text:
    Mrs. Mabel WALKER et al., Plaintiffs-Appellants, v. STATE of Louisiana THROUGH the DEPARTMENT OF CORRECTIONS.
    No. 11257.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    John W. deGravelles, Baton Rouge, for plaintiff Mrs. Mabel Walker et ux., appellant.
    Robert C. Funderburk, Jr., Staff Atty., Baton Rouge, for defendant State of Louisiana through the Department of Corrections, appellee.
    Before SARTAIN,. COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a suit in tort by the survivors of John Walker, an inmate at the Louisiana State Penitentiary at Angola, who was fatally wounded there on November 22, 1973.

On that date, Walker, a twenty-two year old prisoner who had been at the penitentiary for approximately four months, was stabbed to death by Samuel Robinson, another inmate, for unknown reasons. This action seeks damages from the State of Louisiana through the Department of Corrections for that death.

The facts are not at issue. Walker and his assailant were trustees in a minimum security section of the prison. At about 2:45 p. m., Walker approached the enclosure where the guards for that area are stationed. The security personnel on duty at that time were Clovis Tillery and Vincent P. Dalcour. Walker informed Tillery that he wished to leave his quarters and go to the “lockdown”, a protective area, because, in his words, “he might get cut.” Tillery called his superior and obtained permission for Walker to do so.

Walker then asked Tillery to walk with him to the controlled area and they proceeded to do so together. As they were walking, Robinson appeared to the rear of them, apparently after speaking to Dalcour who remained in the guard booth, and asked what was going on. Tillery said that he was taking Walker to the “lockdown”. Robinson replied that “he didn’t like no stuff like that”; Walker then spoke to Robinson saying “I haven’t told Mr. Tillery nothing”. Tillery then told Robinson to move off.

Walker and the guard then proceeded again toward the exit gate; after they had taken only a few steps, Robinson suddenly reached over or came across Tillery, who was between them, and stabbed Walker in the upper chest. When Robinson attacked, Tillery, who was unarmed, grabbed his hand in an effort to protect Walker, but was unsuccessful in preventing the knifing. He then scuffled with Robinson, who attempted to attack again, until help arrived.

Walker died from the initial stab wound a few minutes later, while enroute to a hospital.

Without rendering written reasons for judgment, the trial judge dismissed the suit. We conclude that the judgment of that court should be affirmed.

In Parker v. State, 282 So.2d 483 (1973), the Supreme Court of this state said:

“A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use rea-, sonable care in preventing the harm. St. Julian v. State, La.App., 98 So.2d 284 (1957); 60 Am.Jur.2d, Penal and Correctional Institutions, section 17, p. 821 (1972); 72 C.J.S. Prisons, section 13, p. 866; Annot., Prison-Assault by Prisoner, 41 A.L.R.3rd 1021, 1028-1029 (1972).”

This unfortunate incident involves two minimum security prisoners who have not been in any recent difficulty. In making his request that day, Walker did not identify the person he was afraid of and the two guards both testified that they had never had any trouble with Robinson. Neither of them saw a knife or other object on his person prior to the actual attack and the record reflects no other actions on his part which would indicate that Walker’s life was in danger at that moment. The appellant points out that not only did Robinson have a prison record listing numerous acts of violence, but that he had previously killed an inmate, which Tillery knew. Therefore, it is argued that the two guards should have recognized an imminent attack, that the prison officials were negligent in placing Robinson in a minimum security area at all, and that the state is guilty of maintaining the prison with inadequate security forces.

The record reflects, however, that for over a year prior to this incident, Robinson had been guilty of no misconduct and that the guards which were involved did not consider him dangerous and were not aware that Walker was afraid of him. It also appears that Walker showed no apparent fear as Robinson approached just prior to this incident. Therefore we find that Tillery had no reason to anticipate the conduct on the part of Robinson which followed. Similarly, we reject the contention that the prison officials were negligent in placing Robinson in a minimum security area, as he had been on good behavior for the length of time previously noted herein.

The claim that the state should respond to damages for this death because of deficiencies in the system is also rejected for the reasons expressed in Jones v. State of Louisiana, Through the Department of Institutions, No. 11,272 on the docket of this court, rendered this day, 346 So.2d 807.

The judgment of the trial court is, therefore, affirmed, the appellant to pay all costs of this appeal.

AFFIRMED.


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    CHARTRES CORPORATION, Plaintiff-Appellant, v. CHARLES CARTER & COMPANY, INC., Defendant-Appellee.
    No. 11266.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    James G. Derbes, New Orleans, for plaintiff Chartres Corp., appellant.
    George L. Clauer, III, Baton Rouge, for defendant Charles Carter & Co., Inc., appel-lee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a suit by a subcontractor for the payment of money allegedly owed it by a general contractor for work done on a construction project.

In July, 1972, Chartres Corporation entered into a subcontract with Charles Carter & Company, Inc. in which the former was to do certain flooring work for the sum of $289,000.00 in the field house facility being constructed by Carter on the campus of Louisiana State University at Baton Rouge.

On November 6,1974, the university filed a certificate of substantial completion in the official records of the Parish of East Baton Rouge. Thereafter, on August 29, 1975, the plaintiff filed this suit for the payment of $5600.00 which it claims is the balance due on the agreement indicated above.

The defendant responded to that suit with an exception of prematurity which was sustained by the trial court. That exception was based upon Article 15 of the subcontract which provides:

“15. Contractor agrees to pay Subcontractor for said work the sum of TWO HUNDRED EIGHTY NINE THOUSAND AND NO/100 _ Dollars ($289,000.00) subject to additions and deductions as herein provided, and such sum shall be paid by Contractor to Subcontractor as the work progresses in monthly installments as follows:
On the 25th day of each month Subcontractor shall present to Contractor a statement of the work done during the preceding month, which statement, when checked and approved by Contractor, will be paid within five (5) days after receipt of payment from Owner, providing progress of the work and payments for labor used and material purchased by Subcontractor have been satisfactory, provided that Contractor may, at its option, retain 10%, or the percentage specified in the Contract Documents, of each estimate until final paypient, which shall be made after completion of the work covered by this contract and written acceptance thereof by the Architect, and full payment therefor by Owner, provided Subcontractor has furnished evidence, if requested, that all claims for labor and materials have been paid, and provided further that Subcontractor has complied with all the provisions of this contract.” (Emphasis added)

Relying particularly upon the section emphasized above, the defendant maintains that final payment is not owed the plaintiff until it has received full payment from the owner. In support of that contention, at the trial of the exception on October 1, 1976, the defendant introduced testimony that it still had not been paid $52,400.00 by the owner. We conclude, however, that the matter is not now premature.

Payment to the plaintiff is conditioned on three factors, the first two of which are not at issue here: First, the completion of the work covered by the contract; second, written acceptance thereof by the architect (which appears to have been fulfilled by the University’s recorded acceptance); and third, full payment by the owner to the general contractor.

At the hearing, some twenty-three months after the owner’s acceptance of the project, the defendant gave no reason as to why it had not yet been paid in full, nor did it indicate that any efforts were being made to obtain payment. In Pelican Construction Co. v. Sewerage & Water Bd., 240 So.2d 556 (La.App. 4th Cir. 1970), the court had before it a similar clause which provided that the plaintiff was to be paid “within five days after receipt of payment from owner”. There, the court concluded that such an insertion in a contract should not be construed to mean that payment would be subject to a suspensive condition but was more probably intended by the parties to require payment within a reasonable period of time and “in the usual course of events”.

That ruling is directly applicable here. We are unable to conclude that the parties intended that the defendant could always refuse to pay the plaintiff as long as any money was supposedly outstanding from tbe owner. In Perrin v. Hellback, 296 So.2d 342 (La.App. 4th Cir. 1974), writs refused 300 So.2d 184 (La.1974), the court observed:

“LSA-C.C. art. 2050 and the jurisprudence interpretative thereof (Guzzo v. Liggio, 224 La. 313, 69 So.2d 357 (1953); Richard v. Foods and Services, Inc., 162 So.2d 213 (La.App. 1st Cir. 1964); Holmes Brick & Salvage Co. v. Reo Construction, Inc., 253 So.2d 562 (La.App. 1st Cir. [1971]), state that where no time for performance is specified, the inference will be supplied that the parties intended the obligation to be undertaken within a reasonable time. What constitutes a reasonable time must be determined by the circumstances of each case.” (footnote omitted)

Some explanation should have been offered by the defendant as to why the inordinate time period of twenty-three months had elapsed without payment by the owner and what efforts were being made on its part to secure payment. Absent such an explanation, we find that a reasonable period of time for the satisfaction of the clause at issue has passed and the plaintiff’s action is not premature. If such payment has not been made because of some action on the part of Carter, C.C. Art. 2040 disposes of the condition at issue as fulfilled.

For the above and foregoing reasons, the judgment of the district court sustaining defendant’s plea of prematurity is reversed and set aside and this matter is remanded for trial on the merits. All such costs as are related to this appeal are to be borne by appellee, all other costs are to await a final determination on the merits.

REVERSED AND REMANDED.


author: COVINGTON, Judge.

text:
    Larry MARTINEZ v. THERMA-KING SALES AND SERVICE DIVISION OF TRANSPORT REFRIGERATION OF LA., INC.
    No. 11259.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      Talbot, Sotile & Carmouche, Donald T. Carmouche, and Jon F. Waquespack, Don-aldsonville, for plaintiff-appellee.
    Cronvich & Wambsgans, Richard M. Mi-chalczyk, Metairie, for defendant-appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment awarding damages for conversion of the plaintiff’s property. We affirm.

The plaintiff, Larry Martinez, resident of Assumption Parish, brought this action against the defendant. Therma-King Sales and Service, Division of Transport Refrigeration of Louisiana, Inc., domiciled in Jefferson Parish, alleging that Therma-King converted to its own use a cooling unit that was attached to Martinez’s tractor-trailer which was located in Assumption Parish, Louisiana. The dispute arose over a repair bill that the defendant submitted after making certain repairs on the compressor, a component part of the cooling unit.

The defendant was called to repair the unit because it was “not cooling.” The tractor-trailer could not be driven to the defendant’s shop because the trailer was stuck in the mud in Assumption Parish. Therefore, a representative of the defendant went from Jefferson Parish to Assumption Parish, checked out the unit, and determined that the trouble was a “burned-out” compressor. The defendant then proceeded to remove the compressor and bring it to its shop for repairs. At the time, the defendant informed the plaintiff that the price would be approximately $400.00 to rebuild the compressor. The testimony is in dispute concerning whether or not the defendant gave to the plaintiff an approximate final price of about $900.00, which would be determined by the time required to complete the job. The plaintiff denied that he was informed that there would be a “final price.”

In any event, after the repair work was completed and the cooling unit with the rebuilt compressor was installed, the defendant presented a bill for $941.98. However, the plaintiff’s agent did not have that much money. The defendant then removed the entire cooling unit, and took it back to its shop in Jefferson Parish. Although only the compressor had been carried to defendant’s shop for repairs, the defendant claimed to have worked on the entire unit to complete the necessary repairs and thereby attempted to justify its removal of-the complete unit.

This “repossession” took place on May 19, 1975, without the permission or authorization from the plaintiff and without the repairer filing legal proceedings. Subsequently, the plaintiff made demands for return of his cooling unit, but to no avail. This suit followed.

The defendant responded to the plaintiff’s action for damages by bringing a writ of sequestration in Jefferson Parish. The plaintiff filed an answer in the sequestration action, and paid off the amount of the demand therein in order to prevent a sheriffs sale of his property.

The facts of this case fit the classic definition of “conversion”, unless the repairman’s privilege clothed the defendant with authority to take and hold possession of the cooling unit belonging to the plaintiff.

Conversion is defined as “a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein.” Lincecum v. Smith, 287 So.2d 625, 627 (La.App. 3 Cir. 1973), writ ref., 290 So.2d 904 (La.1974).

The repairman’s privilege upon which the defendant should have relied is contained in LSA-R.S. 9:4502, which provides, in part, as follows:

A. “Any person engaged in the making or repairing of movable goods . equipment . . . machinery, or movable objects or movable property of any type or description, has a privilege on the thing for the debt due him for materials furnished or labor performed. This privilege is effective for a period of ninety days from the last day on which materials were furnished or labor was performed, if the thing affected by such privilege is removed from the place of business where such labor was performed or materials furnished .
B. “This privilege may be enforced by the writ of sequestration, without the necessity of the creditor furnishing security therefor, if the debtor is first given ten days’ written notice by registered mail. . . . ” Other relevant statutes are: LSA-R.S. 9:4501, which provides, in part:
“Any person operating a garage or other place where automobiles or other machinery, are repaired, or parts therefor are made or furnished, has a privilege upon the automobile or other machinery for the cost of repairs made, parts made or furnished, and labor performed. . For the purposes of this section, it is immaterial where the automobile or other machinery may have been located at the time or by whom the parts may have been attached.
“This privilege may be enforced by the writ of sequestration, without the repairman having to furnish security therefor. . . . ”
LSA-C.C. art. 3217(2):
“The debts which are privileged on certain movables, are the following:
* # # * # *
“2. The debt of a workman or artisan for the price of his labor, on the movable which he has repaired or made, if the thing continues still in his possession.”

See Davis v. Chube, 256 So.2d 756 (La.App. 1 Cir. 1971), writ ref., 261 La. 232, 259 So.2d 76 (1972).

It is also pertinent to note that all statutory liens and privileges are stricti jur-is. They are in derogation of common rights and, as with the statutes creating them, they are strictly construed. Their effect may not be extended by analogy or implication. Domingue v. Huval, 261 So.2d 88 (La.App. 3 Cir. 1972); Hicks v. Tate, 7 So.2d 737 (La.App. 1 Cir. 1942).

In this case, LSA-R.S. 9:4502 adequately protected the defendant. It did not have to “reclaim” th.e thing to protect its rights. Under this statute, it is not necessary that the thing repaired remain in the repairman’s custody or place of business. Even without retaining possession, the repairman has 90 days after the repairs have been made to assert its privilege. This is accomplished by giving the debtor 10 days’ written notice by registered mail, and then enforcement of the privilege by writ of sequestration without the necessity of furnishing a bond.

The repairman, under the law, was required to use legal machinery in seizing the repaired thing and in asserting its privilege. It chose not to do so; instead, it resorted to self-help and removed the cooling unit to its shop. Had the repairer properly used 9:4502, the thing repaired would then be conserved under the auspices of the law until the repairman had an opportunity to prove the indebtedness and judgment or_ the merits had been rendered.

In view of the requirement that these privilege statutes must be strictly construed, we hold that a repairman has no right to merely reclaim possession of a repaired thing once it has left his possession his proper remedy is to assert his privilege through legal machinery during the statutory period.

The evidence presented supports the trial court’s finding that there was a wrongful taking of the cooling unit by the defendant and, also, a refusal to accede to the plaintiff’s demand that it be returned. The defendant can not justify its action by claiming a privilege on the property; the repairman’s privilege does not grant self-help to the repairman. It grants him the liberal legal remedy of sequestration without bond. In the instant case, the defendant chose to remove the cooling unit from Assumption Parish to Jefferson Parish before availing itself of its legal remedy. It did so at its own peril and must suffer the consequences of its actions.

The trial court awarded $1,500.00 in general damages. We do not find this award to be an abuse of his “much discretion.” LSA-C.C. art. 1934(3); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Vercher v. Toda Enterprises, Inc., 216 So.2d 318 (La.App. 3 Cir. 1968). The evidence shows that the cooling unit was out of operation as a result of the defendant’s wrongful acts from May 19,1975, to the end of October, 1976, which was during a substantial part of plaintiff’s marketing season.

For the reasons assigned, the judgment of the trial court is affirmed at the defendant-appellant’s cost.

AFFIRMED.

      . Although this is a common-law legal term, and any recovery is actually founded on LSA-C.C. art. 2315, it has become, unnecessarily, of common usage in our jurisprudence.


text:
    Billy D. TERRY v. J. B. TALLEY & CO., INC., et al.
    No. 11264.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Caliste Beard, Jr., LaFayette, for plaintiff and appellant.
    Joseph L. Waitz & Laurence E. Best, Joseph J. Weigand, Jr., Houma, for defendants and appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This suit arose out of an accident which happened on May 26, 1972, at one o’clock a. m., when the plaintiff, Billy D. Terry, ran into construction equipment belonging to the defendant, J. B. Talley and Company, Inc., which was doing construction work on Canal Boulevard Extension, a roadway in the City of Thibodaux, Parish of Lafourche, Louisiana. The liability insurer of the defendant Talley was Employers Commercial Union Insurance Company. The plaintiff alleged that Talley was negligent in failing to put up caution signs, in leaving its parked equipment unlighted and unguarded on the roadway at night, and in failing to protect the public against the hazard of equipment left in this condition on the travel portion of the roadway. As a result of the accident, the plaintiff allegedly sustained serious bodily injuries. After trial, the court dismissed his suit at his costs. We affirm.

Appellant essentially contends that the trial court erred in not finding Talley negligent. The judge, in his written reasons for judgment, stated:

“Plaintiff, Billy D. Terry, was injured when the automobile which he was driving collided with a truck owned by the defendant, J. B. Talley & Company, Inc., and parked on the southbound lane of a four-lane extension of Canal Boulevard located immediately north of Thibodaux. “The accident with which we are concerned occurred at approximately 1:00 A.M. on the morning of May 26, 1972. “As a result of the accident, plaintiff suffered extensive injuries about the face and head.
“The Court will first consider whether J. B. Talley & Company, Inc., general contractor, was guilty of any negligence proximately causing the accident. This determination cannot be made without first determining what duty, if any, was owed to the plaintiff.
“The evidence is clear and uncontrovert-ed that J. B. Talley and Company, Inc. maintained signs, markers, barricades and lights at both the north or Chackbay end and the south or Thibodaux end of the project. Signs extended north on Highway 20 towards Chackbay warning drivers approaching from that direction of ‘construction ahead’, ‘road closed’ and ‘detour’.
“It is also clear, according to Malcolm Sayas, the project engineer, that all signs, warnings and barricades were in compliance with State law. There had been no suggestion to the contrary by the plaintiff and no allegations of lack of compliance in any respect.
“It is also uncontroverted that daily inspections were made of the entire project, including these warning signs and barricades. Major Mathews inspected the barricades at the end of each day and on occasions at night, after hours. Malcolm Sayas also made regular inspections and checked the entire project twice daily in the morning and in the evening. Avery Fonseca confirmed that night inspections had been made.
“It is admitted that from time to time unauthorized persons used the roads and vandalized barricades. The evidence shows that as soon as this information was brought to the attention of the defendant, that the situation was remedied. Although there is some evidence to the effect that the road had been used by unauthorized persons, most of this evidence relates to the use of this highway during the daylight hours while the contractor was using the completed portion of the highway for traffic purposes. There is testimony by Mr. Fonseca that on the night previous to the accident he had checked the north entrance to the access road and that barricades were stretched across both the north and southbound lanes of Canal Boulevard extension.
“Although it is possible that the barricades stretched across the southbound lane of the Canal Boulevard extension had been destroyed by someone other than the plaintiff on the night of the accident, the Court cannot justifiably hold the defendant responsible for not having replaced these barricades between the time it was destroyed and the time of the accident.
“The Court finds that the defendant had discharged all of its duties towards plaintiff by placing adequate warnings to the public to keep off the road and had further contacted news media and State Police for assistance in trying to keep unauthorized people from travelling on the closed portions of the highway.
“It is also important to note that the evidence with reference to the use of the Canal Boulevard extension was limited to daytime use and there is no evidence in the record that the defendant had any knowledge that it was being used during the night-time.
“The record established beyond any doubt the negligence of the plaintiff, Billy Talley (sic). He had proceeded north on La. Hwy. 20, which parallels the Canal Boulevard extension, earlier that evening and then noticed that the Canal Boulevard extensión was under construction. On his return to Thibodaux from Chackbay it was necessary for the plaintiff, Billy D. Terry, to go by signs on La. 20 which indicated to him that the Canal Boulevard extension was closed and for him not to enter. There was further evidence in the record that Talley (sic) had been drinking on the night of the accident and was driving his car on a rainy highway at an excessive rate of speed under the circumstances. There is also evidence in the record that if Terry had been attentive, he could have avoided the accident. Under the law, Terry is charged with seeing that which he could have seen if he had been attentive. There is an abundance of evidence in the record that the accident scene was lighted and that the equipment that was parked in the roadway was easily visible to one approaching Thibodaux from the Chackbay area if he were attentive.
“Since the Court has found that the defendant had not violated any of its duties to the plaintiff and further found that if it had, that plaintiffs contributory negligence would bar his recovery, judgment will be rendered in favor of the defendant, the plaintiff to be taxed with all costs.”

After a careful review of the record and a study of the applicable law, we are of the opinion that the trial judge in his written reasons for judgment has accurately stated the facts and the legal conclusions to be drawn therefrom. We find no manifest error. The facts found by the trial court are reasonably supported by the credible evidence in the record. See Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Accordingly, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Joseph MATASSA, Jr., etc. v. Simple TEMPLE et al.
    No. 11267.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      Porteous, Toledano, Hainkel & Johnson, Larry P. Boudreaux, Thibodaux, for defendant-appellant Laurie Aucoin.
    David S. Bell, Baton Rouge, for defendant-appellee Rogers Olivier.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This suit originated as an action to enforce a materialman’s privilege brought by Joseph Matassa, Jr., owner and operator of Sears Authorized Catalog Sales Merchant No. 17415, against Simple Temple, Inc., a domestic corporation, and Laurie Aucoin. The plaintiff alleged that the defendants owed the sum of $3,417.40, plus interest, and an additional sum of $25.00 representing the cost of recording the materialman’s privilege, for certain materials, consisting of carpets, a cook top, an oven with hood, and a central heating and air conditioning unit. The materials were allegedly used in constructing improvements by the corporate contractor on Aucoin’s land in Belle River Sites Subdivision, Pierre Part, Assumption Parish, Louisiana. There was no recorded building contract between the contractor and owner, nor was any bond recorded. The plaintiff timely recorded his privilege and then brought his action to enforce it. Subsequently, Aucoin filed a third-party demand against the corporation and its officers-shareholders, Rogers Olivier, Harry E. Breaux, Henry S. Breaux and Charles Mabile for indemnity, alleging fraud and breach of contract. Simple Temple, Inc. was to construct a home for Aucoin for $22,000.00 and he had paid $18,500.00 to the builder as of November 16, 1973. Soon thereafter, it became apparent that the builder had not paid all of its suppliers; materialman’s privileges amounting to $11,-060.46, including that of the plaintiff herein, were filed against Aucoin’s property. Several suits, including the plaintiff’s, followed.

After trial, the trial court rendered judgment as follows: in favor of the plaintiff and against the corporation and Aucoin in the amount of $3,417.40, recognizing and enforcing the plaintiff’s materialman’s privilege; granting Aucoin judgment over against Simple Temple, Inc. for all sums which Aucoin has to pay as a result of the judgment on the principal demand; denying Aucoin’s claim against the other third-party defendants. Aucoin has devolutively appealed the judgment, limiting his appeal to the denial of his third-party demand.

On appeal, the third-party plaintiff, Laurie Aucoin, primarily assigns as error the failure of the trial court to find that the officers of Simple Temple, Inc. acted fraudulently and that the corporation was the alter ego of its officers-shareholders, thus not allowing Aucoin to pierce the corporate veil.

The evidence does not establish fraud. The trial judge at the conclusion of the case informed the appellant’s counsel that fraud had not been proven. In his closing remarks to the court counsel conceded this fact. The record fully reflects that the third-party defendants formed a corporation, had the articles of incorporation and the initial report duly filed with the Secretary of State, and received a charter in the name of Simple Temple, Inc. The record does not reflect any illegal, immoral or unethical conduct on the part of the third-party defendants. In fact, the evidence shows that none of the third-party defendants made any money on the particular construction job involved in the instant case, or on any of the other two or three jobs which they undertook. Moreover, in the instant case, Aucoin admitted that he paid no more by having to pay Matassa (Sears) than if he had paid Simple Temple, Inc. in full:

“Q. Now, when construction work stopped, when you stopped payment under the contract on the fifth payment of $2,000.00 which was next due, what happened after that? You got someone else to continue the completion of the house? I take it the house is now completed.
A. Yeah, it is completed.
Q. Now, who completed it?
A. Harry and Henry Braud done the work. And I bought the materials with the rest of the money.
Q. Now, did you pay Harry and Henry Braud for the work?
A. No. They done it on their own.
* # * * * #
Q. You paid for the materials?
A. Right.
Q. So, you didn’t pay Simple Temple anything? After that?
A. After the contract was broken?
Q. Right.
A. No.
COURT: How much remained to be paid under the contract?
A. $3,500, Your Honor.
COURT: And how much did the materials cost you to finish the house?
A. Well, I wouldn’t know exactly
COURT: In other words, you did not spend any more than the $3,500.00?
A. No.
COURT: You spent any amount less than $3,500.00?
A. It was pretty close to right around $3,500.00, I would say.
BY MR. BELL:
Q. So, you have a completed house? A. Right.
Q. For about the same money?
A. Yeah.”

We thus find that the evidence does not establish fraud. The party alleging fraud has the burden of proving it; fraud is not presumed. LSA-C.C. arts. 1847, 1848; Camp v. Gibbs, 331 So.2d 517 (La.App. 2 Cir. 1976).

In considering the piercing of the corporate veil, the record contains no evidence which would justify such remedy in this case. The language of the court in Hughes Realty Company v. Pfister, 245 So.2d 757 (La.App. 4 Cir. 1971), is apposite here:

“The general rule in Louisiana, as in other states, is that an individual may incorporate his business for the sole purpose of escaping individual liability for corporate debts. This is often a primary or solitary reason for incorporation, but as long as the corporate existence is maintained intact, immunity from liability of a majority shareholder or even a sole shareholder is the same as if there were a multiplicity of shareholders.
“Exceptions to this general rule exist where a shareholder has practiced fraud upon a person through a corporation and where a shareholder disregards the corporate entity to such an extent that the separate individualities of the corporation and its shareholders have ceased to exist, so that the corporation is merely the alter ego of the shareholder or shareholders.
“In the present case, there has been no suggestion that Hughes has perpetrated a fraud or that he has disregarded the corporate entity of any of the three corporations owned by him. No basis has been advanced or foundation established for permitting the defendant to pierce the corporate veil and to prove that John R. Hughes, individually, is the real party in interest and Hughes Realty Company merely a nominal plaintiff.” (footnotes omitted).

The case of Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So.2d 265 (La.App. 2 Cir. 1960), answers the appellant’s contention that the officers-shareholders were merely the alter ego of the corporation:

“Other exceptions to these rules of nonli-ability of a shareholder for corporate debts have been recognized where the stockholder is the alter ego of the corporation. For the doctrine of an alter ego to apply, it must be shown that the stockholder whose individual and personal liability for a corporate debt is sought disregarded the entity of the corporation and, thus, made the corporation a mere agency for the transaction of his own private business. Thus, the separate individualities of the corporation and its stockholders must have ceased to exist. Brown v. Benton Creosoting Co., Inc., 147 So.2d 89 (La.App., 2d Cir. 1962-cert. denied). “The doctrine of alter ego does not create assets in a corporation but it simply fastens liability on an individual who uses the corporation merely as an instrumentality in conducting his own personal business. Liability in such instances springs from fraud perpetrated not necessarily on the corporation itself but upon third persons dealing with the corporation. Shreveport Sash & Door Company v. Ray, 159 So.2d 434, 437 (La.App., 2d Cir. 1963). Though the exception to the principle of nonliability of a stockholder is applicable when an individual stockholder in a corporation has utilized the corporate identity as a screen or cover-up of his individual acts or fraud or deception practiced upon the public or the creditors of a corporation, the record in the instant case is barren of proof that A. J. Dupuy, Sr., used the corporation for the advancement of his personal affairs, that he exercised any control over its affairs or operations, or that he received the smallest benefit therefrom. No evidence has been produced warranting a finding of fraud, deception, or ill practice on the part of A. J. Dupuy, Sr.”

The appellant’s final contention that “equitable considerations” dictate that the officers and directors of Simple Temple, Inc. should be held individually liable on the third-party demand is likewise without merit. The case of Brown v. Benton Creosoting Co., 147 So.2d 89 (La.App. 2 Cir. 1962), writ den. Jan. 14, 1963, relied upon by the appellant to sustain this proposition, was a suit for workmen’s compensation benefits in which there was some question about which of two corporations was the employer of the injured employee. The case was not decided on “equity” principles, but on the well established legal principles of corporation law and workmen’s compensation law.

The case of Giuffria Realty Company v. Kathman-Landry, Inc., 173 So.2d 329 (La.App. 4 Cir. 1965), also cited on this point by the appellant, was an action styled as an “Action to remove cloud from title,” and the case turns on its own peculiar facts, which are entirely different from those in the instant case. The decision in Giuffria Realty Company turned on the legal effect to be given to two transactions in the defendant’s chain of title.

Therefore, the trial court’s judgment is affirmed at appellant’s costs.

AFFIRMED.


text:
    Junious J. JONES v. STATE of Louisiana, THROUGH the DEPARTMENT OF INSTITUTIONS.
    No. 11272.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Owen J. Bradley, New Orleans, of counsel for plaintiff Junious J. Jones appellant.
    Stanford O. Bardwell, Jr., Asst. Atty. Gen., Baton Rouge, of counsel for defendant State of La. through the Dept, of Institutions appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

Plaintiff, Junious J. Jones, an inmate of Louisiana State Penitentiary (Angola), who was seriously injured from an attack by a fellow inmate, Theotis Robinson, appeals from the judgment of the lower court.dismissing his claim for damages. We affirm.

The facts are not in serious dispute and it is sufficient to state them briefly. The plaintiff and another inmate were incarcerated in a two-man cell located in cellblock number four, a maximum security facility, at the Angola prison. On December 28, 1968, as Robinson walked by Jones’ cell on his way to take a shower, he suddenly threw a substance described as a flaming mixture of deodorant and lighter fluid at Jones, causing severe burns across Jones’ arms, chest and upper body. The attack was unprovoked, and came suddenly and without warning to Jones, who was in his bunk with his back turned toward Robinson. At the time of the attack, the correctional officer was at his proper station, only a short distance from the end of the corridor, near the shower cell. From the officer’s panel control box station, he could not see inside the individual cells, but he could see down the length of the corridor running in front of the row of cells. The officer, who had been observing Robinson as he came down the corridor, realized immediately that the attack had occurred. He reacted promptly by ordering Robinson to return to his cell and then the officer went to Jones’ cell and quickly put out the fire. Shortly thereafter, medical treatment was rendered to Jones. These facts clearly show that the penal institution measured up to its standard of “reasonable or ordinary care.”

The applicable rule of law has been stated by the Louisiana Supreme Court in the case of Parker v. State, 282 So.2d 483, 486 (La.1973), as follows:

“A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm. St. Julian v. State, La.App., 98 So.2d 284 (1957); 60 Am.Jur.2d, Penal and Correctional Institutions, section 17, p. 821 (1972); 72 C.J.S. Prisons § 13, p. 866; Annot., Prison-Assault by Prisoner, 41 A.L.R.3rd 1021, 1028-1029 (1972).”

Under the Parker rule, the lower court found no negligence on the part of the defendant, State of Louisiana, through the Department of Institutions, or the prison employees.

In his written reasons for judgment the trial judge stated:

“The facts of this case clearly demonstrate that neither Claude Bordelon, the correctional officer directly in charge, nor any other penal authority knew or had reason to anticipate that Jones would be attacked by Robinson.”

We have carefully reviewed the record, and find that the evidence is amply supportive of this conclusion. The record clearly establishes that no one anticipated any difficulty between Robinson and Jones. The correctional officers had no reasonable cause to anticipate an attack on Jones. Pri- or thereto, the plaintiff had not been threatened in any way by Robinson.

The appellant primarily argues that the penal institution should be found liable for systematic deficiencies even if the evidence fails to establish the individual negligence of the persons immediately responsible for the supervision and custody of the appellant. The appellant would have this Court apply the intermediate appellate court’s Breaux rule rather than the Parker rule as re-affirmed by the Louisiana Supreme Court’s Breaux decision. See Breaux v. State, 314 So.2d 449 (La.App. 1 Cir. 1975), and 326 So.2d 481 (La.1976). From our study of these cases, we can understand the appellant’s urging that the “broader rule” now is applicable to situations where inmates are injured by other inmates in a penal institution, for the Supreme Court did not reject the “broader rule.” Instead, the Supreme Court merely proclaimed, as follows:

“We find that, even under this standard enunciated by Parker, the state is here liable for its employee’s failure to use reasonable care in preventing harm after they had reasonable cause to anticipate it. It is therefore unnecessary for us to here decide whether, additionally, the broader rule adopted by the majority of the court of appeal should apply- — namely, that the state may be liable as well for its negligent failure to provide a sufficient number of guards and sufficient security arrangements and equipment to assure reasonable safety to the inmates under its total custody (who was thus deprived of lawful means to protect their own safety)-”

From this statement and the ultimate holding in Breaux, we can only conclude that the Supreme Court has not extended the Parker rule. The Parker rule of “reasonable or ordinary care” is the standard which we should apply. In the instant case, the trial court did not commit manifest error in concluding that the penal authorities had no reason to anticipate that harm would come to Jones and that they used all reasonable care to prevent harm to him.

We therefore affirm the judgment of the trial court dismissing the claim of the plaintiff. The appellant is east for all costs.

AFFIRMED.


author: COVINGTON, Judge. LOTTINGER, Judge,

text:
    John E. THIBAUT et al., v. David D. THIBAUT et al.
    No. 11283.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Triche & Sternfels, Dan J. Nail, Napole-onville, James D. Rives, Jr., New Orleans, for plaintiffs-appellants.
    Felix H. Savoie, Jr., Napoleonville, Monroe & Lemann, Benjamin R. Slater, Jr., Michael R. O’Keefe, III, Henican, James & Cleveland, Carl W. Cleveland & Joseph P. Hensigan, New Orleans, Stanwood R. Du-val, Jr., Houma, Crawford, Lambert & Goldsmith, Gordon R. Crawford, Gonzales, for defendant-appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment maintaining an exception of improper venue insofar as the plaintiffs’ suit seeks to partition separate non-contiguous tracts of immovable property located in parishes other than the Parish of Assumption; as to immovable property located in other parishes and not contiguous to any property located within the Parish of Assumption, the suit was dismissed. We reverse and remand for further proceedings.

RIGHT TO APPEAL

In considering the appellant’s right to appeal the judgment sustaining the exception of venue, we find that this judgment is an interlocutory judgment under LSA-C.C.P. art. 1841, since it does not determine the merits but determines only a preliminary matter, venue, in the course of the action.

It is only an interlocutory judgment causing “irreparable injury” which is ap-pealable. See LSA-C.C.P. art. 2083, and Comments thereunder. The effect of the judgment in this partition action is to require the plaintiffs to assert their rights in three separate parishes, require three separate trials of materially similar facts, and require three separate judicial sales without a right to sell the properties in globo.

It is clear that, in the present action, if a final judgment rendered by the trial court were to come before an appellate court for review, the appellate court in its decree could not restore the parties, without loss of rights under the pleadings, to the identical position which they respectively occupied before the interlocutory judgment complained of was rendered.

We find, consequently, that this is an interlocutory judgment causing irreparable injury to the plaintiffs herein. Therefore, we hold that the instant judgment, partially dismissing the plaintiffs’ partition action, is an appealable judgment. This holding is consistent with the underlying policy of limiting appeals to final judgments and interlocutory judgments causing irreparable injury, a policy based on (1) preventing dilatory misuse of the appeal process, and (2) preventing fragmentary adjudication by sporadic review.

This appeal can in no way be considered a dilatory misuse of the appellate process since it actually moves the entire proceedings toward an earlier adjudication by allowing one trial on the merits rather than three separate trials in three separate parishes. Instead of permitting a fragmentary adjudication by sporadic review, this appeal tends to place the action in a posture where one appeal from a final judgment can adjudicate all of the partition rights of the parties.

VENUE

This suit involves the question of the proper venue for a partition proceeding involving non-contiguous tracts of immovable property located in the Parishes of Assumption, Ascension and St. James. The contest is between co-owners of undivided interests in the several tracts of land. The property consists of Woodlawn Plantation, Glen wood Plantation and B & D Plantation, situated in Assumption Parish; Minnie Plantation situated in St. James Parish; and Mon Desire Plantation, Peytavin Plantation and Chatam Plantations, situated in Ascension Parish, or portions of said plantations. The co-owners acquired the property from Thi-baut Farms, a partnership, on January 1, 1967, and from Kate Rice Thibaut by acts of donation on December 19, 1971. The property is owned by the following co-owners in the proportions listed by their names:

James Henry Thibaut 135/900
Thomas A. Thibaut 135/900
Dr. David D. Thibaut 135/900
Mercedes Thibaut Smith 135/900
Kate Rice Thibaut 80/900
Jane Thibaut Boyce 70/900
Margaret Thibaut Owens Watson 70/900 Mary Thibaut Rives 70/900
John E. Thibaut 70/900

The plaintiffs are: John E. Thibaut, individually and as administrator of the estates of his minor children, Pierre Lastrapes Thi-baut and Steven Thomas Thibaut; Joseph Wilbert Thibaut; John Bronier Thibaut; Kate Rice Thibaut; James Louis Owens, Jr.; Katherine Louise Owens; Jane Thibaut Boyce; John Clark Boyce and Jerry Thibaut Boyce; James Harvey Boyce, Jr., as administrator of the estates of his minor children, Jane Paige Boyce, James Harvey Boyce, III, and Jennifer Linton Boyce; Mary Thibaut Rives; Frank Williams Rives; James D. Rives, Jr., as administrator of the estate of minor child, Bronier Thi-baut Rives; Katherine Jane Rives; and James Davidson Rives, III. They brought suit in Assumption Parish against: Dr. David D. Thibaut; James Henry Thibaut; Margaret Thibaut Owens Watson, individually and as natural tutrix of her minor children, Michael Thibaut Owens and Sarah Helena Owens: Thomas A. Thibaut; and Mercedes Thibaut Smith, to partition by licitation the seven plantations in the three different parishes. These seven plantations are non-contiguous and are not located on a common boundary of any of the parishes mentioned.

The defendants-appellees filed an exception to the venue, asserting that the suit to partition lands located in Ascension, St. James and Assumption Parishes must be brought in each parish in order to affect the particular property located in that parish. Their position is that Article 80 of the Code of Civil Procedure applies only to the situation covered in Article 1291 of the Civil Code, and that a single action for partition can not be filed in one parish, in this case Assumption Parish, to affect immovable property located in the other parishes.

The plaintiffs-appellants urge that the trial court erred in dismissing their action as to lands not located in Assumption Parish because some of the immovable property is in fact located in Assumption Parish, which is all that is required by LSA-C.C.P. art. 80.

LSA-C.C.P. art. 80 states:

“The following actions shall be brought in the parish where the immovable property is situated:
(1) An action to assert an interest in immovable property, or a right in, to, or against immovable property, except as otherwise provided in Articles 72 and 2633; and
(2) An action to partition immovable property, except as otherwise provided in Articles 81, 82, and 83.
“If the immovable property, consisting of one or more tracts, is situated in more than one parish, the action may be brought in any of these parishes.”

In commenting on Article 80 of the Code of Civil Procedure, Moss, Venue (Comment), 21 La.L.Rev. 182, 190 (1960), remarks:

“However, a simplification is made in that if the property consists of one or more tracts, situated in more than one parish, the action may be brought in any of these parishes, the intention being to simplify the procedure and permit one suit rather than several to be brought.”

The Comments under Article 80 read in part:

“(a) The last paragraph of this article changes the law by broadening the rule of Art. 1291 of the Civil Code, so as to permit one court to adjudicate all issues, even though separate tracts situated in different parishes are involved.”

We find the trial court erred in its interpretation of Article 80. According to Article 80, a partition proceeding must be brought in the parish where the immovable property is situated; however, if there is property in more than one parish, venue lies in any of the parishes in which the property is located. The article in no way limits the broadened venue to the situation where “there is one continuous tract of land situated partly in different parishes.” See LSA-C.C. art. 1291. The Comment makes this clear. Contiguity is not a prerequisite to partitioning separate tracts of land located in several parishes in any one of the site parishes. Where there are three separate tracts of land situated in three different parishes, as in the instant case, it is not necessary that partition proceedings be brought in each of the three parishes in which the immovable property is located. The plaintiff may choose any one of the three parishes as the place to bring the action. We find that the concluding paragraph of Article 80 is clear and unambiguous. Under no concept which we can think of could it be-interpreted to be confined to the situation where separate tracts which are contiguous are sought to be partitioned, as contended by the defendants-appellees and as held by the trial court.

As we view the matter, it would have been simple for the redactors of the Code of Civil Procedure and the legislature to have used the term “continuous”, or “contiguous” in qualifying “tracts” if they so intended. We feel that to restrict the broadened venue to only the contiguous-tracts situation would be contrary to the clear meaning of the article. When an article of the procedural code, as any law, is clear and unambiguous, “its letter is not to be disregarded under the pretext of pursuing its spirit.” LSA-C.C.P. art. 5052; LSA-C.C. art. 13; See Reeves v. Police Jury of St. Tammany Parish, 29 So.2d 511 (La.App. 1 Cir. 1947). In the instant case, it is doubtful that even the “spirit of the law” would dictate such a limiting construction of the partition venue article, since such construction necessarily would require a multiplicity of lawsuits.

A further argument in favor of the appellant’s position is that the concluding paragraph of Article 80 of the Code of Civil Procedure applies to both paragraphs (1) and (2) of Article 80. While we have been unable to find any court decision interpreting paragraph (2), we have been referred to the case of Polmar v. Spencer, 256 So.2d 766 (La.App. 1 Cir. 1971), writ ref. 260 La. 1133, 258 So.2d 380 (1972), which was an action brought in Terrebonne Parish, against a corporate defendant and an individual defendant who was an Orleans Parish domiciliary, in solido, as a mixed action involving a demand to annul transfers of interest in immovable property and also to recover the fruits and revenues derived from the property. The court held in Polmer that the mandatory venue, under LSA-C.C.P. art 80(1), was either Terrebonne Parish or La-fourche Parish, the two parishes in which immovable property was located, and venue was not improper by reason of the fact that the individual defendant was domiciled in Orleans Parish. We find the rationale of Polmer persuasive.

DECREE

For the foregoing reasons, we hold that an action to partition immovable property, brought by a co-owner against other co-owners, where the immovable property consists of one or more tracts situated in more than one parish, may be brought in any parish in which the immovable property is situated, irrespective of whether the tracts are continuous or contiguous. In the instant case, either Ascension Parish, St. James Parish or Assumption Parish was a place of proper venue.

We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. The costs of this appeal are cast against the defendants-appellees; the assessment of all further costs shall await final disposition of the suit.

REVERSED AND REMANDED.

On Application For Rehearing.

Rehearing refused.

LOTTINGER, Judge,

dissenting.

This matter should have been handled on writs, but for the sake of judicial economy, the matter should have been decided as it was.


author: LOTTINGER, Judge.

text:
    Huey P. GUILLOT v. Andrew J. GUILLOT.
    No. 11265.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Jerry J. Guillot, Baton Rouge, for plaintiff and appellant.
    Jack B. Wise, Thibodaux, for defendant and appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

Plaintiff-appellant, Huey P. Guillot, appeals the judgment of the Trial Court sustaining a peremptory exception of prescription.

Defendant-appellee, Andrew J. Guillot, leased certain land to plaintiff for the purpose of growing agricultural crops. By written contract, the lease commenced September 1, 1963 and was to terminate on December 31, 1968. Plaintiff used the land for agricultural operations until approximately April 4, 1967 when he alleges that ■defendant prevented him from entering upon the leased premises to cultivate his sugar cane crop. The alleged breach of the lease is the cause of this suit which was filed on February 24, 1976.

Plaintiff’s suit is filed for breach of contract and not in tort although a tort possibly occurred by defendant’s refusal to allow plaintiff to use the property in question. It is well settled that when a party has been damaged by the conduct of another arising out of a contractual relationship, he may have two remedies, a suit in contract or an action in tort, and he can elect to recover his damages in either of these two actions. In such cases, the prescription applicable is determined by the character which plaintiff gives his pleadings and the form of his actions. See Federal Insurance Co. v. Insurance Company of North America, 262 La. 509, 263 So.2d 871 (1972) and McCrory Corp. v. Latter, 331 So.2d 577 (La.App. 1st Cir. 1976). Since plaintiff brings this suit in contract he is justified in relying on the prescription applicable to contract and disregarding the one year prescriptive period relating to tort.

Plaintiff argues that the ten year prescriptive period of LSA-C.C. art. 3544 is applicable. LSA-C.C. art. 3544 provides:

“In general, all personal actions, except those before enumerated, are prescribed by ten years.”

Defendant argues that LSA-R.S. 9:5601(1) governs this matter. The pertinent portion of LSA-R.S. 9:5601 provides as follows:

“The following actions are prescribed by one year:

(1) That for damages for the injury to or destruction of or the profits lost on a crop, in whole or in part, reckoning from the day the act occurred, or from the day the cause ceased if the cause was a continuing one.”

Statutes of prescription must be strictly construed, and as Mr. Justice Barham said in Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La.1975):

“[I]t must be presumed to have been adopted by a legislature aware that the provision would be strictly construed. ‘ * * * [Prescription is stricti juris and the statutes on the subject cannot be extended from one action to another, nor to analogous cases beyond the strict letter of the law.’ ”

Thus we note that in adopting Act 170 of 1902, which ultimately became LSA-R.S. 9:5601, the legislature did not specify whether all actions “for damages for the injury to or destruction of or the profits lost on a crop” including actions for breach of contract were prescribed in one year. Therefore, absent any express statement by the legislature of its intention, and applying the theory of “stricti juris”, we must conclude that the legislature did not intend to so restrict actions for breach of contract.

We therefore find that LSA-R.S. 9:5601 is not applicable to a suit for breach of contract, and that LSA-C.C. art. 3544 is controlling. Since it is alleged that the breach occurred on April 4, 1967, and suit was filed on February 24,1976, prescription has not run.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is reversed and remanded for further proceedings in accordance with the views expressed herein. All costs of this appeal to be paid by defendant-appellee.

REVERSED AND REMANDED.


text:
    Esther E. BRELAND v. UNITED INSURANCE COMPANY OF AMERICA.
    No. 11281.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      John N. Gallaspy, Gallaspy & Paduda, Bogalusa, for plaintiff.
    Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit on an insurance contract wherein plaintiff, Esther E. Breland, claims that her deceased husband converted a group life insurance policy, and defendant, United Insurance Company of America (United) denies conversion and coverage. From a judgment in favor of plaintiff, defendant has appealed.

The Trial Judge in written findings of fact and reasons for judgment found that th.e deceased husband had been employed by United for 10 years and was covered by their group policy from its inception (December 1, 1969). The group insurance required that the employee contribute monthly. In October of 1971, Mr. Bre-land became very ill and received benefits for 52 weeks under the disability phase of the group policy, and he was terminated from his employment on October 22, 1972, and thus no longer covered under the group policy. A 31 day period was allowed for converting the group term insurance to whole life, and this period began to run on October 31, 1972. The deceased was not informed as to when his conversion period began to run or that he had any rights under the policy at all, except that information contained in an initial booklet. On November 7, 1972, the defendant returned to the deceased his premium check and advised him that since his employment had terminated, he was no longer covered under the group policy. The deceased continued to forward in premium payments through June of 1973. On November 14, 1972, the decedent’s attorney wrote United requesting continued coverage and further requesting that he be supplied with a copy of the group master policy so that he could adequately advise his client. In reply United forwarded to the decedent’s attorney only a portion of the master policy which did not include the life insurance or conversion privilege portions. The Trial Judge further found as a matter of fact that a vice-president of United testified that if he would have received the letter of request of November 14, 1972, he would have treated it as extending the 31 day period for conversion, and would have felt a duty to mail the necessary conversion forms as a follow-up to this letter. The letter in part reads:

“This is to advise that Mr..Breland desires to continue his group insurance under the terms of the policy and to avail himself of the provisions of the policy to receive continued coverage upon the payment of the premiums.”

The Trial Judge concluded that this letter was a request for conversion of the group insurance. We see no reason to disagree with this conclusion.

The plaintiff alternatively contended that inasmuch as United was not only the employer of her husband, but also the insurer on the group insurance policy, it had a duty as employer to act in the best interest of her husband and inform him of his conversion privileges. Defendant contends that the duty does not exist under the facts of this case where the insured is an insurance salesman and is presumed to know of conversion privileges. The record points out that the only group insurance policy that the deceased ever had any occasion to deal with was that under which he was insured.

The Trial Judge concluded that a duty did exist under the authority of Neider v. Continental Assur. Co., 213 La. 621, 35 So.2d 237 (1948). We agree.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by defendant-appellant.

AFFIRMED.


text:
    Rose J. HENDERSON v. TRAVELERS INSURANCE COMPANY et al.
    No. 11284.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    John G. Fontenot, Eunice, for plaintiff Rose J. Henderson, appellant.
    Don L. Broussard, Lafayette, for defendant Travelers Ins. Co., et ah, appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

Plaintiff-appellant, Rose J. Henderson, has filed this appeal from the judgment of the Trial Court dismissing her suit for workmen’s compensation benefits, and judgment against her on defendant’s recon-ventional demand to return certain workmen’s compensation benefits paid in the amount of $9,655.85.

George E. Henderson, decedent, was employed by Fred A. Settoon, doing business as Settoon Oil Field Contracting Company, as a heavy equipment operator. On November 30, 1971, while in the course and scope of his employment, he received injuries to his skull and as a result thereof died on December 7, 1971. Decedent was making approximately $450.00 per week at the time of the accident, and plaintiff sued for workmen’s compensation benefits of $49.00 per week for 400 weeks under LSA-R.S. 23:1232, Section 1 and alternatively under Section 8, subject to a credit for benefits previously paid to her. At the time of decedent’s injury and death, plaintiff was not legally married to him but they had lived together as though man and wife in excess of eleven years. Plaintiff had raised her children by a legal marriage in decedent’s home; decedent had supported plaintiff and her children; plaintiff was totally dependent on decedent for support.

LSA-R.S. 23:1232, in part provides:

“Payment to dependents shall be computed and divided among them on the following basis:
(1) If the widow or widower alone, thirty-two and one-half per centum of wages.
5}! % * Sfc # *
(8) If there are neither widow, widower, nor child, nor dependent parent entitled to compensation, then to one brother or sister, thirty-two and one-half per centum of wages with eleven per centum additional for each brother or sister in excess of one. If other dependents than those enumerated, thirty-two and one-half per centum of wages for one, and eleven per centum additional for each such dependent in excess of one, subject to a maximum of sixty-five per centum of wages for all, regardless of the number of dependents.”

Plaintiff’s first argument is that she should be decedent’s “widow” under LSA-R.S. 23:1232(1) and allowed to recover just as though she were legally married to the decedent at the time of his injury and death. As a basis for her argument, plaintiff cites Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) and Glona v. American Guaranty & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968). The Levy case held that under LSA-C.C. art. 2315, illegitimate children could recover for the loss of their mother. The Glona case held that under Louisiana law a mother could recover for the death of her illegitimate son. We note that in the case of Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), the U.S. Supreme Court declined to extend the holdings in Levy and Glona to Louisiana’s statutory scheme for intestate succession. It is also important to note that Levy and Glona both dealt with illegitimate children, who even though illegitimate were still biological children of the person killed or the plaintiff in the case. Since Louisiana does not recognize common law marriage, there is no way plaintiff herein can be anything but a concubine. Since she is not a wife, likewise she is not a widow under LSA-R.S. 23:1232(1).

We now turn to plaintiff’s alternative argument that LSA-R.S. 23:1232(8) is authority for allowing plaintiff recovery. The evidence is clear that plaintiff was dependent on decedent for the entirety of her support, and that no one else was a dependent of decedent. Since decedent left neither widow, widower, child, dependent parent, and dependent brother or sister, we now consider whether plaintiff can come under the category of “other dependents” of LSA-R.S. 23:1232(8). In connection with this it is necessary to consider the second sentence of LSA-R.S. 23:1253 which reads:

“No person shall be considered a dependent, unless he is a member of the family of the deceased employee, or bearing to him the relation of husband or widow, or a lineal descendant or ascendant, or brother or sister, or child.”

The Louisiana Supreme Court has given a broad interpretation to the requirement that the claimant be “a member of the family of the deceased employee” in the factual situations it has considered except for the situation presently before us. In Archibald v. Employers’ Liability Assurance Corp., 202 La. 89, 11 So.2d 492 (1942), the court allowed a father-in-law, mother-in-law, and two sisters-in-law of the decedent to recover. The court, in Archibald, said that the Legislature never intended that family be given a restrictive meaning. In Thompson v. Vestal Lumber & Manufacturing Co., 208 La. 83, 22 So.2d 842 (1944) the court in allowing workmen’s compensation benefits to the children, said that a woman and a deceased employee who had never married but had lived together with their children constituted his family. Nevertheless, this Court in Moore v. Capitol Glass & Supply Co., 25 So.2d 248 (La.App. 1st Cir. 1946) refused to hold that a man and woman who lived alone in open concubinage constituted a “family” within the context we have before us. Then in Patin v. T. L. James & Co., 218 La. 949, 51 So.2d 586 (1951) the Court held that a deceased employee’s concubine’s minor nephew who lived with decedent to be a member of his family citing the Archibald and Thompson cases. In Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958) the court did not allow a concubine to recover under LSA-R.S. 23:1232(8) saying that it was never within the contemplation of the Legislature to include under the provisions of LSA-R.S. 23:1232 a dependent who had lived in open concubinage with a deceased during his lifetime. Finally, in the case of McDermott v. Funel, 258 La. 657, 247 So.2d 567 (1971) Justice Tate writing for the court said:

“It is now settled that a member of the family household (as the present plaintiff mother is), if dependent, is entitled to recover compensation benefits when a contributing wage earner dies as a result of work-caused injuries. The dependent member of the family is entitled to compensation regardless of blood relationship or the technicalities of inheritance law or of acknowledgment or not of illegitimate children. This is in view of the socio-economic purposes of the statute to provide compensation for dependents deprived of support through the work-caused death of a wage earner.”
Footnote 1 to the above quotation says:
“The sole jurisprudential exception is made in the case of a dependent concubine herself, Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895 (1958), an exception still recognized, although the concubine’s children and other relatives may receive compensation, see decisions cited in text, if dependent members of the household.”

The above quotation is the latest expression which we were able to find by the Louisiana Supreme Court. This result seems contrary to our best interpretation of LSA-R.S. 23:1232(8) for plaintiff herein was a dependent of decedent and under the Archibald and Thompson cases, supra, she could be considered a member of his family.

Professor Wex Malone in his treatise, Louisiana Workmen’s Compensation, Section 304, at page 399, commenting on this issue says:

“The writer suggests that this pronouncement is more moralistic than it is sound. No other claimant need prove his moral worthiness so long as he or she is dependent. It would seem that the fault of a dependent concubine should no more exclude her from compensation than should the fault of the employee himself. Furthermore, the position of the court ignores the well-known fact that many negro couples live in concubinage through ignorance or because of the prohibitive cost of divorce proceedings, rather than because of moral delinquency. The social need for compensation here is as great as though the dictates of convention had been met. It does not seem fair that the employer or his insurer should profit by the windfall. The only justification of the court’s position is the fact that concubinage is likely to be a transitory relationship, and there is little assurance that the bereaved concubine will long remain in need of compensation. This, however, is not an insuperable objection, because the Act provides an adequate means for terminating the claim when dependency ceases.”

Though we feel that plaintiff herein should be allowed recovery, as an intermediate appellate court we feel ourselves bound by the latest expression of the Supreme Court in McDermott v. Fanel, supra, and therefore affirm the Trial Court in denying plaintiff recovery.

We now come to plaintiff’s argument that the Trial Court’s allowance of defendant’s reconventional demand for compensation paid in error in the amount of $9,655.85 was incorrect. Of the total figure, $3,265.85 was paid as medical expenses to the provider of services. Furthermore, $1,000.00 was paid to Ardoin’s Funeral Home for funeral expenses. Defendant’s obligation to pay funeral and medical expenses was in no way dependent on plaintiff’s right to collect compensation. Accordingly the judgment of the Trial Court is amended so as to reduce same to $5,390.00.

For the above and foregoing reasons, the judgment of the Trial Court is amended and as amended it is affirmed. Defendant is to pay costs of this appeal.

AMENDED AND AFFIRMED.


author: LOTTINGER, Judge. COVINGTON, Judge,

text:
    Lewis E. JOHNSON v. CAPITAL CITY PRESS, INC., et al.
    No. 11288.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      James E. Boren, Baton Rouge, of counsel, for plaintiff, Lewis E. Johnson, appellant.
    Frank M. Coates, Jr., Baton Rouge, of counsel, for defendants, Capital City Press, Inc., et al., appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a defamation suit. From a judgment in favor of defendants granting their motion for summary judgment, plaintiff has appealed.

At the time of the alleged defamation, plaintiff, Lewis E. Johnson, was chairman of the Louisiana Board of Highways. Plaintiff contends that the defendants, Capital City Press, Inc., as owner and publisher of the Morning Advocate newspaper, and the State-Times newspaper, both published in the city of Baton Rouge, Louisiana, as well as Larry Dickinson, reporter, writer and employee of both newspapers as well as Capital City Press, Inc., defamed him by an article that appeared in the State-Times newspaper on October 19, 1972, that the article was repeated in the Morning Advocate newspaper on October 20, 1972, and that in subsequent news stories appearing in the Baton Rouge Morning Advocate on October 21, 1972, the Sunday Advocate October 22, 1972, the State-Times October 23, 1972, the Morning Advocate October 24, 1972, the defendants repeated the libel charging plaintiff with “intimidating business tactics”.

In seeking the motion for summary judgment defendants argue that plaintiff at the time of the newspaper articles was chairman of the Louisiana Board of Highways, and thus a public official as that term is used in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and its progeny. Thus they argue that plaintiff must prove that defendants published the articles with actual malice, that is with knowledge that the information contained therein was false or with reckless disregard of whether it was false or not. New York Times v. Sullivan, supra.

In support of their motion for summary judgment, defendants attached thereto an affidavit by the defendant Larry Dickinson which sets forth in detail his sources of information as to specific statements appearing in the alleged articles that the plaintiff contends are defamatory. The affidavit further sets forth that the defendant, Larry Dickinson, had no reason to disbelieve the information furnished. Copies of letters from the Housing Authority of New Orleans as well as copies of various pleadings from court proceedings in which the plaintiff was a party litigant were also attached to the motion.

In opposition to the motion for summary judgment plaintiff filed three affidavits which after attesting that each of the affi-ants had had many business dealings with the plaintiff further stated “that Johnson has always been honest and fair in his business dealings and he knows of no occasion on which Johnson has evidenced greed or avarice in his business activities. That affi-ant has always found Johnson to be of a generous nature and good and devoted family man and respected member of his community.” Further in opposition to the motion for summary judgment, plaintiff filed his own affidavit which states “that the statements appearing in the article of October 19, 1972 were false; were never [sic] made and were published by defendants with malice and utter disregard as to whether or not same were true. That the entire tone of the Article is designated to reflect upon affiance’s personal business reputation and character and nowhere contains any reference to his conduct as a public official. That because of the comments in the Article about affiant’s private business dealings affiant has sustained serious injury to his reputation and character and personal financial loss.”

The Trial Judge in oral reasons for judgment after mentioning Batson v. Time, Inc., 298 So.2d 100 (La.App. 1st Cir. 1974) and Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970) concluded that the plaintiff would be unable to prove actual malice, and thus granted the motion for summary judgment dismissing plaintiffs suit with prejudice.

Plaintiff contends on appeal that the articles in question do not involve his conduct as a public official nor do they relate to conduct which would affect his conduct as a public official, and further, that he is not a “public figure” so as to fit within the standard of Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094. Secondly, plaintiff argues that even if the New York Times rule of malice was a prerequisite to his recovery, then the Trial Judge erred in ruling the plaintiff could not make the required showing of malice.

On the dates the article complained of appeared in the defendant newspapers, plaintiff was a member of the Louisiana Board of Highways, and thus a public official.

The United States Supreme Court in New York Times Co. v. Sullivan, supra, said: “The Constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Though the Supreme Court spoke in terms of “official conduct” in Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125, the court tempered that language as it pointed out in Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35, when it said “In Garrison v. Louisiana, supra, we reversed a conviction for criminal libel of a man who had charged that a group of state court judges were inefficient, took excessive vacations, opposed official investigation of vice, and were possibly subject to ‘racketeer influences.’ The Louisiana Supreme Court had held that these statements were not ‘criticisms * * * of the manner in which any one of the eight judges conducted his court when in session, ‘but rather were accusations of crime and ‘personal attacks upon the integrity and honesty’ of the judges. This court rejected the proposed distinction:

‘Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. The New York Times rule is not rendered inapplicable merely because an official’s private reputation, as well as his public reputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the officials private conduct.’ ”

Monitor Patriot Co. v. Roy, supra, was a case wherein a newspaper characterized Alfonse Roy, a candidate for public office, as a “former small time bootlegger”.

Thus, the reporting of the plaintiff’s private business activities, regardless of their relationship in time to his holding office, fall within the New York Times rule where facts show his integrity, qualifications, compassion, honesty, ethics, or “anything which might touch on an official’s fitness for office.”

As to the plaintiff’s contention that the Trial Judge was in error in ruling that plaintiff could not make the required showing of malice, we disagree. In opposition to the motion for summary judgment plaintiff filed affidavits attesting to his good moral character only, which, in conjunction with the pleadings and any other acceptable evidence, do not present any evidence establishing a genuine issue of material fact, that is, whether the trier of fact could conclude with “convincing clarity” that the defendants acted with malice or with such reckless disregard of whether the facts contained in the published articles were false or not.

The plaintiff cannot resist the defendant’s motion for summary judgment by merely arguing that there is an issue for the jury as to malice, unless he makes some showing from which malice may be inferred. Thompson v. Evening Star Newspaper Co., 129 U.S.App.D.C. 299, 394 F.2d 774 (1968). And in order to proceed past the motion for summary judgment stage of the proceedings, the plaintiff is required to show that he has sufficient probative substance to be able litigable to give rise to an issue of fact of whether such malice actually existed or not. United Medical Laboratories v. Columbia Broadcasting System, 404 F.2d 706 (9th Cir. 1968).

And as one Federal Court has said, “in no other area of civil litigation is the burden so ominous as in the law of defamation. To survive summary judgment proceedings it is necessary that plaintiff offer some evidence upon which a jury could find convincing clarity of actual malice or reckless disregard. * * * There must be ‘ * * * sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts’ ” as to the truth or falsity of the publication. Ragano v. Time, Inc., 302 F.Supp. 1005 (M.D.Fla.1969).

The plaintiff has not met the burden imposed upon him and thus, the judgment of the Trial Court is affirmed. All costs of this appeal to be paid by plaintiff-appellant.

AFFIRMED.

COVINGTON, Judge,

concurring:

I concur for the reason that I believe that, considering the plaintiff’s pleadings and affidavits in the light most favorable to him, there is no genuine issue of a material fact regarding actual malice posed in the instant case under the guidelines set out by Batson v. Time, Inc., 298 So.2d 100 (La.App. 1 Cir. 1974), writ denied, La., 299 So.2d 803.

By concurring in the result I do not intend to reassure the news media that unwarranted personal attacks on public officials bear a unanimous stamp of judicial approval. Character assassination is cloaked with no mantle of immunity by the First Amendment. The published articles in the instant case contain opprobrious remarks concerning the physical characteristics of the plaintiff which can only be labeled as “cheap shots”. To use, or abuse, such a precious freedom right in such a manner reflects adversely on the exponent of the art, if not the art itself. Such tactics are anathemata to good journalism, generating much more heat than light. They can not be said to be in fulfillment of the worthy aims of the United States Supreme Court in the renowned case of New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), to assure “debate on public issues should be uninhibited, robust and wide-open, . . . (including) vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” in order that we be an informed people.

      . The Trial Judge should have ruled that there was no genuine issue of material fact, that is, whether the plaintiff had any evidence of such convincing clarity from which the trier of fact could find that the defendant acted with actual malice or such reckless disregard of whether the facts contained in the published article were false or not.

      . Members of the Louisiana Board of Highways are appointed by the governor, and the board has general control, management, supervision, and direction of the State Department of Highways. Art. 6, § 19.1, La.Const. (1921).


author: ELLIS, Judge.

text:
    Louis Franklin MUNRO and Rose F. Munro v. LEISURE, INC. and Ernest M. Loeb, III, and Associates.
    No. 11292.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.
    Philip S. Brooks, New Orleans, for plaintiffs, appellants.
    William C. Alford, II, Slidell, for Leisure, Inc., defendant, appellee.
    Allen Wayne Buras, Rodrigue & Pierson, Covington, for defendant (third party), Ernest M. Loeb, III, and Associates.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a petitory action brought by Louis Franklin Munro and Rose F. Munro against Leisure, Incorporated. By third party petition, Leisure called its vendor, Ernest M. Loeb, III, and Associates, in warranty. After trial on the merits, judgment was rendered dismissing plaintiffs’ suit, without mention of the third party demand. Plaintiffs have appealed.

Plaintiffs have alleged that Louis Franklin Munro is the owner, but not in possession, of Lot 1 in Division 3 of Howze Beach Estates Subdivision, located in St. Tammany Drainage District No. 2, St. Tammany Parish, Louisiana.

The evidence shows that, as of the time the suit was filed, Leisure was in possession of the tract, and had constructed part of a golf course thereon. Under Article 3653 of the Code of Civil Procedure, a plaintiff in a petitory action must “make out his title” to the disputed property, if the defendant is found to be in possession thereof. This language has been interpreted to mean that the plaintiff must “show title good against the world without regard to the title of the party in possession.” Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974).

The record shows that Mrs. Rose Franklin, wife of Charles H. Munro, acquired the subject property on October 20, 1931, from Tammany Real Estate Company, Inc. On December 6, 1933, the property was adjudicated to the State of Louisiana for non-payment of state and parish taxes for the year 1932.

On August 8, 1961, the said property was redeemed from the state, and Mrs. Munro received a redemption certificate on that date, reading as follows:

“I HEREBY CERTIFY, That Rose F. Munro has this day paid into the State Treasury the sum of Fifteen Dollars and thirty-four Cents, being the full amount of Taxes, Interest, Costs, and Penalties, due for the year 1932 on the following described property, assessed to Rose F. Munro which was returned on the Tax Collector’s list of land sold the State from the Parish of St. Tammany filed in the Land Office, on the 10th day of January, 1934
“Lot 1 Div. 3 HB Ward 8
Recorded 1/4/34 COB 123 Folio 356 And in consequence of the payment of said Taxes, Interest, Costs, and Penalties, I do hereby certify that the above described property is redeemed to said Rose F. Munro against whom or which said taxes were assessed, provided for by R.S. 47:2224 of 1950, as amended by Act 55 of 1954.
“And the said Rose F. Munro, having redeemed the said above described property by paying all the taxes, interest, costs, and penalties aforesaid, the said Rose F. Munro as owner is legally subro-gated to all rights, liens, and mortgages of the State, incident to and growing out of the taxes for the year 1932 and its records in the offices required by law, without prejudice to any privileges or mortgages of the State, Parish or Municipal Corporation for other taxes.

Plaintiff Louis Franklin Munro acquired the said property by inheritance from his father, Charles H. Munro and by purchase from his mother, Rose Franklin Munro. He therefore proved a valid, prima facie title back to Mrs. Munro, who is the common ancestor in title of both parties.

Defendant’s title stems from an adjudication of the subject property to St. Tammany Drainage District No. 2, dated December 28, 1935, made in the name of Rose F. Monroe for drainage taxes due for the years 1932, 1933 and 1934.

On June 11, 1962, the subject property, with other property was adjudicated to J. W. Beasley by the Marshal of the Eastern District of Louisiana. The sale was made pursuant to a writ of fieri facias under which the property of the Drainage District was seized and sold in satisfaction of a judgment rendered against it in federal court. The property has since descended via a regular chain of title to Leisure, Incorporated.

Plaintiff concedes the validity of the tax adjudication to the Drainage District. However, he contends that, as a matter of law, the redemption of the state tax sale must be considered as a redemption of the tax sale to the drainage district as well, divesting the Drainage District of title to the subject property prior to the judicial sale to Mr. Beasley.

R.S. 47:2224 reads, in part, as follows:

“If the owner or any person interested personally or as heir, legatee, creditor or otherwise, in any lots or lands bid in for and adjudicated to the state, as long as the title thereto is in the state or in any of its political subdivisions, or if not heretofore contracted to be sold by such subdivisions, shall pay to the treasurer of the state, the taxes, interests and costs and five per centum (5%) penalty thereon, with interest at the rate of one per cen-tum (1%) per month until redeemed, the Register of the State Land Office, upon production of the treasurer’s receipt, shall execute and deliver to such person a certificate of the same under the seal of his office, which, when duly recorded in the office of the recorder of mortgages of the parish wherein said property is situated together with the name of the person redeeming the same, shall be held and taken as evidence of the redemption of such land or lands; . . . the amount paid shall be entered upon the records of lands by the Register of the State Land Office, who shall also immediately notify the assessor of the parish wherein the redeemed property is located, in writing, of the fact of such redemption; provided, however, that no such certificate of redemption shall be so issued to the person redeeming until and unless all state, parochial, district, and municipal taxes due on the property up to the date of redemption shall have first been paid; and provided further, that all certificates issued under the provisions of this section shall be in the name of the original owner, to enure, however, to the benefit of any and all persons holding rights under such owner.”
¡k * ¡t¡ * sfc s(e
“All certificates of redemption of lands issued by the Register of the State Land Office, the title of which lands, at the time the certificate issued, was in the name of the state or in that of any of its political subdivisions, which certificates of redemption are otherwise issued in compliance with the provisions of this section shall, if duly recorded in the office of the recorder of mortgages of the parish wherein said lands are situated, be held and taken as evidence of the full and complete redemption of such lands, and as legal and valid.”

Plaintiff argues that, since the foregoing section stated that a certificate of redemption shall not be issued unless all district and other taxes due have been paid, the Register of the State Land Office is required to investigate and determine that all such taxes have in fact been paid. He further argues that one redeeming property from the state is entitled to presume that the Register had made such an investigation and that no state, parish, district or municipal taxes are due on the property redeemed.

However, we find that any presumption which may arise under R.S. 47:2224 is rebutted by the documents introduced in evidence. The redemption certificate itself, quoted above, specifically states that the redemption is without prejudice to privileges for other taxes, from which one can conclude that there may be other taxes due. The record further reflects that the drainage taxes were not, in fact, paid, since no redemption certificate was issued by the Drainage District.

We therefore conclude that the record reflects that the redemption certificate was not issued in full compliance with the provisions of R.S. 47:2224. Under the third of the above quoted paragraphs thereof, a certificate is evidence of “full and complete” redemption of the property covered thereby, only if there has been compliance with the provisions of the statute. Therefore, the certificate can stand for no more than a redemption from the sale for state and parish taxes only.

It follows that Rose Franklin Munro was divested of her title to the subject property by the tax adjudication to the Drainage District, and that plaintiff’s title, which deraigned from her and her husband, Charles H. Munro, is fatally defective.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


author: ELLIS, Judge:

text:
    LAKE PROVIDENCE DREDGING CO., INC. v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.
    No. 11297.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Rehearing Denied June 13, 1977.

      Ben Louis Day, Baton Rouge, of counsel, for plaintiff-appellee Lake Providence Dredging Co., Inc.
    Wm. Steven Mannear, R. R. Rainer, Baton Rouge, of counsel, for defendant-appellant Joseph N. Traigle, etc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This case involves the propriety of an assessment of sales taxes made by the Collector of revenue against Lake Providence Dredging Co., Inc. for certain gravel sold and delivered in Louisiana. After the assessment of the tax was upheld by the Board of Tax Appeals, Lake Providence sought judicial review of that determination. The matter was tried in the district court on the record established before the Board, and judgment was rendered reversing the Board’s decree. . From that judgment, the Collector has appealed.

The record establishes that State Hot Mix, and its successors, operated a plant which produced a mixture of asphalt, gravel and other materials, called “hot mix”, which is used in surfacing highways. All of the sales of gravel which are the subject of this case were made to State Hot Mix and its successors. At least 90 per cent of the gravel so sold was actually incorporated in the hot mix. Although the evidence in this case leaves much to be desired, we find that the record further establishes that the hot mix was then sold by State Hot Mix, and its successors, to other legal entities which, in turn, used it to surface portions of Interstate Highway 20.

R.S. 47:301(10) provides:

“(10) ‘Retail sale,’ or ‘sale at retail’ means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions as the collector, upon investigation, finds to be in lieu of sales; provided that sales for resale must be made in strict compliance with the rules and regulations. Any dealer making a sale for resale, which is not in strict compliance with the rules and regulations, shall himself be liable for and pay the tax.
“The term ‘sale at retail’ does not include sales of materials for further processing into articles of tangible personal property for sale at retail, nor does it include an isolated or occasional sale of tangible personal property by a person not engaged in such business.”

Article 2-38 of the Rules and Regulations Promulgated in Connection with Louisiana General Sales Tax provides, in part:

“Article 2-38. Resale Certificate. The Collector of Revenue will consider all sales to be retail sales unless the seller takes from the buyer a resale certificate signed by the buyer to the effect that the property was purchased for resale, or to be used as an ingredient or component part of a new article for sale at retail. Dealers are required to secure from the buyer a resale certificate upon a form provided by the Collector of Revenue, which form shall be filled out fully and completely in all detail giving all information called for on the form. Forms for resale certificates will be furnished to wholesale and retail dealers by the Collector upon request. Any dealer who fails to secure a resale certificate from a buyer, properly filled out, will be responsible for the collection of the tax on the sale involved.”

Article 2-37 of the Regulations provides:

“Article 2-37. Sales to manufacturers and producers. The gross receipts or gross proceeds derived from sales of raw materials to manufacturers and producers to be used in fabricating or producing finished articles of tangible personal property for resale, and which becomes a recognizable, integral part of such finished articles, are not subject to the tax imposed under the Sales Tax Act. The proceeds derived from subsequent sales of such finished articles of tangible personal property to consumers or users, are subject to the tax.”

Lake Providence contends that the gravel sold by it to State Hot Mix was to be further processed into articles of tangible personal property for sale at retail, and the tax on “sales at retail” does not apply.

The Collector contends that whether the transactions sought to be taxed are “sales for resale” or “sales of materials for further processing into articles of tangible personal property,” they were not made in strict compliance with Article 2-38, supra, and that Lake Providence is responsible for the tax under that regulation, because no resale certificate was obtained by it.

Lake Providence admits that it obtained no resale certificate, but contends that the provisions of the first paragraphs of R.S. 47:301(10) and of Article 2-38 have no application to this case. It is contended that sales of material for further processing are governed by Article 2-37, supra, which require no resale certificate, and that under that article, and the second paragraph of R.S. 47:301(10) the sales of gravel herein are simply not taxable.

We think the position of Lake Providence is correct. Article 2-38 of the Regulations clearly applies only to sales for resale, which are carefully distinguished from sales of material for further processing by both R.S. 47:301(10) and Regulation 2-37. We find that sales of material for further processing are not subject to the general sales tax, and that no administrative rule requires Lake Providence to obtain a certificate of resale from a purchaser-processor.

The judgment appealed from is therefore affirmed. The Collector shall pay whatever costs may be legally assessed.

AFFIRMED.