text:
    LOUISIANA STATE BOARD OF DENTISTRY OF the DEPARTMENT OF HEALTH AND HUMAN RESOURCES v. Dr. Mervin ARDOIN.
    No. 62309.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Dr. Mervin Ardoin, applying for writs of certiorari, review and/or supervisory writs. Parish of St. Landry.

Writ denied. Relator must first seek relief in the Court of Appeal.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Randy MARIONEAUX.
    No. 62317.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Randy Marioneaux, applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied.


text:
    MOUNT OLIVE BANK v. JACKSON AIR TAXI, INC.
    No. 62217.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Jackson Air Taxi, Inc. and Interve-nor, Southside, Inc. applying for certiorari, or writ of review, to the Court of Appeal Second Circuit. Parish of Madison. 356 So.2d 1090.

Denied.

TATE, J., would grant the writ.

CALOGERO, J., dissents.


text:
    Curt O. LECHLER et al. v. CITY CIVIL SERVICE COMMISSION for the Parish of Orleans and their agents and superintendent of police, Clarence B. Giarrusso and his agents.
    No. 62210.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Curt O. Lechler, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, 8580. Parish of Orleans. 357 So.2d 41.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Maureen Lier, wife of/and Anthony Joseph CASH v. Carol W. HIGHT.
    No. 62198.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Maureen Lier, wife of/and Anthony Joseph Cash, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 357 So.2d 73.

Denied.

DENNIS, J., would grant the writ.


author: DENNIS, J.,

text:
    STATE of Louisiana ex rel. Edward James ARMSTEAD, Jr. v. C. Paul PHELPS, Secretary, Col. H. D. Byargeon, Secretary Supervisor, Maj. W. R. Honeycutt, Sr., Security Supervisor, Louisiana State Penitentiary.
    No. 62204.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Edward James Armstead, Jr., applying for writs of certiorari and mandamus. Parish of East Baton Rouge.

Writ granted. The trial judge is ordered to review the. applicant’s last administrative hearing.

DENNIS, J.,

is of the view that this application should be considered as petition for habeas corpus and that an evidentiary hearing should be ordered.


text:
    STATE of Louisiana ex rel. John FULFORD v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62203.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: John Fulford applying for writs of certiorari and mandamus. Parish of East Baton Rouge.

Writ granted. Legal materials to be furnished relator subject to security check.

SANDERS, C. J., dissents from this writ grant.

DENNIS, J., would grant and place on the docket for argument.


author: TATE, J.,

text:
    CITY OF NEW ORLEANS and the Dept. of Safety and Permits Through its director, Edward C. Kurtz v. The STATE of Louisiana, the Louisiana Dept. of Corrections, Bd. of Corrections and C. Paul Phelps, Director of Corrections.
    No. 62214.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: William J. Guste, Jr., Attorney General, State of Louisiana, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 81.

Granted.

TATE, J.,

concurs in the grant of the application as to the prescription issue, also noting that by exception of no cause of action filed in this court the State may raise the issue posed by Assignment 1.

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 ex rel. Shelton Joseph WILLIAMS v. C. Paul PHELPS, Secretary, Louisiana Dept. of Corrections.
    No. 62258.
    Supreme Court of Louisiana.
    June 2, 1978.
   In re: Shelton Joseph Williams, applying for remedial writs. Parish of East Baton Rouge.

Writ granted: Case remanded to the district court. Evidentiary hearing ordered to allow petitioner an opportunity to show that his conduct was such while on death row that he would have been entitled to good time.

SANDERS, C. J., and SUMMERS, J., dissent from order.


text:
    Raymond C. VINET, Sr. v. Harry M. HOLLINS, Chairman, House Commerce Committee, et al.
    No. 62424.
    Supreme Court of Louisiana.
    June 8, 1978.
   In re: Raymond C. Vinet, Sr. applying for writ of certiorari, prohibition or mandamus. East Baton Rouge Parish.

Writ denied. The showing made is insufficient to warrant the exercise of this Court’s jurisdiction.


text:
    STATE of Louisiana v. Leroy PAYNE.
    No. 62286.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Leroy Payne applying for writ of mandamus. Parish of East Baton Rouge.

Granted. Trial court is ordered to furnish applicant with transcript of Boykinization.


text:
    STATE of Louisiana v. Gary R. VINET.
    No. 62303.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Gary R. Vinet applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

Writ granted. It is ordered that the State produce the known informant at the trial or supply the defense with his name and address, if known.


text:
    STATE of Louisiana v. John Nelson BENOIT.
    No. 62231.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: John Nelson Benoit applying for writs of certiorari, prohibition and mandamus. Parish of Lafayette.

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 G. Bradford Ware, Judge of the Fifteenth Judicial District; Court for the Parish of Lafayette, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of June, 1978 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 a date to be fixed by this court, 1978, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


author: DIXON, J.,

text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 62335.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: McArthur Johnson applying for writ of habeas corpus. Bossier Parish.

Denied.

DIXON, J.,

concurs: If the offense occurred before the 1975 amendment to the attempt article the maximum penalty is 20 years. If the offense occurred after the 1975 amendment, the maximum penalty is 50 years.


text:
    STATE of Louisiana v. Christopher R. McGOWEN.
    No. 61922.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Christopher R. McGowen applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita.

Writ denied.


text:
    STATE of Louisiana ex rel. Charles BURKINS, Jr. v. Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 61645.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Charles Burkins, Jr., applying for writ of mandamus. Parish of Orleans.

Denied. Moot. Trial court ruled on June 5th.


text:
    STATE of Louisiana ex rel. James Edward NAPIER, Sr. v. Mr. Edward J. LILLY, Criminal Law Clerk, 24th Judicial District Court, Jefferson Parish and all agents.
    No. 61125.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: James Edward Napier, Sr. applying for writ of mandamus. Parish of Jefferson.

Writ denied. According to the return of the trial judge, the applicant’s petition has been acted upon and this application is moot.


text:
    David E. POWELL v. Charles R. WARD, Judge, Criminal District Court, Parish of Orleans.
    No. 62166.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: David E. Powell, applying for writ of mandamus. Parish of Orleans.

Writ denied. Application moot. The trial court has ruled.


text:
    STATE of Louisiana v. Don PARTIN.
    No. 62107.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Don Partin, applying for writ of certiorari, prohibition, mandamus and for stay order.

Writ (Appeal) for judicial review denied. The trial Court’s finding of guilt is based upon sufficient evidence, the sufficiency of which is not reviewable by the appellate court.


text:
    STATE of Louisiana ex rel. Leonard LEWIS v. Charles R. WARD, Judge, Criminal District Court, Parish of Orleans.
    No. 62291.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Leonard Lewis applying for writ of mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. James HANSHAW v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 62289.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: James Hanshaw, applying for writ of review. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Dallas CUSTARD v. Frank BLACKBURN, Louisiana Dept. of Corrections, et al.
    No. 62288.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Dallas Custard applying for writs of certiorari and habeas corpus. Parish of Jefferson.

Denied.


text:
    STATE of Louisiana ex rel. Elton Ray PARKER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62285.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Elton Ray Parker, applying for writs of certiorari, prohibition and mandamus. Parish of West Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph BICKMAN, Jr. v. Bernard J. BAGERT, Judge, Criminal District Court, Orleans Parish.
    No. 62284.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Joseph Bickman, Jr., applying for writ of habeas corpus. Parish of Orleans.

Writ denied. Moot.


text:
    STATE of Louisiana v. David Joseph SHARLOW.
    No. 62282.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: David Joseph Sharlow applying for writs of certiorari, prohibition and mandamus. Parish of St. John the Baptist.

Writ denied. Insufficient showing of facts sufficient to justify the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Warren J. GUIDRY.
    No. 62278.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Warren J. Guidry applying for writs of certiorari, review and prohibition and mandamus. Parish of Lafayette.

Writ denied.


text:
    STATE of Louisiana ex rel. Louis James HOWARD v. CRIMINAL DISTRICT COURT, SECTION B, ORLEANS PARISH.
    No. 62267.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Louis James Howard applying for writ of mandamus. Orleans Parish.

Denied. Return of trial judge shows that application was denied on May 30, 1978. Hence, this petition is moot.


text:
    STATE of Louisiana ex rel. Wilderd BATISTE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62266.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Wilderd Batiste, applying for writs of certiorari, prohibition and mandamus. Parish of St. Martin.

Writ denied.


text:
    STATE of Louisiana (Bailey Grant, Sheriff of Ouachita Parish) v. Morris PERKINS.
    No. 62244.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Morris Perkins, applying for supervisory writs. Parish of Ouachita.

Writ denied.


text:
    STATE of Louisiana v. John BOUDREAUX.
    No. 62298.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: John Boudreaux, applying for writs of certiorari and review. Parish of Jefferson.

Denied.


text:
    STATE of Louisiana v. Clarence RICHMOND.
    No. 62297.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Clarence Richmond applying for writs of certiorari or review. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Richard A. PASS.
    No. 62313.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Richard A. Pass applying for writ of habeas corpus. Parish of Orleans.

Denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana v. Irvin R. BOWEN.
    No. 62305.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Irvin R. Bowen applying for supervisory writs. Parish of Orleans.

Writ denied; Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. L. C. BUTLER.
    No. 62293.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans.

Writ granted. Trial judge ordered to issued arrest warrant in this matter.

DIXON, J.,

dissents from this grant. 209 C.Cr.P. gives the judge discretion and there is absolutely no showing of abuse.


text:
    STATE of Louisiana ex rel. Charles BURKINS, Jr. v. Honorable Matthew S. BRANIFF, Judge, Orleans Parish Prison.
    No. 61400.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Charles Burkins, Jr. applying for writ of mandamus. Parish of Orleans.

Denied. Trial Court ruled on this matter June 5. See # 61,645.


text:
    LOUISIANA HIGHWAY HEAVY MUNICIPAL AND UTILITY BRANCH, Associated General Contractors of America, Inc. and R. W. Carter v. STATE of Louisiana Through DEPT. OF LABOR, Curtis C. Luttrell, Assistant Commissioner of Labor and the Dept. of Transportation and Development.
    No. 62304.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Louisiana Highway Heavy Municipal and Utility Branch, Associated General Contractors of America, Inc. and R. W. Carter, applying for writ of review. Parish of East Baton Rouge.

Denied. Applicants have an adequate remedy by appeal.


text:
    STATE of Louisiana v. Johnny M. ROSS
    No. 62302.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Johnny M. Ross, applying for supervisory writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Harold J. HAYES v. Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 62321.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Harold J. Hayes applying for writ of mandamus. Orleans Parish.

Denied.


text:
    STATE of Louisiana v. Clarence H. PRUITT.
    No. 62320.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Clarence H. Pruitt applying for writ of mandamus and certiorari. Parish of St. Mary.

Writ denied. Trial judge’s reasons for denial can be used in lieu of Boykin transcript.


text:
    STATE of Louisiana v. Windell RUBEN, Jr.
    No. 62334.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Wendell Ruben, Jr. applying for writ of habeas corpus. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert E. McMORRIS v. Robert BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62331.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Robert E. McMorris applying for writ of habeas corpus. Parish of Bossier.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Jerry RACCA.
    No. 62406.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Jerry Racca applying for writs of certiorari, prohibition, mandamus for a stay order. Parish of Jefferson Davis.

Denied. Applicant has an adequate remedy by appeal in the event of conviction.


author: SARTAIN, Judge. ELLIS, Judge,

text:
    Emmett C. ALLEN, Sr., et ux., Plaintiffs-Appellees, v. HUMBLE OIL & REFINING COMPANY, Defendant-Appellant.
    No. 11935.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Writ Refused June 16, 1978.
    Paul Due and John deGravelles, Baton Rouge, for plaintiffs-appellees.
    Gene Palmisano, Charles Lovering, New Orleans, for defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

The accident giving rise to this litigation occurred on March 17,1972, at the intersection of Range Avenue and Rushing Road in Denham Springs, Louisiana. The vehicles involved were a 1970 Chevrolet pickup truck and a 1968 Datsun pickup truck. The Chevrolet was being driven by Mrs. Barbara Edwards who was accompanied by her husband, Wiley P. Edwards. The Datsun was being driven by Emmett C. Allen, who was accompanied by his wife, Alice Allen.

Located on the northwest corner of the intersection is a service station, which at the time was owned and operated by Humble Oil & Refining Company. Subsequent to the accident, but prior to trial, Humble was merged into Exxon Corporation, hereinafter referred to as Exxon.

Mr. and Mrs. Allen instituted this action against Mr. and Mr. Edwards and Exxon, averring independent but not joint negligence on the part of each. Trial on the merits resulted in a judgment in favor of the Allens but against Exxon only. We reverse.

The accident occurred at approximately 7:15 o’clock p.m. It was dark. The weather was not a factor.

Range Avenue at the scene of the accident runs generally in a north-south direction. It is a large four lane concrete thoroughfare with two twelve-foot lanes for each direction of traffic. It is further bordered by an eight-foot asphalt shoulder which widens to twelve feet at the intersection and in front of the Exxon station.

Rushing Road runs generally in an east-west direction. It is a two lane improved street which is controlled by a stop sign. However, because of the widened hard surface area at the southwest corner of the intersection, the stop sign is located some thirty feet west of the west edge of the outside lane of Range Avenue.

The Exxon station had two driveways onto Range Avenue and one driveway onto Rushing Road. In the front of the station and adjacent to Range Avenue is a grass “island” which is rectangular in shape. Another such “island”, triangular in shape, is located at the southeast corner of the station.

Exxon at the time was celebrating its grand opening. To attract the attention of passing motorists it had placed on the grassy island in front of its station several signs denoting “Free Chicken” and “Grand Opening.” Streamers were run from the top of its canopy to the grassy area. Gas filled balloons were anchored in this same area. Also located in this island were “S & H” and gasoline price signs. Spotlights, music and loud speakers were also utilized. Attractive young girls served chicken, smiled and played music.

Aside from the alleged visual obstructions, the only pertinency all of the remaining hoopla bears to the legal issue presented relates to the parked vehicle in front of the station. Allen argues that the promotional activities of Exxon made it foreseeable that a guest for the occasion would park in front of the station thus compounding the problem.

Mr. Allen testified that as he approached the intersection he stopped at the stop sign and because of the obstructions immediately in front of and on Exxon’s property his view of southbound traffic on Range Avenue was totally blocked. He then eased up to the south edge of Range Avenue, stopping some two or three more times and still could not obtain a clear view of traffic to his left. He then eased his vehicle slowly forward into Range Avenue when he was struck by the oncoming Edwards vehicle. He claims that the front of his truck was only two or three feet into the outside-southbound lane of Range Avenue. The testimony of Mrs. Allen generally corroborates that of her husband.

Sgt. Clay Gregoire of the Denham Springs Police Department investigated the accident shortly after its occurrence. He examined the physical evidence and noted that the greater portion of the accident debris was found in the center of the two southbound lanes of Range Avenue. He stated that from the stop sign on Rushing Road visibility to the north was blocked by the signs, streamers, etc. on the Exxon property. But upon moving further to the east past the stop sign, his view to the north became clear. He opined that if a vehicle had been parked on the asphalt shoulder in front of the station on Range Avenue, visibility would once again be limited. He stated that sometime prior to the day of the accident he received a complaint that certain signs at the station were blocking visibility and that in response to the complaint he dispatched an officer to take care of it. Immediately following the accident, he did not ask that the signs be moved again because he did not think it was necessary. He ticketed Allen for failure to yield.

Mr. R. E. Miller, Sales Representative for Exxon, was in charge of the promotional activities for the grand opening. He conceded that the purpose of these activities was to encourage the public to patronize the station. Shortly after the signs were placed in their original position, he and Steven L. Richardson, the station manager, rode down Rushing Road and Range Avenue in both directions to see whether the signs posed any possible safety hazard and that one or more of these signs were moved away from the curb either in response to his instructions or at the request of the police department.

Steven L. Richardson corroborated the testimony of Miller but said that the signs were first moved at his and Miller’s instance and then again at the request of the officer. He agreed that the photograph (Exxon 3) substantially depicted the way the station looked on the day of the accident except that the WLBI sound truck which appears in the photograph was not there at the time of the accident.

Mrs. Barbara Edwards testified that she was traveling in the inside southbound lane of Range Avenue and estimated her speed at 50 m.p.h. She stated that she saw the Allen vehicle for the first time immediately prior to impact. She could not remember whether her attention was drawn to the activities of the station. She further testified that the right front of her truck hit the Datsun’s (Allen) left front bumper. She placed the point of collision at the middle of the two southbound lanes of Range Avenue.

Mr. Edwards, who was a passenger in the Chevrolet truck, also estimated speed at 50 m.p.h. He testified that he, like his wife, did not see the Allen vehicle until just prior to impact and that his vehicle’s right front bumper hit the left front bumper of the Allen truck. He placed the point of collision as being a few feet inside the southbound lane of Range Avenue.

Lawrence Deleroderie’s testimony that Allen failed to stop at the stop sign and just proceeded into the intersection was rejected by the trial judge as “totally unworthy of belief.”

The trial judge made the following factual conclusions: Allen did stop at the stop sign on Rushing Road and made several subsequent stops past the stop sign. He (Allen) was first unable to see the approach of the Edwards vehicle because of the signs, banners and streamers on the Exxon property. As Allen reached the edge of Range Avenue he was still unable to see the oncoming traffic because of the parked vehicle in front of the station. The judge a quo further concluded “Although not necessarily relevant to a determination of liability, the court finds that music was emanating from the Exxon station and that spotlights located on the Exxon property were shining in the direction of the Allen vehicle.”

Under the duty-risk approach, the trial judge found that Exxon had violated R.S. 48:461.4(c)4, which provides:

“No sign may be located in such a manner as to prevent the driver of a vehicle from having a clear, unobstructed view of official signs and approaching merging or intersecting traffic and driveways.”

and that this violation was a cause-in-fact of the accident. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Dixie Drive-It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

The trial judge further held that the same basic duty as imposed by the above statute was owed by Exxon as a “simple matter of due care.” Stewart v. Lewis, 292 So.2d 303 (La.App. 1st Cir. 1974).

Before addressing ourselves to the legal considerations involved, we must first resolve a very crucial issue of fact, namely, the point of impact. The trial judge did not adequately address this issue. He simply stated that Allen proceeded into the intersection cautiously, thereby impliedly accepting Allen’s testimony that the point of impact was just a few feet inside the outside lane. We cannot uphold this conclusion. All of the witnesses except Allen placed the accident in the inside lane. The uncontra-dicted testimony of the investigating officer that the debris of the accident was concentrated in the center of the two lanes lends much credence to the testimony of the other witnesses that this was the point of impact. We hold that to accept the testimony of a single witness which conflicts with the testimony of the other witnesses and especially with the testimony as to the debris constitutes manifest error. Alexander v. St. Paul Fire & Marine Insurance Co., 312 So.2d 139 (La.App. 1st Cir. 1975), writ refused 313 So.2d 846 (La.1975). Accordingly, we find factually that Mr. Allen entered the intersection, albeit at a very slow rate of speed, and that he had traversed the intersection to a point two or three feet into the inside lane when the accident occurred.

We do not find that the cited statute is applicable. The act relied upon is part of Act 474 of 1966 which was enacted to control outdoor advertising adjacent to the national interstate system and designated primary state highways. Plaintiffs have made no showing whatsoever that the intersection in question falls within the purview of the cited statute.

We are riot prepared to hold, as did the trial judge, that Exxon breached a duty of reasonable care. Rather, we conclude that, all of the factors considered, Exxon is not liable under the facts and circumstances presented in this case.

What we are actually confronted with in the instant matter is a policy consideration of whether liability should be imposed on a business establishment which, in the course of conducting lawful promotional activities on private property, so obstructs sight lines as to create a blind intersection. The matter is further complicated by the existence of a vehicle, legally parked in front of the defendant’s business establishment, which the trial judge found completely obstructed the plaintiff’s view of oncoming traffic between the stop sign and the western edge of Range Avenue. In Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), the court stated:

“The same policy considerations which would motivate a legislative body to impose duties to protect from certain risks are implied by the court in making its determination. ‘All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.’ Malone, Ruminations on Cause-in-Fact, 9 Stanford L.Rev. 60, 73 (1956).”

The law imposes a heavy burden upon a motorist entering a blind intersection. Lucas v. Broussard, 197 So.2d 696 (La.App. 4th Cir. 1967). As Allen crossed the outside lane of southbound traffic on Range Avenue, accepting his statement that he was proceeding very slowly, all of the obstructions of which he complained were to his left rear and were no longer obstructing his view, yet Allen failed to see an oncoming vehicle when he had had the opportunity to do so. We hold that when Allen crossed the western edge of Range Avenue he removed himself and his passenger from the ambit or scope of protection of any duty which Exxon may have owed under these circumstances.

Accordingly, for the above reasons, the judgment of the district court is reversed and plaintiffs’ suit is dismissed at their costs.

REVERSED AND RENDERED.

ELLIS, J., concurs with written reasons.

ELLIS, Judge,

concurring:

I concur in the result reached by the majority, but with the following comments:

R.S. 48:461.4(c)4, which the trial judge found created a duty on the part of Exxon not to erect signs on its property, has no application to this case. That statute, Act 474 of 1966, applies to areas adjacent to Interstate and Primary Highway Systems.

The Stop sign on Rushing Road was located about 30 feet from the edge of the traveled portion of Range Road. Plaintiff complains that his vision was obstructed by the signs when stopped at the Stop sign. I consider this to be immaterial. R.S. 32:123 B provides:

“Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.”

Mr. Allen was not required to stop at the Stop sign, but should have proceeded to the edge of Range Road. At that point, where the law requires him to stop, he was well past the signs placed on its property by Exxon, and these signs could not have obstructed his vision in any way.

Mr. Allen also claims that his vision was obstructed by an automobile parked on the shoulder in front of the center median of the station, and that Exxon is responsible, because it should have anticipated that people would be attracted by its grand opening and that some of them would park in front of the station. I cannot agree. In the first place, the vehicle was legally parked about 40 feet from the intersection. I think it is clear, from the photographs in the record, and a matter of common sense, that the parked vehicle did not so obstruct Mr. Allen’s sight lines, when he was stopped at the edge of the highway, as to prevent him from seeing a sufficient distance up the road to perceive oncoming traffic.

Even if there was an obstruction of Mr. Allen’s vision, I do not believe that Exxon can be held liable for the actions of some unidentified third party who legally parked his vehicle on a public highway adjacent to the station.

Finally, once Mr. Allen entered the highway, at two miles per hour, he had more than ample time to see the Edwards vehicle approaching in the inside lane, and to stop his own vehicle, thereby avoiding the accident.

I find no negligence on the part of Exxon, and believe that this accident resulted entirely from Mr. Allen’s failure to keep a proper lookout, and see what he should have seen.

      . Mrs. Allen died on February 7, 1978. Pursuant to a motion by her legal heirs, an order was entered by the court on April 27, 1978, substituting Emmett C. Allen, Sr., Emmett C. Allen, Jr., Dorothy Allen Ott, Earl May Richmond and Joyce Allen Babin as parties plaintiff in this cause in lieu of Mrs. Alice Allen,


author: PONDER, Judge.

text:
    Patrick GUILLORY v. Delbert Bob McCLINTON et al.
    No. 11989.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Prank P. Trosclair, Jr., Taylor, Trosclair & Richard, Opelousas, for plaintiff and appellant.
    Raymond Morgan Allen, Lafayette, and C. W. Franklin, Baton Rouge, for defendants and appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is a suit against the executive officers and supervisory personnel of plaintiff’s employer. The lower court dismissed on the grounds that Act 147 of 1976 amending R.S. 23:1032 and 23:1101 was retroactive in application. We reverse and remand.

The general rule is that statutes are of prospective application only. The exceptions occur when (1) the statute expressly provides that it is to be applied retroactively; (2) when the statute is procedural; (3) when it is interpretative; and (4) when it is curative or remedial.

Act 147 of 1976 does not expressly provide that it should be retroactive in application. The assertions that the statute was procedural, interpretative, curative or remedial were made and answered negatively in Green v. Liberty Mutual Insurance Company, 352 So.2d 366 (La.App. 4th Cir., 1977); writ refused, La., 354 So.2d 210 (1978) and Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3d Cir., 1978).

For these reasons, we reverse and remand at appellees’ costs.

REVERSED AND REMANDED.


text:
    STANDARD COMPANY OF NEW ORLEANS, INC. v. ELLIOTT CONSTRUCTION CO., INC., et al. ELLIOTT CONSTRUCTION CO., INC. v. DIV. OF ADMINISTRATION, State of Louisiana.
    Nos. 11867, 11868.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Writ Granted March 31, 1978.
    James Ryan, III, Jack M. Alltmont, Sessions, Fishman, Rosenson, Snellings & Bois-fontaine, New Orleans, of counsel, for plaintiff-appellee Standard Co. of New Orleans, Inc.
    Gordon A. Pugh, Baton Rouge, of counsel, for defendant-appellee Elliott Const. Co.
    Jay H. Kern, Robert E. Redmann, New Orleans, of counsel, for defendant-appellant Division of Administration, State of La.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

The Division of Administration, State of Louisiana, appeals from judgments denying a motion to stay arbitration and ordering it to arbitrate.

The issues are (1) whether the court or an arbitrator should decide the question of waiver, and (2) whether the requirement to arbitrate has been waived. The lower court held that the arbitrator should decide the issue of waiver. We reverse and remand one case and reverse and render in the other.

Elliott Construction Company, Inc. was the general contractor on the Southern University Minidome. Standard Roofing Company of New Orleans, Inc. was a sub-contractor. The general contract had a provision for arbitration, the sub-contract made the provision applicable to it. After a dispute arose, Standard sued Elliott, who filed a third-party demand against the State, asking not only for the amount demanded by Standard, but also for additional damages in the amount of $1,689,866.85. Elliott also filed with the architect a claim for equitable adjustment of the contract for $3,387,690.00 and for an extension of the completion date. When the architect denied substantially all these claims, Elliott demanded arbitration. When the State refused, Elliott filed suit under LSA-R.S. 9:4201 et seq., asking for an order to require the State to arbitrate. The court granted this order and denied a motion to stay arbitration proceedings filed by the State in the Standard-Elliott-State case. The State appealed both judgments.

The lower court relied on Bartley, Inc. v. Jefferson Parish School Board, La., 302 So.2d 280 (1974) in deciding that the only issues before it were: whether an agreement to arbitrate had been made, and whether the opponent had refused or failed to comply. LSA-R.S. 9:4203. If both questions were answered “yes,” the court was without discretion to do other than order arbitration.

We disagree with that conclusion. LSA-R.S. 9:4201 provides that the provision to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” We interpret that to mean that the court is not required to order arbitration under LSA-R.S. 9:4203 if there are grounds under LSA-R.S. 9:4201 for revocation. It follows, necessarily, that the court must consider and rule upon any contention that such ground exists. Certainly, the State is contending that waiver is a ground for revocation.

In the recent decision of George Engine Company, Inc. v. Southern Shipbuilding Corporation, La., 350 So.2d 881 (1977), the Supreme Court held that the court, not the arbitrator, had to decide the question of invalidity of the contract because of lack of consent; that it would be absurd to require arbitration under a contract that did not legally exist. We believe there should be a similar result if the arbitration provision has been waived.

It is true that Bartley did hold that the claims of prematurity and waiver in that case, were to be submitted to the arbitrator rather than to the court. However,.because the court called them “questions of procedural arbitrability” and because the court also speaks of the failure to refer the claims to the architect prior to the demand for arbitration, as was required by the contract, we believe that the question involved was one of failure to conform to the procedure rather than one of a basis for revocation of a contract.

A very substantial group of cases from other jurisdictions reach the same result. See, for instance, Vespe Contracting Co. v. Anvan Corporation, D.C., 399 F.Supp. 516 (1975), from which the following quotation is made, at page 519:

“A motion to compel arbitration presents a court with three basic questions to resolve: (1) whether there is an agreement to arbitrate; (2) whether there are arbi-trable claims in issue; and (3) whether there has been a waiver of the right to arbitration.”

See also In re Tsakalotos Navigation Corp., D.C., 259 F.Supp. 210 (1966) which cites a number of cases to the same effect.

Because the lower court felt that the question of waiver was not properly before it, it did not rule thereon. However, because we have the facts before us, we proceed to decide that question. Gonzales v. Xerox Corporation, La., 320 So.2d 163 (1975).

Elliott contends there has been no waiver of the obligation to arbitrate because the claims asserted in the suit are separate and distinct from those claims to be arbitrated. A comparison of these claims leads us to believe that they are not mutually exclusive.

Furthermore, while there is some authority in other states to the contrary, we believe that the obligation to arbitrate once waived cannot be revived over the objections of the opponent. It would be an inequitable result to allow a party to “flit between forums” of his choice. This would be especially true when the claims are interrelated.

We therefore believe that Elliott has waived the obligation to arbitrate.

In Suit No. 11,867, there is judgment herein reversing the decision of the lower court and ordering the stay of the proposed arbitration. The suit is remanded for proceedings not inconsistent with these reasons. The appellee is cast with cost of these proceedings.

In Suit No. 11,868, the judgment ordering the Division of Administration, State of Louisiana, to arbitrate is reversed and the suit is dismissed at appellee’s costs.

In Suit No. 11,867, Reversed and Remanded.

In Suit No. 11,868, Reversed and Dismissed.

      . “7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.”

      . “14.1 All claims, disputes and other matters in question arising out of, or relating to, this Subcontract, or the breach thereof, shall be decided by arbitration in the same manner and under the samé procedure as provided in the Contract Documents with respect to disputes between the Owner and the Contractor except that a decision by the Architect shall not be a condition precedent to arbitration.”

      . LSA-R.S. 9:4203.
      “The party aggrieved by the alleged failure or refusal of another to perform under a written agreement for arbitration, may petition any court of record having jurisdiction of the parties, or of the property, for an order directing that the arbitration proceed in the manner provided for in the agreement. Five days’ written notice of the application shall be served upon the party in default. Service shall be made in the manner provided by law for the service of a summons.
      “The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall issue an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure or refusal to perform is an issue, the court shall proceed summarily to the trial thereof.
      “If no jury trial is demanded, the court shall hear and determine the issue. Where such an issue is raised, either party may, on or before the return day of the notice of application, demand a jury trial of the issue, and upon such demand the court shall issue an order referring the issue or issues to a jury called and empan-elled in the manner provided by law.
      “If the jury finds that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury finds that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall issue and order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.”

      .LSA-R.S. 9:4201.
      “A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

      .As we analyze the claims in the third party demand they are:
      1. Cost of removing roof $ 15,369.42
      2. Cost of replacing roof 272,166.21
      3. Damages because of delay of 506 days attributable to roof change at $100/day 50,600.00
      4. Cost of repairing/painting undercoating 21,932.69
      5. Added labor because of roof delays 713,056.68
      6. Interest on Aug. retainage by owner for roof 76,284.75
      7. Increase in material cost due to roof delays 58,851.32
      8. Consultants’ fees for roofing problem 28,593.21
      9. Added field office overhead 200,882.00
      10. Added home office overhead 165,462.00
      11. Interest on added costs 72,698.57
      12. Costs paid to Standard under contract amendment 14,000.00
      $1,689,896.85
      As we analyze the claims for equitable adjustment they are:
      1. Change in sequence made by state in pouring of risers & seats $1,337,874.00
      2. Misrepresentation of subsurface conditions by the State or its agents 1,031,875.00
      3. Impact on contractor’s labor situation for other contracts he had due to change in sequence 163,473.00
      4. Increased cost of tartan floor 84,393.00
      5. Extended overhead & attendant field costs 322,714.00
      6. Interest of increased costs 231,809.00
      7. Interest on retention amount 50,833.00
      8. Cost of prosecuting claim for added costs 150,000.00
      9. Direct costs for design change 4,719.00
      $3,377,690.00

        The latter also asked for additional time for contract completion which included the delays because of roof change.

      . Denihan v. Denihan, 34 N.Y.2d 307, 357 N.Y.S.2d 454, 313 N.E.2d 759 (Ct. of Appeals, N.Y. 1974). To the contrary, see Gutor International A G v. Raymond Packer Co., Inc., 1 Cir., 493 F.2d 938 (1974), from which the following quotation is made on page 945:
      “Submission of part of an arbitrable matter to a court waives the submittor’s right to insist upon arbitration of the remainder.”


author: BEER, Judge. LEMMON, Judge, GULOTTA, Judge,

text:
    In the Matter of the COMMITMENT OF Michael Christopher ASKEW.
    No. 9357.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1978.
    Rehearing Denied June 13, 1978.

      Loyola Law School Clinic, Philip A. Costa, Student Practitioner, William J. O’Hara, III, Supervising Atty., New Orleans, for defendant-appellant.
    Kronlage, Dittmann & Caswell, Joseph Maselli, Jr., New Orleans, for plaintiff-ap-pellee.
    Before LEMMON, GULOTTA and BEER, JJ.
   BEER, Judge.

On July 8, 1977, appellant, Michael Askew, a Florida resident, traveled to Louisiana with his father (appellee) in order to be admitted as an in-patient at River Oaks Hospital in Jefferson Parish. He was 17 years of age at the time of his uncontested admission to River Oaks but would reach the age of majority on July 26, 1977: Though willing to voluntarily enter the hospital on July 8th, he expressed his intention to exercise his majority rights and take his leave from River Oaks on his 18th birthday. Prior to that date, his physicians at River Oaks completed their examinations and commenced active treatment which they felt was imperative to be continued on an uninterrupted basis. Thus, on July 22, 1977, a coroner’s commitment was sought and obtained and Michael’s stay at River Oaks was thereby extended for a period not to exceed 60 days from date of issuance.

On September 6, 1977 (prior to the expiration of the coroner’s commitment), judicial commitment proceedings were instituted in the 24th Judicial District Court under the provisions of R.S. 28:53. The court appointed an attorney to represent Michael, and the petition for commitment and the citation to respond to the petition were served on the court-appointed attorney. No personal service on Michael, individually, was accomplished. A hearing was set for September 12, 1977, within the five days required by R.S. 28:53(A) (Act 614 of 1976), but on that date the hearing was continued until September 27, 1977.

Appellant, through his able counsel, now contends that all proceedings subsequent to September 12th are invalid since not held within the five day statutory period provided for in R.S. 28:53(A) (1976) or within the ten day period provided for by Act 714 of 1977. The trial judge indicated (in his written reasons for judgment) that the continuance from the September 12th hearing date was granted at the request of appellant’s counsel, but appellant here contends that this is not clearly borne out by the record. It is true that the record does not reflect on whose motion the continuance was granted. However, we are convinced that the continuance was sought by appellant’s court-appointed attorney in order to allow appellant’s recently retained counsel to prepare for the hearing. Under these circumstances, the continuance was in order and the proceedings were not nullified by the fact that they were not held within the statutory period.

Thereafter, on September 23, appellant’s retained counsel, Loyola Law Clinic, filed a written motion for continuance of the full commitment hearing which had been reset for September 27, and, on September 26, filed various exceptions alleging procedural and substantive defects in compliance with the 1976 and 1977 mental health acts. Because certain of the exceptions depend upon the applicability of one act or the other, we turn to a determination of which act is applicable here.

The petition for commitment with which we are concerned was filed September 6, 1977, and followed the procedures outlined in R.S. 28:53. Then, prior to the hearing of the matter, Act 714 of 1977 became effective. Should Act 714 have been retroactively applied?

Generally, in Louisiana, laws have prospective, rather than retrospective, application. Paul v. Edwards, 323 So.2d 488 (La.App. 1st Cir. 1975); Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3rd Cir. 1974), writ denied, 305 So.2d 134 (La.1974). The exceptions to this rule are (1) where the language of the statute indicates a clear intent for retrospective application. Shreveport Long Leaf Lumber Co., Inc. v. Wilson, 195 La. 814, 197 So. 566 (1940); and (2) where the statute is remedial or procedural rather than substantive. Parish of Calcasieu, Calcasieu Parish Police Jury v. Traigle, 296 So.2d 418 (La.App. 1st Cir. 1974); Hammond Asphalt Company, Inc. v. Joiner, 270 So.2d 244 (La.App. 1st Cir. 1972); Long Leaf Lumber v. Svolos, 258 So.2d 121 (La.App. 2nd Cir. 1972). There is no language in Act 714 of 1977 which would show an intent to apply the law retroactively.

Appellant contends, however, that Act 714 of 1977 was a procedural revision and should have retroactive effect. Manuel v. Carolina Casualty Insurance Company, 136 So.2d 275 (La.App. 3rd Cir. 1961) provides the applicable rule:

“If the statute is remedial in the sense that it makes only a procedural change in the law, then we think such a statute generally should be given retroactive effect unless the legislature has indicated by appropriate language that it should not be applied retroactively. If the statute, on the other hand, makes a change in the substantive law of the State whether such change is designed to correct errors in provision of prior laws or simply to amend the law for the public good, then we think such a statute should be construed to operate prospectively only, unless the words employed show a clear intention that the statute should have á retroactive effect.” 136 So.2d at 280.

Although the Mental Health Act (Act 714 of 1977) sets forth procedural requisites for commitment, it is obvious that the most basic of substantive rights are clearly involved therein. Furthermore, Act 714 of 1977 is not an amendment to the previous law with minor procedural changes, it is a complete revision of the law of commitment. We hold that the Mental Health Act was intended to, and does, have substantive effect and is not susceptible to retrospective application. Act 614 of 1976 (R.S. 28:53) is the applicable law for this case.

Accordingly, appellant’s contentions with respect to the exceptions of no cause of action (failure to hold a hearing within 10 days of the filing of the petition and to provide notice to respondent of his constitutional rights, as per R.S. 28:54 (1977)); nonconformity with R.S. 28:54(B) (1977) (failure of petition to contain sufficient factual allegations and provide respondent with adequate notice of the proceedings); and failure to comply with R.S. 28:54(D) (1977) (the physicians who examined Askew were connected with the treatment facility to which the commitment was being made) are moot.

We turn to appellant’s contention that Jefferson is not the parish of venue, citing Article 42 of the Code of Civil Procedure, which provides that the action

“. . shall be brought in a parish where the process may be, and subsequently is, served on the defendant.” C.C.P. Art. 42(5).

Able counsel argues that service was never made on Michael personally and, thus, there can be no proper venue.

R.S. 28:53(A) provides that:

“Any relative . . . may petition the district court of a patient’s domicile or of the parish where the patient is confined for treatment for the judicial commitment of a patient,”

and has been, we believe, followed. However, failure to serve Michael personally also raises a question of jurisdiction, and, on this issue, appellant argues that the district court never acquired jurisdiction since Michael was a resident of Florida, not of Louisiana. Thus, he contends, jurisdiction could only be obtained through service of process on the defendant, or on his agent for the service of process; or by the submission of the party to the exercise of jurisdiction over him personally by the court, or his express or implied waiver of objections thereto. (See: C.C.P. Art. 6.) Since service was made on his court-appointed counsel, but never personally, Michael argues that the court had no jurisdiction.

In our view, the district court acquired jurisdiction as a result of the general appearance (through retained counsel) on September 23, 1977, when a continuance was requested and denied.

Article 7 of the Code of Civil Procedure provides five specific exceptions to the rule that a party subjects himself to the jurisdiction of the court when he makes a general appearance either personally or through counsel. A motion for a continuance is not one of the named exceptions to that rule. Although it might be argued that a motion for continuance fits within the exception dealing with requests for extension of time within which to plead, the Third Circuit has held to the contrary in Gulf South Research Institute v. Bramlet, 240 So.2d 421 (La.App. 3rd Cir. 1970), writ refused, 257 La. 173, 241 So.2d 531 (1970).

Appellee argues that citation and service were not necessary due to the summary nature of the proceedings (see C.C.P. Art. 1201; R.S. 28:56), but we believe, however summary may be the nature of the proceedings, the service and notice requirement of R.S. 28:53(B) emphasizes the sensitive nature of the constitutional rights here involved. R.S. 28:53(B) provides:

“The patient and his attorney shall be served with notice of the appointment and of the time, date and place of the hearing no later than forty-eight hours prior to the hearing.” (Emphasis ours.)

Thus, in our view, the service and notice requirements were not fully followed. Yet, Michael had timely knowledge of the pending proceedings, retained able counsel, and fully participated in the hearing which resulted in the commitment now appealed from.

The record of those proceedings convinces us that Michael has had his full day in court. It is apparent that the able district judge, before whom these proceedings took place, was much concerned with the serious issues which now confront us. We conclude that he has not manifestly erred nor breached his wide discretion in reaching the decision to commit.

Finally, appellant calls upon us to apply R.S. 28:104, which prohibits the importation of nonresidents into Louisiana for purposes of commitment, and argues that appellee’s actions in disregard of the statute divests Louisiana courts of jurisdiction. We find the statute inapplicable in this case. Michael voluntarily came to Louisiana for the purpose of obtaining treatment at River Oaks and our perusal of the record convinces us that Michael’s father, appellee here, selected the facility at River Oaks Hospital for no other reason than its good reputation and apparent special knowledge in the fields which encompassed Michael’s difficulties.

We exercise our prerogative of complimenting both counsel on their efforts in this difficult matter.

The judgment is affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

GULOTTA, J., concurs in result.

LEMMON, Judge,

concurs.

The toughest problem in this case is jurisdiction over the person. This jurisdiction, which involves the power and authority of a state to enact and to enforce laws affecting a particular person, is based on a person’s meaningful presence in the state or on his sufficient minimum contacts with the state that an action against him does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Reverend Robert Askew, Michael’s father, testified that he brought Michael to River Oaks because a Florida psychiatrist recommended the effective drug program there. There was no thought of commitment at the time, and the subject arose only when Michael threatened a couple of weeks later to withdraw from the program (as he had done several times in Florida institutions) upon reaching the age of 18. When the River Oaks psychiatrist opined that Michael’s condition required him to remain there, commitment proceedings were instituted.

On the basis of this evidence the trial judge could reasonably have concluded that Michael was brought into Louisiana, without force or coercion, for the purpose of voluntary treatment in a drug program at a reputable institution, and not for the purpose of involuntary commitment. Therefore, this record does not establish a violation of R.S. 28:104.

On the related issue of jurisdiction over the person, Louisiana apparently had absolutely no basis for jurisdiction, legislative or judicial, when Michael and his father decided in Florida to accept the recommendation that Michael enter the drug program at the Louisiana hospital. However, once Michael willingly came to Louisiana and subsequently decided to abandon the program (in the face of the psychiatrist’s admonition to his parents that he would do anything to satisfy his drug habit), this state had a legitimate and substantial interest in the question of whether Michael should be committed involuntarily.

Judicial commitment is an exercise of the state’s police power which involves balancing an individual’s right to liberty and society’s right to peaceful enjoyment of life and property. Jurisdiction over the person in this commitment proceeding was properly based on Michael’s more-than-fleeting presence in the state, which had commenced voluntarily. Furthermore, because this presence in the condition described by the psychiatrist constituted a real and present danger to Louisiana citizens as potential victims of crimes committed to satisfy a drug habit, this state properly exercised its jurisdictional power and authority and ordered the commitment, not for the purpose of penal incarceration, but for the purpose of treatment (which by uncontradicted evidence was of excellent quality) and improvement of a mental condition.

GULOTTA, Judge,

concurs.

I concur with the result.

      . September 11, 1977 was a Sunday.

      . I have doubts that objections to jurisdiction over the person were waived when an appointed attorney requested a continuance at a time that the party himself had not been served in accordance with the statute.


author: BOLIN, Judge.

text:
    S. E. LEE, Jr., Plaintiff-Appellee, v. Doris Armstrong KINCAID et al., Defendants-Appellants-Appellees.
    No. 13533.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.
    Writ Refused June 9, 1978.
    Ellis & Ellis by Carey J. Ellis, Jr., Ray-ville, for defendant-appellant-appellee Doris Armstrong Kincaid.
    Voelker, Ragland, Brackin & Crigler by Frank Voelker, Jr., Lake Providence, for plaintiff-appellee.
    Samuel T. Singer, Winnsboro, for defendants-appellants-appellees, Ann Armstrong Johnson and Mary Alice Armstrong Robinson.
    Dimos, Brown & Erskine by Donald R. Brown, Monroe, for defendants-appellants-appellees, Clyde Robinson and Tom Jones.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff brought this declaratory judgment proceeding seeking to have the validity of a will determined. After finding the will was invalid as a nuncupative will by private act, because the testator had named one of the witnesses as a legatee in contravention of Louisiana Civil Code Article 1592, the trial judge upheld the instrument as a statutory will. One of the defendants appeals and we affirm.

Since we agree with the result reached by the trial court, but base our decision on different grounds, the issue is: May a legatee who has renounced his legacy serve as one of five witnesses to a nuncupative will by private act?

Plaintiff, the attorney who assisted the testator in the preparation and execution of two wills, is currently the attorney for the testator’s estate. Defendants are the heirs of the testator and legatees, including a bank named as trustee for two of testator’s grandchildren.

The testator confected two wills with plaintiff’s assistance, which were intended to be nuncupative by private act (C.C. Arts. 1581, 1582). Plaintiff served as one of five witnesses to, and was named as a legatee in, the second will, executed eight months after the first. The second will contained a substantially larger bequest to the testator’s two grandchildren than did the first and reduced a bequest to appellant, one of the testator’s daughters.

Shortly before the testator’s death plaintiff became concerned that the second will might be subject to question due to his dual status as a legatee and witness; therefore, following testator’s death, plaintiff proceeded to probate the first will rather than the second. The father of the two grandchildren who would benefit more from probate of the latter will, questioned the propriety of that proceeding; as a consequence of this challenge, plaintiff brought the present suit to have the second will declared valid. To remove his incapacity to be a witness therein (C.C. Art. 1592), plaintiff formally renounced his legacy before trial and asked that the second will be declared valid as a nuncupative testament by private act.

The trial court ruled plaintiff, a named legatee, incapable of serving as one of the five witnesses required by C.C. Art. 1581. Since this left only four witnesses to the will, the court held it invalid as a nuncupa-tive will by private act for failure to have the required five witnesses. However, the trial court upheld the testament, finding it met the formal requirements of a statutory will (La.R.S. 9:2442 et seq.).

We hold the trial court erred in law in finding plaintiff, who renounced his legacy, could not be considered a competent witness for the purpose of rendering the testator’s second will valid as a nuncupative testament by private act.

On its face the second will complies with the formalities prescribed in the Civil Code for nuncupative testaments by private act. Pertinent to the point at issue in this declaratory judgment action, the document has been signed by the required five witnesses. The record contains the original of an authentic act of plaintiff’s renunciation of his legacy. This act of renunciation signifies plaintiff will receive no legacy under the will.

The cardinal rule in construing testaments is that the intent of the testator be ascertained and given effect, if this can be accomplished without doing violence to the strict Civil Code requirements concerning formalities. Carter v. Succession of Carter, 332 So.2d 439 (La.1976).

The purpose of the statutory prescription of formalities for the execution of a will is to guard against mistake, undue influence, fraud or deception, and to ensure means to determine the will’s authenticity. Soileau v. Ortego, 189 La. 713, 180 So. 496 (1938); Succession of Michie, 183 So.2d 436 (La.App. 2d Cir., 1966).

Our reading of the second will leaves no doubt as to the testator’s intention; each testamentary disposition is clearly spelled out; these dispositions indicate the testator’s desire to benefit certain recipients to a greater degree than he intended eight months before, to the obvious detriment of defendant-appellant’s interest. However, there is no indication of undue influence which might have contributed to this result. The defendant-appellant does not suggest such influence, nor that the second will is not authentic. She suggests only that plaintiff attorney mistakenly violated a coda! provision, thereby rendering null the most recent expression of the decedent’s intentions.

We are unable to find judicial pronouncements concerning the effect of the proscription contained in C.C. Art. 1592 under circumstances where the witness-legatee has formally renounced his legacy. However, we find persuasive by analogy the decisions which have nullified bequests to notaries while declining to nullify in their entirety nuncupative testaments by public act. Succession of Purkert, 184 La. 792, 167 So. 444 (La.1936); Succession of Killingsworth, 194 So.2d 331 (La.App. 1st Cir., 1966), writ refused 250 La. 175, 194 So.2d 738 (1967). See L. Oppenheim, Louisiana Civil Law Treatise, Volume 10, Successions and Donations, § 114.

In construing Civil Code Article 1592 as it applies to this case, we are confronted with the declaration that a “named legatee” cannot be a witness to a testament. These words of the statute possibly could signal a legislative intent to create an irrebuttable presumption of invalidity of the entire will if one of the witnesses thereto has been named a beneficiary by the testator; under this interpretation, the will’s invalidity would result by operation of C.C. Art. 1595.

There is an alternative and more plausible construction of the statutory language, however, which appears both logical and reasonable. Under this interpretation, the word “named” signifies nothing more than “identified by name,” and the crucial determination at the probate of the will becomes the status of the witnesses then, i. e., whether or not any witness is in actuality a legatee at the time of probate so as to bring into operation the prohibition of C.C. Art. 1592 and its possible effect on the validity of the will (C.C. Art. 1959).

Since plaintiff formally renounced his bequest before the will had been offered for probate, there can be no question that this witness is not a legatee. By choosing the more liberal construction of the language of C.C. Art. 1592, we uphold the testator’s intentions without doing violence to the rule requiring strict compliance with testamentary formalities.

Our holding is limited to the sole proposition that a legatee, who formally renounces his legacy prior to probate, may serve as one of five witnesses to a nuncupa-tive will by private act.

Since we uphold the testator’s second will in its intended form, we need not consider whether or not it may be also valid as a statutory will.

The judgment ordering the will filed for probate is affirmed at appellant’s cost.

      . Art. 1592.
      Neither can testaments be witnessed by those who are constituted heirs or named legatees, under whatsoever title it may be.

      . Art. 1581. A nuncupative testament, under private signature, must be written by the testator himself, or by any other person from his dictation, or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out of that place.
      Or it will suffice, if, in the presence of the same number of witnesses, the testator presents the paper on which he has written his testament or caused it to be written out of their presence, declaring to them that that paper contains his last will.
      Art. 1582. In either case, the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator; it must be signed by the testator, if he knows how or is able to sign, and by the witnesses or at least by two of them, in case the others know not how to sign, and those of the witnesses who do not know how to sign, must affix their mark.
      This testament is subject to no other formality than those prescribed by this and the preceding article.

      . Art. 1595. The formalities, to which testaments are subject by the provisions of the present section, must be observed; otherwise the testaments are null and void.


author: MARVIN, Judge.

text:
    Succession of Russel N. SMITH, Sr., Defendant-Appellant.
    No. 13534.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.
    En Banc. Rehearing Denied June 6, 1978.

      Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for administratrix, defendant-appellant.
    Bice, Russell & Allen by Charles B. Bice, William M. Russell, III, Winnfield, for Russel N. Smith, Jr., et al. plaintiffs-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

This contest is between the three major children of decedent’s first marriage and their stepmother, who is the decedent’s second wife, the administratrix of his succession, and the mother of decedent’s remaining two children, the minor incompetent heirs of decedent.

Two of the major children successfully opposed some of the details of a tableau of distribution filed by the administratrix some three years after decedent’s death and obtained judgment placing the three major competent heirs into possession of their share of a part of the estate.

On the appeal of the administratrix, with one exception as to the administrative detail on which we reverse and remand for additional evidence, we affirm.

The administratrix raises five issues:

(1) Shortly after being qualified, the administratrix petitioned and obtained authority to borrow at eight percent interest for one year $5,280 to pay funeral expenses and community debts. The administratrix borrowed the money from herself. She now contends the lower court erred in not allowing her individually, the almost three years interest on the debt, but instead, limiting her to the one year as she expressly sought in her petition. Under these circumstances, we find no error in the judgment below. C.C.P. 3301.

(2) The administratrix sought to charge the expenses of administration, including the fee of her attorney, solely to the succession (decedent’s one-half community and his separate estate). The lower court prorated these expenses between the succession and the community property.

Here, the decedent owned two incorporated businesses — an automobile dealership and a retail store — the affairs of which were sufficiently complex to meet the test set forth in Succession of Sharp, 288 So.2d 413 (La.App. 4th Cir. 1973), distinguishing Succession of Helis, 226 La. 133, 75 So.2d 221 (1954). We find no error. Succession of Webre, 49 La.Ann. 1491, 22 So. 390 (1897).

(3) In the tableau, the administra-trix proposed to pay an alleged debt of $46,000 to the incorporated retail store business. The lower court, in effect, found that the corporation was an indispensable party to any adjudication as to the existence and validity of the debt and required its joinder and some documentary proof of the debt. C.C.P. 641. This was not error.

The detailed descriptive list includes shares of the incorporated auto dealership as an asset of the separate estate.

The federal estate tax return, prepared later, shows as community property, an additional amount of $5,600, paid to the succession by the auto dealership on June 30, 1976. This amount is also reflected in the administratrix’s annual account for the year ending April 1, 1977. The tableau characterized this sum as community property. The lower court ruled it was separate property. The only testimony, however, relating to any amount owed to decedent by the auto dealership, came from the accountant for the dealership, who was also accountant for the estate. He could not identify this exact sum in any respect, except to explain there was some $9,570 owed the decedent in profits not distributed which had accumulated perhaps over a period of 20 years.

Income from separate property during the existence of the community of course is community. See C.C. 2334, 2402; Broussard v. Broussard, 340 So.2d 1309 (1976). Under the circumstances, we find it impossible to determine what part of the total amount paid to the administratrix by the dealership is separate and what part is community. Since we affirm and effectively remand on the issue of the retail store debt, we reverse and also remand on this issue to allow documentary and other legal proof as to what profits of the dealership were accumulated and in what years in order that a proper determination of the legal character of this asset might be made.

(5) Even though an estate is being administered, the competent heirs may be sent into possession of all or part of the property upon proceeding contradictory with the succession administratrix. C.C.P. 3362. On the basis of the showing made, including the sworn pleadings and the affidavit of heirship which were not contested by the administratrix, we find no abuse of discretion in the lower court’s placing the competent heirs in possession of their share of certain real estate, improvements and furnishings, and corporate stocks.

The judgment appealed is affirmed in all respects, except as to the characterization of such funds as have been or may be paid to the administratrix by the automobile dealership which are or were accumulated profits of the dealership, undistributed until after decedent’s death. This issue is remanded for further proceedings as discussed under issue (4) above. Cost of this appeal is assessed to the administratrix.

Affirmed in part and reversed and remanded in part.


text:
    HUMANA, INC., Plaintiff-Appellee, v. Geneva KING a/k/a Geneva King Brown, Defendant and Third-Party Plaintiff-Appellee.
    No. 13535.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.
    Brittain & Williams, by Jack 0. Brittain, Joe P. Williams, Natchitoches, for third-party defendants-appellants Blue Cross/La. Hospital Service, Inc.

      Baker, Culpepper & Brunson, by D. G. Brunson, Jonesboro, for plaintiff-appellee.
    Sanders & Castete, Ltd. by Martin S. Sanders, Jr., Winnfield, for defendant and third-party plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

When sued by the hospital, for medical services rendered her, the defendant brought a third-party demand against the group hospitalization insurer of the corporation which employed her.

Judgment was rendered for the hospital on the main demand and against the group insurer on the third-party demand. The insurer appeals judgment on the third-party demand, contending the group policy was terminated at the request of the employer-policyholder before the services were rendered defendant. We agree and reverse.

Judgment on the main demand was not appealed and the only issue is the existence of coverage for defendant after termination before she was informed of the termination.

The policy provided:

“This Contract may be terminated at any time by the Employer or the Company by giving written notice to the other at least 30 days prior thereto. This Contract shall be renewed from month to month unless terminated.”

The employer did not require its employees to contribute to their individual coverage. It elected to terminate the policy effective August 1, 1975, by notifying the insurer when it paid the July premium. The employer did not inform defendant or apparently any other employee of the termination. Defendant entered the hospital in September when she was still an employee.

The trial judge held that the insurer had a duty to notify the employees of the cancellation of coverage and that the insurer’s failure to notify rendered it liable for the hospital bill, citing R.S. 22:215; Greer v. Continental Casualty Company, 347 So.2d 70 (La.App.2d Cir. 1977), and Colvin v. Louisiana Hospital Service, Inc., 321 So.2d 416 (La.App.2d Cir. 1975).

Our recent case of Greer, citing Colvin and R.S. 22:215, did not hold that the insurer was obligated to notify the employee about changes in benefits or termination of group hospitalization coverage. Our holding in that respect was clearly stated:

“We hold that an employer policyholder of a group health and accident policy is obligated to inform the insured employee of the termination or modification of benefits under the policy.” Greer v. Continental Cas. Co., 347 So.2d 70, 72 (La.App.2d Cir. 1977).

There, the employee claimed the employer and the group insurer were solidarily liable for benefits or for an amount equal to the benefits provided by the original group policy where the benefits under the original policy had been changed by agreement between the insurer and the employer, but without delivery of the certificate to the employee required by R.S. 22:215. The employee there contributed to the premium for his individual coverage under the original policy but not under the changed policy which bore the same numerical policy number.

In Greer, an exception of proscription and summary judgment were upheld by the lower court against the employee and in favor of both the insurer and the employer. We reversed and remanded for trial on the merits to allow a showing of the extent of the relationship of the employer with its employees and with the insurer and because a serious factual issue existed as to whether the employer presented to its employees a new certificate reflecting the change of benefits.

Here the case was tried on the merits of the third-party demand and we are not faced with a claim by the defendant against her employer for not informing her that it had caused the policy to be terminated.

The general provisions (L.R.S. 22:611-668), as well as specific provisions (L.R.S. 22:211-223), of the insurance code apply to policies of this type. Section 636, which provides for cancellation of policies by the insurer, requires that the insurer inform the insureds or “other known person shown by the policy to have an interest in any loss” of the fact of cancellation. Section 637, which provides for cancellation by the insured makes no such requirement.

Subsection E of § 636, however, expressly provides that

“This Section shall not apply to contracts of life or health and accident insurance which do not contain a provision for cancellation prior to the date to which premiums have been paid . .” (Emphasis supplied).

The obvious design of § 636—cancellation by the insurer—is to require not only that the insurer follow certain formalities (not less than five days notice before the effective date of cancellation etc.), but as well, that the insurer actually pay to the insured the unearned portion of the premium.

The policy here does not contain a provision for cancellation by either the insured or the insurer during the month for which premiums have been paid. The earlier quoted policy provision (renewal from month to month and cancelable upon at least 30 days notice) prevents our concluding otherwise. Thus, whether this policy was canceled by the insured-employer, by the insurer, or as the record reveals, by mutual agreement to terminate at the end of the month of July (the last month for which a premium was in fact paid), the insurer was not required by law to inform its policyholder’s employees of the fact of termination or cancellation. See Quindlen v. Prudential Insurance Company, 342 F.Supp. 9 (U.S.D.C.W.D.La.1972) for a discussion of R.S. 22:636.

R.S. 22:215(A)(3)(g) certificates contemplate some detailing or summarizing of the benefits and exclusions which are provided the employee who is covered by a group hospitalization or health and accident policy because the employee is not furnished the policy itself. Where the policy itself is terminated there is no rational need for the insurer to furnish § 215 certificates to the policyholder for delivery to the policyholder’s employees. It is nonetheless the duty of the employer to inform its employees of the termination or modification of the policy. In the case of modification of group benefits the § 215 certificates are required to be furnished by the insurer to the policyholder for the policyholder’s delivery to its employees. Greer, supra, Colvin, supra.

At the cost of defendant-appellee, judgment on the third-party demand is reversed.

      . L.R.S. 22:215(A)(3)(g) provides:
      “An individual application shall not be required from a person covered under such a blanket policy. The insurer shall furnish to the policyholder for delivery to the insured a certificate of insurance which shall disclose the benefits, limitations, exclusions and reductions contained in the policy and . . . any other relevant information, including the name and address of the insurer . .” (Emphasis supplied).


author: HALL, Judge.

text:
    Willie H. BOYKIN, Jr., Norman Washington, Clarice Lipkins and Earl Lewing, Plaintiffs-Appellants, v. DeSOTO PARISH POLICE JURY, James Lynn Davis (District Attorney for 11th Judicial District) and Roy D. Webb (Sheriff for DeSoto Parish), Defendants-Appellees.
    No. 13538.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.
    Writ Refused June 16, 1978.

      Watson, Murchison, Crews, Arthur & Corkern by William P. Crews, Jr., and Ronald E. Corkern, Jr., Natchitoches, for plaintiffs-appellants.
    E. L. Edwards, Jr., Asst. Dist. Atty., Many, for defendants-appellees.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Plaintiffs’ suit attacks the legality of a local option election and an ordinance enacted pursuant to the election prohibiting the sale of alcoholic beverages in Ward 8 of DeSoto Parish, which includes the municipality of Logansport. From a judgment rejecting their demands for an injunction and dismissing their suit, plaintiffs appeal. We affirm.

"Each of plaintiffs’ contentions shall be separately stated and discussed.

1. The petition requesting the local option election did not comply with LSA-R.S. 26:582 and 583 in that it did not request that the election be separately called and held with the results separately binding on the incorporated municipality and the unincorporated balance of the ward.

Tracking the language of LSA-R.S. 26:583, the petition requested that the police jury “call an election to submit, in the manner provided by law, to the qualified electors of Ward 8 of DeSoto Parish, the following four propositions . The petition was for a ward-wide election and adequately expresses that intent. The requirements of LSA-R.S. 26:582 and 587 that the election be separately called and held and the results separately tabulated for each incorporated municipality and for the unincorporated balance of the ward relates to the call of the election and conduct of the election by the police jury and there is no requirement that language to this effect be included in the petition. The petition was in proper form.

2. The petition contained names of electors who did not actually sign the petition.

Five witnesses testified their names were signed on the petition by their wives with their authorization. There were several names on the petition which were hand printed rather than written in cursive. Even if the contested signatures were disregarded, the petition still contains the signatures of more than 25 percent of the qualified electors of the ward, as required by LSA-R.S. 26:582. No requests were made by any of the electors to have their names removed from the petition prior to the election. The fact that a signature is printed by hand rather than written in cursive does not indicate a lack of genuineness. Any irregularities arising out of these facts are not substantial defects which will nullify the election or ordinance.

3. It is impossible to ascertain from the petition or the certificate of the Registrar of Voters whether the petition was signed by 25 percent of the qualified electors of either the municipality of Lo-gansport or the unincorporated balance of the ward.

To call a ward-wide election the petition must have the signatures of 25 percent of the qualified electors of the ward. There is no requirement that there be separate petitions for the municipality and the unincorporated part of a ward or that the petition contain separately the signatures of 25 percent of the electors residing in the municipality and 25 percent of the electors residing in the unincorporated portion of the ward.

4. The verification of the Registrar of Voters was not “sworn” as required by LSA-R.S. 26:585.

The letter from the Registrar of Voters to the police jury filed with and attached to the petition contains substantially all of the information required by the statute. It is signed by the Registrar of Voters and is stamped with his official seal of office. The verification was not sworn to before a Notary Public. The Registrar testified he considered the affixing of his seal as the equivalent of a sworn verification. Plaintiffs do not contest the validity or accuracy of the facts contained in the Registrar’s letter but merely attack the absence of a Notary’s signature. Under these circumstances there was substantial compliance with the statute. Ginn v. Village of Bonita, 62 So.2d 159 (La.App. 2d Cir. 1952).

5. The resolution adopted by the DeSoto Parish Police Jury calling the election was adopted at a special meeting rather than at a regular meeting of the jury in violation of LSA-R.S. 26:586.

The police jury’s secretary explained that to comply with other statutory provisions the police jury was required to call a special meeting to adopt the resolution because the next regular police jury meeting after filing of the petition by the Registrar was less than 30 days after the filing and the following regular meeting was more than 45 days after the filing. Under these circumstances the special meeting was sufficiently regular to meet the statutory requirement. Nomey v. Jackson Parish Police Jury, 343 So.2d 315 (La.App. 2d Cir. 1977); McFerrin v. Police Jury of Sabine Parish, 220 So.2d 203 (La.App. 3d Cir. 1969).

6. The resolution calling the election did not include a separate call for an election within the municipality of Logansport.

The statute contemplates one ward-wide election with the issues separately determined for the municipality and for the unincorporated balance of the ward. McGee v. Police Jury of Caddo Parish, 225 La. 471, 73 So.2d 424 (1954); Williams v. Town of Many, 350 So.2d 224 (La.App. 3d Cir. 1977), writ refused 351 So.2d 1205 (La.1977); Niette v. Natchitoches Parish Police Jury, 348 So.2d 162 (La.App. 3d Cir. 1977), writ refused 351 So.2d 160 (1977); Hollan v. Police Jury of Webster Parish, 134 So.2d 132 (La.App. 2d Cir. 1961).

The resolution adopted by the DeSoto Parish Police Jury specifically provides that a majority of the votes cast by voters residing in that portion of the ward lying within the corporate limits of the Town of Logans-port on each proposition shall separately determine that issue for and in the portion of the ward lying within the corporate limits. The election was separately called for the incorporated municipality and the unincorporated balance of the ward. The language of the resolution is virtually identical to that of the resolution approved in the McFerrin case.

7. Various people other than commissioners, including ministers of the gospel, were allowed to be at the polling places during the conduct of the election.

The presence of ministers at the polling places is not prohibited by law and the testimony at the trial does not indicate that the ministers attempted to influence any of the persons voting in the election.

8. The location of the voting places resulted in some residents of the municipality voting outside of the corporate limits and some residents of the unincorporated portion of the ward voting within the corporate limits.

There were two voting places, the City Hall (inside the corporate limits) and the American Legion Hall (outside the corporate limits). Precincts 1 and 2 of Ward 8 included both voters living within the corporate limits and voters living outside of the corporate limits. Separate voting machines were provided for the voters of the respective areas and the proces verbal of the election shows that the votes were separately tabulated. The vote was “dry” in each area. Although there was some testimony that the commissioners did not instruct the voters concerning the use of the separate voting machines, there was also evidence to the contrary and the irregularity in this respect was not proved. The same procedure was approved in the McFerrin case and in Stewart v. Livingston Parish Police Jury, 340 So.2d 1045 (La.App. 1st Cir. 1976).

The trial court correctly held that the irregularities alleged were not established and that there was substantial compliance with the statute governing local option elections. The judgment of the district court is affirmed at appellants’ costs.

Affirmed.


text:
    Marshall HARRIS, Plaintiff-Appellee, v. WOODCREST MOBILE HOMES and the Administrator of the Division of Employment Security, Defendants-Appellants.
    No. 13542.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.
    Miller & Schneider by Leo A. Miller, Jr., Lake Providence, for defendant-appellant Woodcrest Mobile Homes.
    Marion Weimer, James A. Piper and James A. McGraw by Marion Weimer, Baton Rouge, for defendant-appellant Administrator of the Division of Employment Security.
    Hamilton, Carroll & Miller by Donald K. Carroll, Oak Grove, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Woodcrest Mobile Homes, the claimant’s employer, appeals from the judgment of the district court reversing a decision of the Board of Review of the Louisiana Division of Employment Security and granting unemployment benefits to the claimant, Marshall Harris, on a finding that Harris was eligible for unemployment benefits because he left his employment for good cause connected with his employment and he was able to work and available for work.

Appellant contends the trial court erred in going beyond the permissible scope of judicial review of a decision of the Board of Review, and in failing to affirm the Board’s conclusions that the claimant’s unemployment was brought about because of a nonoccupational disability, the employment relationship was never severed since the employer held the claimant’s job open for him, and claimant was not eligible for benefits. Appellant further contends claimant is ineligible for benefits because he is pursuing a workmen’s compensation claim against the employer. Being of the opinion that the district court correctly analyzed and resolved each of the issues presented in this case in well-reasoned written reasons for judgment, we affirm the judgment of that court.

The essential facts disclosed by the evidence, for the most part consistent with the findings of the Board of Review, are as follows. Harris was employed as a roofer and carpenter in a mobile home factory for approximately one and one-half years. He became ill while so employed and his physician determined that he was allergic to fiberboard dust on the job at which he was employed. He was advised to seek some type of employment that did not expose him to fiberboard dust. After being off from work for a period of time his allergy cleared up and he returned to work in a different part of the building but he became sick again on account of the dust. He left work on May 6, 1976 and has not worked for Woodcrest since that time. Harris applied for and received benefits under a group disability insurance policy provided by his employer. He also applied for unemployment benefits. Later he began to pursue a workmen’s compensation claim against the employer.

The Department originally determined that claimant was eligible for benefits. On the employer’s appeal the appeals referee ruled that he was ineligible. The Board of Review affirmed the ruling of the appeals referee. Harris petitioned for judicial review and the district court remanded the case for the taking of further evidence by the Board of Review as to claimant’s physical condition. After taking further evidence the Board of Review adhered to its previous decision denying benefits. When the record was returned to the district court, the administrator prayed that the decision of the Board of Review be reversed. The district court reversed and the employer appealed.

The scope of judicial review in appeals from decisions of the Board of Review is limited to whether the Board’s findings of fact are supported by sufficient evidence and whether, as a matter of law, the facts justify the action taken. LSA-R.S. 23:1634; Ware v. Doyal, 320 So.2d 212 (La.App. 3d Cir. 1975); Atkins v. Doyal, 274 So.2d 438 (La.App. 1st Cir. 1973). The district court properly applied this standard in reversing the Board of Review’s decision, which is not supported by sufficient evidence nor applicable law.

The claimant has been unemployed since May 6, 1976. He has performed no services for the employer since that date and has been paid no wages since that date. Benefits received by the claimant under the disability insurance policy cannot be considered as payments in lieu of wages or as having continued the employment relationship between claimant and his employer.

The evidence establishes that plaintiff, at the time he made the claim for benefits, was able to work and was available for work as required by LSA-R.S. 23:1600(3). Claimant’s physician rendered several reports stating consistently that plaintiff could not return to his former employment around fiberboard dust but could do light work away from the dust. The only job the employer had available for Harris was one in the presence of the ma-sonite dust. A claimant is not required to accept employment which may be injurious to his health. The trial court correctly concluded from the evidence that the claimant was able to and available for work of a nature and in a place where he would not be exposed to dust.

LSA-R.S. 23:1601(1) provides that an individual shall be disqualified for benefits if he left his employment without good cause connected with his employment. The Board’s finding that claimant’s unemployment was brought about because of a nonoccupational disability is not supported by any evidence. The doctor’s statements in the record and plaintiff’s testimony, and even the Board’s finding of fact, show that the claimant left his employment for the sole reason that he was allergic to and made ill by the fiberboard dust which was present at his place of work. Working conditions which are dangerous or detrimental to health constitute good cause for leaving one’s employment.

The employer’s last contention that the claimant is disqualified to receive béne-fits because he is pursuing a claim for workmen’s compensation benefits is likewise without merit. LSA-R.S. 23:1601(7) provides that an individual shall be disqualified for benefits for any week with respect to which he is receiving or has received remuneration in the form of compensation for disability under the workmen’s compensation law. The claimant has not received and is not receiving any such remuneration and is not disqualified under that section.

The judgment appealed from is affirmed at appellant’s costs.

Affirmed.