author: TATE, J., DENNIS, J.,

text:
    Succession of Miss Edna C. HAUSSER.
    No. 57210.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Allen Jaffe and E. Lorenz Bor-enstein, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 320 So.2d 614.

Writ denied. The result is correct.

TATE, J.,

concurs in denial. The applicants, the only prospective purchasers at the initial sale, have no standing to question the court’s rejection of it, now accepted by the executor and all legatees. See La. Code of Civil Procedure, Art. 3283 and official revision comment.

DENNIS, J.,

concurs in denial only because applicants lack standing to apply for the writ.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Michael Wayne BAHAM.
    No. 57200.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Michael Wayne Baham applying for writs of certiorari, prohibition mandamus and stay order.

Writ refused. The defendant has an adequate remedy for review in the event of conviction.


text:
    Ferdinand Henry SCHUTTEN et al. v. ORLEANS PARISH LEVEE DISTRICT et al.
    No. 57219.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Ferdinand Henry Schutten, et al. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Plaquemines. 320 So.2d 605.

Writ denied. The judgment of the court of appeal is correct.


text:
    DENNIS MILLER PEST CONTROLS, INC. v. Mrs. Germaine WELLS d/b/a Arnauds Restaurant.
    No. 57217.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Mrs. Germaine Wells d/b/a Ar-naud’s Restaurant applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 320 So.2d 590.

Application denied. No error of law.


text:
    GRAVOIS MANAGEMENT, INC. Represented By Ozane J. Gravois, Sr., et al. v. P. M. PROPERTY DEVELOPMENT CORP. Represented By Paul Mouton et al.
    No. 57216.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Paul Mouton, applying for writs of prohibition, certiorari and mandamus.

Writ denied. This Court will not ordinarily exercise its supervisory jurisdiction to review interlocutory rulings in the absence of irreparable injury, not here shown.


text:
    Bonnie M. CLEMENTS v. Joseph D. LINDSAY.
    No. 57220.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: Joseph D. Lindsay, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 320 So.2d 608.

Writ denied. The result is correct.


author: DIXON and CALOGERO, JJ.,

text:
    STATE of Louisiana v. Roger ALEXANDER.
    No. 57223.
    Supreme Court of Louisiana.
    Jan. 7, 1976.
   In re: State of Louisiana, applying for writ of certiorari. 320 So.2d 610.

Writ denied. On the showing made, the result is correct.

DIXON and CALOGERO, JJ.,

concur in the denial. There is clearly no error of law in the Court of Appeal opinion.


author: BEER, Judge.

text:
    Abner J. PHILLIPS v. Roy C. WILLIAMS et al.
    No. 7105.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Calvin H. McBride, James D. McGovern, Jr., New Orleans, for plaintiff-appellee.
    Christovich & Kearney, Robert E. Peyton, New Orleans, for defendants-appellants.
    Before LEMMON, BOUTALL, and BEER, JJ.
   BEER, Judge.

A collision between defendant-appellant’s cab and plaintiff-appellee, a pedestrian, occurred at the controlled intersection of Magnolia Street and Washington Avenue on March 6, 1972 at about 4:00 p. m. It was a clear day. On trial of the matter each urged that he had a signal light favorable to his movements at the intersection and each summoned witnesses who testified in his favor. The trial judge found for plaintiff-appellee and indicated in his written reasons that he seriously questioned the character of defendant and found his testimony hard to believe. Defendant-appellant challenges, as irrelevant, certain observations utilized by the trial court in support of his reasons for judgment.

Roy C. Williams, the cab driver, not only contends that the light was in his favor but further that the plaintiff, Abner J. Phillips, walked into his vehicle. He also contends that a vehicle parked very near the intersection obstructed his view.

Phillips contends that he was walking on Washington Avenue towards the river arid, upon reaching the intersection, observed that the light controlling traffic on Washington Avenue was red. He waited until the light turned green and proceeded to cross Washington Avenue. Witnesses Leonard Jackson and Frederick Edmonson confirm this account. Both testified that they saw the accident occur. Leonard Jackson was walking with a friend, saw the light controlling Washington Avenue traffic change to green, and began to cross Magnolia Street as did plaintiff-appellee. Jackson was apparently not as far across Magnolia Street is Phillips and was not struck. He also testified there was no car parked very near the intersection when the accident occurred.

Edmonson saw the accident from outside a bar located on one of the intersection corners. He saw the cab coming at approximately 30 to 40 miles per hour on Magnolia Street as Phillips and was not nue, and strike Phillips. He testified that the light controlling Washington Avenue traffic was green and from his angle could view another of the four signal lights at the intersection showing a red light for traffic on Magnolia Street. He stated that no car was parked near the corner where the collision occurred.

The investigating police officer who arrived very quickly after the accident, stated that he found no vehicle parked near the intersection nor did he find any other impediment to a clear view of the area.

Roy Williams and the witnesses he called testified to the contrary. Williams stated he was proceeding on Magnolia, in a school zone, at approximately 20 miles per hour. The light was in his favor when Phillips stepped from the corner and “walked” into his vehicle. He contends that he was approximately two car lengths from the light when it turned green in his favor. He noticed Phillips when his cab was approximately one-and-a-half car lengths away from him and claims that a car parked at the intersection obstructed his vision.

James Vaughan had parked his car on Magnolia and was locking it when he heard the squeal of brakes and immediately turned around to see a green light for Magnolia Street traffic. Mrs. Esther Randall was stopped at a red light on Washington Avenue behind another vehicle and heard the brakes applied.

Plaintiff-appellee calls attention to the fact that Mr. Vaughan and Mrs. Randall knew Williams as a result of various church activities and questions their impartiality.

Police Officer Burkart testified that he asked Williams for the names of witnesses to the accident but received none. Williams maintains that he informed Officer Burkart that he knew of witnesses but was not asked for their names. In this regard Mrs. Randall testified that she was at the scene for five or ten minutes after the accident and never saw a policeman. Officer Burkart testified he was on the scene within minutes of the accident because he was in the immediate area when the radio call was received.

Immediately after the accident Phillips was seen by Dr. John Savoie who, in deposition, testified plaintiff’s right knee was “unstable” and causing moderate pain. He could not be sure that there was a tear of the medial miniscus and recommended plaintiff see an orthopedic specialist. He also noted soreness of plaintiff’s shoulder but felt the knee problem was more serious.

Dr. Eugene Dabezies, an orthopedic specialist, saw plaintiff on January 7, 1974, almost two years after the accident. He noted a possible tear of the medial minis-cus and a five to ten percent impairment to physical function of the right knee. He believed that plaintiff’s shoulder problem was due to an arthritic condition predating the accident. Dr. Irving Redler, also a specialist in orthopedics, found no residual disability of the knee nor difficulty with the shoulder. Like Dr. Dabezies, he believed that symptoms relative to the shoulder were unrelated to the accident. He saw plaintiff on January 10, 1974 almost two years after the accident.

Although there is little support in the record for an award covering alleged injury to Phillips’ shoulder and back, there is substantial evidence to support the award of $4,500 for his knee injury which, at various times since the accident, has caused him to be hospitalized at Charity Hospital in New Orleans for approximately eighteen days. Likewise, there is complete support for the special damages award covering this hospitalization in the amount of $576.

We find no manifest error in the credibility determination reached by the trier of the facts.

Williams admits that Phillips was crossing at the proper point of the intersection and not jaywalking. He acknowledges that, at best, he was only one-and-a-half or two car lengths from the light when it turned in his favor and further acknowledges that this was also his distance away from Phillips when he first saw him crossing. Thus, even his own version would cause us to seriously consider that he had the last clear chance to avoid the accident. But we do not reach this point of consideration for the record amply supports the basic credibility determination of the trial court. Lavergne v. Hoffpaiur, 306 So.2d 462 (La.App. 3rd Cir. 1975) and also Canter v. Koehrinq Company, 283 So.2d 716 (La.1973).

Finally, we turn our attention to defendant-appellant’s contention that the trial court’s judgment was based on irrelevant factors indicated by certain comments in its written reason for judgment. Though the comments themselves might seem harsh to defendant-appellant’s able counsel, the record itself belies the contention that the trial court permitted its emotions to becloud its judgment. A close examination of the record provides a valid basis for sustaining the credibility call that the trial court has made in this case notwithstanding the gratuitous observations about which counsel now complains.

For the foregoing reasons the judgment of the Civil District Court for the Parish of Orleans is affirmed at appellants’ cost.

Affirmed.


author: BOUTALL, Judge.

text:
    SCHWEGMANN BROS. GIANT SUPER MARKETS and Dairy Fresh Corporation v. Edwin EDWARDS, Individually and in his official capacity as Governor of the State of Louisiana, et al.
    No. 7314.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearings Denied Jan. 13, 1976.
    Writs Refused Feb. 20, 1976.
    See also, La.App., 323 So.2d 815.

      Stone, Pigman, Walther, Wittmann & Hutchinson, Michael R. Fontham, Paul O. H. Pigman, David Stone, Saul Stone, New Orleans, for plaintiffs-appellees and Delight Distributing & Sales Co., Inc., inter-venor-appellee.
    William J. Guste, Jr., Atty. Gen., Donald Ensenat, Staff Atty., New Orleans, for defendants-appellees.
    Richard F. Knight, R. Bradley Lewis, Talley, Anthony, Hughes & Knight, Boga-lusa, for Gulf Dairy Ass’n, Inc., intervenor-appellant.
    Bryan E. Bush, Jr., Baton Rouge, for Baton Rouge Area Milk Producers Ass’n, Inc., North La. Pure Milk Producers’ Ass’n, Inc., Central West and Southwest Dairy Farmers Ass’n, Inc., intervenors-ap-pellees.

      James P. Screen, Gen. Counsel, New Orleans, for La. Health and Human Resources Administration, defendant-appellant.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is an appeal from the granting of a writ of mandamus in the trial court. The lower court ordered defendants, John M. Bruce and Raleigh Richard of the Louisiana Health and Human Resources Administration to issue a permit to Dairy Fresh Corporation authorizing it to import milk and milk products from its plant in Hat-tiesburg, Mississippi, provided those products met the specifications of the Louisiana Sanitary Code. Defendants have appealed and we affirm.

This case arises from the denial of a permit application made by Dairy Fresh Corporation. Dairy Fresh made application to import processed milk into Louisiana under the provisions of L.R.S. 40:923 and Chapter V of the Sanitary Code, State of Louisiana. The pertinent part of that Chapter is section S.B.4.

“5.B.4 IMPORTED MILK AND MILK PRODUCTS. (1) It shall be unlawful for any person, firm, or corporation to ship milk or milk products (except Extra and Standard grades of dry-milk and dry-milk products) into Louisiana from without the state without first obtaining a permit from the State Health Officer. (2) All milk and milk products (except Extra and Standard grades of dry-milk and dry-milk products) brought into Louisiana from without the State shall be of Grade A quality. The production sources may be inspected by a duly authorized representative of the State Health Officer, or in lieu thereof, the State Health Officer may accept the certificate of inspection of a duly authorized governmental representative, agent or agency of such other state wherein such products are produced. (3) All dry-milk and dry-milk products brought into Louisiana from without the state shall meet minimum requirements for at least one of the following grade designations and shall be labeled accordingly: (a) Grade A, as defined in Section 5.K.-15 of this code; (b) Extra, as defined in Section 5.K.16 of this code; (c) Standard, as defined in Section 5.K.17 of this code. Production sources and processing plants may be inspected by a duly authorized representative of the State Health Officer, or in lieu thereof, the State Health Officer may accept the certificate of inspection of a duly authorized governmental representative, agent or agency of such other state wherein such products are produced.”

This section allows only Grade A products to be imported and outlines a method for inspecting production sources. Dairy Fresh contends that its products are of Grade A quality and meet the Louisiana standards for Grade A quality, thus qualifying it for a permit.

On appeal, defendants raise four specifications of error by the trial court. We shall take each in turn.

First, defendants complain that the trial court erred in ordering the issuance of the permit when at the time Dairy Fresh applied it was not in compliance with Louisiana standards. Defendants make this argument as an afterthought. The record is quite clear that Dairy Fresh’s application was denied solely on the basis of the difference between Mississippi Grade A milk standards and Louisiana standards. At no time did Louisiana Health officials attempt to see if Dairy Fresh was in compliance and in fact refused an offer of proof of such compliance prior to trial. At the trial Dairy Fresh introduced a document, certified by Mississippi State Health officials, showing that it did comply. Defendants now hinge their attack on this document. This document shows temperature reports, bacteria counts and Wisconsin Mastisis test results on the raw milk produced by Dairy Fresh’s suppliers. We have viewed this document and while we are not experts it does appear to show one or two producers out of compliance with bacteria counts and several more out of compliance with the Wisconsin Mastisis test or W. M. T.

We perceive no defect in the report great enough to deny Dairy Fresh an application. Section 5.B.4 requires that imported milk be of Grade A quality. Nowhere in the Grade A requirements is there mention of the Wisconsin Mastisis test and therefore this is not a proper basis for denying the application. Mr. Richard did testify that his office sent out a letter in 1967 stating that the W. M. T. would be-enforced at a level not to exceed 22 (Mississippi requires that Grade A milk have a W. M. T. result of 25 or less), however, he admitted that this forms no part of the Grade A milk requirements. As to the producer or producers with high bacteria counts, Mr. Burt, president of Dairy Fresh, testified that this producer had been dropped before application was made for the permit. Even assuming that one or two Dairy Fresh suppliers were out of compliance with Louisiana standards at the time of application this would not give rise to the denial of the permit without a proper check. As the trial judge correctly noted, an application such as Dairy Fresh’s is best viewed as a continuing application. Dairy Fresh' at the trial proved satisfactorily that it was in compliance with Louisiana standards and could comply with Louisiana requirements for its own producers if issued a permit.

The second allegation of error is really the crux of the dispute. The state officials contend that they are helpless to determine if Dairy Fresh is meeting the Grade A raw milk requirements. All parties agree that adequate protection is afforded the people of Louisiana as far as inspection of the imported processed milk.

Defendants argue that the difference in the Louisiana and Mississippi raw milk and co-mingled milk requirements make it impossible to permit importation of the foreign processed milk. The reasoning of defendants is that it is impossible for Louisiana agencies or agents to make proper checks on the raw milk suppliers of Dairy Fresh. While they admit they could rely on the results of testing by Mississippi governmental inspectors, there is no procedure for them to discover who the suppliers of Dairy Fresh are, short of accepting Dairy Fresh’s word as to who its suppliers are.

Defendants’ argument on this point is misleading. Defendants assert that the only way to insure proper milk quality involving foreign milk is to use the same procedures for inspection and enforcement as are used in Louisiana. A summary of these procedures are as follows:

Milk is produced by the dairy farmer and immediately cooled and put into a tank. A tank truck arrives and loads the milk, taking a sample of that particular farm’s milk before it is comingled with others farms’ milk. This tank truck delivers its milk to the processor. Louisiana officials run tests on the raw milk samples to insure compliance with the Sanitary Code. They also inspect the farm and processing plant for cleanliness and proper equipment and procedures. The finished product is also tested for compliance. The tank truck drivers are licensed by the state and must keep lists of the farms they service. The books of each processor are audited to check the suppliers and insure that the tank truck driver and processor are not using milk from degraded dairies. All these procedures are basically used in Mississippi.

Defendants contend that while they could use the Mississippi test results to check on compliance, they have no way to tell who Dairy Fresh’s suppliers are be* cause the Mississippi tank truck drivers are not licensed in Louisiana and because they can’t audit the Mississippi processors’ books. Basically, their argument gets down to the complaint that Louisiana officials have no authority in Mississippi and would be forced to accept Dairy Fresh’s voluntary compliance with Louisiana standards.

While it is true that Louisiana officials would have no direct authority in Mississippi to enforce Mississippi laws and regulations, the statute grants authority for Louisiana inspection of milk proposed to be sold in Louisiana and provides authority to refuse importation of non-complying milk and to revoke the permit to import milk. We find nothing in the statute which prevents Louisiana from imposing upon those who wish to furnish milk to Louisiana the same regulations as are imposed on Louisiana producers. The real basis of defendant’s contention is not lack of authority to inspect and enforce, but lack of a plan to inspect and enforce or perhaps the manpower to inspect and enforce. The defendants cannot defeat the permissible importation of milk under the statute simply by refusing to implement its provisions to ensure compliance with Louisiana standards. Such a scheme would amount to an arbitrary application of the law and hence an unreasonable interference with interstate commerce.

We have no wish to usurp the authority granted under the Statute, but we must observe that Louisiana Health officials could simply use the Sanitary Code provisions on record keeping, etc., and apply it to Dairy Fresh. See Sanitary Code State of La., Chapter V, section 5.B.S and 5.B.6. They may themselves inspect or use Mississippi inspection. These conditions will, it seems to us, cure any necessity of reliance on voluntary compliance. The power behind these conditions is, for example, if Louisiana Health officials discover that Dairy Fresh has been using milk from a farmer who has fallen out of compliance with Louisiana’s standards then Dairy Fresh’s milk can be refused importation into the state until Dairy Fresh and its suppliers meet Louisiana standards. The clout behind section 5.B.4 is revocation of the permit. LSA-R.S. 40:924. It is quite obvious that Dairy Fresh wishes to comply with all conditions for a permit to import milk. Although section S.B.4 sets up no specific conditions, Louisiana can require Dairy Fresh to comply with auditing procedures or any other reasonable criteria the state wishes to utilize to enforce its inspection rights.

Defendants third argument is that a writ of mandamus was an improper remedy since the act of issuing the permit was a discretionary duty and not a ministerial duty. It is generally true that purely discretionary matters are not proper cases for mandamus, whereas, ministerial duties are. C.C.P. articles 3862 and 3863; Summerall v. Phillips, 258 La. 587, 247 So.2d 542 (S.Ct.1971); Bye v. Giarrusso, 292 So.2d 742 (La.App. 4th Cir. 1974). The question then becomes was Dairy Fresh entitled to the permit under the statutory provisions or was the granting of the permit within the discretion of the State health officials. LSA-R.S. 40:923 and Sanitary Code, Chapter II, section 5.B.4 make it clear that the act of granting the permit is not discretionary. If it were, we feel the statute itself could be interpreted as an unconstitutional barrier to the free flow of interstate commerce. The only requirement is that the product be Grade A quality as defined by Louisiana law. Mr. Richard and Dr. Bruce of the Louisiana Division of Health both testified that no attempt was made to discover if Dairy Fresh’s product was of Grade A quality prior to denying the application. Section 5.B.4 makes it clear that the health officials can inspect the out of state production sources or accept certificates from that foreign state, but, they cannot simply refuse to issue a permit to import. An official may decline issuance of a permit only for a reason specifically authorized by law or the applicable statute. Hargett v. Village of South Mansfield, 271 So.2d 378 (La.App. 2nd Cir. 1972; Vice v. Assumption Parish Police Jury, 135 So.2d 108 (La.App. 1st Cir. 1961). These facts certainly make mandamus proper.

The final argument of defendants, mainly the intervening Dairy Associations, is that if Mississippi milk is allowed into Louisiana, Louisiana processors who must comply with more stringent standards would be denied equal protection of the laws. The basis of the argument is that Louisiana’s more stringent requirements increase the price of milk, but Mississippi can produce it for less since they have less stringent requirements. What this argument overlooks is that only milk meeting Louisiana’s standards can be imported and therefore the “laws” apply equally to all.

This argument has particular fascination since we are seriously told that this statute and the case before us have nothing to do with milk pricing. The record is abundantly clear that Louisiana changed its milk requirements in 1972 at the insistence of the dairy industry. Prior to 1972 Louisiana had the same requirements as Mississippi and at least 45 other states. Plaintiffs argue to us that the reason for this change was to keep out foreign milk. In view of the fact that the present case arises under the provisions of the Sanitary Code, in the absence of a showing to the contrary, the present law on its face appears to be an expression of the legislative desire to protect and insure the public health by providing more sanitary and wholesome milk. Nevertheless, whatever the purpose was, the fact that foreign milk can now be imported does not deny anyone equal protection of the laws. The statute requires that all comply with the Louisiana standards imposed for the benefit of milk consumers.

For the foregoing reasons the judgment of the trial court is affirmed. Defendants-intervenors to pay all costs.

Affirmed.

      . The Wisconsin Mastisis test or W.M.T. is an examination of raw milk for white blood cells. An abundance of white blood cells usually indicates that the cow giving the milk has some sort of infection in its body.

      . Louisiana requires all raw milk to be cooled and transported at a temperature of 45 degrees. Mississippi requires 50 degrees. Louisiana requires raw milk from a single producer to have no more than 50,000 bacteria count. Mississippi sets the limit at 100,000. Co-mingled milk (milk from several producers stored in a common tank) can have no more than 150,000 bacteria count in Louisiana. Mississippi sets the limit at 200,000.
      We further note that both Louisiana and Mississippi require that Grade A processed milk he made only from Grade A raw milk.

      . A degraded dairy is one that has fallen out of compliance with the Grade A raw milk requirements on 3 of the last 5 samples taken.


text:
    KRAFTCO CORPORATION v. Dr. William H. STEWART, Sr., Commissioner of the Louisiana Health & Human Resources Administration, et al.
    No. 7315.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearings Denied Jan. 13, 1976.
    Writs Refused Feb. 20, 1976.

      William G. Taffe, David L. Aufder-strasse, Chicago, Ill., C. Ellis Henican of Henican, James & Cleveland, New Orleans, for Kraftco Corp., plaintiff-appellant.
    James P. Screen, Gen. Counsel, New Orleans, for La. Health and Human Resources Administration, defendant-appellant.
    Bryan E. Bush, Jr., Baton Rouge, for Baton Rouge Area Milk Producers Assn., Inc., and others, intervenors-appellants.
    Donald Ensenat, New Orleans, for Attorney General’s Office, defendants-appel-lees.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

In this suit plaintiff, Kraftco Corporation, seeks the same relief as does Schweg-mann Brothers Giant Supermarkets, Dairy Fresh Corporation, and Delight Distributing and Sales Company, Inc., in the consolidated case number 7314, 323 So.2d 810 on our docket. Judgment was rendered against Kraftco Corporation in this case because of a lack of evidence presented by Kraftco at the trial. Kraftco sought a new trial, alleging new evidence. This motion was denied and Kraftco has appealed.

The basic facts and issues of law in this case are fully discussed in our decision in Schwegmann Brothers Giant Supermarkets, al. v. Edwards, et al., 323 So.2d 810, number 7314 on our docket.

Judgment was rendered against Kraftco because it was not able to present sufficient evidence that the tests run on its raw milk products were conducted by state officials or agencies. Dairy Fresh was able to produce this evidence and for that reason was granted a writ of mandamus ordering the issuance of a permit.

Section S.B.4 of the Sanitary Code, State of Louisiana allows the importation of milk and milk products if they are of Grade A quality. In order to insure Grade A quality Louisiana retains the right to inspect the production sources of the foreign milk. These inspections can be either made by a Louisiana health official or the Louisiana health official can “. . . accept the certificate of inspection of a duly authorized governmental representative, agent or agency of such other state wherein such products are produced.”

The trial court felt that Kraftco Corporation failed to show that a state representative, agent or agency could send such a certificate to Louisiana. We agree. The record shows that Kraftco receives most all its milk from a dairy cooperative (AMPI). The bulk of the tests are conducted by AMPI in its laboratory. The only evidence of state intervention in this testing procedure is an assurance by the Assistant General Manager of Kraftco that the laboratory is “state certified”, although he admits the laboratory is owned by AMPI and operated by AMPI employees. The above facts do not evidence sufficient compliance with the intent of section 5.B.4 of the Louisiana Sanitary Code and Louisiana health officials could properly refuse to accept any certificates from the AMPI laboratory.

Kraftco in its application for a new trial attempted to cure this evidentiary defect by introducing affidavits from Tennessee state health officials as to the propriety of these tests. These affidavits merely affirm the testimony already in the record. The only new revelation was the assertion that the state of Tennessee fully accepts AMPI’s test results as part of their enforcement program. The fact that Tennessee chooses to enforce its regulations by use of a dairy industry laboratory program does not mean that Louisiana must accept that program. We do not feel that Louisiana is unreasonable in expecting state agents or agencies to administer these tests.

For the foregoing reasons the judgment of the trial court is affirmed. Plaintiff, Kraftco Corporation, is to pay all costs.

Affirmed.


author: LEMMON, Judge.

text:
    Mrs. Gayle Ann Rome KENT v. Milford D. KENT.
    No. 7121.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      Adelaide Baudier, Metairie, for plaintiff-appellee.
    Ronald P. Herman, Edward A. Armstrong, Jr., New Orleans, for defendant-appellant.
    Before LEMMON, BOUTALL and BEER, JJ.
   LEMMON, Judge.

Milford Kent has appealed from that part of the judgment of divorce which awarded his wife alimony under C.C. art. 160. The divorce judgment was rendered pursuant to R.S. 9:302 on petition filed one year after his wife had obtained by default a separation judgment grounded on fault.

Kent acknowledges the holding of Fulmer v. Fulmer, La., 301 So.2d 622 (1974), to the effect that once the husband’s fault is judicially determined to he the cause of the separation, the wife is entitled to alimony after divorce without further proof of fault. H'owever, Kent points out that the Fulmer decision was rendered after the default judgment taken against him and should not be retroactively applied. This argument was considered and rejected in Mendoza v. Mendoza, 310 So.2d 154 (La. App. 4th Cir, 1975), cert. den. 313 So.2d 827. Accordingly, the trial court correctly concluded "the wife has not been at fault”. C.C. art. 160.

Mrs. Kent’s net monthly income from her employment was $327.94. She did not testify as to other means of support.

Mrs. Kent itemized her monthly expenses in the amount of $588.97, and the trial court apparently concluded she did not have “sufficient means for her support” and fixed alimony at $50.00 per month. We do not believe the evidence supports an award in this amount.

Mrs. Kent only prayed for $40.00 per month. Since the amount required in alimony is usually within the litigant’s knowledge and competence, the amount of the demand may have possible bearing on the determination of the maximum amount of need. This consideration, however, is not conclusive of the determination, and we would not bind a litigant on that basis alone to the amount of the demand (possibly supplied in the pleadings by counsel) when the higher amount awarded is solidly supported by the evidence.

More importantly, the itemized expenses supporting the demand were inadequately explained. The list included separate monthly items for car payment ($75.-00), transportation to the job ($40.00), gas, oil, etc. ($50.00), and car insurance ($30.-00), the total of $195.00 being about 60% of her net monthly income. The list also included $20.00 for doctors and $20.00 for medicines and drugs, but Mrs. Kent testified she incurred only $40.00 in doctor bills in the 22 months immediately preceding trial. Admittedly, Mrs. Kent testified that the monthly amount estimated for doctors was to pay installments on bills existing at the time of their separation (for an extended illness in the past). This expense, however, was a non-recurring community debt owed by the husband and only the average of current medical expenses should be included in the alimony award.

The award of alimony under C.C. art. 160 is based primarily on needs for food, clothing and shelter, but also includes “such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability generated by the alimony payments made to the former wife.” Bernhardt v. Bernhardt, La., 283 So.2d 226 (1973). At a rule more than a year earlier, alimony pen-dente lite (which is based on the husband’s continuing obligation to support the not-yet divorced wife in a style similar to that which she enjoyed while they were living together) was set at $40.00 per month. Considering the more stringent standard for setting alimony under C.C. art. 160 and the confusing evidence in support of the demand, we conclude that although Mrs. Kent does not have sufficient means for her support, the award should be limited on the basis of this record to the $40.00 monthly amount demanded in the petition.

Accordingly, the judgment is amended to decrease the award to $40.00 per month. As amended, the judgment is affirmed.

Amended and affirmed.

      . At time of trial she was additionally receiving alimony pendente lite at the rate of $40.-00 per month.

      . We distinguished this situation from the amount demanded as general damages in a tort case, an area in which the litigant’s estimate is worthless, and the attorney generally assigns an arbitrary amount.

      . At the time of the rule the husband was additionally receiving $260.00 in Veteran’s benefits monthly for a period of seven months. At time of trial he was no longer receiving these benefits, but his net monthly salary had increased by $121.00 to $629.00.


author: HALL, Judge.

text:
    Murray E. GATTI, Sr., Plaintiff-Appellant, v. WORLD WIDE HEALTH STUDIOS OF LAKE CHARLES, INC. and Western World Insurance Company, Defendants-Appellees.
    No. 12761.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      Hal v. Lyons and Glen H. Smith by Glen H. Smith, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendants-ap-pellees.
    Before PRICE, HALL and HEARD, JJ.
   HALL, Judge.

Plaintiff, Murray E. Gatti, Sr., sued defendants, World Wide Health Studios of Lake Charles, Inc. and Western World Insurance Company, for damages for personal injuries, medical expenses and loss of income allegedly due to a fall he experienced in World Wide’s steam room.

Plaintiff alleged that after sitting on the top step of the steam room for a few minutes he attempted to get up whereupon his feet slipped out from under him causing him to fall down all three steps. It was alleged the fall was caused by someone using the steam room with lotion on their person leaving the steps greasy and slippery. Plaintiff alleged the accident was caused solely by the negligence of World Wide in the following nonexclusive particulars:

(1) In not keeping the steps in the steam room free of any lotions or greasy creams that would cause the steps to be slippery.
(2) In not putting tape on the steps in order to protect patrons from slipping on the steps.
(3) In not placing adequate signs on the steps in the steam room warning patrons that the steps are slippery.
(4) In not placing hand rails on the steps to aid patrons from slipping on the steps.
(5) Failing to maintain and inspect the steam room before use by patrons to ascertain that it is safe for their use.
(6) Failing to maintain the steam room in a safe operating condition.

It was alleged that the fall resulted in severe, disabling injuries to plaintiff’s back.

Defendants denied plaintiff was involved in a disabling accident on its premises, denied actionable negligence on the part of World Wide, and alternatively, pled plaintiff’s assumption of risk and contributory negligence in bar of recovery.

In written reasons for judgment, the district court found plaintiff did, in fact, fall in the steam room and that the fall resulted in injuries to plaintiff’s back. The court found, however, that plaintiff failed to prove the fall was caused by an extraneous substance on the steps and failed to establish actionable negligence on the part of World Wide. Judgment was rendered rejecting plaintiff’s demands from which judgment plaintiff appealed. We affirm the judgment of the district court.

The steam room at defendant’s health spa on Mackey Lane in Shreveport is a room approximately 12 x 9 feet with three levels or large steps. The surface of the three levels is covered with one inch ceramic tile squares. The supervisor of defendant’s health clubs described the surface as “semi-rough.” Plaintiff testified the tile blocks were not rough themselves. The steam room was used by some 200 customers each day or about 1,000 each week. The club was open to men three afternoons a week and on those days was used by women in the morning and men in the afternoon. The accident happened in the afternoon of March 16, 1973.

The steam room was cleaned up and scrubbed every morning by a maid and then inspected by the manager. The surface of the tile necessarily became wet during the course of the day and the surface was necessarily somewhat slippery from the wetness and also from natural body oils of persons using the room and from lotions and oils sometimes used by patrons of the steam room. Although the defendant discouraged the use of lotions and oils by patrons there were no specific instructions or signs prohibiting their use. There was a sign posted near the steam room requiring the use of footwear in the steam room. The supervisor testified that four or five people slipped and fell in the steam room each year just as four or five people also slipped and fell in other wet areas such as the shower room and swimming pool.

Plaintiff, 59 years of age and a businessman, was a lifetime member of the health studio. For a period of approximately four years prior to the accident he regularly used the facilities three afternoons each week. He limited his use to the less strenuous activities such as steam room, sauna bath and swimming. Plaintiff testified he was familiar with the fact that the surface of the steam room was slippery and that persons sometimes used oils and lotions whjle in the room. Plaintiff was aware of the sign requiring the use of footwear and always exercised caution in moving about the room.

Plaintiff was alone in the steam room at the time the accident happened. He had come into the room barefooted and carefully climbed to the top or third level where he lay down for about five minutes. He straightened up with his hands on the top level on which he was then sitting and his feet on the next lower level. His hands and feet suddenly slipped out from under him causing him to fall or “bounce” down the next two levels to the floor of the room. Another customer, who could not be located at the time of trial, came into the room and assisted him in getting up and out of the room. Plaintiff hurt his left leg but, after moving about, did not think it was serious and continued to pursue activities at the health club that day. Plaintiff testified he did not notice any oil or extraneous substance on the steps of the steam room and did not know why he slipped.

During the weeks following the accident, plaintiff continued to experience pain and numbness in his leg and saw his family doctor, two orthopedic specialists and a chiropractor. One of the orthopedic specialists ultimately determined plaintiff had a badly degenerated spine with bulging discs at each level and with evidence of both old and new compression fractures of several vertebrae. At -the time of trial, plaintiff was wearing a back brace which he would probably have to wear the rest of his life and it was probable that he would at some future time have to undergo disc surgery. The trial court found that plaintiff’s accident contributed to or aggravated his back condition. In view of our affirmance of the trial court’s decision that defendant was not negligent and is not liable, it is unnecessary for this court to review the issue of causation and the extent the accident contributed to plaintiff’s proven disability.

In an action for damages under LSA-C.C. Articles 2315 and 2316, the plaintiff has the burden of proving fault or negligence on the part of the defendant. The plaintiff must prove defendant’s conduct was substandard and that defendant violated some duty owed to plaintiff.

A health club operator is not the insurer of the safety of the patrons of the club. Patrons of a health club are invitees to whom the club owes the duty of keeping the premises in a condition that is safe for use in a manner consistent with usual operations of the club. The club owner must make a reasonable inspection of the premises to discover defects or hidden dangers observable by reasonable inspection. Duncan v. World Wide Health Studios, Inc., 232 So.2d 835 (La.App. 2d Cir. 1970); O’Pry v. World Wide Health Studios, Inc., 268 So.2d 319 (La.App. 2d Cir. 1972); 27 La.L.Rev. 796 (1967).

In this case, plaintiff failed to prove, as he alleged, that there was any foreign or extraneous substance on the surface of the steam room which caused him to slip and fall. His testimony was that he did not observe any such substance and that when he entered the steam room it did not seem to be any more slippery than usual. Likewise, plaintiff failed to establish any lack of proper maintenance or inspection on the part of defendant. The steam room was scrubbed each morning and then inspected by the manager before the business was opened to customers.

Plaintiff likewise failed to establish that the surface of the steam room was unusually slippery or dangerous or that the facility was unsafe for customers using ordinary care. The occurrence of the accident, by itself, does not establish that fact. The one inch ceramic tiles formed a semi-rough surface. A steam room, necessarily and to plaintiff’s knowledge, is going to be wet and slippery to some extent. A person using such a facility assumes the obvious, normal and ordinary risks attendant thereto. Coquille v. Expressway Bowling, Inc., 183 So.2d 347 (La.App. 4th Cir. 1966). It may be that the room would have been safer if defendant had provided adhesive strips, handrails, or other safety devices, but it is not shown that such devices are normally or customarily employed in steam rooms. Nor was it shown that the use of such devices would have prevented this accident. The failure of defendant to provide these items was not demonstrated to be substandard or to be a cause-in-fact of the accident. Defendant did not breach any duty owed to plaintiff.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Anthony L. PALAMA v. Elsie Cecile Dobard, wife of Anthony L. PALAMA.
    No. 7039.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearings Denied Jan. 13, 1976.
    Writs Refused Feb. 17, 1976.

      Morrison & Reily, Patrick M. Reily, New Orleans, for plaintiff-appellant.
    Tucker, Schonekas & Garrison, Gibson Tucker, Jr., New Orleans, for defendant-appellant.
    Steven R. Plotkin, Theresa A. Tamburo, New Orleans, for intervenor-appellant Steven R. Plotkin.
    Before STOULIG, BOUTALL and BEER, JJ.
   BEER, Judge.

This domestic donnybrook has a history of appeals to this court which, we believe, now obviate the necessity of burdening this opinion with additional details. We shall concern ourselves with the specific provisions of the trial court’s judgment as it deals with the particular issues raised by all appellants in this latest appeal.

THE ISSUE OF FAULT

We agree with able counsel for Mrs. Palama that there is a difference between a finding of mutual fault (which bars the wife’s ability to receive alimony for her own support) and a finding that the marriage is simply dissolved on the basis of two years separation regardless of which party actually took the first step to commence the running of the period required for such separation and ultimate divorce. However, we do not find that distinction to be material in these proceedings in view of the trial judge’s factual finding that Mrs. Palama’s actions and conduct during the marriage independently and proximately contributed to the separation (and, ultimately, to the divorce). We do not find this factual determination by the trial court to be inconsistent with our previous opinion which described the relationship between the parties as “a case of marital disharmony, falling short of cruel treatment . . . .’’Nor do* we conclude that the trial court was in error in its determination that its finding properly supports its conclusion that no alimony is due. Mrs. Palama did not carry the burden of proof necessary to establish her entitlement to alimony. She has failed to prove that she is free from fault. We recognize no presumption in this regard. The wife who claims to be free of fault has the burden of proving that critical allegation. Richardson v. Richardson, 275 So.2d 845 (La.App. 4th Cir. 1973).

DEBITS AND CREDITS TO THE COMMUNITY AND TO THE INDIVIDUAL LITIGANTS

Neither the previous payments of alimony pendente lite made to Mrs. Palama from July 20, 1972 onward, nor the various other payments made by Mr. Palama from that date shall now be considered by us as forming the basis for any credit. We are not disposed to burden this already voluminous record with the complicated accounting procedures necessary to make minor adjustments between the embattled parties to this protracted litigation. The various small payments allegedly made by Mr. Pa-lama are “water under the bridge” and shall not be given further consideration in connection with the resolution of this complex matter.

The record does support a finding that Mr. Palama made a direct and traceable expenditure of his separate funds in the amount of $1,950 when the community obtained Lot 11, Square 18, Versailles Subdivision and it is in order that credit be allowed with respect to that expenditure. Likewise, we conclude that Mrs. Palama has carried the burden of establishing the paraphernal nature of the three $1,000 Schwegmann Bonds described in the judgment of the district court, and the lack of testimony or other evidence to the contrary requires a conclusion in her favor on this point notwithstanding the trial court’s observation that her testimony on this issue appeared questionable to him. Mrs. Palama’s uncontradicted testimony, supported by documented proof, confirms the sources of her separate funds. Approximately $2,000 came as a result of an inheritance from her parents’ estates and approximately $1,000 came from the payment to her of the cash surrender value of an insurance policy purchased prior to her marriage. Thus, we are inclined to the belief, taking all factors into consideration, that the record supports Mrs. Palama’s vigorous contentions in connection with this aspect of the litigation.

The two credits hereinabove described are the only individual ones that can be recognized.

However, certain credits are clearly due the community. There is no serious objection by either party to the claiming of a credit by the community in the amount of $9,500 which the trial court properly found to be the enhanced value of community expenditures for improvements on Lot 12, Square 48, Versailles Subdivision (the separate property of Mr. Pala-ma). Likewise, there is no serious objection to the allowance of a credit to the community for that amount which is judi-dally determined to be the enhanced value of community expenditures for improvements on Lots 13 through 16 of Square 48, Versailles Subdivision. However, there is much conflict between the parties regarding valuation. LSA-C.C. Article 2408 provides that the community is entitled to recover the increase or enhancement in value of Mr. Palama’s separate property which resulted from community labor, industry or expense. Abraham v. Abraham, 230 La. 78, 87 So.2d 735 (1965). The recovery is not determined on the basis of the amount expended but is limited to the enhanced value resulting from their expenditures.

When improvements are made on separate property during the marriage, a presumption exists to the effect that these improvements were paid for from community funds. Smith v. Garrison, 137 So.2d 505 (La.App. 3rd Cir. 1962). And if, as was the case here, such expenditures did enhance the value of Mr. Palama’s separate estate, then the community is entitled to credit for the enhancement.

The premiums for the insurance coverage in the amount of $25,000 covering the improvements constructed on Mr. Palama’s separate property were paid with community funds. This policy was apparently obtained during the existence of the community and at a point in time when neither party had any particular reason to believe or suspect that domestic difficulties would arise. We conclude that the policy limits contracted by the Palamas represent a fair estimate of the full extent of the worth of the improvements constructed on the separate property. Payment of the total policy amount subsequent to destruction of these improvements by fire represents, we believe, the liquidated value of the construction placed on Lots 13-16, Square 48, Versailles Subdivision.

The evidence indicates that at least $15,000 of community funds were utilized in the original construction of these improvements. Comparison of this figure to the coverage afforded by the policy supports the view that the property was enhanced in value subsequent to the original expenditure by approximately $10,000. We conclude that this increase was due to community efforts so that $10,000 is owed the community under Article 2408, supra.

Furthermore, the balance of $15,000 approximates the amount expended by the community to improve Mr. Palama’s separate estate. Thus, we conclude that although the insurance coverage originally provided protection against insured perils, the proceeds from the policy are now due the community to the extent of its original advance of $15,000. The policy was, itself, a community asset obtained during the existence of the community with premiums thereon presumptively paid by community funds.

Accordingly, the proceeds are, in their entirety, due the community and each party is entitled to one half thereof. Under Article 2408, supra, each is entitled to $5,000 representing half the enhanced value of the separate property. Each is, likewise, entitled to one half of the $15,000 proceeds from the insurance policy which represents the community interest in the separate property, although this right flows from a general division of the community and has no relationship with the right protected by Article 2408.

SEPARATE PROPERTY AND COMMUNITY PROPERTY

There appears to be no serious argument with respect to the conclusion of the trial court concerning ownership of the real estate which is involved in this litigation. Specifically, there is basis in the record for the trial court’s determination that Lots 12 through 16, Square 48, Versailles Subdivision are the separate property of Anthony Palama and that Lot 11 of Square 48, Versailles Subdivision and Lots 56, 57 and 58 of Square 76, LaSalle Terrace, designated as 2135 Beauregard Avenue, Chalmette, Louisiana are the property of the community of acquets and gains that existed between Mr. and Mrs. Palama. Finally, in this connection, there appears to be no serious objection to the determination that, except as noted above, all of the property inventoried and listed on the return of Charles H. Livaudais, Notary Public, is community property.

FEES OF THE ATTORNEYS, NOTARY PUBLIC APPRAISERS, AND EXPERT WITNESSES

No serious objections are made to the various fees which were taxed as costs in these proceedings including the expert witness fee of Mr. Bert Rowley and the fees of the notary and appraisers appointed by the court. We find no merit in the contentions of Steven R. Plotkin, Attorney at Law, relative to his standing in these proceedings seeking an increase in the amount already awarded to\him for professional services. No appeal Ivas taken from the award made by the trial court on June 5, 1974 and we do not now consider that this claim is properly before us. Post v. Rodrigue, 205 So.2d 67 (La.App. 4th Cir. 1967). Thus, we conclude that in all respects the various fees and costs covered by the judgment of the trial court are in order and should be affirmed.

DECREE

The judgment of the district court is affirmed insofar as it decrees a divorce a vinculo matrimonii between the parties; adjudicates the status of the real estate and the property listed in the inventory of Charles H. Livaudais, Notary Public; sets the fees and costs to be taxed; recognizes the enhancement value of Lot 12, Square 48, Versailles Subdivision; and recognizes the expenditure of separate funds by Mr. Palama in the amount of $1,950. It is amended with respect to the determination of the enhancement value of community expenditures for improvements on the separate property of Mr. Palama designated as Lots 12 through 16, Square 48, Versailles Subdivision and is reversed in connection with the allowance of credits for alimony pendente lite and payments for other incidental community indebtedness from July 26, 1972 to date and with respect to the designation of the three $1,000 Schwegmann Brothers bonds, previously described, which are deemed to be the separate property of Mrs. Palama.

Accordingly, it is now ordered, adjudged and decreed:

1. There be judgment herein in favor of Anthony L. Palama decreeing a divorce a vinculo matrimonii between him and Elsie Cecile Dobard Palama;
2. The following property is adjudged to be the separate property of Anthony L. Palama: Lots 12, 13, 14, IS, 16 of Square 48, Versailles Subdivision;
3. There be a credit to the community in the total amount of $34,500;
4. The following property be adjudged to be the property of the community: Lots 56, 57 and 58 of Square 76, LaSalle Terrace, designated as 2135 E. Beauregard Avenue, Chalmette, Louisiana;
5. There be a credit to Anthony L. Pa-lama in the sum of $1,950;
6. Mrs. Elsie Cecile Dobard Palama be and she is hereby recognized as the paraphernal owner of the three $1,000 denomination “Schwegmann Bonds;”
7. With the exceptions noted above all of the items of property inventoried and listed on the return of Charles H. Livaudais, Notary Public executed on November 21, 1972 and filed in these proceedings on January 24, 1973 be adjudged property of the community;
8. The fees of the notary public in the amount of $1,807.70 and the two appraisers in the amount of $451.92 each be approved and recognized as debts of the community;
9.The claim of Steven R. Plotkin, Attorney at Law for an additional fee is rejected and the fees of Mr. Plot-kin and Patrick M. Reily, Attorney at Law, in the amount of $3,500 each are adjudged to be debts of the community ;
10. That the costs of the proceedings in the trial court and in this court be adjudged debts of the community;
11. To the extent that the judgment of the Twenty-Fifth Judicial District Court for the Parish of St. Bernard dated June 5, 1974 shall be in conflict with the foregoing, it is reversed and set aside.

Affirmed in pdrt; reversed in part; amended in part and rendered.

      . Palama v. Palama, 268 So.2d 318 (La.App. 4th Cir. 1972), Palama v. Palama, 277 So.2d 468 (La.App. 4th Cir. 1973).


author: SCHOTT, Judge. GULOTTA, Judge

text:
    Succession of Lucille McFarland, Deceased wife of Frank C. ANDERSON.
    No. 7060.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.

      Henican, James & Cleveland, New Orleans (C. Ellis Henican), New Orleans, for defendants in intervention-appellees.
    Adams & Reese, New Orleans (William F. Ryan), New Orleans, for intervenor-ap-pellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

These succession proceedings were commenced with the petition of decedent’s surviving spouse, Frank C. Anderson, to probate her olographic will and qualify as testamentary executor. After a routine administration in which real estate in New Orleans and an automobile were sold Anderson, as executor and individually, was joined by his three children, all domicil-iaries of other states, in a petition for authority to pay certain debts and for possession of decedent’s property. The sworn list of assets which accompanied the petition for possession recited that the community formerly existing between decedent and Anderson had no assets and it listed a net separate estate of decedent of $418,211.69 after deduction of burial and administrative expenses. Also annexed to the petition for possession was an act of renunciation of the community of acquets and gains which formerly existed between decedent and Anderson by the three children, executed on December 31,. 1971, by authentic act. In the petition Anderson and his children prayed for possession in accordance with decedent’s will, i. e., the children for the naked ownership of all of decedent’s separate property and their father for the usufruct. This usufruct was subject to termination upon either Anderson’s death or his remarriage or a judicial seizure being made of the usufruct by any creditor. Pursuant thereto a judgment of possession was signed on March 1, 1972.

For the first time, on November 8, 1973, intervenor, Warren Donaldson, appeared with a petition for a notice of filing of tableau of distribution, representing himself to be a creditor of the community. On December 19 intervenor filed a petition seeking to annul the judgment of possession, to require the return to the succession of all of the property derived therefrom by the surviving spouse and children of decedent, to reclassify the property shown to be separate property as community property and to have judgment against Anderson individually and as head and master of the community for some $142,390.00 plus interest, attorney’s fees and court costs.

In his petition intervenor alleges that his judgment was a debt of the community being based on a judgment taken in the Civil District Court for the Parish of Orleans on November 18, 1968, against Anderson and others for a larger amount and thereafter compromised for the amount sued on herein. He recited that numerous transactions involving the sales and purchases of property were affected and are presumed to be transactions of the former community, and that the items comprising decedent’s succession are presumed to be community property. He alleged that such property is therefore subject to his claim and cited LSA-C.C.P. Art. 3393 as his authority for the court to reopen the succession. Furthermore he relied on LSA-C.C. P. Arts. 3304, 3305, 3241-3249, and 3372 as authority for his argument that the executor had not complied with the law and was still vulnerable to the suit because of his failure to secure a discharge as executor. Finally, he alleged that he is entitled to judgment “annulling and rescinding . . . judgment of possession . . .” Service was made on the four defendants under the Louisiana long arm statute LSA-R.S. 13:3201.

To this petition the surviving spouse and three children filed declinatory exceptions of improper venue and lack of personal jurisdiction as well as peremptory exceptions of no right or cause of action.

In his reasons for judgment, the trial court noted that memoranda filed in connection with the exceptions were not limited to the exceptions “but, by agreement of all parties, said arguments were primarily directed to the question of whether or not the Court should reopen the succession and/or recall and set aside the Judgment of Possession so as to give intervenor an opportunity to proceed with his case .” The court refused to recall and set aside the judgment of possession or to reconsider the proceedings in order to afford intervenor an opportunity to assert his claim, and the exceptions were deemed moot and unnecessary to decide. From the judgment intervenor has appealed.

From the foregoing it is clear that the present procedural posture of the case is unusual. Defendants filed declinatory exceptions of lack of personal jurisdiction over them and improper venue, but in the same pleading they filed a peremptory exception of no right or cause of action. The trial judge took no evidence in the case but was extensively briefed and heard argument on the issues which were properly addressed to the exception of no cause of action filed by defendants. He included in his judgment the following:

“IT IS ORDERED, ADJUDGED AND DECREED that the Court hereby and herein refuses to recall and set aside the Judgment of Possession read, rendered and . signed in these proceedings on March 1, 1972, and/or to reconsider these succession proceedings in order to afford Warren Donaldson, intervenor, an opportunity to assert, against decedent’s estate, and/or her executor and/or her surviving spouse, and/or her sole legal heirs, above named, the claim set forth in the petition of intervention filed by intervenor herein.” (Emphasis supplied)

Even the wording of this judgment demonstrates that the trial judge was maintaining an exception of no cause of action when he refused to provide intervenor with an “opportunity to assert . . the claim set forth in the petition,” and consequently we have considered the judgment appealed from primarily as one which maintained the exception of no cause of action. It is also noted that the allegations of the petition in intervention which inter-venor relies upon to state a cause of action to annul the judgment of possession are extremely vague, but the trial judge in hearing the argument and considering the memoranda had much more before him than these bare allegations, nevertheless concluding in effect that intervenor stated no cause of action to annul the judgment of possession.

As to the declinatory exception defendants filed these simultaneously with peremptory exceptions of no right and no cause of action. They voluntarily participated in the procedure which led to a dismissal of intervenor’s claim on the basis of their exception of no cause of action. They thereby made an appearance and waived their objections to the jurisdiction and venue. LSA-C.C.P. Art. 925. For this reason their declinatory exceptions will be dismissed.

Much of the argument in this Court and in the trial court centered around the applicability of LSA-C.C.P. Art. 3393 which provides for the reopening of a succession. Part A of the article applies to the situation where the succession representative has been discharged and Part B to the situation where there has been a tacit or express acceptance of the succession by the heirs or a rendition of a judgment of possession. In either case, the article provides that “if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court . may order that the succession be opened or reopened” and provides that the court may reappoint the original succession representative or another in order to administer the reopened succession. The parties also devoted much attention to a number of articles in the Code of Civil Procedure governing the conduct of an executor and his relationship to creditors which intervenor contends were ignored or violated by the executor, and a number of other articles which provide creditors with safeguards in asserting their claims and which the executor contends the intervenor ignored or failed to utilize. However, in view of the contention of intervenor that the judgment of possession was obtained through ill practices it is unnecessary to consider the other arguments raised by in-tervenor.

LSA-C.C.P. Art. 2004 on which interve-nor relies provides for the annulment of a judgment. If intervenor succeeds with his action to annul the judgment of possession, that judgment will be treated as though it was never signed in the first instance. The parties, namely the executor and legatees will be in the same position they were in before the judgment of possession was obtained. Thereafter, any discussion relative to reopening the succession. pursuant to Art. 3393 would be unnecessary because the succession would be restored to the same status it was in before the null and void judgment was signed in the first instance.

Similarly an annulment of that judgment of possession would put the creditors in the same position they were in before the rendition of the void judgment. Intervenor would have available to him all the remedies affored by the Code of Civil Procedure for the protection of creditors.

Thus, the focal point of our inquiry is whether intervenor has stated a cause of action to nullify the judgment of possession. His petition itself is not sufficient but when considered with the assertions in his memoranda and briefs it is clear that the grounds for objection to the petition may be removed by an amendment which would particularize the factual allegations supporting his charge of ill practice on the part of defendants in obtaining the judgment of possession. LSA-C.C.P. Art. 934.

Art. 2004 provides as follows:

“A final judgment obtained by fraud or ill practices may be annulled.
“An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

Intervenor has specifically disassociated himself from any allegation of fraud on the part of the executor and the legatees, but he has contended that their activities constituted ill practices providing a basis for his action to annul the judgment. A petition to annul a judgment for ill practices where no fraud is alleged or proved does provide a cause of action to set aside an ex parte petition for possession. Succession of Menendez, 238 La. 488, 115 So.2d 829; Succession of Trouard, 281 So.2d 863, (La.App.3rd Cir. 1973); Succession of Gilmore, 157 La. 130, 102 So. 94. Intervenor has alleged that he has been in contact with the executor in his individual capacity and has produced correspondence with the executor relative to his claim between January and April, 1972, which led intervenor to believe he would be paid by Anderson without the necessity of his asserting his rights in the succession. He claims that much of the property claimed to be separate property of the decedent was community property and became designated as separate property only by virtue of self serving ex parte declarations of his debtor and the children of his debtor. He complains that the ex parte judgment of possession enabled the children to syphon off community property and remove it from the State of Louisiana by virtue of their unsupported declarations that the properties were separate and paraphernal. Alluding to the presumptions which run in his favor to the effect that these properties were community, intervenor claims he was deprived of an opportunity to prove the community nature of the property by this scheme between the executor and his children.

An overriding consideration in this case is that the result here was accomplished by the legatees only because their father was the executor. Art. 3371 would have required a contradictory hearing against him except that he joined with them in the petition invoking the provisions of Art. 3381. But as executor he owed a duty not only to the legatees but to creditors as well. Under Art. 3191 he is a fiduciary who should avoid a conflict of interest between a creditor and himself as an individual. Surely his alleged participation in this scheme smacks of the ill practices set forth in Art. 2004.

Comment (b) to Art. 2004 observes the following:

“Although the courts do not sanction negligence or laches, they have not hesitated ‘to afford relief against judgments irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of the-'legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be un-conscientious and inequitable.’ ” (Citations omitted)

If intervenor’s allegations and contentions are true it does seem unconscionable to deny him the relief which he seeks. His alternative would be to go to Connecticut in the case of one of the legatees and to Texas in the case of the others to litigate questions of Louisiana community property law which may very well be strange to those courts. These legatees received considerable property by virtue of a judgment of the Louisiana court and any attempt to undo the results of that judgment should be tried in the same court. In-tervenor seeks only his day in ‘ court and has been told that he is not entitled to one despite the fact that he has alleged ill practices and has been permitted to elaborate on the vague allegations of his petition in a trial consisting of his filing of memoranda and presenting oral argument to the court. We take no position on the merits of intervenor’s claim and hold only that he should be permitted to amend his petition to incorporate all of the factual allegations he has included in his arguments and memoranda so as to state a cause of action to annul the judgment of possession. Defendants may then answer and raise any affirmative defenses they may deem applicable.

The second paragraph of Art. 2004 requires that the suit be filed within one year after discovery of the ill practice and we note that the petition does not allege when this discovery was made. It is incumbent upon intervenor to allege that his action was brought within one year of the discovery of ill practices, otherwise his right is lost by peremption under this article.

Accordingly, the judgment appealed from is reversed and set aside. The decli-natory exceptions of defendants are dismissed. The peremptory exception of no right of action is overruled. The exception of no cause of action is sustained but the case is remanded to the district court to permit intervenor to amend his petition and for further proceedings consistent with the views expressed herein.

Reversed and remanded.

GULOTTA, J., concurs with written reasons.

GULOTTA, Judge

(concurring).

I agree with the result which orders a remand; however, I disagree with the conclusion reached by the majority that “any discussion relative to reopening the succession pursuant to Art. 3393 would be unnecessary”, in view of the allegation of nullity based on ill practice. The effect of the majority’s conclusion is to read LSA-C.C. P. art. 3393 out of the Code. In my opinion, if we conclude “proper cause” has not been alleged to reopen the succession, in-tervenor has no right to assert his claim in the succession proceeding for nullity under LSA-C.C.P. art. 2004.

If the succession remains open, interve-nor can assert his claim in the succession proceeding. On the other hand, if the succession has been closed, intervenor has the burden, as required in LSA-C.C.P. art. 3393, of alleging proper cause for the reopening of the succession. In the instant case, the heirs were placed in possession. However, the final account and tableau of distribution were waived and the executor was never discharged.

In Succession of Quaglino, 223 La. 171, 65 So.2d 127 (1953), the Louisiana Supreme Court stated:

“ * * * A judgment homologating a final account and discharging the administrator operates as a closing of the succession. * * * ”

However, the Supreme Court case of Key v. Salley, 218 La. 922, 51 So.2d 390 (1951) stated:

“It is well settled that a succession terminates when heirs are placed in possession of the estate. The succession ceases to exist after the heirs are placed in possession and the property becomes the common property of the heirs as co-owners. * * * ”

At first glance it appears that Quaglino indicates a discharge of the administrator operates as a closing of the succession, and Key, it is resolved by art. 644 of 1970 possession closes the succession.

If a conflict exists between Quaglino and Key, it is resolved by art. 644 of 1970 which is incorporated in LSA-C.C.P. art. 3393.

Art. 3393. Reopening of succession

“A. After a succession representative has been discharged, if other property of the succession is discovered or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be reopened. * * * ” (emphasis supplied)
“B. After tacit or express acceptance by the heirs or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened, as the case may be, regardless of whether or not, theretofore, any succession proceedings had been filed in court. * * * ” (emphasis supplied)

The pertinent provisions of LSA-C.C.P. art. 3393 lead me to conclude that either the discharge of an executor or the rendition of a judgment of possession, as in the instant case, operates as a closing of the succession.

Accordingly, in order to reopen the succession, it is intervenor’s initial burden to allege sufficient facts to constitute grounds to reopen the succession.

In the recent case of Succession of Yancovich, 289 So.2d 855 (La.App., 4th Cir. 1974), this-court held the alleged discovery of facts showing that the succession inventory incorrectly designated succession assets as community property, when those assets were separate property or community assets of a prior marriage, did not constitute “proper cause” sufficient to justify a reopening of the succession. In that opinion we pointed out that a finding of proper cause for reopening successions is within the discretion of the trial court and may be overturned only for an abuse.

In Yancovich, the court went on to say:

“In the instant case, the alleged discovery, made approximately 7 years after the closing of the succession, of facts showing that the succession inventory may have incorrectly allocated property to an allegedly nonexistent community of acquets and gains is not sufficient “other proper cause” under Article 3393 to reopen the succession. We can see no need to reopen this succession, nor does it appear to us that appellants would obtain any advantage by a reopening.”

The factual backgrounds in Yancovich and the instant case are similar, but distinguishable. In Yancovich, the administra-trix had filed a final account and a tableau of distribution which was approved and homologated. The funds were ordered distributed and a judgment was rendered discharging the administratrix and cancelling the bond. In the instant case, the final account and tableau of distribution were waived and the executor was not discharged. Presumably, in Yancovich, publication of the final account and tableau of distribution would have afforded any creditor notice of the succession proceeding and the opportunity to assert his claim. Because of the waiver of the final account and tableau in the instant case, no notice was afforded to the creditor and, presumably, he was denied the opportunity to assert a claim or to protect his rights as provided by LSA-C.C.P. Arts. 3305, 3034, 3007, 3008, 3241 and 3242. The protective devices afforded to a creditor by the Code of Civil Procedure presume he has notice or knowledge of the opening of the succession. If there has been no publication of an account in a succession under administration, the creditor is deprived of notice, as in the instant case.

Under the circumstances, I am of the opinion that intervenor’s allegations constitute “proper cause” to reopen the succession. Having so concluded, I would remand this matter for the purpose of consideration of the question of nullity of the judgment based on alleged ill practice.


author: MORIAL, Judge.

text:
    Ethel Lede PAPILLION v. STANDARD LIFE INSURANCE COMPANY.
    No. 7083.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.
    Henican, James & Cleveland, Andrew I. Brown, New Orleans, for plaintiff-appellant*
    Newan, Duggins, Drolla & Gamble, Cameron C. Gamble, New Orleans, for defendant-appellee.
    Before STOULIG, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This is a suit for benefits under a group life insurance policy issued by defendant Standard Life Insurance Company, covering the employees of the New Hotel Mon-teleone, Inc.

Eddie Lede was an employee of New Hotel Monteleone, Inc. from July 1969 through August 27, 1971. On September 30, 1971 he died in Baptist Hospital from hepatic failure. Ethel Lede Papillion, filed this suit, as beneficiary, claiming the proceeds of the group life insurance policy issued on the life of decedent. The trial court found that the policy had terminated and accordingly denied recovery. We affirm.

As stipulated by the litigants, the sole issue for our determination is whether the decedent terminated his employment with the Monteleone Hotel because of disability within the meaning of that provision as used in the policy. The applicable provision specifies that:

* * * * * *
“The insurance of an employee shall automatically terminate immediately upon the earliest of the following dates:
(a) the date of his termination of employment with the Employer . .
An employee’s termination of employment shall be deemed to have occurred upon cessation of his active work within the eligible classes, except that an employee who is unable to work because of disability ■ will nevertheless be considered as still employed within the eligible classes.” (emphasis supplied)

Plaintiff’s entire case consisted of the testimony by deposition of Dr. Wayne Lake, Jr. Dr. Lake treated Eddie Lede for approximately one year and last saw him at his office on August 4, 1971. He did not see him again until September 22, 1971, when the patient presented himself for treatment at Baptist Hospital. When asked whether Mr. Lede was physically able to work on August 27, 1971, the day he terminated his employment, the doctor responded that he could not really answer but believed that he was probably unable to work. He added though that there was nothing on the record that he could definitely conclude one way or the other. He noted, however, that the patient was almost dying when he entered the hospital and that it was typical of him to have waited so long before seeking treatment.

Testimony for defendant was replete with evidence negating medical disability for Lede’s termination of employment. The reasons specified in the decedent’s “Termination of Employment” form made no mention of disability and merely stated, “This man is a retired pensioner and is just tired.” A fellow employee testified Lede told him he was quitting because he was getting tired of working and 'he wanted to retire ■ and make a trip to Europe. This witness further testified that he saw Lede when he returned the week after he quit to pick up his last week’s pay check and that he looked healthy and was in a happy frame of mind and told him “In another two weeks I’ll be making my trip.”

Based upon this evidence, the trial court in its reasons for judgment concluded:

“It is obvious from the medical evidence that the deceased was not a well man. However, there is no evidence that he left his employment because of this illness, and the court feels this is an essential requirement under the policy.”

We fully subscribe to this determination. The plaintiff herein has clearly failed to sustain her burden of proof by a preponderance of the evidence.

The judgment of the trial court is affirmed. Plaintiff is to pay all costs.

Affirmed


author: GULOTTA, Judge.

text:
    Mrs. Delphine Ramp, wife of/and Emmet PUDERER v. CITY OF NEW ORLEANS.
    No. 7095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.
    Writ Refused March 12, 1976.

      Earl J. Higgins, New Orleans, for plaintiffs-appellants.
    Blake G. Arata, Jules A. Fontana, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   GULOTTA, Judge.

Structures on real property owned by plaintiffs were demolished by the City of New Orleans under the authority of Article 305 of the Building Code which provides for demolition of dangerous or unsafe property. A suit brought against the City, seeking damages for unlawful demolition based on the City’s failure to give proper notice as required in the Building Code, was dismissed by the trial judge. Plaintiffs appeal.

It is plaintiffs’ position that the City’s attempt to notify plaintiffs of the City Council’s demolition authorization hearing and of the demolition by certified mail (these certified letters were returned to the City and were not received by plaintiffs) did not satisfy the notice requirements of § 3 and § 8(c) of Article 305 of the Building Code of the City. According to plaintiffs, § 3 of Article 305 of the Code requires that written notice shall he served upon the owner ordering him to remove or repair the premises. In addition, relying on § 8(c) of Article 305, plaintiffs claim that the City cannot rely on registered mail for notice unless the owner cannot be found within the City after a diligent search has been made. The Puderers claim no diligent search was made.

The matter was heard on a stipulation of facts and on argument and brief of counsel. It was stipulated, among other things, that (1) written and formal notice was given to plaintiffs to perform the necessary repairs on the property; (2) a notice of public nuisance was received instructing the Puderers to appear before the panel of review on June 3, 1970 to show cause why the structure should not be demolished; (3) on March 31, 1971, a certified letter to plaintiff, E. Puderer, stating that a motion was to be presented to the City Council for authority to demolish was received; (4) notice of hearing before the City Council which was to be held on December 7, 1971, was mailed on December 2, 1971, and was returned to defendant with the notation “No Response — Notified 12/3/71”. This notice was received by defendant on December 22, 1971; (5) the City posted a placard on the property on June 2, 1970; (6) notice of the City Council’s action ordering demolition was mailed on December 10, 1971, certified mail, and returned on December 28, 1971, with the notation “No Response — Notified 12/13/71”; (7) certified letter dated April 21, 1972, advising Puderer that the request for a permit to utilize the property for nonconforming use had been denied and that a contract had been entered into for the demolition of the property. This letter was returned on May 9, 1972, with a notation “No Response— Notified 4/22/72”.

The trial judge, in written reasons, concluded that the City had complied with the statutory requirements for notice in the Building Code. We do not agree.

It is clear that Article 305 of the Building Code requires that, prior to demolition, notice will be given to the property owner at crucial stages of the proceedings. For example:

1. Article 305, § 3 provides for written notice to be served upon the owner ordering him to remove or repair the premises.
2. Section 6 of Article 305 provides for a second notice to be served upon refusal to commence the demolition or repair within 24 hours.
3. Article 305, § 8(b) requires that the owner be notified of the time and place to appear before a “panel of review” to show cause why the structure should not be demolished.
4. Section 8(c) of the same Article states that if the person addressed with a notice of public nuisance cannot be found within the City after diligent search, then such notice shall be sent by registered mail.
5. Section 8(d) of the Article states that a person failing to appear or not receiving a continuance from the “panel of review” hearing shall be deemed in violation of the Code and demolition proceedings shall be instituted without further notification. (underline ours)

The language contained in § 8(d) would seem to evidence the Article’s intent to provide the owner with notification of demolition procedure (authority for Council to demolish) following the panel of review hearing when the property owner has appeared before the review panel or arranged for a continuance before the panel. Section 7 of the same Article prohibits the Director from demolishing the structure in the absence of a Council order. These two sections, when read together, indicate an intent to furnish the property owner with notice of the City Council hearing prior to the demolition.

In the instant case, the registered letter advising plaintiffs to appear at a panel of review hearing on March 31, 1971, was not received by them but was returned to the sender. A registered letter, dated December 7, 1971, advising the Puderers of the City Council meeting, also was returned to the sender. Likewise, the registered letter advising Puderer that the Commission Council had authorized demolition of the structure was not received by plaintiffs but also was returned to the sender.

Under the circumstances, we conclude that the not received, returned to sender registered letters, notifying the Puderers of the panel of review and the Council hearings, constitute no notice of crucial stages of the proceeding prior to demolition, as required by the ordinance. We find support for this conclusion in § 8(c). This section indicates that the City must resort to service of process before an attempt at registered mail is made. Furthermore, the statutory requirement in § 3 that notice be “served” implies notice by service of process.

We cannot conclude that the Article’s notification requirements relating to the structure being declared a public nuisance (§ 8(c)) and relating to the owner’s duty to remove or repair the structure (§ 3) were intended to be more demanding than the Article’s notification requirements relating to the hearings before the panel of review and the Council. Nor do we view the declaration of public nuisance and notification by the City to remove or repair a structure as being more crucial stages of the. proceeding than the panel of review or Council hearings.

Accordingly, we hold that the notice requirements of the ordinance place upon the City a duty to attempt to notify the property owner, through service of process, at all crucial stages of the demolition proceedings, prior to resorting to the use of registered or certified mail. These requirements were not met in the instant case.

Accordingly, the judgment of the trial court is reversed. Judgment is now rendered in favor of 'plaintiffs and against the City of New Orleans, ordering the cancellation of the lien bearing against plaintiffs’ property in the sum of $1,212.00. Judgment is further rendered in favor of plaintiffs in the stipulated amount of $300.00, with judicial interest from date of judicial demand until paid.

Reversed and rendered.

      . Article 305, § 3 reads as follows:
      “The Director shall serve a written notice containing a description of the premises to be removed or repaired, upon the owner or one of the owners, executor, administrator, agent, lessee, or person or persons who may have a vested or contingent interest in the premises, ordering them to remove or repair the premises, whichever is necessary. Said notice shall direct the person or persons served to certify to the Director within 24 hours from the time of service of such notice his or their assent or refusal to secure or remove same.”

      . Article 305, § 8(c) reads as follows:
      “If the person addressed with a notice of a public nuisance cannot be found within the city after diligent search, then such notice shall be sent by registered mail, to the last known address of such person, and a copy of the public nuisance shall be posted in a conspicuous place on the premises and such procedure will be deemed the equivalent of personal notice.”

      .Hearing before the panel of review took place on March 31, 1971. Certified letter dated March 24, 1971, notifying plaintiffs of this hearing, was returned to sender.

      .No date was specified in the notice for hearing before the City Council.


text:
    Gladys MORRISON and Gladys Richardson v. Jake EDWARDS et al. Jory WALTON v. Jake EDWARDS et al. Cora VIRGIL v. Jake EDWARDS and Logan Cab Company.
    Nos. 7113-7115.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearings Denied Jan. 13, 1976.
    Writ Refused March 5, 1976.

      Dodd, Barker, Boudreaux, Lamy & Gardner, Harold J. Lamy, New Orleans, for Gladys Morrison and Gladys Richardson, plaintiffs-appellants; John E. Un-sworth, Jr., New Orleans, Co-Counsel, for Gladys Morrison.
    Harold J. Lamy, New Orleans, for Jory Walton, plaintiff-appellant.
    Michael A. Dessommes, New Orleans, for Cora Virgil, plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendants-appellees.
    John H. Butler, II, New Orleans, for John C. Smith, Jr.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   GULOTTA, Judge.

These consolidated cases grow out of an automobile accident which occurred at the intersection of St. Bernard Avenue and N. Roman Street on March 19, 1973, at approximately 2:30 a. m.

Plaintiffs were guest passengers in an automobile, driven by John C. Smith, Jr., that had stopped at the neutral ground intersection while negotiating a U-turn on St. Bernard Avenue. After making the turn and while moving in the direction of the river, the Smith vehicle was rear-ended by a Logan Cab operated by defendant, Jake Edwards. Defendants are Edwards, the cab company and its insurer. Third party pleadings were filed by defendants against Smith, seeking contribution, in the event defendants were cast in judgment. In one of these suits, Cora Virgil sued her driver, Smith. The other guest passengers did not.

Plaintiffs’ claims against Edwards, Logan Cab and its insurer were dismissed, but judgment was rendered in favor of Virgil against Smith. All other third party claims and reconventional demands were dismissed. All plaintiffs appeal. Smith also appeals from the dismissal of his re-conventional demand and from the judgment rendered against him in favor of Cora Virgil. We affirm.

No written reasons for judgment were assigned. Apparently the trial judge exonerated the cab driver from liability based on the inconsistencies in the testimony supporting the claims of plaintiffs and Smith, together with the testimony of the investigating police officer who placed the impact 10 feet from the intersection. Edwards, the cab driver, was not available and did not testify.

The record supports Logan Cab’s contention that Smith attempted to make a U-turn on St. Bernard Avenue from the N. Roman St. intersection, immediately in front of Edwards’ cab, causing him to unavoidably strike the rear end of the Smith vehicle approximately 10 feet on the river side from the middle of the intersection.

We cannot say the trial judge erred in rejecting Smith’s version of the accident and that of his guest passengers that Smith had safely completed a U-turn on St. Bernard Avenue and had proceeded a distance of approximately one half block in the direction of the river when his automobile was rear-ended by the defendant cab also proceeding in the same direction on St. Bernard Avenue at an excessive rate of speed.

Plaintiffs-witnesses, guest passengers in the Smith vehicle, and driver Smith place the point of impact, after the turn, anywhere from one block to 15 feet from the intersection. Gladys Morrison stated that Smith had traveled about a block before impact. Elaborating on this testimony, she said that a block meant about two car lengths. Earlier in a deposition, she stated that the Smith vehicle was a block and a half from the turn before impact. Cora Virgil (Smith passenger) testified Smith had traveled almost to the next corner when struck. Jory Walton (Smith passenger) estimated Smith traveled only 30 or 40 feet after the turn and before the collision. Gladys Richardson (Smith passenger) indicated that the Smith vehicle traveled almost a half block before impact. When equating the half block to courtroom distances, she estimated a 15 feet distance, according to plaintiffs’ counsel, and a 20 to 25 feet distance, according to Smith’s counsel.

Smith testified his automobile had traveled approximately a half block on St. Bernard Avenue at the time of impact.

However, Lido Schauebut, the investigating police officer, placed the point of impact at approximately 10 feet on the river side of the intersection.

Plaintiffs insist the cab was approximately a block or a block and a half away when Smith negotiated the turn. Under the circumstances, they contend, the absence of skid marks from the cab leads to a conclusion that the cab’s driver was inattentive to traffic traveling in front of him. Therefore, according to plaintiffs, Edwards was guilty of negligence.

It is true that Officer Schauebut testified he did not check for skid marks. However, the record preponderates, as argued by defendants, Logan Cab and its insurer, that it is more probable than not, because o.f the sudden left turn executed by Smith immediately in front of the cab, that Edwards did not have time to apply his brakes sufficiently to produce skid marks.

Finally, we reject plaintiffs’ contention that,.the trial judge failed to attach the proper adverse presumption to the failure of defendant, Edwards, to appear and testify at trial. We do not quarrel with the rule in civil cases, as pointed out by plaintiffs, that ordinarily failure of a defendant to testify in his own behalf, when otherwise unexplained, creates an adverse presumption against him. Switzerland General Ins. Co. v. Roe, 73 So.2d 501 (La. App., Orl.1954). However, we find no basis for application of such a presumption in the instant case. Edwards was subpoenaed for trial, however, he was never served. According to counsel for defendants, he explained to the trial judge that Edwards was unable to be served because he could not be located. A similar factual situation existed in Pilcher v. Standard Accident and Insurance Company, 122 So. 2d 675 (La.App., 1st Cir. 1960). Although the Pilcher case involved the failure of a party to call a witness and not the failure of a litigant to appear, Pilcher is analogous to our case. In Pilcher, a presumption that the witness’s testimony was adverse to defendant was not drawn where a subpoena had been issued for the witness, the witness could not be located, and presumably he had moved to another state. In any event, the presumption, standing alone, is not sufficient to set aside the judgment of the trial court.

We conclude, as apparently the trial judge did, that Smith entered the intersection immediately in front of the path of the oncoming cab. Our jurisprudence is well established that a motorist attempting to make a left turn onto a favored thoroughfare is required to ascertain that the way is clear and that the turn can be made safely without endangering or being endangered by overcoming or oncoming traffic. See LeBreton v. Ballanga, 146 So.2d 58 (La.App., 4th Cir. 1962). See also LSA-R.S. 32:122.

QUANTUM

Finally, we reject Cora Virgil’s complaint of the inadequacy of the $1,-115.00 award against Smith. This plaintiff sustained a contusion of the forehead and left side of the neck, muscle strain of the neck and lower back, and contusions of the left thigh and left knee. She was treated with muscle relaxants, pain relievers and diathermy for a five-week period. Cora Virgil received out-patient treatment at Charity Hospital on the night of the accident. She testified she suffered from bruises and scratches on her bafck and legs, and also from headaches “every now and then”. Her medical bill amounted to $115.00.

Although plaintiff claims loss of weekly earnings in the sum of $40.00 per week for approximately nine weeks, she indicated (though unclear from the record) that she had not worked for two or three years preceding the accident. Under the circumstances, we cannot say the trial judge abused his discretion in awarding the sum of $1,115.00 to compensate plaintiff, Cora Virgil, for her injuries.

Accordingly, the judgment is affirmed.

Affirmed.

      . Richardson estimated the cab to be one block away when Smith commenced the turn. Smith estimated a distance of one to one and a half blocks.

      . We fail to find this explanation in the record; however, in brief, this claim was not disputed by plaintiffs.

      . We reject Smith’s contention that the judgment in favor of Cora Virgil against him is not valid because the judgment erroneously designated John Smith as a third party defendant when his, Smith’s, posture in the litigation was as defendant. The erroneous designation of Smith was clearly a misnomer. The intent of the trial court was to allow recovery in favor of Cora Virgil and against John Smith.