author: SANDERS, Chief Justice.

text:
    Judge Allen M. BABINEAUX et al. v. JUDICIARY COMMISSION of Louisiana et al.
    No. 58450.
    Supreme Court of Louisiana.
    Dec. 13, 1976.
    Rehearing Denied Jan. 21, 1977.

      William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Donald B. Ensenat, Asst. Attys. Gen., Cleveland C. Burton, Member, Judiciary Commission of Louisiana, Shreveport, for defendants-relators.
    Patricia Saik, John P. Nelson, Jr., Nelson, Nelson & Lombard, Ltd., New Orleans, for plaintiff-respondent.
   SANDERS, Chief Justice.

Ten Louisiana judges filed suit in the district court for a declaratory judgment that Canon 5 C(2) of the Louisiana Code of Judicial Conduct (1975), prohibiting judges from serving on the board of directors of financial institutions, is unconstitutional. All but one of the judges presently hold positions on the board of directors of banks and other financial institutions. On application of the Judiciary Commission of Louisiana, alleging that the constitutionality of the canon was at issue, we granted writs to determine the constitutional question. La., 336 So.2d 218 (1976).

Canon 5 C(l) and (2) of the Louisiana Code of Judicial Conduct (1975) provides:

“(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.
“(2) Subject to the requirement of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity but should not serve as an officer, director, manager, or employee of any bank, lending institution, homestead or savings and loan association, insurance company, public utility, and other businesses affected with a public interest.”

Specifically, the petitioners assert that Canon 5 C(2) violates the due process clauses of the Fourteenth Amendment to the United States Constitution and of Article 1, Section 2 of the Louisiana Constitution (1974). Petitioners argue that the canon unduly restricts their right to pursue an occupation.

Petitioners also assert that the canon violates the Equal Protection clause of the Fourteenth Amendment in that it does not apply to part-time judges or to membership on the boards of directors of all types of businesses.

Finally, petitioners assert that the canon abridges their freedom of association in violation of the First Amendment to the United States Constitution.

The canon has its roots in the legal history of our State. On October 13, 1960, the Louisiana Supreme Court adopted for the first time canons of judicial ethics “for the proper guidance and protection of the Justices and Judges of the courts of record of Louisiana.” See 242 La. XLI. íhe adoption of the canons climaxed a concerted effort of leaders of the bench and bar to secure formal guidance for judicial conduct. Canon IV provided generally that a judge’s official conduct should be free from impropriety and the appearance of impropriety. More specifically, Canon XVIII provided:

“A judge should avoid giving ground for any reasonable suspicion that he is utilizing the power of prestige of his office to persuade or coerce others to patronize or contribute, either to the success of private business ventures, or to charitable enterprises. He should, therefore, not enter into such private business, or pursue such a course of conduct, as would justify such suspicion, nor use the power of his office or the influence of his name to promote the business interests of others; he should not personally solicit for charities, nor should he enter into any business relation which, in the normal course of events reasonably to be expected, might bring his personal interest into conflict with the impartial performance of his official duties.”

On June 17, 1971, the Supreme Court Committee on Judicial Ethics formally ruled that membership on the board of directors of a bank violated Canons IV and XVIII of the Canons of Judicial Ethics.

On March 15, 1973, the Chief Justice appointed a 22-member committee, composed of leaders of the bench and bar, to prepare a new code of judicial conduct in light of subsequent developments, including the publication of a new code of judicial conduct by the American Bar Association. After extensive deliberation, the committee recommended retention of the prohibition against service by judges on boards of financial institutions but recommended more specific language, that now contained in Canon 5 C(2). The committee also recommended a grandfather clause, that is, a clause allowing judges already on the boards of financial institutions to continue to serve but barring new memberships.

On March 5, 1975, almost two years after the committee began its work, this Court adopted the Code of Judicial Conduct substantially as recommended, including Canon 5 C, but rejected the grandfather clause. See La.Cases, 308 So.2d XXXIV.

Due Process

The petitioners first argue that Canon 5 C(2) unduly restricts their right to pursue an occupation and thus violates their rights to liberty and property protected by the due process clauses of both the state and federal constitutions.

This argument addresses what is generally termed substantive due process. Substantive due process may be broadly defined as the constitutional guaranty that no person shall be arbitrarily deprived of his life, liberty, or property. The essence of substantive due process is protection from arbitrary and unreasonable action. Poe v. Uilman, 367 U.S. 497, 81 S.Ct. 1762, 6 L.Ed.2d 989 (1961); Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911 (1954); 16 Am.Jur.2d, Constitutional Law, § 550, p. 946.

The State Constitution vests in the Supreme Court of Louisiana general supervisory jurisdiction over all other courts, with authority to establish procedural and administrative rules not in conflict with law. Art. 7, § 10, Const. (1921); Art. 5, § 5, Const. (1974). Thus, the petitioners concede that the Supreme Court has general authority to adopt rules regulating the conduct of judges.

A director occupies a fiduciary relation to the corporation and its stockholders. LSA-R.S. 12:91; Williams v. Fredericks, 187 La. 987, 175 So. 642 (1937); Roussel Pump & Electric Co. v. Sanderson, La. App., 216 So.2d 650 (1968); House of Campbell v. Campbell, La.App., 172 So.2d 727 (1965). The directors manage the corporate affairs and are under a duty to use their best efforts to promote the interests of the corporation. LSA-R.S. 12:81; 19 C.J.S. Corporations § 764, p. 112.

A judge in the exercise of his judicial duties occupies a unique position. The nature of his office imposes upon him restrictions with respect to the extent that he can engage in the varied activities of business life. 46 Am.Jur.2d, Judges, § 51, p. 128. Canon 5, as a whole, is designed to minimize the risk of conflict between a judge’s extra-judicial activities and his judicial duties. Canon 5 C(2) promotes this objective. A similar canon is in effect in a number of other states and in the federal courts. See Code of Judicial Conduct for United States Judges, Canon 5, 28 U.S.C. § 455.

The risk of conflict is substantial. As a director, a judge may use or appear to use the power and prestige of his judicial office to attract business for the corporation. Although not intentionally exerted, his influence upon litigants and potential litigants defies measurement.

The petitioners’ contention that a directorship is a neutral position is untenable. It overlooks the fact that a director owes a fiduciary duty to the corporation. In practical terms, this means a duty to efficiently manage its affairs and promote its business.

A second source of conflict is in litigation. Litigation by financial institutions is a common occurrence. The corporation may become a litigant in the court on which the judge-director serves or have a business relation with a litigant in that court. In either situation, problems arise pertaining to the recusal, or disqualification, of the judge. See LSA-C.C.P. Art. 151.

We conclude that the restriction on directorships is neither arbitrary nor unreasonable. Hence, it does no violence to substantive due process.

The petitioners also complain of the denial of procedural due process.

Procedural due process requires that all proceedings directed toward the deprivation of life, liberty, or property be conducted in a manner consistent with essential fairness. Among the requirements are notice of the proceeding and a fair opportunity to defend. Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); 6 Am.Jur.2d, Constitutional Law, § 548, p. 941.

On May 28, 1976, the Judiciary Commission notified the petitioners that under Louisiana Supreme Court Rule 23, the Commission would determine the applicability of Canon 5 C(2) to them pursuant to an evi-dentiary hearing. The Judiciary Commission subsequently set the hearing for August 27, 1976. Because of the pendency of these proceedings, the hearing was delayed.

Petitioners make no attack upon the adequacy of the notice. They do complain of the inadequacy of the procedures, especially those for legal counsel, and assert that the Administrative Procedure Act (LSA-R.S. 49:951 et seq.) is applicable.

LSA-R.S. 49:951(2) expressly provides:

“ ‘Agency’ means each state board, commission, or department which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by, or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof and the courts.’' (Italics ours.)

The term courts in the above provision means the judicial branch of state government. See Art. 5, La.Const.1974. The Judiciary Commission is an independent, disciplinary body in the judicial branch of government. See LSA-Const. Art. 5, § 25 (1974). Hence, contrary to petitioners’ contention, the Administrative Procedure Act is inapplicable.

The Judiciary Commission procedures are set forth in Rule 23 of the Louisiana Supreme Court Rules. Section 9(a) provides:

“In proceedings involving his discipline, a judge shall have the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by counsel, and to examine and cross-examine witnesses. He shall also have the right to the issuance of subpoenas for attendance of witnesses to testify or for the production of books, papers, documents, and other evidentiary matter.”

Insofar as representation by counsel is concerned, the above section contains no constitutional infirmity.

Equal Protection

The petitioners assert that Canon 5 C(2) violates the Equal Protection Clause of the Fourteenth Amendment in that it makes two sets of classifications which are unreasonable. First, the canon applies only to full-time judges and not to part-time judges. Second, the canon prohibits judges from serving as directors of banks, lending institutions, homestead associations, insurance companies, public utilities, and other businesses affected with a public interest but does not prohibit service on the boards of other types of corporations.

The guiding principle of equal protection is that all persons similarly situated shall be treated alike. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); 16A C.J.S. Constitutional Law § 502 p. 296.

As the petitioners correctly note, the key to determining whether there has been a denial of equal protection is whether the classifications made are unreasonable and arbitrary.

By virtue of constitutional and statutory authority, a substantial number of part-time judges are presently serving in the courts of limited jurisdiction. See LSA-Const. Art. 5, § 15 (1974); LSA-13:1951 et seq. These judges are legally authorized to pursue another occupation, and their compensation is fixed accordingly. Because of the dual source of their livelihood, their situation differs in a marked degree from that of the full-time judge of the courts of general and appellate jurisdiction. Under the circumstances, the separate classification of the part-time judge is neither unreasonable nor arbitrary. Reynolds v. Chumbley, 175 Tenn. 492, 135 S.W.2d 939 (1940).

The business classification of the canon is based upon the Code of Judicial Conduct of the American Bar Association adopted in 1972. That code contains alternative provisions: One, prohibiting a judge from serving as a director of any business; the other, prohibiting a judge from serving as a director of specified businesses affected with a public interest.

After consideration, the Supreme Court adopted the less restrictive of the two provisions. See E. W. Thode, Reporter’s Notes to Code of Judicial Conduct (1973) pp. 80-83.

The question then becomes whether “bank, lending institution, homestead or savings and loan association, insurance company, public utility, and other businesses affected with a public interest” represents an unreasonable classification. We think not.

An analysis of the businesses enumerated discloses that they are of three types: (1) financial institutions, (2) public utilities, and (3) other businesses affected with a public interest.

Because of the nature of their operations, these three types of businesses are more likely to have regular litigation in the courts than other businesses. Mortgage foreclosures and suits on promissory notes by financial institutions are daily grist in the courts. Significantly, the courts ultimately review the rates of public utilities. Service on the boards of financial institutions, which compete for public patronage, is more likely to provide ground for a reasonable suspicion that a judge is utilizing the power and prestige of his office to influence others to patronize the business or contribute to its success.

We conclude that the business classification has a rational basis and is neither arbitrary nor unreasonable.

Freedom of Association

Petitioners’ contention under the First Amendment is that the canon abridges their right to freely make economic associations.

The First Amendment, of course, is applicable to the states by virtue of the Fourteenth Amendment. Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). However, freedom of association is not an absolute. Whenever the freedom of association is asserted against the exercise of state powers, it must be considered “in light of the special characteristics of the . . . environment” in the particular case. See Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In such a case, a determination of the constitutionality of the regulatory measure requires a weighing of the competing interests. The State must demonstrate that the action taken is reasonably related to the protection of a legitimate interest and that the restriction on association is no greater than is required to further that interest. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); 16 Am.Jur,2d, Constitutional Law, § 355, p. 682; Annot., Right of Association, 33 L.Ed.2d 865 (1973).

The countervailing state interest in the present case is the impartiality, independence, and public image of the judiciary. See Canon 1, Louisiana Code of Judicial Conduct; La. Cases, 308 So.2d XXXIV.

The state interest is correctly described in 46 Am.Jur.2d, Judges, § 51, p. 128 as follows:

“The peculiar nature of his office imposes upon a judge certain restrictions and limitations with respect to the extent to which he may engage in the ordinary activities and associations of citizens. He should, of course, refrain from activities and associations that would tend to impair his independence of judgment or render him subject to improper influence in the performance of his duties.”

In 1948, Judge John J. Parker, United States Court of Appeals, Fourth Circuit, emphasized the importance of the regulatory interest here when he wrote:

“The judge must not only be independent — absolutely free of all influence and control so that he can put into his judgments the honest, unfettered and unbiased judgment of his mind but he must be so freed of business, political and financial connections and obligations that the public will recognize that he is independent. It is of supreme importance, not only that justice be done, but that litigants before the court and the public generally understand that it is being done. . . . ” 20 Tenn.L.Rev. 703, 705-706 (1947-1949).

The state interest here is a compelling one. The restriction falls only upon those who freely accept the privilege of judicial office. As we have already observed, it is reasonably designed to further that interest.

In our opinion, the Canon does not unconstitutionally infringe upon the freedom of association.

Other Issues

One member of the Judiciary Commission asserts that the courts lack jurisdiction to decide the merits of any of petitioners’ constitutional claims at this time. Although his contention is substantial, we ultimately conclude that it is without merit. In our opinion, the courts do have jurisdiction in a declaratory judgment action to determine the constitutionality of the basic canon at this time. LSA-Const. (1974) Art. 1, § 22; LSA-C.C.P. Art. 1871.

The petitioners advance other contentions dealing with various aspects of the disciplinary investigation begun by the Judiciary Commission. Particularly, all parties request the Court to rule upon the question of whether or not service as a director of a financial institution in violation of Canon 5 C(2) is per se proscribed conduct under Article 5, § 25(C) of the Louisiana Constitution (1974). These contentions are not properly before the Court. As a constitutionally created disciplinary body, the Judiciary Commission is vested with the initial responsibility of investigating judicial misconduct and, when justified, making appropriate recommendations to this Court for disciplinary action. This Court, of course, must pass upon these recommendations. See LSA-La.Const. (1974) Art. 5, § 25.

For the reasons assigned, Canon 5 C(2) of the Louisiana Code of Judicial Conduct is declared constitutional, the demands of the petitioners are otherwise rejected at petitioners’ costs, and the stay order previously issued is recalled.


source: Caselaw Access Project

author: SUMMERS, J., concurring.

license: Public Domain

text:
    GREATER BATON ROUGE AIRPORT DISTRICT et al. v. Mrs. Florence Hobgood HAYS et al.
    No. 58979.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: Mrs. Florence Hobgood Hays, Herbert W. Hobgood, John P. Hobgood and Bill A. Hobgood, applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 431, First Circuit, Parish of East Baton Rouge.

Writ denied. The result is correct.

Additional concurring reasons.

We construe the judgment of the Court of Appeal as an award of the avigation servitude to the plaintiffs and a money judgment in favor of defendants.

SUMMERS, J., concurring.

I am of the opinion the money judgment awarded defendants the interest which defendants contend is due.

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


text:
    Al B. JOHNSON, a/k/a Al Brown v. GUASTELLA CONSTRUCTION AND REALTY CO. and Commercial Union Insurance Company.
    No. 59010.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: Al B. Johnson, a/k/a Al Brown applying for certiorari, or writ of review, to the Court of Appeal, 338 So.2d 747, Fourth Circuit, Parish of Orleans.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.

DIXON, J., dissents from the denial.

CALOGERO, J., dissents, would grant this writ.

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


author: SUMMERS, J.,

text:
    Margaret Pace, wife of and William PACE v. WINN DIXIE, LOUISIANA, INC.
    No. 59012.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: Winn Dixie Louisiana, Inc. applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 856, First Circuit, Parish of St. Tammany.

Writ denied. No error of law.

SUMMERS, J.,

is of the opinion the writ should be granted. Clark v. I. H. Rubenstein, Inc., 326 So.2d 497 (La.1976) upon which the court of appeal predicates its judgment has been legislatively overruled, and this Court should overrule that decision. See art. 339 of 1976.

DIXON, J., concurs in the denial; there has been no legislative overruling of Clark v. Rubenstein.


text:
    Liquidation of INTERNATIONAL CITY BANK AND TRUST COMPANY.
    No. 59073.
    Supreme Court of Louisiana.
    Jan. 4, 1977.
   In re: International City Bank and Trust Company et al. applying for a writ of cer-tiorari, or review.

Writ denied. There is no error of law in the trial court’s ruling.


text:
    Philip Glenn STRALEY v. CALONGNE DRAYAGE AND STORAGE, INC.
    No. 58850.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Philip Glenn Straley, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 337 So.2d 887.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    SUBDIVISION PLANNING ENGINEERS, INC. v. MANOR DEVELOPMENT CORP. and Trinity Universal Insurance Company.
    No. 58853.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Subdivision Planning Engineers, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 337 So.2d 618.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Philip Glenn STRALEY v. CALONGNE DRAYAGE AND STORAGE, INC.
    No. 58858.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Aetna Casualty and Surety Co., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 337 So.2d 887.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Bobbye Kirkland, wife of and John Howard McCOY, Sr. v. WINN DIXIE LOUISIANA, INC.
    No. 58967.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Bobbye Kirkland McCoy applying for supervisory writs. 339 So.2d 976.

Writ granted.

The petition of the relator in the above entitled and numbered ease having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Thomas C. Wicker, Jr., Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 17th day of January, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 11th day of April, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. James C. STEPHENSON.
    No. 58590.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: James C. Stephenson, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. On the showing made there is no error in the ruling of the trial judge.


text:
    STATE of Louisiana v. Claudius WALL.
    No. 58830.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Claudius Wall, applying for writs of certiorari, prohibition, mandamus and stay order.

Not considered. Application is premature. The relator has not as yet been sentenced and there is no ruling of the trial judge for review.


text:
    STATE of Louisiana v. Carl GUILLORY.
    No. 58839.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Carl Guillory applying for writ of review. 339 So.2d 970.

Writ denied. No error of law in the rulings complained of.


text:
    Lanell N. WINDHAM v. SECURITY INSURANCE CO. OF HARTFORD, and William Virgets.
    No. 58852.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Bank of Louisiana in New Orleans, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 337 So.2d 577.

Application denied. No error of law in the Court of Appeal judgment.


text:
    Abraham J. ADAMS, Jr. v. AVONDALE SHIPYARDS, INC.
    No. 58854.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Abraham J. Adams, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 337 So.2d 655.

Writ denied. On the facts found, the result is correct.


text:
    STATE of Louisiana ex rel. Ulysses D. SMITH v. Hon. Matthew S. BRANIFF, Judge, Section "B”, Criminal District Court, Parish of Orleans.
    No. 58877.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Ulysses D. Smith applying for supervisory and remedial writs.

Writ denied. Appeal has been lodged in this Court on December 10, 1976 under docket No. 58,975.


text:
    STATE of Louisiana ex rel. Paul E. BOETTCHER v. Benny A. BLAKEMAN, Clerk, 16th Judicial District Court.
    No. 58921.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Paul E. Boettcher, applying for writ of mandamus.

Writ denied. Return of clerk (a copy to be furnished applicant) shows that all mailings received have been filed. All writs of habeas corpus have been filed and acted upon. Applicant must make further affirmative showing that motions have been received by Clerk not filed nor acted upon.


text:
    Leontine GUILLOT v. The TRAVELERS INDEMNITY CO.
    No. 58933.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: The Travelers Indemnity Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 338 So.2d 334.

Writ dismissed. On application of relator, the writ is dismissed.


text:
    Goulding William SWIFT, Jr., et al., v. STATE of Louisiana.
    No. 59106.
    Supreme Court of Louisiana.
    Jan. 11, 1977.
   In re: Joint Application of Goulding William Swift, Jr., Enos C. McClendon, Jr., Fred S. Bowes, Guy E. Humphries, Jr. and C. William Bradley, plaintiffs, and Edwin W. Edwards and Mary Evelyn Parker, party defendants applying for supervisory writ.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Thomas C. Wicker, Jr., Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, as soon as possible, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 18th day of January, 1977, at 9:00 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. James JEWELL.
    No. 58942.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Granted

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable John S. Covington, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 25th day of January, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 15th day of April, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Elizabeth RUTHERFORD, Executrix of the Succession of Joe P. Rutherford v. J. W. RUTHERFORD, Jr.
    No. 58943.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: J. W. Rutherford, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Cameron, 338 So.2d 319.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Joseph Michael MONDELLO, III v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS. Willie Lee WOOD v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS.
    No. 58936.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Joseph Michael Mondello, III, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. 338 So.2d 730.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    Charlie JONES. v. LA. DEPT. OF HIGHWAYS Charlie JONES, as Administrator of the Estate of his Minor Child, Charlie Glenn Jones v. LA. DEPT. OF HIGHWAYS and State Farm Mutual Automobile Ins. Co. Charlie JONES, Provisional Tutor of the minors, Royce Ray Evans and John Timothy Evans v. LA. DEPT. OF HIGHWAYS and State Farm Mutual Automobile Ins. Co.
    No. 58940.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: State of Louisiana Dept, of Highways applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 338 So.2d 343. 338 So.2d 344.

Application denied. No error of law in the court of appeal judgment.


text:
    Mr. & Mrs. Carrol CONQUES v. John M. HARDY.
    No. 58944.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Mr. & Mrs. Carrol Conques applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Martin.

Writ refused. No error of law.


text:
    STATE of Louisiana v. Larry B. MARONEY.
    No. 58945.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Larry B. Maroney, applying for writ of certiorari.

Denied. On the facts of this case the result is correct.


text:
    The TOWN OF LEESVILLE, La. v. TELEPROMPTER OF LEESVILLE, INC.
    No. 58946.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Teleprompter of Leesville, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vernon. 338 So.2d 312.

Writ denied. On the facts found by the Court of Appeal, the result is correct.


text:
    Gertrude MONTGOMERY and Marion Petry v. Corine BREAUX.
    No. 58947.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Gertrude Montgomery and Marion Petry applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vermilion. 338 So.2d 314.

Application denied. No error of law.


text:
    STATE of Louisiana ex rel. Bryant M. JACKSON v. Ross D. MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58955.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Bryant M. Jackson applying for writs of mandamus, certiorari, and habeas corpus.

Application denied. Since applicant’s case is presently on appeal, and the trial judge has now acted on the habeas corpus petition, this application is moot.


text:
    STATE of Louisiana ex rel. Woodman COLLINS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59104.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Woodman Collins applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. No merit in application.


text:
    CITY OF BATON ROUGE v. Paul B. SHORT.
    No. 58973.
    Supreme Court of Louisiana.
    Jan. 13, 1977.
   In re: Paul B. Short applying for Writs of Certiorari and Stay Order.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Ben R. Miller, Judge of the City Court of Baton Rouge, for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, as soon as possible, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.-

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 31st day of January, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    CITY OF BATON ROUGE v. Virginia LeJEUNE.
    No. 58972.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Virginia LeJeune, applying for writ of review.

Granted. A new trial is ordered. See Louisiana Constitution of 1974, Article 1, Section 17; State v. McCarroll, 337 So.2d 475 (La.1976).


text:
    STATE of Louisiana ex rel. Samuel PROCTOR v. Ross D. MAGGIO, Jr., Warden, Louisiana State Prison.
    No. 58968.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Samuel Proctor, applying for habe-as corpus.

Not considered. Appeal is presently pending; extended return for appeal to be lodged in this court is January 29, 1977. Other complaint for habeas corpus relief not considered pending his appeal. See La. Code Crim. Procedure Art. 363.


text:
    STATE of Louisiana v. Wayne RAU.
    No. 59126.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: George King, applying for writs of certiorari.

Writ refused. In view of the fact that both the District Attorney and Attorney General have joined in the request under LSA-Code of Criminal Procedure, Art. 439.-1, the application is without merit.


text:
    STATE of Louisiana ex rel. Billy Darrell McLEOD v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58989.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Billy Darrell McLeod applying for writ of habeas corpus.

Writ denied. Relator’s complaint was disposed of on appeal. See 271 So.2d 45 (La.1973).


text:
    CITY OF LAKE CHARLES v. Ernest BELL. CITY OF LAKE CHARLES v. Hardy M. PARKERSON.
    No. 58917.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Hardy M. Parkerson applying for writs of certiorari, mandamus and/or prohibition.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Murray Anderson, Judge of the Lake Charles City Court for the Parish of Calcasieu, to transmit to the Supreme Court of Louisiana, on or before the 27th day of January, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 15th day of April, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Minerva B. FUTCH and Clebert Mouton v. Ida B. COUMES et al.
    No. 58963.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Minerva B. Futch and Clebert Mouton applying for writs of certiorari, mandamus and prohibition.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Douglas J. Nehrbass, Judge of the 15th Judicial District Court for the Parish of Lafayette, to transmit to the Supreme Court of Louisiana, on or before the 27th day of January, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 11th day of April, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Margaret GRIESHABER v. John R. CANNON.
    No. 58966.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: George Richard Cannon and Elsie Cannon Bruce, applying for certiorari, or writ of review, Court of Appeal, First Circuit, Parish of Ascension, 339 So.2d 445.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. John ELMORE, Jr.
    No. 58984.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: John Elmore, Jr. applying for writ of habeas corpus.

Out of time appeal granted.


text:
    METAIRIE BANK AND TRUST CO. v. WENDRYHOSKI, DEBLANC AND ASSOCIATES, et al.
    No. 58995.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Metairie Bank and Trust Co., applying for certiorari, or writ of review, Court of Appeal, Fourth Circuit, Parish of Jefferson, 338 So.2d 978.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Johnny B. TURNER v. UNITED STATES FIDELITY AND GUARANTY CO., et al.
    No. 59084.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Joint Petition of Johnny B. Turner, plaintiff and appellant, The Town of Boyce and United States Fidelity and Guaranty Co., defendants and appellees applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 339 So.2d 917.

Writ granted. Case remanded to district court. This writ grant is solely to facilitate entry of a compromise settlement (to be approved in the district court.) The application otherwise to remain on our docket until, following compromise, the parties move to dismiss same.


text:
    STATE of Louisiana v. Rex DRIEVER.
    No. 59109.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Rex Driever, applying for writs of certiorari and review.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Louis H. Padgett, Jr., Judge of the Twenty Sixth Judicial District Court for the Parish of Bossier, to transmit to the Supreme Court of Louisiana, on or before the 27th day of January, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 15th day of April, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Verg Lee NERO v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58948.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Verg Lee Nero, applying for writs of certiorari, and habeas corpus.

Writ denied. No merit in the application.


text:
    STATE of Louisiana ex rel. Richard DEVOLD v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58954.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Richard Devold, applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. Based on the transcribed examination at the time of the plea of guilty of May 15, 1975, we find no merit to the allegations set forth by the application.


text:
    STATE of Louisiana ex rel. Elton K. WELLS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58956.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Elton K. Wells, applying for writ of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. No abuse of discretion in the trial court’s ruling.


text:
    Rose Marie Scott DUNCAN v. Jerry Odell DUNCAN.
    No. 58976.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Rose Marie Scott Duncan applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston. 339 So.2d 380.

Writ denied. No error of law.


text:
    Michael GALLIANO and wife, Mary Caillouet Galliano v. Paul LIRETTE and Ronald Bergeron.
    No. 58978.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Michael Galliano and wife Mary Caillouet Galliano applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne. 339 So.2d 378.

Writ denied. On the facts found by the court below, the result is correct.


text:
    STATE of Louisiana ex rel. O’Neil BASTIAN, Jr. v. Ross MAGGIO, Warden.
    No. 58980.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: O’Neil Bastian, Jr. applying for writs of certiorari, prohibition and mandamus.

Writ denied. Inasmuch as relator pleaded guilty, there is no merit in application.


text:
    Henry LEBATARD v. HIGHLANDS INS. CO. and Petro Services of La., Inc.
    No. 58986.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Henry Lebatard applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 338 So.2d 1224.

Writ denied. Under the factual application of a majority of the court of appeal, we cannot say there is an error of law.


text:
    John K. WASKOM v. Frank CACIOPPO. LA. FARM BUREAU MUTUAL INS. CO. v. Frank T. CACIOPPO. Frank T. CACIOPPO v. MILLER FORD CO., INC., et al.
    No. 58987.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Frank T. Cacioppo, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Washington. 339 So.2d 464.

Application denied. On the facts found, there is no error of law in the judgment of the Court of Appeal.


text:
    STATE of Louisiana v. Charles Franklin NELSON.
    No. 58992.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Charles Franklin Nelson applying for writ of mandamus.

Writ denied. The Clerk of this Court is instructed to forward a copy of this application to the Nineteenth Judicial District Court for action by that court.


text:
    Julius R. FLYNN v. CENTRAL REALTY OF LOUISIANA.
    No. 58999.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Julius R. Flynn applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 338 So.2d 774.

Writ denied. On the facts found we cannot say the result is incorrect.


text:
    Faye JAMES et al. v. STATE of Louisiana, Through TEACHERS’ RETIREMENT SYSTEM OF LA., et al.
    No. 59000.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: State of La. thru Teachers’ Retirement System of La., et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 339 So.2d 449.

Writ refused. Since the court of appeal overruled the exception of no cause of action and remanded the case for further proceedings, the judgment is not final.


text:
    STATE of Louisiana ex rel. Thomas HURST v. CRIMINAL DISTRICT COURT, JUDGE SECTION "G".
    No. 58970.
    Supreme Court of Louisiana.
    Jan. 18, 1977.
   In re: Thomas Hurst, applying for writ of mandamus.

Writ granted. It is ordered that a writ of mandamus issue commanding the trial judge to rule on relator’s habeas corpus petition filed on or about August 1, 1976 within ten days or show cause in this Court on or before January 28, 1977.


text:
    STATE of Louisiana v. Dennis JOHNSON.
    No. 59083.
    Supreme Court of Louisiana.
    Jan. 18, 1977.
   In re: Dennis Johnson applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. In view of assignment of errors, argument in application for writs, and partial transcript provided the court, the showing made does not demonstrate error.


text:
    STATE of Louisiana v. Charles B. W. PALMER.
    No. 59170.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: Charles B. W. Palmer applying for remedial writs and stay order.

Granted in part. On the showing made before this court, all proceedings against applicant conducted by Joe Simpson, Assistant District Attorney, are stayed until a hearing upon applicant’s motion to recuse him has been held. Otherwise the writ is denied.


text:
    T. H. DAVIDGE et al. v. Philip MAGLIOLO.
    No. 59002.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: T. H. Davidge and David D. Da-vidge, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 339 So.2d 418.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Edward PARTIN, Jr. v. Wendy Rothdram PARTIN.
    No. 58993.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: Edward Partin, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge. 339 So.2d 450.

Writ denied. No error of law.

DENNIS, J., concurs in denying the writ.


text:
    Charlie WEBB, Jr., et al. v. Joseph YOUNG, Jr.
    No. 59003.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: Charlie Webb, Jr. and Mrs. Gloria C. Parker Webb, individually and as natural tutrix of her minor children, Veronica Parker and Karen Parker, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 338 So.2d 767.

Application denied. For reasons stated by the trial judge, the result is correct.


text:
    Arnold BUSTILLO v. BOUDREAUX AND DANE CONSTRUCTION CO., and General Accident Group.
    No. 59007.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: Boudreaux and Dane Construction Co. and General Accident Fire & Life Assurance Corp., Ltd. applying for certiorari, or writ of review, to .the Court of Appeal, Fourth Circuit, Parish of Jefferson. 340 So.2d 325.

Writ denied. On the facts found by the court of appeal, there is no error in the judgment.


text:
    Thelma LEONARD et al. v. ALBANY MACHINE & SUPPLY CO., et al. James FISHER et al. v. ALBANY MACHINE & SUPPLY CO., et al.
    No. 59008.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: James Fisher, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Helena. 339 So.2d 458.

Writ denied. On the facts found by the Court of Appeal, the result is correct.


text:
    Donald W. KANUK et al. v. Melvin POHLMANN and Robert Conn.
    No. 59011.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: Melvin Pohlmann and Robert Conn applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 338 So.2d 757.

Writ denied. There is no error of law in the judgment of the Court of Appeal.


text:
    Jacques DREYFUSS v. HALLER’S COMPRESSOR PARTS, INC.
    No. 59183.
    Supreme Court of Louisiana.
    Jan. 21, 1977.
   In re: Haller’s Compressor Parts, Inc. applying for supervisory writs of certiorari, prohibition and mandamus.

Writ denied for the reasons stated by the Court of Appeal.


text:
    Pierre LEBLANC, d/b/a Pierre Leblanc Farms v. EMPLOYER’S REINSURANCE COMPANY.
    No. 59013.
    Supreme Court of Louisiana.
    Jan. 21, 1977.
   In re: Pierre Leblanc, d/b/a Pierre Leblanc Farms applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 339 So.2d 456.

Application denied. There is no error of law in the Court of Appeal opinion.


text:
    STATE of Louisiana v. Phillip W. HOUSE.
    No. 59205.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
   In re: State of Louisiana applying for supervisory writs.

Writ denied. The application is premature. The judge has not ruled on the State’s right to reopen its case.


author: CULPEPPER, Judge.

text:
    Benny MAY, Plaintiff and Appellant, v. The SOUTHLAND CORPORATION et al., Defendants and Appellees.
    No. 5682.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 31, 1976.
    Rehearing Denied Jan. 26, 1977.
    Writ Refused March 11, 1977.

      Stafford, Randow, O’Neal & Scott by Hodge O’Neal, III, Alexandria, for plaintiff and appellant.
    Booth, Lockard, Jack, Pleasant & LeSage by Joe LeSage, Jr., Shreveport, for defendants and appellees.
    Before CULPEPPER, WATSON and HUMPHRIES, JJ.
   CULPEPPER, Judge.

Plaintiff filed this suit alleging that as a route salesman for the defendant corporations he is entitled to recover compensation under the terms of a collective bargaining agreement between the corporations and a Teamster’s Union. After defendants denied plaintiff was their employee, but was instead an employee of their route salesman, James E. Martin, plaintiff named Martin as an additional defendant. The trial judge held that although plaintiff was an employee of defendant corporations, and not of Martin, his demands must be rejected because he was not a member of the union which entered into the collective bargaining agreement. Plaintiff appealed.

The issues are: (1) Does this Court have jurisdiction over the subject matter of this lawsuit, or is exclusive jurisdiction vested in the National Labor Relations Board? (2) Was plaintiff an employee of defendant corporations or was he instead an employee of defendant, James E. Martin? (3) What law (State Contract Law, Federal Labor Law, or a combination of the two), should be applied to determine plaintiff’s rights under the subject collective bargaining agreement? (4) Does plaintiff, who was not a member of the contracting union, have a cause of action against his employer for the difference between the 5% commission he was actually paid and the 8% commission stipulated in the collective bargaining agreement? (5) May plaintiff’s alleged failure to invoke the compulsory arbitration procedure of the collective bargaining agreement be raised on appeal, or did defendants waive this objection by their failure to timely file the dilatory exception of prematurity? Plaintiff does not on appeal seek judgment against James E. Martin.

FACTS

Defendants, Midwest Farms, Inc., and Midwest Dairy Products, Inc., both subsidiaries of defendant Southland Corporation (collectively referred to as “the Company”), are engaged in the production, processing and sale of dairy products. The Company employs route salesmen to service its wholesale dairy products customers. From an office in Shreveport, the Company supervises wholesale activities in surrounding parishes, including Sabine Parish.

A collective bargaining agreement between the Company and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 568 (the Union), was in effect from April 16,1972 to April 15,1975. This agreement provides in Article 18.1: “Wholesale milk route salesmen shall receive a commission of 8% on all gross sales except schools, hospitals and government bid business which shall be paid at 8% on net sales.” Article 1.4 of the contract embodies a union security agreement commonly referred to as a “Union Shop” clause. This union shop clause requires that all employees of the Company became union members within one month of the date they are employed.

Defendant, James E. Martin, is a member of the union. He is classified as a “route salesman”. He began working for the Company over 25 years ago under the terms of an oral contract providing that he would receive a commission of 8% of wholesale dairy product sales in Sabine Parish. When he first started working for the Company, he was apparently the only route salesman in Sabine Parish. His base of operation was Many, Louisiana.

In the beginning, Martin serviced his Sabine Parish territory with only one truck, which he drove himself. Business flourished, and in 1960 a second delivery truck was added to the Sabine Parish operation. In 1963 a third truck was added. The Company owned these trucks.

With the addition of two trucks, Martin’s duties changed from those of a route salesman to those of a supervisor of route salesmen. He no longer drove a delivery truck himself but instead directed the activities of three route salesmen. The record is unclear as to the exact date that Martin quit driving a delivery truck and personally servicing his customers, but it appears that this event took place in 1963. Despite the change in his duties from route salesman to supervisor, Martin remained a union member classified as a “route salesman”.

In his supervisory capacity, Martin selected and trained the route salesmen who drove the additional delivery trucks. Plaintiff, Benny May, was hired by Martin on July 29, of 1972. Plaintiff’s job classification, his union membership status, and the question of whether he was the employee of defendant corporations or of defendant, James Martin, are discussed in detail later in this opinion. For the present, however, we can say that Benny May was hired as a “route salesman”. During the first four months of his employment, May was paid $2 per hour. Thereafter, and until his dismissal on September 20, 1974, the hourly rate was discontinued and May was paid a commission of 5% of his sales. May was apparently satisfied with his 5% commission arrangement until a transport driver delivering company products to Many told him of the existence of the union and of the provisions of the union contract setting route salesmen’s commissions at 8%. The collective bargaining agreement was in effect during the entire period of May’s employment.

Plaintiff’s fellow Sabine Parish route salesmen, Koss and Knowles, also received a commission of 5%. They, too, were supervised by James Martin. After learning the union contract sets commissions for route salesmen at 8%, Koss and Knowles shared plaintiff’s discontent. May, Koss and Knowles discussed their commission arrangement and decided to travel to Shreveport to explain their situation to officials of Teamsters Local 568. In Shreveport, May and the others met with the union steward and told him of their desire to join the union. The union steward made no determination concerning their eligibility for union membership, but he did supply the three men with union application forms which were subsequently completed and returned to the Union. With the exception of May, none of the three testified that the Union acted favorably on his application. May testified that he received a Union card but did not produce the card for introduction into evidence at trial. The trial judge held May did not prove he was a union member. We find no manifest error in this factual conclusion.

On May 25,1975, plaintiff filed a petition praying that The Southland Corporation, Midwest Farms, Inc. and Midwest Dairy Products, Inc. be ordered to pay him the sum of $12,525.40, the alleged difference between the 5% commission rate actually paid plaintiff during the term of his employment and the 8% rate which plaintiff claims he is entitled to under the provisions of the collective bargaining agreement.

JURISDICTION

Defendants do not concede that Louisiana courts have jurisdiction to hear this suit. The argument is that since the National Labor Relations Act endows the National Labor Relations Board with exclusive jurisdiction over certain labor disputes affecting interstate commerce, our state courts have no jurisdiction in the present case. We do not agree.

Apparently, defendants’ argument is based upon the fact that this suit arises under Section 301 of the Labor Management Relations Act, 29 U.S.C.A., Section 185, which provides:

(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

From the above, we conclude that the present case does arise within the purview of Section 301. This is a suit for an alleged violation or breach of a contract between a defendant employer and the Union. Defendants state in their brief before this Court: “Midwest and Southland Corporation are of course actively involved in interstate commerce. Midwest distributes ice cream products in Texas and Wisconsin.”

Although we have concluded that this action does arise within the purview of Section 301, we cannot agree that the NLRB and the Federal courts are endowed with exclusive jurisdiction over this type of suit.

In Rust Engineering Company v. United Brotherhood of Carpenters and Joiners of America, 210 So.2d 154 (La.App. 3rd Cir. 1968), this Court entertained a jurisdictional challenge similar to the present one. The defendant-employer in Rust contended that the breach or violation of the collective bargaining agreement alleged by plaintiff was arguably an unfair labor practice which came under the exclusive jurisdiction of the NLRB, thereby pre-empting any state or federal court from hearing the action. We rejected defendant’s argument holding:

“It appears well settled . . . that state courts possess jurisdiction concurrent with that of federal courts in regard to suits to enforce labor contracts. Charles Dowd Box Company v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed. 483 (1962). While Section 301 of the Labor Management Relations Act (29 USCA, Section 185) gave federal courts jurisdiction to hear cases involving a breach of a labor contract, that act nowise limited the pre-existing jurisdiction of state courts to enforce labor contracts.” 210 So.2d 154, 156.

The Courtney case was our primary authority for upholding state court jurisdiction in the Rust Engineering case. Recently, in William E. Arnold Company v. Carpenter’s District Council of Jacksonville & Vicinity, 417 U.S. 12, 16, 94 S.Ct. 2069, 2072, 40 L.Ed.2d 620 (1974), the United States Supreme Court reaffirmed the jurisdictional rule laid down in Courtney, stating:

“When . . . the activity in question also constitutes a breach of a collective bargaining agreement, the Board’s authority ‘is not exclusive and does not de-stray the jurisdiction of the courts in suits under § 301.’ Smith v. Evening News Association, supra, 371 U.S., at 197, 83 S.Ct., at 269. . . . (A)ctions within the purview of § 301 may be brought in either state or federal courts. Dowd Box Co. v. Courtney, supra. .."

Numerous other cases hold, as we do, that suits arising within the purview of Section 301 to enforce provisions of collective bargaining agreements may be brought in either state or federal courts. Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962); Local 174, Teamsters Warehousemen and Helpers of America v. Lucas Flour Company, 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); Springer v. Powder Power Tool Corporation, 220 Or. 102, 348 P.2d 1112 (1960); Bridges v. F. H. McGraw & Company, 302 S.W.2d 109 (Ky.App.1957).

In Talbot v. National Super Markets of Louisiana, 372 F.Supp. 1050 (E.D.La.1974), Judge Rubin was faced with the following question in connection with a motion to remand a case removed from a Louisiana state district court: Can a suit brought by individuals, not by their union, be considered as a claim under Section 301? The individual employees were suing for wages allegedly due under the terms of a collective bargaining agreement. Citing Smith v. Evening News, supra, the court held that the suit did arise under Section 301 and that both the state and federal district courts had jurisdiction. See also Serra v. Pepsi-Cola General Bottlers, Inc., 248 F.Supp. 684 (D.C.Ill.1965).

Considering the above, we hold that we have jurisdiction to hear plaintiff’s case.

BY WHOM WAS MAY EMPLOYED?

May was an employee of the Company rather than of James E. Martin. The trial judge reached the same conclusion, summarizing the relevant facts as follows:

“Plaintiff was actually hired by Mr. Martin, acting on behalf of Midwest, and in this connection made his application for employment on a Midwest application form.
“Midwest assigned him an employee number, assigned him a route, kept his sales figures, calculated his commission in its office in Shreveport, and then paid Plaintiff directly by checks issued on Southland, the parent company. Necessary payroll deductions were made by Midwest in its Shreveport office. “Plaintiff drove a Midwest truck, used Midwest Equipment, sold Midwest milk, and took orders from James E. Martin, a Midwest supervisory employee.
“Plaintiff was not an employee of James E. Martin. He was an employee of Midwest from July 29,1972, through September 19, 1974.”

Clearly, James Martin was simply an agent of the Company and had authority to hire, fire and supervise route salesmen in his Sabine Parish sales territory.

WHAT LAW SHOULD BE APPLIED?

We have concluded that this action to enforce the terms of a collective bargaining agreement arises within the purview of Section 301 of the NLRA. We have also concluded that plaintiff was an employee of the defendant corporations. The next question concerns what law we should apply to determine May’s rights under the collective bargaining agreement. In supplemental briefs before this Court, plaintiff argues that a mixture of state contract law and substantive federal labor law are applicable. Defendants argue that only substantive federal law applies. We think the U. S. Supreme Court answered this question in the Lucas Flour case, supra. The Supreme Court noted that the action, a suit for violation of a collective bargaining agreement, arose within the purview of Section 301(a) of the NLRA. The court was then faced with this question: “Was the Washington (Supreme) Court free, as it thought, to decide the question within the limited horizon of its local law?” Justice Stewart answered for the court explaining:

In Dowd Box we proceeded upon the hypothesis that state courts would apply federal law in exercising jurisdiction over litigation within the purview of § 301(a), although in that case there was no claim of any variance in relevant legal principles as between the federal law and that of Massachusetts. In the present case, by contrast, the Washington court held that there was nothing in § 301 “limiting the substantive law to be applied,” and the court accordingly proceeded to dispose of this litigation exclusively in terms of local contract law.

See also Textile Workers of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972.

In Lucas Flour, the court grounded its decision on the need for uniform law, stating: [I]n enacting Section 301 (of the NLRA), Congress intended doctrines of federal labor law uniformly to prevail over inconsistent state rules.” In the present case the district judge apparently relied on the general rule of Louisiana contract law that a person is neither bound by, nor entitled to the benefits of, a contract to which he is not a party. Plaintiff argues that we could apply the Louisiana law of stipulations for the benefit of third persons, LSA-C.C. Articles 1890 and 1902, to find that he is entitled to the benefits of the union contract. We conclude under the uniformity rule of Lucas Flour, quoted above, that in the present case any state law which would deny plaintiff the benefits of the collective bargaining agreement would be inconsistent with, and must yield to, the Federal labor law that the benefits of the agreement extend to all employees, regardless of union membership.

MAY’S RIGHTS UNDER THE COLLECTIVE BARGAINING AGREEMENT

Originally, defendants argued that May negotiated his own contract of employment and was not entitled to enforce the commission payment provisions of the Union contract because he was not a member of the union. Union membership, however, is not the critical factor in determining whether an employee may enforce the provisions of a collective bargaining agreement. The critical factor is whether the employee is within the bargaining unit contemplated by the contract.

In their supplemental briefs before this Court, defendants concede that:

“. . . it would appear inescapable that plaintiff-appellant May, as a member of the bargaining unit, would be entitled, under federal law, to invoke the provisions of the collective bargaining agreement in force and effect, without the necessity of being a union member. “Thus, we must answer that indeed plaintiff-appellant may invoke the provisions of the collective bargaining contract in existence between the Union and the defendants-appellees.”

We agree with defendants’ assessment of this issue for the reasons which follow: In J. I. Case Company v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944), the United States Supreme Court explained that the terms of collective bargaining agreements inure to the benefit of all employees within the bargaining unit. We quote at length from the court’s opinion in J. I. Case, because we think it succinctly outlines applicable Federal labor law doctrine:

“Contract in labor law is a term the implications of which must be determined from the connection in which it appears. Collective bargaining between employer and the representatives of a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone. The negotiations between union and management result in what often has been called a trade agreement, rather than in a contract of employment. Without pushing the analogy too far, the agreement may be likened to the tariffs established by a carrier, to standard provisions prescribed by supervising authorities for insurance policies, or to utility schedules of rates and rules for service, which do not of themselves establish any relationships but which do govern the terms of the shipper or insurer or customer relationship whenever and with whomever it may be established.
“After the collective trade agreement is made, the individuals who shall benefit by it are identified by individual hirings. The employer, except as restricted by the collective agreement itself and except that he must engage in no unfair labor practice or discrimination, is free to select those he will employ or discharge. But the terms of the employment already have been traded out. There is little left to individual agreement except the act of hiring. This hiring may be by writing or by word of mouth or may be implied from conduct. In the sense of contracts of hiring, individual contracts between the employer and employee are not forbidden, but indeed are necessitated by the collective bargaining procedure.
“But, however engaged, an employee becomes entitled by virtue of the Labor Relations Act somewhat as a third party beneficiary to all benefits of the collective trade agreement, even if on his own he would yield to less favorable terms. The individual hiring contract is subsidiary to the terms of the trade agreement and may not waive any of its benefits, any more than a shipper can contract away the benefit of filed tariffs, the insurer the benefit of standard provisions, or the utility customer the benefit of legally established rates.
sf: ‡ ‡ $
It is equally clear since the collective trade agreement is to serve the purpose contemplated by the Act, the individual contract cannot be effective as a waiver of any benefit to which the employee otherwise would be entitled under the trade agreement. The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his pre-existing contract of employment.” (Emphasis added)

Section 9(a) of the NLRA, 29 U.S.C.A., Section 159(a) also clearly states that the exclusive representative of all employees in a bargaining unit, without reference to their union membership status, is a representative chosen for collective bargaining purposes by a majority of the employees in the bargaining unit:

“159. Representatives and elections— Exclusive representatives; employees’ adjustment of grievances directly with employer
“(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” (Emphasis supplied)

Several cases in both Federal and State courts hold that a collective bargaining agreement between an employer and a labor union may be enforced by an individual employee within the scope of the agreement, even though the employee is not a member of the union. Defendants concede this point in their supplemental briefs before this Court. In the majority of cases on this issue, the courts allow the individual to sue on the agreement itself on the theory that it is a third party beneficiary contract between the employer and union for the benefit of all employees within its intended scope. See Yazoo & M.V.R.R. v. Webb, 64 F.2d 902 (5th Cir. 1933); Springer v. Powder Power Tool Corp., supra (Or.S.Ct.1960), reversing its earlier decision holding that a non-union employee could not sue on a union contract, on the grounds that the earlier case yielded to modern developments in the law of labor relations. Leahy v. Smith, 290 P.2d 679 (Cal.App.1955); Knudsen v. Chicago & Northwestern Railway Company, 106 F.Supp. 48 (N.D.Ill.1952), involving the Railway Labor Act; Richardson v. Communication Workers of America, 443 F.2d 974 (8th Cir. 1971), cert. denied 414 U.S. 818, 94 S.Ct. 38, 38 L.Ed.2d 50. See also 18 A.L.R.2d 355, 370 and cases cited therein.

These cases are consistent with the Supreme Court’s interpretation of the NLRA which emphasizes membership in the bargaining unit rather than union membership status. J. I. Case Company, supra. Therefore, we hold that May, as a member of the bargaining unit, has a cause of action against defendants for the difference between the amount actually paid to him and the amount he was entitled to as a member of the bargaining unit covered by the collective bargaining agreement.

As we previously stated, defendants concede that May was a member of the bargaining unit. Defendants do not concede, however, that May was a “route salesman” entitled to the 8% commission stipulated in Article 18.1 of the contract. Defendants contend that May was a “helper” rather than a “route salesman”. There is no merit in this argument.

Classification of employees, according to the testimony of the Company’s Shreveport zone manager and its personnel director, is dependent upon the type of work performed by the employee. Article 16.1 of the contract, which deals with plant employees rather than with the Wholesale Milk Department, provides:

“ARTICLE 16 Plant Compensation
“Section 16.1 CLASSIFICATION Present employees of both the Milk Department and the Ice Cream Department are to be assigned proper job classifications, as determined by the duties performed. In determining the proper classifications the job upon which the employee expends fifty-one (51) percent of his time or more, will control.”

Although this section does not apply to the Company’s Wholesale Milk Department, it does indicate the parties to the contract intended that employees be classified according to duties performed.

Testimony adduced at trial shows that the duties of route salesmen who were union members coincided with plaintiff’s duties. The following duties and activities, which amount to a complete job description, were common to plaintiff and his union counterparts:

1. Take customers’ orders for delivery of dairy products;
2. Delivery dairy products;
3. Collect and forward to the Company the cash payments due on charge accounts;
4. Check the freshness codes on dairy products;
5. Service the customers (i. e., rotate stock, replace spoilage, etc.);
6. Post advertising material;
7. Solicit new business;
8. Post a bond with the Company to cover shortages arising in the course of collection activities.

Since the classification scheme is based upon duties performed, May was a “route salesman”. The trial court reached the same conclusion, stating, “In practicality, he (May) performed all the duties of a milk route salesman.”

Defendants’ reliance on Article 17 of the contract as a vehicle for classifying May a “helper” rather than a “route salesman” is unfounded. The heading or title above the text of Article 17 is “Unskilled Temporary Help”. The text reads:

“Unskilled or extra help for the milk department or ice cream department may be hired. This article will not be used as a subterfuge.” (Emphasis supplied)

There are three reasons that May cannot be considered a “helper” within the meaning of Article 17. First, plaintiff was hired as a permanent employee rather than a temporary employee. Second, the Company’s use of the provisions to classify a “route salesman” as a “helper” to avoid the payment of the 8% commission stipulated in the contract amounts to a subterfuge. Third, from our reading of the contract as a whole, it appears that Article 17 applies only to the production “Milk Department”, not to the “Wholesale Milk Department”.

As a route salesman, plaintiff is entitled to the difference between the 5% commission he was paid and the 8% commission stipulated in the collective bargaining agreement.

THE EFFECT OF THE ARBITRATION CLAUSE

Defendants argue that this Court is without jurisdiction in the present ease because plaintiff failed to exhaust compulsory grievance and arbitration procedures mandated by Articles 30.1 and 30.4 of the collective bargaining agreement. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). We need not address the merits of this argument, however, as it may be disposed of upon procedural grounds.

The dilatory exception of prematurity is a threshold device designed to terminate an action brought before the right to enforce it has accrued. LSA-C.C.P. Articles 926(1) and 423. Failure to abide by contractual compulsory arbitration provisions and failure to exhaust administrative remedies are defenses which are properly raised through the dilatory exceptions of prematurity. Such an exception must be filed before answer or judgment of default under penalty of waiver. LSA-C.C.P. 926, 928; Lee v. Blackwell, 286 So.2d 185 (La. App. 4th Cir.1973); Quinn Construction Company, Inc. v. Savoie, 207 So.2d 229 (La.App. 4th Cir. 1968); writ refused; Stone v. Stone, 281 So.2d 177 (La.App. 4th Cir. 1973), reversed on other grounds 292 So.2d 686 (La.1973); Buquoi v. Hampton, 6 Mart., N.S. 8 (1827). See also Sim v. Beauregard Electric Co-op, Inc., 322 So.2d 410 (La.App. 3rd Cir. 1975); Superior Oil v. Humble Oil & Refining Company, 257 La. 207, 241 So.2d 911 (1970), and Steeg v. Lawyers Title Insurance Corporation, 329 So.2d 719 (La.1976). Therefore, we hold that defendants waived their right to object to plaintiff’s alleged failure to exhaust grievance and arbitration procedures or other administrative remedies by failing to timely file a dilatory exception of prematurity.

Before addressing the issue of the amount of commission due to May, we feel a comment about defendants’ argument concerning May’s alleged failure to invoke arbitration procedure is appropriate. May apparently attempted to use the grievance and arbitration procedure specified in the contract. He explained his situation to both a union steward and to Company officials, and was rebuffed by both. The Union’s indifference is evidenced by its apparent failure to process May’s application for membership. Perhaps by its inaction, the Union breached its statutory duty to fairly represent May as a member of the bargaining unit. At any rate, it appears to us that further attempts to institute grievance or arbitration procedure would have been an exercise in futility. These issues, however, are not before us.

Neither party has cited our recent decision in Colbert v. Mike-Baker Brick Company of New Iberia, Inc., 326 So.2d 900 (La.App. 3rd Cir. 1976) as authority for any argument, but we think the case should be distinguished from the present one. Colbert, an employee of defendant Brick Company filed suit under a collective bargaining agreement for wages due but not paid within 24 hours of discharge. He sought penalties under the State statute, LSA-R.S. 23:681-682. At the outset, we found there was no allegation nor proof that the defendant employer was engaged in interstate commerce. Therefore, the Colbert case did not arise within the purview of Section 301 of the NLRA, as the present suit does. Accordingly, we applied State Contract Law and LSA-R.S. 23:631-632 in Colbert. In the present case, which is a suit for violation of a collective bargaining agreement between the employer and the union, we are obliged to apply substantive Federal Labor Law.

QUANTUM

Article 18.1 of the collective bargaining agreement provides:

“ARTICLE 18
Wholesale Milk Compensation
“Section 18.1 Wholesale Milk Route Salesmen shall receive a commission of 8% on all gross sales except school, hospital and government bid business which shall be paid 8% commission on all net sales.”

The record shows that from December, 1972 until his dismissal on September 24, 1974, May was paid a commission of 5% of his gross sales. According to the testimony of James Martin and company officials, this 5% commission was an “assignment” of a portion of the commission due to Martin as an officially recognized “route salesman”. Therefore, in order to compute the difference between the 5% commission paid to May and the 8% he was entitled to under' the collective bargaining agreement, we begin by calculating his total income during the period he received the 5% commission. According to defendants’ payroll ledger, the total amount of gross pay during that period is $20,189.64 ($633.26 in December of 1972, $10,053.58 in 1973, and $9,502.80 in 1974). If plaintiff had been paid an 8% commission during the same period, his gross pay would have been approximately $32,303.00. Plaintiff is therefore entitled to $12,113.36, the difference between the 5% rate he was actually paid and the 8% rate to which he was entitled under the contract.

Plaintiff was paid $2 per hour during the months of August, September, October and November of 1972. Since plaintiff was not paid a commission during this period, it will be impossible to “work backward” from his gross pay to compute the commission due him. The record contains data sheets showing May’s daily sales, but these records do not begin until November 27, 1972. Therefore, plaintiff has failed to supply evidence from which his sales commissions for August, September, October and November of 1972 can be computed. We note, however, that Article 18.3 of the collective bargaining agreement states:

“Section 18.3 The minimum pay for all wholesale route salesmen, after the route has been turned over to them shall be one hundred twenty-five ($125.00) Dollars per week. Relief route salesmen shall receive a minimum of one hundred twenty-five ($125.00) Dollars per week.”

During the months of August, September, October and November of 1972, May worked approximately 18 weeks and earned a total gross pay of $2,333.97, according to the Company payroll ledger. His gross pay at $125 per week would have been $2,250.00 during the same period. Since May failed to prove his sales for this period, and because his actual gross pay totaled more than the $125 per week he was entitled to under the contract, May’s award will be limited to the amount previously computed, $12,113.26.

DECREE

For the reasons assigned, the judgment of the district court is reversed and set aside. Judgment is now rendered in favor of the plaintiff, Benny May, and against the defendants, The Southland Corporation, Midwest Farms, Inc. and Midwest Dairy Products, Inc., jointly and in solido for the sum of $12,113.26, plus legal interest from date of judicial demand until paid. All costs in the trial and appellate courts are assessed against the defendants.

REVERSED AND RENDERED.


author: HOOD, Judge. DOMENGEAUX, Judge,

text:
    John L. Van NORMAN, Plaintiff-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellant.
    No. 5673.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 3, 1976.
    Rehearing Denied Jan. 26, 1977.

      Raggio, Farrar, Cappel & Chozen, by Stephen A. Berniard, Jr., Lake Charles, for defendant-appellant.
    John L. Van Norman, III, Lake Charles, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX, WATSON, GUIDRY and HUMPHRIES, JJ.
   HOOD, Judge.

John L. Van Norman instituted this suit against his homeowner’s insurance carrier, United States Fidelity & Guaranty Company, to recover under his policy for the theft of an outboard motor. The trial court rendered judgment in favor of plaintiff for the sum of $500.00. Defendant appealed.

The sole issue presented is whether the policy which defendant issued to plaintiff provided coverage for the theft of the outboard motor.

Sometime between June 14 and June 18, 1975, plaintiff’s 20-horsepower Mercury outboard motor was stolen from a boat shed in Cameron Parish. At the time the theft occurred, there was in effect a homeowner’s insurance policy which defendant had issued to plaintiff covering primarily plaintiff’s principal residence, located in the city of Lake Charles.

The theft occurred at a hunting and fishing camp which plaintiff and some other individuals had leased from the owner. The camp was situated several miles from plaintiff’s residence. Included as a part of the leased camp premises was a boat house or boat shed which was designed to accommodate five boats. The boat house was constructed with pilings extending into a navigable canal which bordered the camp property, and those pilings provided support for the roof and for walls on three sides of the structure. The walls enclosed the south, east and north sides of the boat shed, but the west side remained open into the canal, or into a boat basin which formed a part of the canal. The shed was designed so that boats could enter or leave it by water, without the necessity of having to open doors or to remove barriers. The only access to the boat house by land, that is, other than by water, was through a door located in the south wall. That door was kept locked with a padlock at all times when members of the hunting and fishing club were not at the camp.

At the time plaintiff’s outboard motor was stolen, it was attached and locked to the transom of an aluminum boat which was in the boat house. The boat at that time was positioned in the north stall, or in the north part of the boat shed, with the bow facing east and the stern extending westward to or near the open west side of the structure. The motor was locked to the transom of the boat with a locking device which was designed to prevent theft of the motor while it was attached to the transom. That locking device was broken when the theft was committed, and visible marks were found after the theft showing that the lock had been forcibly broken. The door in the south wall of the boat shed remained locked while the theft was committed. The evidence shows, therefore, that entry into the boat shed was obtained by water, through the open west side of the boat shed, and not through the door on the south wall.

After the theft occurred, plaintiff made demand on defendant for the value of the stolen property. Defendant refused, contending that the policy specifically excluded coverage of the theft of an outboard motor.

The homeowner’s policy issued by defendant provides in Section 1, Coverage C, that it insures against theft of unscheduled personal property “while on the described premises,” and it stipulates further that:

“This coverage also includes unscheduled personal property while elsewhere than on the described premises, and anywhere in the world:
1. owned or used by an insured,. . ."

The policy, in Section 1, Coverage C, also contains several exclusionary clauses relating to coverage for theft of property while on the described premises and while located elsewhere. The following provisions are included among other exclusionary clauses in that part of the policy:

“c. Theft Exclusions applicable to property away from the described premises:
This policy does not apply to loss away from the described premises of:
* * :f: * * *
(3) property while unattended in or on private watercraft unless the loss is the direct result of forcible entry into a securely locked compartment and provided there are visible marks of forcible entry upon the exterior of such compartment;
(4) watercraft, their furnishings, equipment, and outboard motors; or
(5) trailers, whether licensed or not.”

Defendant contends that the policy specifically excludes coverage of the theft of “outboard motors” while “away from the described premises,” and that plaintiff thus is precluded from recovering under the policy the value of his stolen outboard motor.

The trial judge, accepting plaintiff’s arguments rather than those of defendant, found that the policy was ambiguous as to whether the theft of outboard motors was excluded from coverage, and in view of that finding he construed the policy as providing coverage of the theft of the motor involved here, “if the theft can be fitted into the exception provided in subsection (3) recited above.” He then concluded that the boat shed constituted a “securely locked compartment,” that “the signs of forcible entry on the transom of the boat sitting in the canal sufficiently complies with the requirement that the visible marks of entry be upon the compartment,” and that subsection (3) thus does not exclude theft of plaintiff’s outboard motor under the circumstances presented here. He thereupon held that the loss was covered by the policy, and he rendered judgment in favor of plaintiff.

In Nunn v. Hanover Insurance Company, 305 So.2d 676 (La.App. 2 Cir. 1974), a boat, motor and trailer were stolen from a camp located several miles from the residence of the insured. The insurance policy issued to the plaintiff in that case covered his residence, and it contained provisions identical to those in the policy involved in the instant suit. The Second Circuit Court of Appeal, after quoting the above exclusionary clauses, held that the policy was clear and unambiguous, that it specifically excluded the theft of the boat, motor and trailer while away from the described premises, and that plaintiff thus was not entitled to recover under the policy for the theft of those items.

The plaintiff in Sabrier v. Central Mutual Insurance Company, 269 So.2d 504 (La.App. 4 Cir. 1972), sued to recover under his homeowner’s policy of insurance the losses which he sustained from the theft of an outboard motor, some rods and reels and two ice chests, which were stolen from his boat while it was located away from the insured premises. The policy involved there contained the same provisions as are contained in the policy which is at issue in the instant suit. The Fourth Circuit Court of Appeal held that the theft occurred away from the described premises, and that the theft of those items thus was excluded from coverage by the provisions of the policy. With reference to the outboard motor, the court said:

“Inasmuch as theft exclusions are applicable in this situation, the loss of the outboard motor by theft away from the described premises is specifically excluded from coverage by c(4).”

Plaintiff contends that Nunn is factually distinguishable. We are unable to distinguish it from the instant suit. We agree with the holdings in Nunn and in Sabrier, and believe that those cases are applicable here.

Plaintiff argues persuasively, however, that the policy is ambiguous in that subsection c(3) provides coverage for theft of outboard motors under some circumstances, whereas subsection c(4) purports to exclude coverage of theft of outboard motors under all circumstances. He also argues that the policy is ambiguous in providing coverage for the theft of property “while elsewhere than on the described premises,” and then providing that coverage is excluded under some conditions when the property is “away from the described premises.”

We have decided that the policy is clear and unambiguous. In our opinion, subsection c(3) applies to property other than watercraft, their furnishings, equipment and outboard motors, all of which are excluded from coverage under subsection c(4). There thus is no conflict between the provisions of those two subsections. We find nothing ambiguous about the policy which provides general coverage of theft of property while elsewhere than on the described premises, and then sets out specific types of property which are excluded from that coverage, or specific circumstances under which the coverage does not apply.

We are aware of the established jurisprudence which holds that where an exclusionary provision of a policy is vague and ambiguous the provision is strictly interpreted against the insurer and in favor of the insured. In this instance, however, we find no vagueness or ambiguity in the provisions of the contract. The policy specifically excludes coverage of theft of outboard motors away from the described premises. The theft of plaintiff’s outboard motor occurred away from the described premises, and the theft thus is excluded from coverage.

Since we have found that the theft of an outboard motor away from the described premises is excluded from coverage under any circumstances, it is unnecessary for us to consider plaintiff’s scholarly argument that the loss was the direct result of forcible entry into a securely locked compartment, with visible marks of forcible entry upon the exterior of such compartment, as provided in subsection c(3).

We conclude that the trial judge erred in holding that the policy provided coverage of the theft of plaintiff’s outboard motor under the circumstances presented here.

For the reasons assigned, the judgment appealed from is reversed, and judgment is hereby rendered in favor of the defendant, United States Fidelity & Guaranty Company, and against plaintiff, John L. Van Norman, rejecting plaintiff’s demands and dismissing this suit at his costs. The costs of this appeal are assessed to plaintiff-appel-lee.

REVERSED.

DOMENGEAUX, J., dissents and assigns reasons.

WATSON, J., dissents for reasons assigned by Judge DOMENGEAUX.

DOMENGEAUX, Judge,

dissenting.

I respectfully dissent.

The pertinent provisions of the homeowner’s policy at issue are set forth as follows:

“DESCRIPTION OF PROPERTY AND INTERESTS COVERED
Coverage C — Unscheduled Personal Property
This coverage also includes such unscheduled personal property while elsewhere than on the described premises, anywhere in the world:
1. owned or used by an Insured; . .
PERILS INSURED AGAINST
10. Theft, meaning any act of stealing or attempt thereat, including loss of property from a known place under circumstances when a probability of theft exists. Unscheduled personal property contained in any bank, trust or safe deposit company, public warehouse or occupied dwelling not owned or occupied by or rented to an Insured in which the property covered has been placed for safekeeping shall be considered as being on the described premises.
c. Theft Exclusions applicable to property away from the described premises:
This policy does not apply to loss away from the described premises of:
(3) property while unattended in or on private watercraft unless the loss is the direct result of forcible entry into a securely locked compartment and provided there are visible marks of forcible entry upon the exterior of such compartment;
(4) watercraft, their furnishings, equipment and outboard motors;

Plaintiff contends that the above quoted provisions are ambiguous and should be construed against the insurer in order to provide coverage. Defendant assumes the opposite position.

The trial judge found the terms of the policy to be ambiguous, and I am inclined to agree with his determination. The initially quoted policy provision indicates that unscheduled personal property, owned or used by an insured, is covered anywhere in the world (C,l). Thereafter, the contract appears to extend coverage to unscheduled personal property contained in any occupied dwelling not occupied by an insured in which the property has been placed for safekeeping (10). This policy further clearly seems to extend coverage to unattended property on private watercraft if the loss is a result of forcible entry into a securely locked compartment (3). However, a subsequent contractual provision excludes “watercraft, their furnishings, equipment and outboard motors” (4). I find these two final clauses so mutually contradictory as to render their reconciliation virtually impossible.

Several apparent questions are raised after even a careful reading of the policy in question. Is the insured protected against loss of unscheduled personal property anywhere in the world? If such property, located away from the described premises and placed in an occupied dwelling for safekeeping, is to be considered as being on the described premises, why are there further exclusions directed toward only “property away from the described premises”? Is all equipment pertaining to watercraft excluded or only that which is not stolen as a “direct result of forcible entry into a securely locked compartment”?

Referring to the two above cited theft exclusions, (3) and (4), a reasonable interpretation thereof indicates that “watercraft, their furnishings, equipment and outboard motors” (4) are excluded unless they are stolen as a result of an occurrence contemplated by (3), “forcible entry into a securely locked compartment . . . ” Furthermore,what is a “securely locked compartment”? Is it a glove compartment or is it a warehouse? Both examples are “compartments” within the dictionary sense of the word.

My brothers of the majority rely upon the cases of Sabrier v. Central Mutual Insurance Company, 269 So.2d 504 (La.App. 4th Cir. 1972), and Nunn v. Hanover Insurance Company, 305 So.2d 676 (La.App. 2nd Cir. 1974), writ refused 309 So.2d 351 (La.1975) in support of their position, cases readily distinguishable. I find both

In Sabrier the insured stored his boat, motor and fishing equipment at the home of a relative. The property was kept under an open carport which was surrounded by a locked fence. The Court applied exclusion C(4), supra, in holding that the boat, etc., were not covered. Clause C(3), supra, was obviously inapplicable since an open carport could hardly be considered a “securely locked compartment” as required by C(3).

Likewise, in Nunn, the court applied C(4) to find the insured’s boat, motor and trailer excluded from coverage. The Court therein made no mention of where the property was stored except to say that it was kept at plaintiff’s “camp”. I assume that had the property been stored in a “securely locked compartment” the issue raised thereby would have been discussed.

Neither Sabrier nor Nunn dealt with a factual situation requiring an interpretation of clause C(3). I believe that the situation presented by the instant case compels us to determine exactly what C(3) means.

As I have already stated, I am of the opinion that C(3) is an exception to the provisions of C(4). The majority feels that C(3) “applies to property other than watercraft, their furnishings, equipment and outboard motors . . . .” However, C(3) merely employs the broad term “property”, and I must admit that I am at a loss to determine what type of “property” one might reasonably expect to find on “private watercraft” if it be not “furnishings, equipment and outboard motors”.

In my opinion the policy provisions heretofore discussed are confusing and ambiguous at best.

Our law is well settled for the proposition that ambiguous clauses in insurance contracts must be construed against the insurer who prepared the policy. See Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir. 1975), writ refused March 9, 1976; Rushing v. Protective National Insurance Company of Omaha, 315 So.2d 876 (La.App. 3rd Cir. 1975); and Smith v. Ranger Insurance Company, 301 So.2d 673 (La.App. 3rd Cir. 1974).

An insurer is under a duty to clearly express any limitations placed on coverage in order to place the insured on notice that he must take special measures to establish adequate protection for his property. If the coverage limitations are ambiguous the policy must be construed in favor of coverage. See Cotlar v. Gulf Insurance Company, 318 So.2d 923 (La.App. 4th Cir. 1975).

In cases of ambiguity the court should accept the policy interpretation most favorable to allow coverage to the insured. See Phillip Rosamond Drilling Company, Inc. v. St. Paul Fire and Marine Insurance Company, 305 So.2d 630 (La.App. 2nd Cir. 1974); Fuselier v. Louisiana Hospital Service, Inc., 260 So.2d 32 (La.App. 3rd Cir. 1972); Blanchard v. Hanover Insurance Company, 250 So.2d 484 (La.App. 1st Cir. 1971). See also the cases of Simmons v. American National Insurance Company, 199 So.2d 421 (La.App. 3rd Cir. 1967), and Wilks v. Allstate Insurance Company, 195 So.2d 390 (La.App. 3rd Cir. 1967), wherein this court stated:

“In cases of ambiguity, policy provisions are construed most favorably to the insured and against the insurer; of the permissible constructions, the courts will adopt that which effectuates coverage over that which defeats it.”

For the reasons assigned I respectfully dissent and would affirm the judgment of the district court extending coverage to plaintiff’s stolen property.