superiors, through union channels, a list of purported union grievances. The crudely worded and written document in effect accused Rizan of favoritism and partiality in the assignment of overtime work, particularly in favoring supervisory personnel over lower echelon employees. The list contained a grievance entitled, “Better working conditions with Capt. Johnson.” It was alleged that Johnson favored “his boys that rat on his fellow officer.” It is also asserted that while ordinary employees never know what work assignments they will receive on reporting to duty, “Johnson’s rats and pimps know where they are to work.” This particular grievance concludes by admonishing Rizan to “put a stop to Mr. Johnson (sic) babyish ways.” The document further recites that the views expressed “is the men fellings (sic). The moral (sic) is at a all time low.” The document concludes by chiding Rizan for breaking all work rules in the union contract and offering to forgive Ri-zan if Rizan would stop fighting the union and join its members.

Within a day or two of submitting the first list of grievances, Appellant, at Ri-zan’s request to make the issues more specific, submitted a second list which claimed that favoritism was being extended Lt. Gore in regard to overtime work. It was also stated that Rizan had reneged on his promise to avoid placing men on permanent posts or shifts and to work the entire personnel on shifts to afford all employees equal opportunity for both day and night work. Complaint was also made that employees were not allowed to have their uniform ties and jackets cleaned at Employer’s expense as had apparently been agreed as part of the union’s contract. The list clearly states that all of the men feel they are being discriminated against.

Rizan and his assistant, Captain Carlos J. Johnson, suspected that the complaints thus lodged did not represent the views of a substantial number of employees as alleged by Appellant, but rather represented Appellant’s personal feelings. To test their suspicions, Rizan and Johnson called a meeting of all employees to discuss the complaints lodged. The meeting, held prior to Rizan’s March 24, 1975 letter of dismissal, was attended by approximately 30 of the Department’s 35 employees; that is, all except those on duty and also except Appellant who had been suspended effective March 14, 1975. Of those in attendance, approximately one-half or more were union members.

All complaints were placed before the meeting and considered one at a time. After reading and discussing each complaint, a vote of employees was conducted on paper ballots prepared to ascertain the number of employees who supported the complaints or believed them to be true. In each instance a majority of the employees indicated they did not support the charges and not believe them to be true.

A considerable portion of the record consists of Appellant’s attempt to disprove the fairness and accuracy of the balloting. It suffices to state the record indicates beyond doubt that the balloting was handled fairly and without any hint of threat or attempted intimidation of the employees present.

Employer’s rules, a copy of which appears of record, prohibit an employee from using harsh, coarse, profane, insolent, indecent, suggestive, sarcastic or insulting language toward superiors and fellow employees. The rules also proscribe public criticism or ridicule of any official action taken by any member of the Department and the making of any false statement or intentional misrepresentation of fact.

The Commission found that Employer was justified in concluding the complaints were false in that they represented Appellant’s personal views rather than those of all employees as categorically stated in the documents. The Commission also found such action by an employee to be disruptive and, therefore, sufficient ground for removal. We agree with this finding. We find, in addition, that as charged in the letter of dismissal, Appellant’s conduct, as outlined therein, was such as to lessen Appellant’s efficiency as well as that of the entire Department and also was damaging to the morale of the employees in general. We find Appellant was correctly held to have been discharged for cause.

The judgment of the Commission is affirmed, all costs of these proceedings to be paid by Appellant.

Affirmed.


author: BOLIN, Judge.

text:
    C. Devall PURDY, Plaintiff-Appellant, v. Mary Gertrude PURDY a/k/a “Bill” Purdy, Defendant-Appellee.
    No. 12873.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    En Bane. Rehearing Denied May 24, 1976.

      McIntosh, Fox & Miller by Leo A. Miller, Jr., Lake Providence, for plaintiff-appellant.
    Voelker, Ragland & Brackin by Charles R. Brackin, Lake Providence, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Devall Purdy filed summary proceedings against his wife, Mary Gertrude Purdy, to evict her from the home occupied by the married couple. Following a hearing, the trial court, without assigning written reasons, rejected plaintiff’s demands and he appeals. We affirm.

The two-page transcript consists of the testimony of Mr. Purdy on direct examination. He testified he purchased the home before his marriage; that he and his wife resided there during the entire marriage; that he had filed separation proceedings against his wife; and that although he no longer wished for her to occupy the premises, she had refused to leave.

The issue on appeal is whether a married man whose separate property serves as the marital domicile can sue his wife prior to a judicial separation to evict her from such property when the wife is occupying the property contrary to the express desire of the husband.

Plaintiff-husband contends a spouse has the right to evict his wife from his separate property at any time and for any reason and that the existence of the marital relationship does not affect this right. Appellant has not cited any law or case directly in support of his argument. He has cited Seeling v. Seeling, 133 So.2d 168 (La.App. 4th Cir. 1961), but in that case suit was filed after a judgment of separation had been obtained by the husband. The fact that a separation had been obtained by the husband prior to the eviction proceedings is a distinguishing factor.

The basic obligations of the marital relationship are set forth in the following articles of Louisiana Civil Code:

Art. 119. The husband and wife owe to each other mutually, fidelity, support and assistance.
Art. 120. The wife is bound to live with her husband and to follow him wherever he chooses to reside; the husband is obliged to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition.

To allow a husband to evict his wife by summary process from the marital domicile prior to a judicial separation is not only inconsistent with the cited codal articles but is contrary to the Louisiana civil concept of marriage. In the absence of positive law permitting such a proceeding by the husband against his wife, we hold the action is illegal and contrary to the public policy of this State,

The judgment is affirmed at appellant’s cost.


author: SMITH, Judge.

text:
    MURDOCK ACCEPTANCE CORP., Plaintiff-Appellant, v. S & H DISTRIBUTING CO., INC., Defendant-Appellee.
    No. 12890.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    En Banc.
    En Banc. Rehearing Denied May 24, 1976.

    Writ Refused July 2, 1976.
    Mayer, Smith & Roberts, by Ronald R. Inderbitzin, Shreveport, for plaintiff-appellant.
    Booth, Lockard, Jack, Pleasant & Le-Sage by Joseph C. LeSage, Jr., Shreveport, for defendant-appellee.

      Before HALL; MARVIN and SMITH, JJ-

       Bolin, J., recused.

   SMITH, Judge.

Plaintiff Murdock Acceptance Corporation (hereafter “Murdock”) sued S & H Distributing Company (hereafter “S & H”) as a guarantor of performance of a retail installment contract calling for the sale of 300 hot drink vending machines by Bally Distributing Company, Inc. (hereafter “Bally”) to C & H Music Company (hereafter “C & H”). Bally had assigned all rights resulting from the contract to Murdock. The lower court rendered judgment in favor of defendant rejecting the demands of plaintiff. Plaintiff appeals.

On July 7, 1966, the contract for the sale of the vending machines was signed by representatives of Bally, an Arkansas corporation, and C & H, a Texas organization. S & H, a Louisiana corporation, signed a continuing guarantee for the C & H indebtedness of $27,870.30. It is undisputed that the sales agreement and the guaranty agreement were both executed in Shreveport, Louisiana.

C & H subsequently complained to Bally of defects in the machines. 300 machines were sold. About 75 machines were un-crated and used; approximately half of those machines proved defective. After complaining of the defects in the machines, C & H returned 295 of them to Bally. No further payments were made on the installment contract.

Murdock gave the required notice to C & H and S & H for the .balance $16,163.-15, allegedly due for the machines.

The trial court found that the machines were defective and were in fact returned by C & H to Bally and subsequently sold by Murdock at private sale without benefit of appraisal. The court held that the guaranty contract executed by S & H is not a negotiable instrument under either Louisiana laws affecting that instrument or the Uniform Commercial Code of Texas or Arkansas. The defense of failure of consideration was therefore available to S & H. That defense was sustained by the trial court. As an alternative ground for rejecting plaintiff’s demands, the court concluded that Louisiana law precludes a deficiency judgment where there has been no appraisal of the property before the sale as in the instant case.

Plaintiff appeals the lower court judgment alleging that the court erred in three respects:

1) in applying Louisiana law rather than the U.C.C. of Texas or Arkansas;
2) in allowing defendant to assert the defense of failure of consideration where the principal debtor had waived that right; and
3) in finding that there was a complete failure of consideration.

We affirm the judgment of the lower court.

The central issue of this case is whether plaintiff is entitled to a deficiency judgment. If Louisiana law is regarded as controlling, the creditor is not entitled to a deficiency judgment under the statutory law and public policy of this state, because the coffee machines were sold without the debtors having been afforded the benefit of an appraisement. See LSA-R.S. 13:4106, 4107. If, however, the law of Texas or Arkansas governs this case, the plaintiff did comply with those states’ prerequisites for a deficiency judgment.

The lower court held that Louisiana law applied and that the Deficiency Judgment Act prevented judgment in favor of plaintiff and against the Louisiana surety. Plaintiff argues that there are insufficient factual connections with Louisiana to support a holding that Louisiana law applies. We cannot agree.

In reviewing the instrument executed by S & H as guarantor of C & H’s obligation, we find no effective choice of law by the parties. Absent such a choice, we must look to the interests of the various states to determine what law should be applied.

We conclude that this case presents a false conflict of laws question. A false conflict occurs when one of two states related to a case has a legitimate interest in the application of its law and policy and the other has none. Jagers v. Royal Indemnity Company, 276 So.2d 309 (La. 1973); Lester v. Aetna Life Insurance Company, 433 F.2d 884 (U.S.Ct. of Appeals 5th Cir., 1970).

Louisiana has a strong public policy of protecting debtors from deficiency judgments where there has been no appraisal of property sold to satisfy that debt. The interests of Louisiana in fostering that policy will be well-served by the application of Louisiana law in the instant case involving a Louisiana domiciliary. Arkansas and Texas have no interest in allowing a deficiency judgment in favor of a Tennessee creditor and against a Louisiana debtor.

It is undisputed that the seller of the coffee machines contacted the officials of S & H at that firm’s headquarters in Shreveport, Louisiana, hoping that S & H could locate buyers for their products. From their Shreveport office, S & H contacted the vendees in this case with information about the coffee devices. The resulting sales agreement was signed in Shreveport.

It would not advance any policy of the law of the domicile of the vendor to apply its law, but it would defeat the policies of the forum state to apply the law of the foreign state. A contrary conclusion would defeat the policy the State of Louisiana continues to have—to prevent deficiency judgments in favor of creditors where the debtor has not been afforded the benefit of an appraisal of the encumbered property.

The lower court was correct in refusing plaintiff the deficiency judgment. Having concluded that Louisiana law applies and that Murdock was not entitled to judgment for the balance because of the Deficiency Judgment Act, we do not reach plaintiff’s other allegations of error.

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

AFFIRMED.


author: PRICE, Judge.

text:
    Frank DAVIS, Plaintiff-Appellant, v. CALDWELL PARISH POLICE JURY et al., Defendants-Appellees.
    No. 12882.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    En Banc. Rehearing Denied May 24, 1976.
    Writ Refused July 2, 1976.

      Allan L. Placke, Monroe, for plaintiff-appellant.
    Don C. Burns, Columbia, for defendant-appellees.
    Before PRICE, HALL, and MARVIN, JJ.
   PRICE, Judge.

Frank Davis has appealed from the judgment of the District Court rejecting his request for a writ of mandamus to compel the Caldwell Parish Police Jury to issue him a permit to sell packaged liquor of high. alcoholic content in Ward Two of Caldwell Parish. Prior to a reapportionment of the wards in Caldwell Parish in June 1972, the location for which plaintiff seeks a permit was in Ward Four. This Ward was voted dry in 1954. Under the realignment of ward lines,,, this part of Ward Four was merged into Ward Two, which legally permitted the sale of alcoholic beverages.

The question thus presented is whether the prior “dry” area of Ward Four became legally “wet” at the time of merger.

The district judge relied on the decision in Blanchard v. Gauthier, 248 La. 1107, 184 So.2d 531 (1966) in rejecting plaintiff’s demands. Gauthier held a “dry” area remains “dry” even when merged into a “wet” area.

Appellant contends the enactment in 1968 of LSA-R.S. 26:582.1 has overruled the rationale of the Gauthier case. This statute reads as follows:

A. When a portion of a ward or municipality is annexed or made a part of another ward, municipality or city-parish government having a population of one hundred thousand or more, the portion annexed or made a part of shall take on the legal sales characteristics, as provided in this Chapter, of the ward, municipality or city-parish government to which it is annexed or made a part of; provided, however, that this section shall not apply to any ward, municipality, or city parish government, or any portion of any of these, located within the Parish of Ouachita.
B. The provisions of R.S. 26:582.1 shall be applicable to any election previously called under Title 26 or any other local option law and to any territory covered by such election which has subsequently been merged with another ward, incorporated municipality or portion thereof or whose boundary has been changed, it being the intention of this act that the sale of beverages covered by Chapter 26 be permitted or prohibited only in an entire ward or incorporated municipality and not in any portion thereof.

The plaintiff argues that paragraph B of this statute does not allow the sale of alcoholic beverages to be prohibited in a portion of a ward. We find a proper interpretation of this statute requires that paragraphs A and B be read together. Paragraph A limits the applicability of this section of the revised statutes to wards or municipalities having a population of 100,000 or more. Paragraph B merely amplifies the provisions of the preceding paragraph. While paragraph B does restrict the permission or prohibition of the sale of alcoholic beverages in only a portion of a ward, we interpret this to be subject to the population limitations of paragraph A.

It is undisputed that Ward Two of Caldwell Parish contains a population of less than 100,000.

We therefore find the decision of Blanchard v. Gauthier controlling on the right of plaintiff to procure a permit to sell alcoholic beverages in the subject area and that the District Court was correct in upholding the action of the Police Jury in rejecting plaintiff’s application.

Accordingly, the judgment appealed from is affirmed at appellant’s costs.


author: HALL, Judge.

text:
    Joe Ben HAYES, Plaintiff-Appellant, v. Charlotte DOMPE, Defendant-Appellant.
    No. 12891.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    En Banc. Rehearing Denied May 24, 1976.

      Henry C. Walker, IV, Shreveport, for plaintiff-appellant.
    Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by Robert J. Donovan, Jr., Shreveport, for defendant-appellant.
    Before HALL, MARVIN and SMITH, JJ-
   HALL, Judge.

Plaintiff, Joe Ben Hayes, filed suit against defendant, Charlotte Dompe, claiming ownership of certain household goods and furniture alleged to be in the possession of defendant. Plaintiff prayed for a writ of sequestration which was issued and the property was seized by the sheriff and placed in storage. Defendant answered denying plaintiff’s ownership of the property. By reconventional demand defendant claimed ownership of the property, together with other household goods and furniture alleged to be in plaintiff’s possession. Defendant further sought to recover damages for trespass and invasion of privacy arising out of plaintiff’s alleged unlawful entry into her apartment and removal of the items of furniture now in plaintiff’s possession.

After trial, pursuant to written reasons for judgment, the district court rendered judgment recognizing defendant’s ownership of most of the items of furniture, recognizing plaintiff’s ownership of some of the furniture, and rejecting defendant’s re-conventional demand for damages. Both parties appealed devolutively and, additionally, plaintiff answered defendant’s appeal.

The issues on appeal are (1) ownership of the items of furniture; and (2) defendant’s entitlement to damages for trespass and invasion of privacy.

In the spring of 1974, plaintiff had recently separated from his wife and was living in the Mikado Apartments in Shreveport. He and defendant, who was living in the Lakewood Villa Apartments in Shreveport with her two children and her mother, began going together. On June 22, 1974, plaintiff signed a lease for an apartment in the Cypress Cove Apartments with occupancy to begin July 1, 1974. In the lease application plaintiff showed his wife’s name as Charlotte.

Plaintiff and defendant moved into the apartment. Defendant owned a house trailer and furniture in Arkansas and intended to move her furniture to the apartment, but plaintiff informed her he wanted her to have something new and nice that would fit into the new apartment. Defendant sold her trailer and furniture for $4,000, using approximately $3,100 to pay off the note on her automobile and giving the balance to plaintiff for the purpose, according to her testimony, of being applied to payment for the furniture purchased by him for use in the new apartment, which is part of the furniture in dispute.

At the time the parties moved into the Cypress Cove apartment, plaintiff bought several items of furniture consisting of a gold living room couch, a gold high back living room chair and “elephant” table, a dining room table and six chairs, antique wall fixtures, two twin beds, a king-size mattress and springs, a tiffany lampshade and a set of glasses monogrammed with an “H”. Defendant helped him pick out the new furnishings. Plaintiff also brought to the apartment several items of furnishings already owned by him consisting of an antique iron sewing machine base and antique sewing machine, and antique clock, a stained glass window seven feet tall, an antique window two feet by four feet, a Kenmore freezer, a drop leaf table, an antique hall tree, an AM/FM stereo with speakers and a tea cart. During the time the parties lived together plaintiff also bought defendant’s clothes, some linens, barstools, a coffee table and an oil lamp, which items are in defendant’s possession and are not involved in this lawsuit.

Defendant testified they were to be married as soon as plaintiff’s divorce was final. While plaintiff denied he ever intended to marry defendant, the evidence discloses he listed her as his wife when he rented the apartment, introduced her as his wife on occasion, allowed her to charge purchases as Mrs. Hayes and discussed a future honeymoon trip with defendant and members of her family. While the parties lived together defendant’s children lived with them part of the time and defendant’s mother lived with them for several weeks.

In August, 1974, friction developed between the parties and plaintiff moved out of the apartment, going to live with his mother. He came back shortly thereafter and the parties resumed their relationship until about the middle of September when plaintiff left for good. Thereafter, defendant made the monthly payments on the apartment and she signed a new lease in her own name in March, 1975. The furniture remained in her possession at the apartment.

In May, 1975, eight months after the parties stopped living together, plaintiff, with his fiancee who later became his wife and their five children, went to defendant’s apartment during the afternoon and asked to be given the stereo, the antique sewing machine and the tea cart. Defendant refused saying that she would talk to plaintiff at a later date about the furniture. Plaintiff and his group left the apartment but after a few minutes came back, knocked on the door and called for defendant to let them in. Defendant did not reply, nor did she go to the door. About this time the apartment maintenance man came by and allowed plaintiff, or a member of his group, to use his key to open the apartment door. After some commotion and excitement, plaintiff removed from the apartment the stereo, the antique sewing machine and the tea cart. The commotion attracted attention of other residents of the apartment complex and the police were called. Later that same night, about midnight, plaintiff’s fiancée went back to the apartment, was admitted by defendant, and was engaged in conversation with defendant. Defendant’s brother was also present in the apartment. Plaintiff came to the door, which was opened by defendant’s brother, and an altercation ensued between plaintiff and the brother. The police were called again.

Defendant testified plaintiff gave her all of the furniture in the apartment as a gift to replace the furniture she sold and so she would have something nice. Plaintiff testified he never intended to give the furniture to defendant and never said he was doing so. Defendant’s version is corroborated, particularly as to the new furniture bought at the time the parties started living together, by the testimony of her mother, brother, sister-in-law and friends. The essence of their testimony was that as the new furniture was purchased, plaintiff would comment proudly about the nice new things he was buying for Charlotte.

The trial court held there was ample evidence, and found as a fact, that all of the furniture with the exception of the stained glass windows was owned by defendant, having been given to her by plaintiff. The trial court accepted defendant’s testimony, supported by other testimony and corroborating circumstances, on what was basically a credibility issue. The evidence is convincing that plaintiff bought the new furniture as a gift for defendant. The primary thrust of the testimony of defendant and her witnesses relates to the new furniture. The evidence is less convincing as to the furniture already owned by plaintiff prior to the establishment of his relationship with defendant.

LSA-C.C. Art. 1539 provides:

“The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.”

The burden of proving a manual gift is on the donee who must show the intent of the donor to make a donation and a real delivery of the thing donated by strong and convincing proof. Succession of Woolfolk, 225 La. 1, 71 So.2d 861 (1954); Woodward v. Lewis, 292 So.2d 728 (La.App.2d Cir. 1974), writ denied, 294 So.2d 839; Faust v. Curtis, et al, 278 So.2d 875 (La.App.1st Cir. 1973); Succession of Brewster, 259 So.2d 388 (La.App.2d Cir. 1972).

Applying this standard of proof, we find defendant met the burden of proving a gift to her of the furniture bought at the time of and after the parties rented the apartment and began living together. We find that defendant failed to bear her burden of proving a gift of the furniture already owned by plaintiff. The judgment of the district court will be amended accordingly.

A case closely in point is Adams v. Long, 5 So.2d 163 (La.App.2d Cir. 1941). In that case plaintiff claimed ownership of an automobile purchased by him while living in a state of concubinage with defendant. After the relationship terminated defendant refused to turn the’ car over to plaintiff, claiming it was hers by virtue of a manual gift. The court held that the evidence justified a finding that plaintiff made a manual gift of the car to defendant and approved the following statement by the trial court:

“Plaintiff had partaken of the sweets and now he could partake of the bitters.”

Defendant claims damages for humiliation, embarrassment and the like arising out of plaintiff’s entry into her apartment without her permission, removal of items of furniture and causing of a commotion. The facts surrounding the incident are highly disputed in many respects but it is clear that plaintiff entered the apartment without defendant’s consent and over her objection and removed furniture from the apartment without her consent. All of this took place more than eight months after the parties terminated their relationship and at a time when plaintiff had no vestige of legal right to enter defendant’s apartment. The incident attracted attention and undoubtedly caused defendant some embarrassment and distress. Considering all of the circumstances, we conclude defendant is entitled to recover damages, but only in a rather minimal or nominal amount. The award is fixed at $500.

For the reasons assigned, the judgment of the district court is hereby amended to recognize plaintiff, Joe Ben Hayes, as the owner of the following property, to-wit:

(1) 1 antique iron sewing machine base;
(2) 1 antique clock;
(3) 1 stained glass window—7 feet tall;
(4) 1 antique window, stained glass 2 feet by 4 feet;
(5) 1 Kenmore freezer;
(6) 1 drop leaf table;
(7) 1 antique hall tree;
(8) 1 AM/FM stereo and 2 speakers;
(9) 1 antique sewing machine;
(10) 1 tea cart; and
(11) 1 set of monogrammed “H” drinking glasses;

and to recognize defendant, Charlotte Dompe, as owner of the following property, to-wit:

(1) 1 gold living room couch;
(2) 1 gold high back living room chair;
(3) 1 elephant table;
(4) 1 dining room table and 6 chairs;
(5) antique fixtures on the walls;
(6) 2 twin beds;
(7) 1 king-size mattress and springs; and
(8) 1 tiffany lampshade.

The judgment of the district court is reversed insofar as it rejected the demand of defendant and plaintiff-in-reconvention, and it is now ordered, adjudged and decreed that there be judgment herein in favor of plaintiff-in-reconvention, Charlotte Dompe, and against defendant-in-reconvention, Joe Ben Hayes, in the sum of Five Hundred and No/100 ($500) Dollars, with legal interest thereon from date of judicial demand until paid. All costs of this appeal are assessed to plaintiff, Joe Ben Hayes.

Amended in part, reversed in part and rendered.