text:
    Mary Ann Elizabeth Stewart WILLIS (a/k/a Mary S. Willis and Goldye Stewart Willis), Plaintiff-Appellant, v. WINFORD COMPANY, INC., Winford D. Shaw and the Travelers Insurance Companies, Defendants-Appellees.
    No. 13736.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.

      Ford E. Stinson, Benton, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Kay Cowden Medlin, Shreveport, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Appellant has not shown the trial court was in error in rendering the summary judgment dismissing her action for the wrongful death of her major son because of her testimony in a deposition admitting her son was survived by three illegitimate children. Under the holding in Warren v. Richard, 296 So.2d 813 (La.1974) the fact that her deceased son left children, whether legitimate or illegitimate, precludes plaintiff from recovering for his wrongful death under La.C.C. Art. 2315.

Plaintiff’s counsel contends on appeal that the deposition of the ninety-two-year-old plaintiff standing alone is insufficient proof of no genuine issue of material fact. Plaintiff’s testimony in the deposition is clear and lucid and is positive in establishing that her deceased son left three illegitimate children who presently live in Shreveport. No counter affidavits were filed to contradict the allegations made in the motion for summary judgment. The copy of the succession proceedings filed by plaintiff in opposition do not negate or contradict the allegation that he left illegitimate children.

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    Freddie B. NEGEM, Plaintiff-Appellee, v. The PAUL REVERE LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 13687.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.

      Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for defendant-appellant.
    Baker, Culpepper & Brunson by J. Michael McDonald, Farmerville, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

In 1974 plaintiff obtained judgment against Paul Revere Life Insurance Company for monthly benefits under a health and accident policy issued by defendant to plaintiff. The present suit was filed for past due benefits under the 1974 judgment, penalties, attorney fees and interest on the entire amount. For oral reasons made part of the record, judgment was rendered in plaintiff’s favor substantially as prayed for. Defendant appeals questioning the award of penalties and attorney fees and also the award of interest on the penalties and attorney fees. We affirm.

The 1974 judgment provided that Paul Revere would pay to plaintiff the sum of $200 per month beginning February 27, 1974 and “continuing thereafter for as long as the plaintiff continues to be disabled from the injuries which formed the basis of his disability as alleged in this suit.” Defendant paid under this judgment until March of 1976, when payments were terminated because plaintiff failed to submit a medical progress report to defendant evidencing his continued disability.

Plaintiff brought this suit seeking unpaid monthly benefits, penalties in a like amount, and attorney fees under La.R.S. 22:657. In answer to the suit defendant relied upon an alleged agreement between it and plaintiff’s attorney under which progress reports were to be submitted to defendant every six months. Because no progress report had been received since August 20, 1975, benefits were discontinued.

The record reflects the defendant requested progress reports initially on a monthly basis and later at six-month intervals. The forms were sent to the office of plaintiff’s attorney. Some reports were supplied intermittently by the plaintiff at his expense. At trial plaintiff’s attorney denied making an agreement with defendant that the reports would be submitted as a prerequisite for the monthly payments.

The trial court did not directly address the question of whether an agreement existed between plaintiff’s attorney and Paul Revere concerning the submission of progress reports. However, the trial court reasoned that defendant acted arbitrarily and unreasonably in requiring plaintiff to continually submit progress reports, at his own expense, after it had been judicially determined that he was totally disabled. The court observed that if Paul Revere had doubts about plaintiff’s condition it was incumbent upon it to arrange for plaintiff to be examined by a physician at its expense. Accordingly, the court rendered judgment in favor of plaintiff for $4,800 for past due benefits, $4,800 for statutory penalties, and $1,000 attorney fees, together with legal interest on the entire amount from date of judicial demand.

On appeal, defendant first contends it did not act unreasonably or arbitrarily in discontinuing the benefits because it was relying upon an agreement with plaintiff’s attorney that progress reports would be submitted. Although there was evidence one of Paul Revere’s agents believed his company had an agreement with plaintiff’s attorney, defendant failed to prove any agreement existed or that it even had reasonable ground to believe it existed. The insurance policy contained no provision relative to the duty of the insured to furnish proof of disability following a final judgment decreeing the insurance company’s liability to the insured. Once adequate proof of a claim is submitted, it is not the claimant’s responsibility to submit, at his expense, additional proof. Matthews v. Coastal States Life Ins. Co., 291 So.2d 475 (La.App. 3rd Cir. 1974); Smith v. Mutual Life Ins. Co. of New York, 165 So. 498 (La.App. 2d Cir. 1936). The company’s requirement that plaintiff continually submit, at his expense, proof of his disability was unreasonable.

Defendant next argues that the trial court erred in awarding legal interest on the penalties and attorney fees because La. R.S. 22:657 does not expressly provide for this. Defendant contends this statute is penal in nature and should be strictly construed. Although we are unable to find any jurisprudence dealing with the issue of whether legal interest may be awarded on penalties and attorney fees imposed under La.R.S. 22:657, our research reveals that interest has been awarded on the 12% penalty provision and attorney fees imposed under La.R.S. 22:658, which deals with payment of claims under policies other than life, health and accident. Baghramain v. MFA Mutual Ins. Co., 315 So.2d 849 (La.App. 3d Cir. 1975) (writ denied 320 So.2d 207, 209 (La.1975)); Doty v. Central Mutual Ins. Co., 186 So.2d 328 (La.App. 3d Cir. 1966) (writ denied 249 La. 486, 187 So.2d 451 (1966)); Roberts v. Houston Fire & Casualty Co., 168 So.2d 457 (La.App. 3d Cir. 1964). This statute, like R.S. 22:657, does not expressly provide for legal interest. Analogizing from this jurisprudence, we find the insurer should be required to pay legal interest upon the penalties and attorney fees provided for in La.R.S. 22:657.

The judgment is affirmed at appellant’s cost.

      . La.R.S. 22:657 provides in pertinent part:
      A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection B, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.

      . In Humphries v. Puritan Life Ins. Co., 311 So.2d 534 (La.App. 3d Cir. 1975), the appellate court held the trial court did not err in refusing to allow legal interest on penalties and attorney fees awarded under La.R.S. 22:657 because plaintiff failed to specifically pray for interest on these items.


text:
    Don FREEMAN, Plaintiff-Appellee, v. C. D. BELL, Willie Brewer, and Willie Brewer and Associates, Inc., Defendants-Appellants.
    No. 13692.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Refused March 23, 1979.

      Piper & Brown by Robert E. Piper, Jr., Shreveport, for defendants-appellants.
    Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appel-lee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

Plaintiff sued for personal injuries resulting from being shot in the head by the doorman at a discotheque club. Defendants are C. D. Bell, the doorman; Willie Brewer, the general manager; and Willie Brewer and Associates, Inc., owner of the club. Following a jury trial, judgment was rendered in plaintiff’s favor against all three defendants in solido for $250,000. Defendants appeal and we affirm.

There are multiple issues relating to liability and quantum which we shall set forth and discuss separately.

Plaintiff went to the Afrocana Club in Bossier City on the evening of April 7,1977. He attempted to enter the club while carrying a drink, which was against club rules. He complied with a request by the doorman, Bell, to discard the drink. Later in the evening plaintiff went outside and was again carrying a drink when he tried to re-enter. The doorman testified that he pointed out the club rules posted on a wall to plaintiff, when plaintiff cut him on the right thumb with either a knife or a bottle opener. The doorman said he reached into his pocket for his gun and plaintiff grabbed for the gun. A struggle ensued and the gun, held by the doorman, went off and shot plaintiff in the head. Plaintiff was unable to testify with respect to the shooting because of amnesia.

The only other witness to the encounter to testify was another customer, Willie Mae Walker. She said there was a tussle between plaintiff and the doorman after the doorman apparently told plaintiff to leave the club. She testified plaintiff did not cut the doorman prior to the shooting.

Defendants’ first contention on appeal is that plaintiff provoked the shooting by violating club rules and cutting the doorman’s right thumb. It is well settled that an aggressor is precluded from recovering damages incurred as a result of his own actions. However, if the person attacked employs excessive force in defending himself he is liable for damages for the injuries caused by the use of excessive force. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969); Porche v. Fernandez, 286 So.2d 418 (La.App. 4th Cir. 1973); Flores v. Black, 260 So.2d 144 (La.App. 2d Cir. 1972). The testimony conflicted as to whether or not plaintiff cut the doorman’s thumb. The jury apparently accepted Willie Mae Walker’s testimony that plaintiff did not cut the doorman prior to the shooting. We find no error in the jury’s rejection of the aggressor defense. The record also supports a finding that the doorman’s use of the pistol constituted excessive force under the circumstances.

Defendants next argue the jury erred in finding that an intentional tort [battery] occurred because the shooting resulted from an accidental discharge of the gun. The doorman testified he did not intend to shoot plaintiff but only meant to scare him. Nevertheless, the doorman’s aggressive action in pulling a loaded pistol out of his pocket supports a conclusion that he intended the result which was almost certain to follow. Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir. 1975); Kipp v. Hurdle, 307 So.2d 125 (La.App. 1st Cir. 1975). The facts support a finding that a battery occurred.

Defendants next argue the jury erred in finding Willie Brewer, in his capacity as general manager of the Afrocana Club, liable to plaintiff. In addition to being the general manager, Brewer was the president and a major stockholder of the corporation which owned the club. In his capacity as general manager he testified he was responsible for hiring and firing club employees and in seeing that the club was run in an orderly manner.

The essence of plaintiff’s case against Brewer was that he was negligent in hiring Bell as doorman and in keeping him in that position because he had knowledge that Bell was dangerous. Plaintiff relies upon the following test set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973) for holding Brewer liable for breaching a duty of care owed by him to plaintiff in his capacity as an employee of the club:

1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
2. This duty is delegated by the principal or employer to the defendant.
3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.

The owner of a public place owes patrons a duty to exercise reasonable care to protect them from harm from other patrons or employees. Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976). The record supports a finding that this duty of care towards patrons was delegated to the general manager, Brewer, who was responsible for the personnel and maintaining order.

Further, there is evidence supporting a finding that Brewer breached his duty of care toward plaintiff by retaining the doorman as an employee as he was aware of Bell’s propensity toward violence. One former patron testified that Brewer was aware of an incident when Bell had threatened him with a gun when the patron came to the club to pick up a friend. On cross-examination Brewer admitted that Bell had shot another patron at the club. Brewer testified that after the shooting incident he told all the employees they would be discharged if they came to work with a gun. The record reflects, however, that this policy was not strictly enforced. We find no error in the jury verdict holding the general manager liable to plaintiff.

Defendants also argue the trial court erred in allowing into evidence the testimony referred to above concerning the prior threat and shooting incident by the doorman. Defendants contend these inquiries into specific acts by the doorman were improper impeachment evidence and were highly prejudicial.

We find this evidence was introduced for the purpose of establishing the general manager’s negligence in retaining Bell as a doorman. The trial judge on several occasions carefully admonished the jury that any past acts of misconduct on the doorman’s part were not to be considered in the case against him but were only relevant insofar as the general manager was concerned. Under these circumstances we find no' error.

Defendants next argue that the trial court erred in allowing an economist to testify as to plaintiff’s future loss- of wages because there was not a sufficient eviden-tiary basis for the testimony. The economist projected that about $462,000 would recompense plaintiff for future lost wages. The projection was based upon a $13,500 annual salary for a draftsman and a condition of total and permanent disability. Defendants objected to the testimony on the ground that plaintiff did not have a work history and that it had not been established that plaintiff was permanently disabled.

The trial court ruled that a sufficient predicate had been laid for the testimony and that the defendants’ objections affected the weight to be given the testimony rather than its admissibility. We find no error in this ruling. Plaintiff was a college sophomore majoring in drafting when he was shot in the head. The medical testimony indicates that plaintiff has very limited use of his right arm and leg, and has expressive aphasia stemming from brain injuries caused by the severe head wound. He also suffers from post-traumatic epilepsy. Although the medical testimony indicates he may gradually improve with time, he is for all practical purposes totally and permanently disabled.

Defendants’ final argument on appeal is that the $250,000 jury award is excessive. The medical testimony established that the bullet entered plaintiff’s head from the rear and traveled through portions of his brain which govern right arm and leg movement and speech abilities. He underwent a carotid arteriogram and surgery to remove the bullet. Some bullet fragments still remain in his skull and the brain tissue which was destroyed will not regenerate. As a result of the brain damage plaintiff has very limited use of his right extremities. One surgeon testified that plaintiff would be unable to use his right hand in any meaningful or gainful activity. As a result of the bullet traveling through the speech center of his brain, plaintiff suffers from expressive aphasia which is the inability to effectively verbalize his thoughts. He also developed post-traumatic epilepsy. Considering the severity of these injuries, together with the testimony concerning future loss of wages, we find the award is within the jury’s range of discretion.

The judgment is affirmed at appellants’ cost.


author: JONES, Judge.

text:
    Juanelda MONTGOMERY et vir., Plaintiff-Appellant, v. AMERICAN FIRE & INDEMNITY COMPANY et al., Defendant-Appellee.
    No. 13696.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Donald R. Miller, Shreveport, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King, Shreveport, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiffs, husband and wife, brought this action on November 10, 1977 against defendant, American Fire and Indemnity Company, for damages arising from an automobile accident which occurred on November 17, 1976, which they allege was due to the negligence of the defendant’s insured. The plaintiff-wife was injured in the accident while driving a community automobile which was damaged in the accident.

Plaintiff-wife sues for her loss of wages in the amount of $5,423.20. Plaintiff-husband also sues for his lost wages of $2,000 which he failed to earn during the time he stayed at home and cared for his injured wife.

Defendant filed a motion for summary judgment alleging plaintiffs split their cause of action, which is prohibited by C.C.P. Article 425 because they filed a prior suit for damages arising out of the same accident on August 17, 1977 against American Fire and Indemnity Company and John H. Lewis.

In the prior suit, plaintiff-husband, as head and master of the community, asked for the following damages: property damage to automobile, $500; past and future medical expenses for wife, $6,051.25; past and future loss of wages for wife, $10,000. Plaintiff-wife asked for $100,000 damages for her personal injuries. On the second and last day of the prior trial, defendants filed an exception of no right of action directed at the husband’s suit for his wife’s lost wages based upon C.C.P. Article 686 which provides the wife is the proper party plaintiff to sue for her loss of wages. The trial judge sustained the defendant’s exception of no right of action. The husband was not permitted to prove the wife’s loss of wages. A judgment was therein rendered pursuant to a jury verdict of $750 for the husband and $2,500 for the wife.

In the present suit, plaintiff’s attorney filed an affidavit in opposition to summary judgment setting forth that plaintiffs did not elect to bring two suits, but the action of the defendants in the prior suit in objecting to the procedural capacity of the husband to sue for his wife’s lost wages, and in objecting to the substitution of the wife as plaintiff for lost wages to conform with C.C.P. Article 686, necessitated the present suit to fully compensate the plaintiffs. The court granted summary judgment for defendant and plaintiffs appeal. We affirm.

There is no evidence in the record that the trial court in the earlier proceedings refused to permit the plaintiffs to amend their petition to assert on behalf of the wife a demand for her loss of wages. Plaintiffs were entitled to amend their petition under the provision of C.C.P. Article 425 and C.C.P. Article 934. If the trial court denied plaintiffs the right to amend, they should have appealed in that suit and this they did not do and the judgment rendered therein is now final.

The issue on appeal is: have plaintiffs divided their cause of action under C.C.P. Article 425 by bringing a prior action for damages arising out of the same automobile accident precluding the prosecution of the instant action?

C.C.P. Article 425 requires a plaintiff in a tort suit to assert all elements of damages included within the obligation owed him by the tort feasor and if he fails to do so, he loses the right to enforce that portion of his claim which he failed to include in his suit. He may not thereafter institute a second suit to assert an element of his damages not included in the first suit. The article provides “he shall lose his right to enforce the remaining portion”.

In the decision of Richard v. Travelers Ins. Co., 323 So.2d 176 (La.App. 3d Cir. 1975), a wife was injured in an automobile accident and the community automobile was damaged. The husband filed a suit in city court for the property damage to the automobile and for expenses incurred by him carrying his wife to the doctor. He received a judgment for the claim asserted by him in the city court. He joined his wife in a suit in state district court, wherein she sued for her personal injuries, and sued as head and master of the community for her medical expenses. The court held that the husband as head and master of the community had lost the right to assert the community claim for the wife’s medical expenses because he had filed one claim for damages sustained by the community in the city court and did not include the medical expenses within this claim. He, therefore, lost the right to assert the medical expense claim in the second suit wherein the wife sued for personal injuries.

In McConnell v. Travelers Indemnity Company, 346 F.2d 219 (5th Cir. 1965), a husband who asserted a community claim in a state district court for his wife’s medical expenses incurred for treatment of her personal injuries was denied the right to proceed in the U.S. District Court for his damages due to personal injuries resulting from the same accident. The wife’s medical expenses and the husband’s damages were elements of the community cause of action, i. e., one obligation. When the husband asserted only part of the cause of action, this being the claim for his wife’s medical expenses, he lost the right to enforce the remaining portion of his cause of action. See also Fortenberry v. Clay, 68 So.2d 133 (La.App. 1st Cir. 1953).

The husband should have included his claim for his loss of wages which he allegedly sustained because he was required to stay home from work to look after his injured wife in the first suit filed by him, and his attempt to now assert it in a second suit falls within the prohibition contained in C.C.P. Article 425. Plaintiffs should have amended their petition to assert their claim on behalf of the wife for the wife’s loss of wages when the trial court sustained the defendant’s exception of no right of action directed at the husband’s claim for this element of damages. Plaintiff-wife had a cause of action for her personal injuries and for the community loss of her wages. The tort feasor owed her one. obligation which included these elements of damage. When the wife failed to assert her claim to the full obligation in the first suit, she lost the right to “enforce the remaining portion”.

The decision of Sutterfield v. Fireman’s Fund American Ins. Co., 344 So.2d 1159 (La.App. 4th Cir. 1977), cited by plaintiff is factually dissimilar from this one. The case involved a suit by an insured under the collision coverage of his policy in the city court for damages to his automobile sustained in an accident and a separate suit in the district court for personal injuries sustained in the same accident under the uninsured motorist coverage of the policy. The insurance contract does not permit recovery for personal injuries under the collision coverage, nor does it permit recovery for property damage under the uninsured motorist coverage. The court held that there were two distinct contractual obligations, one under the collision portion of the policy and one under the uninsured motorist portion of the policy and that the plaintiff had not split either of these obligations by instituting separate suits in separate courts to assert claims for each of these separate obligations owed him by the defendant insurer. The Sutterfield v. Fireman’s Fund American Ins. Co., supra, case is not authority for permitting the husband and wife to each assert in two different suits claims for separate elements of their damages owed them under their respective causes of action based upon the negligence of the defendant’s insured.

For the reasons assigned, the judgment is AFFIRMED at appellant’s cost.

      . C.C.P. Art. 425 — “An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of the obligation, and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion.”

      . C.C.P. Art. 686 — “The husband is the proper plaintiff, during the existence of the marital community, to sue to enforce a right of the community.
      Where a doubt exists whether the right sought to be enforced belongs to the marital community or to the separate estate of the wife, the husband and wife may sue in the alternative to enforce the right.
      The wife, however, is the proper party plaintiff to sue to enforce the right to recover wages, earnings, income, fees, stipends, proceeds and commissions due her as a result of her engaging in or pursuing any occupation, trade or profession involving her individual efforts, services, skills, arts, professional competence, vocational undertakings and personal endeavors, whether or not the same involves investments."

      . C.C.P. Art. 934 — “When the grounds of the objection pleaded by the preemptory exception may be removed by amendment of the petition, the judgment sustaining the exception SHALL order such amendment within the delay allowed by the court . . . ”


author: HALL, Judge.

text:
    In the Matter of the Interdiction of Mrs. Charlotte H. MAGEE.
    No. 13716.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Egan & Cook by Reuben W. Egan, Shreveport, for plaintiff-appellant, L. V. Magee.
    Campbell, Campbell & Johnson by Cecil P. Campbell and Henry G. Hobbs, Minden, for defendants-appellees, Yvonne Ulmer Hoffoss, William L. Hoffoss, Charlotte Ann Hoffoss Lott, John Lee Hoffoss and Bill Koen Hoffoss.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

In this interdiction proceeding, the only issue to be resolved on appeal is whether the district court erred in appointing a bank as curator of the property of the interdict instead of the interdict’s spouse who sought the appointment and who appeals from the judgment. Appellee is an alleged grandson of the interdict who also sought the appointment but who now acquiesces in the appointment of the bank. Neither party takes issue with the district court’s decision not to appoint a curator of the person of the interdict at this time.

LSA-C.C.P. Art. 4550 provides that the spouse of an interdicted person has the pri- or right to be appointed curator. The same article provides, however, that Article 4069 governs the appointment of a separate curator of the property and person. The latter article provides that in exceptional cases and for good cause shown, the court may appoint a bank or another person as tutor [curator] of the property of the minor [interdict], and that the appointment may be made upon the court’s own motion, the motion of the tutor [curator] or the motion of any interested person.

Here, the court on its own motion appointed the bank as curator of the property of the interdict because appellant and his wife kept their business affairs separate and had not really lived as husband and wife for a number of years. The trial court has wide discretion to act in the best interests of the interdict for the protection and preservation of the interdict’s property. In re Interdiction of Barnes, 182 So.2d 849 (La.App. 1st Cir. 1965). In Barnes, the district court’s appointment of a bank as curator of an interdict’s property over the objection of the interdict’s aunt, who was appointed curatrix of the person, was affirmed on findings that the aunt had no unusual qualifications as a business manager, the interdict himself desired a bank to handle his property, and there was a conflict between the aunt and the stepmother of the interdict. Here, although there is no evidence that appellant is not a competent manager of business matters, there is evidence of serious conflict between him and other members of the family and of the past desire and practice of the interdict to keep her property and business affairs separate from her husband, with whom she had a strained relationship. Under the circumstances, the appointment of the bank as curator of the property of the interdict was a reasonable exercise of the district court’s wide discretion, was for good cause, and will not be disturbed.

In the district court and on appeal appellant questioned appellee’s standing as a party to this action on the alleged grounds that appellee’s father was not actually the interdict’s son and there is no blood relationship between appellee and the interdict. The issue of descent was resolved in appellee’s favor by the district court, and is briefed by both parties on appeal.

Regardless of blood relationship, the record shows appellee’s father was reared by the interdict from birth and was held out to the world as her son. Appellee, as grandson, attended to many of the interdict’s needs in recent times. His status as an interested person was clearly established.

Any interested person has standing to oppose appointment of the spouse as curator, seek removal or disqualification of the spouse as curator, seek appointment as curator (although the spouse has the prior right under LSA-C.C. Arts. 412 and 413 and LSA-C.C.P. Art. 4550), or seek appointment of a separate curator of the property of the interdict (which the court can do, and did in this case, on its own motion). Blood relationship is not a requirement and is irrelevant to the issue of whether the distinct court properly exercised its discretion in appointing the bank curator of the interdict’s property—the only issue presented on this appeal. The matter of blood descent will not, therefore, be reviewed by this appellate court.

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

Affirmed.


author: MARVIN, Judge.

text:
    SLAGLE-JOHNSON LUMBER, INC., Plaintiff-Appellant, v. LANDIS CONSTRUCTION CO., INC. and Seaboard Surety Company, Defendants-Appellees.
    No. 13717.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Writ Granted Jan. 26, 1979.
    Theus, Grisham, Davis & Leigh by Paul D. Spillers and R. L. Davis, Jr., Monroe, for plaintiff-appellant.
    Thompson, Sparks, Cudd & Dean by Wood T. Sparks, Monroe, for defendants-appellees.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In this action under the Public Works Act (R.S. 38:2241 et seq.), the plaintiff appeals the rejection of its demands for recognition of a materialman’s lien arising out of the construction of the football stadium at Northeast Louisiana University in Monroe, a concrete structure completed in September, 1978.

The lower court held that the material sold by plaintiff to a subcontractor (plywood, lumber and nails), and used with other material to build forms for the structure into which was placed steel and concrete, was not material or supplies furnished for the construction of the stadium within the meaning of the Act. We agree. H. R. Hayes Lumber Co. v. McConnell, 176 La. 431, 146 So. 14 (1933).

Some of the wooden forming material survives the job and may be used on other jobs. Much of the material, however, becomes useless after repeated assembly and dismantling. Here the • subcontractor defaulted on his forming contract when the work was about 30 percent complete. The general contractor, with some of its own material, used some of the material abandoned on the job by the subcontractor, and completed the remainder of the forming work.

The Public Works Act, originally Act 224 of 1918, although often amended and expanded in many respects since then, has remained unchanged with respect to what materials are lienable, as has the interpretation of the statute in several cases. To be furnished for the construction of a public work and thus lienable, the material must be incorporated into the work or directly consumed by the work so as to become a part of the work. H. R. Hayes Lumber Co., supra.

“It appears to be well settled that materials which form a component part of the completed structure or are consumed in the work are considered covered by the contractor’s bond given under the provisions of [the] Act ... On the other hand, it is equally well settled that the instrumentalities forming a part of the contractor’s plant or equipment used in doing the work which survive the performance and remain the property of their owner after the completion of the contract are not covered by the bond .” Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545, 547 (1941); B. & G. Crane Service, Inc. v. Anderson Bros. Corp., 132 So.2d 681 (La.App. 1st Cir. 1961); see Patent Scaffolding Co. v. Ross Corporation, 172 So.2d 364 (La.App. 4th Cir. 1965) writ refused; Best Electric Supply Company, Inc. v. Rittiner, 334 So.2d 792 (La.App. 4th Cir. 1976).

In the first cited case a lumber company which furnished material to a . bridge contractor was allowed recovery for part of the material which went into the completed structure, but not for the part of the material which did not go into the completed structure. In the second cited case, nails, cable, wedges and rope which were not shown to have gone into, or to have been consumed by, the construction of a highway were held not lienable.

In the Hayes Lumber Co. case, the material furnished was lumber and nails “. . . used for the construction of forms, into which concrete was poured and allowed to harden . . . The forms . were taken apart . . . and the material . . . was repeatedly used for the construction of new forms . all of the nails . . . and about 75 percent of the lumber was materially . destroyed . . . Some of the lumber, after the completion of the work, was . used on other contracts.” 146 So. at 15. The argument was made in Hayes Lumber Company that the forms were “effectively consumed” as were the dynamite and caps in Long Bell Lumber Company case. The Supreme Court answered:

“[2] The [Long Bell] case was one where, by the direct use and consumption of the material on the proposed bed of the roadway, a desired condition was brought about, which formed a permanent and necessary part of the roadway. In that sense, it may be said the material entered into the completed work. On the other hand, the present case is one in which the lumber and the nails were not used directly on the work, but indirectly on it, once removed, as it were, from the highway construction, much, though not quite so far, as was the saw that sawed the lumber. In this view, there is a clear distinction between this case and the Long Bell Lumber Co. Case — a distinction that it is necessary to observe, otherwise the act^ of 1918, which is intended to protect certain classes of claimants, will be made virtually of no value by the letting in of a large number of claimants, never intended by the Legislature, whose claims are far removed from the improvement under way. It may be said that it was not the intention of the majority of the court, in the Long Bell Lumber Co. Case, to depart from prior jurisprudence, as appears from the face of the decision itself. It may also be said that the question presented is not one of equity, but is one of law, and of that kind which must be construed strictly, and the jurisprudence under it must be uniform, for there is a vast amount of material furnished monthly in this state under the statute, the furnishers looking largely to the statute for protection.
“Since the [forming] material furnished did not enter directly into the improvement, but only in an indirect and secondary manner, and, in no sense, goes to make up the completed improvement, and since the act of 1918 has not been amended so as to bring the material furnished within its scope, there is nothing to do but to amend the judgment appealed from by rejecting the demand of the H. R. Hayes Lumber Company . . . ” 146 So. at p. 16.

The Hayes Lumber Co. case also discussed the equities which were there, as well as here, argued:

“In the case of State v. Smith, 167 La. 301, 320, 321, 119 So. 56, 63 [1928], in passing on claims, arising prior to the amendment of the act of 1918, by the act of 1926, for the sale ... of gasoline and oil for the use of the machinery in constructing ... a public highway, and for plain piling, used for a temporary trestle, it was said:
‘It will be seen that none of the supplies or materials enumerated entered into the structure of the road embankment. * * * The statute grants a privilege for “material furnished in the construction, erection, alteration or repair of such road.” If this language is intended to describe material entering into and forming part of the structure, according to its specifications and design, it of course, excludes the items enumerated, and such must be the interpretation. While there are equities favoring a different view, the term “material,” when found in a building statute, generally means something which becomes incorporated as a part of the building or structure, and it would require extremely liberal construction to construe it to include “supplies” not forming part of the structure.’ ” 146 So. at p. 16.

Continental Casualty Co. v. Associated Pipe & Supply Co., 310 F.Supp. 1207 (E.D.La.1969), on which plaintiff relies, interpreted the Long Bell case to allow a lien for wire and rope cut into various lengths and “effectively consumed” in facilitating pipeline construction, but not incorporated into the actual construction. The federal district court, however, failed to consider the explanation by the Louisiana Supreme Court of its Long Bell holding made in H. R. Hayes Lumber Co., and we attach no significance to the federal court’s decision.

In Jesse F. Heard & Sons v. Southwest Steel Products, 124 So.2d 211 (La.App. 2d Cir. 1960), cert. denied, this court noted that the protection of the lien statute would not be “stretched” to become an “endless chain”, and that the law was designed to protect only the contractor and subcontractor [and their respective creditors] for constructing “. . . some work of fixed and permanent nature . . . which . must be surrendered to him for whom the work was done.” 124 So.2d at 216. See also Thurman v. Star Electric Supply, Inc., 307 So.2d 283 (La.1975).

The material in question here (plywood, lumber and nails) was not incorporated into the completed concrete structure. The use of the material was temporary and not permanent and fixed. The material was not surrendered to the university for whom the work was done. Once the concrete hardened, the material was removed from the structure. In many jobs there are things which are used temporarily that do not become a part of the completed structure. Examples in the cases include material used for making forms, scaffolding, lumber, nails, wedges, rope, cables, material in temporary embankments, temporary piling as well as tools and implements. Some of these things are “effectively consumed”, greatly damaged, or worn out by the temporary use to which they are employed. Nonetheless, they are not directly consumed in or by the work and exist in tangible form after the work is completed. An implement, no matter how specialized, which is used to create a particular shape required by a public contract, and no matter what its worth after, does not become a part of the work, and unlike dynamite directly employed to create a shape for the foundation of a work, it is not directly consumed so as to become a part of the work. This is the express pronouncement of the cases beginning in 1928 and ending in 1976, as we have reviewed them.

Notwithstanding our recognition of the present age of increased disposability of things, the cases have answered the several contentions of the appellant. These cases are consistent and well reasoned and not, as appellant argues, “old and of questionable value.” The statute has been and is being interpreted in the light of the policy of protecting those who furnish material for the construction of a public work, but as was said in the Hayes Lumber Co. case, the lien statute is to be construed strictly and with a view in mind of maintaining uniformity.

Plaintiff lastly contends that once it was shown that plaintiff delivered the material to the construction site, the defendant contractor had the burden, which it did not meet, of showing that the material did not become incorporated into the construction. See Bernard Lumber Co. v. Sayre, 230 La. 17, 87 So.2d 713 (1956). This burden was met here because it was clearly established that the material was used in building forms and was not incorporated into the structure and that the material was not directly consumed in or by the work so as to become a part of it.

For the reasons assigned here and in an excellent written opinion below, at appellant’s cost, judgment is AFFIRMED.

      . R.S. 38:2242 reads in part:
      “Any person to whom money is due for . furnishing materials or supplies for the construction ... of any public works . . may . . . file a sworn statement of the amount due him with the governing authority having the work done . . . ”
      See also Section 2241 for the language “material or supplies furnished for the construction

      . Pertinent here are R.S. 38:2241, originally Act 224 of 1918 § 1, amended by Act 271 of 1926 § 2 and Act 344 of 1975 g 1; and R.S. 38:2242, originally Act 224 of 1918 §§ 2, 3, amended by Act 271 of 1926, §§ 3, 4, Act 59 of 1960 § 1, Act 537 of 1966 § 1 and Act 253 of 1977 § 1. See State v. Smith, 167 La. 301, 119 So. 56 (1928); Long Bell Lumber Co. v. S. D. Carr Const. Co., 172 La. 182, 133 So. 438 (1931); H. R. Hayes Lumber Co., supra; Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545 (La.1941); Terrebonne Lumber & Supply Co. v. Favret, 2 So.2d 256 (La.App. 1st Cir. 1945); Moore Steel, Inc. v. Wright’s Succession, 79 So.2d 118 (La.App. 1st Cir. 1955); B. & G. Crane Service, Inc. v. Anderson Bros. Corp., 132 So.2d 681 (La.App. 1st Cir. 1961); York Corporation v. Louisiana Plumbing Co., 151 So.2d 520 (La.App. 2d Cir. 1963); Patent Scaffolding Company v. Ross Corporation, 172 So.2d 364 (La.App. 4th Cir. 1965), writ refused; Best Electric Supply Company, Inc. v. Rittiner, 334 So.2d 792 (La.App. 4th Cir. 1976).


text:
    Richard Allen COLLINS and Jannie Bennett Collins, Plaintiffs-Appellees, v. Harold K. QUINN, Defendant-Appellant.
    No. 13720.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.

      Giddens, McKenzie & Garrett by T. K. Giddens, Jr. and J. David Garrett, Shreveport, for defendant-appellant.
    Roos & Roos by Armand W. Roos, Jr., Shreveport, for plaintiffs-appellees.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

A few months more than five years after their property was sold at tax sale to defendant, Harold K. Quinn, plaintiffs, Richard A. and Jannie Bennett Collins, filed suit to annul the tax sale, alleging no notice of the tax delinquency or sale was given to them and that they continued in possession of the property after the sale. Defendant denied plaintiff’s possession, pled the five-year peremption of suits to annul tax sales, sought to be recognized as owner, and, alternatively, sought recovery of the taxes paid by him. After trial, the district court in an excellent written opinion found that no notice was received by plaintiffs, that plaintiffs continued to possess the property continuously after the tax sale, and that plaintiffs’ suit to annul the sale was not barred by the five-year peremption. From judgment annulling the tax sale and ordering payment by plaintiff to defendant of $63.63 back taxes, defendant appealed. We affirm.

Defendant specifies as error the trial court’s factual finding that a garden was maintained on the property and defendant further contends that such activity, conducted primarily by others, does not constitute sufficient possession to prevent the running of the five-year peremptive period.

In April 1969 plaintiffs bought two contiguous tracts of land measuring a total of 125 feet along the Johns Gin Road in Caddo Parish from the Gibbs and the Lees. Mrs. Gibbs and Mrs. Lee were sisters of plaintiff, Mrs. Collins. The tract was thought to be located between the Gibbs’ residence and a rent house owned by the Lees who lived next door to it. Actually, as revealed by a survey made after this suit was filed, the rent house was located partially on the tract. The Collins expected to build a home on the lot, but never did.

In June 1972 the property was sold at tax sale to defendant for unpaid 1971 taxes. The evidence established that notice of the taxes due was not received by plaintiffs, making the sale subject to annulment. No issue in this regard is made by defendant on appeal.

The Collins lived in Detroit where Mr. Collins was working until Mrs. Collins returned to Shreveport in 1975. This suit was filed in October 1977.

Plaintiffs contended and proved to the satisfaction of the trial court that they have been in continuous possession since the tax sale, both through the activities of Mrs. Collins and through the activities of her family members, the Gibbs and the Lees.

The testimony of Mrs. Collins, her family members, and tenants of the rent house establishes that a garden was maintained on the property each year since 1971. Mrs. Collins helped with the garden each year after she returned to Shreveport.

Defendant attacks the trial court’s finding that the garden existed in the face of photographs taken by defendant shortly before the suit was filed showing no trace of a garden and the testimony of a surveyor who surveyed the property shortly before trial to the effect that he did not notice a garden. The trial court specifically found plaintiffs’ five witnesses were credible. The trial court noted there was no evidence as to how long the vestiges of a garden would exist after the planting season or what was done with the land upon which the garden was grown upon the end of each season. The defendant produced no witnesses who were living in the neighborhood or who were familiar with the property to contradict the testimony presented by plaintiffs. There is sufficient evidence to support the trial judge’s factual finding and we cannot say he committed manifest error.

The possession necessary to defeat the tolling of the peremptive period must be continued, constant, corporeal possession of such a nature as to form a constant protest to the tax sale; it must also be of such character as to form the basis of ten-year acquisitive prescription. Gulotta v. Cutshaw, 283 So.2d 482 (La.1973); Westover Realty Co., Inc. v. State, 208 La. 163, 23 So.2d 33 (1945); Holleyman v. Garbarino, 358 So.2d 365 (La.App. 3d Cir. 1978), writ refused 359 So.2d 1304 (La.1978).

Defendant contends intermittent maintenance of the garden is insufficient possession to suspend the peremptive period, citing Lasseigne v. Clement, 311 So.2d 600 (La.App. 4th Cir. 1975), writ denied 313 So.2d 846 (La.1975) and Kuhn v. Sandefur, 28 So.2d 515 (La.App. 2d Cir. 1946), writ denied. He also contends possession by others does not inure to the benefit of the owner, citing Holleyman, supra.

The evidence establishes other acts of possession in addition to the gardening. The Lees and the Gibbs used the lot as part of the yards of the rent house and of the Gibbs’ residence. The Gibbs built a fence on the lot in 1971, maintained a lawn, cut the grass, and maintained shrubs and the like. The rent house, located partially on the property, was rented continuously until about the time this suit was filed. Items related to the rent house were stored on the lot.

LSA-C.C. Art. 3556, § 25 defines precarious possession as that possession “which one enjoys by the leave of another, and during his pleasure.” The vendor who continues in possession following the sale is presumed to be a precarious possessor for his vendee. Frost Lumber Industries v. Harrison, 215 La. 767, 41 So.2d 674 (1949). One who possesses land with the permission or sufferance of the owner possesses the land for the owner. Dutile v. Aymond, 338 So.2d 350 (La.App. 3d Cir. 1976), writ denied 340 So.2d 998 (La.1977). The record shows that the Gibbs and the Lees, plaintiffs’ vendors and members of plaintiffs’ family, possessed the property at least at the sufferance of the plaintiffs, if not with their permission. Therefore, the acts of the Gibbs, Lees and the Lees’ tenants on the property are attributable to plaintiffs. The property has been continuously and corporeally possessed in a manner which would have notified defendant that the owner protested the tax sale. Had defendant visited the property at any time within five years after the sale, he would have been able to see that someone was possessing the property as owner adverse to his tax sale claim.

The cases relied upon by defendant cited supra are distinguishable from this case. In Lasseigne and Kuhn the property was only intermittently possessed by the tax debtors, or the acts of possession were not of the type to form a constant protest to the tax sale, that is, they were not inconsistent with the ownership of the tax adju-dicatee. In Holleyman, the maintenance by a servitude owner of a railroad track was the exercise of a real right which continued regardless of ownership of the land and did not stand as a protest against the tax sale. In the instant case, the fencing of part of the property in question, renting a house partly located on it, growing a garden on it, and using it as a yard was notice to defendant that the property was being possessed adverse to his claim of ownership. The property was in no sense abandoned by the tax debtors.

We find, as did the trial court, that the corporeal possession by or for plaintiffs was sufficient to suspend the peremptive period. The trial court’s judgment is affirmed.

Affirmed.

      . The five-year peremption relied on by defendant was contained in Article 10, § 11 of the 1921 Constitution:
      . . No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the rendition of the tax deed, if no notice is given. . . . ”
      LSA-R.S. 47:2226 provides:
      “No sale of property for taxes shall be set aside except as provided in Article X, Section 11 of the Louisiana Constitution.”
      See also LSA-R.S. 47:2228 which establishes the procedure to quiet tax titles based on per-emption of five years under the 1921 Constitutional provision.
      The pertinent provisions of Article 10, § 11 were carried forward with editorial changes as Article 7, § 25(C) of the 1974 Constitution:
      “No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of recordation of the tax deed if no notice is given. . . . ”
      It may be that the editorial changes have drastically changed the constitutional provision and eliminated the five-year peremptive period for filing suits to annul tax sales. The language of Article 7, § 25(C) quoted above does not provide that suits to set aside'tax sales must be brought within five years after the date of rec-ordation of the tax deed. The only requirement is that such a suit be instituted within six months after notice of sale. As written, the five-year reference is to the time of service of the notice of sale.
      It is easy to see how the apparent error in editing occurred. Article 10, § 11 had been interpreted as if a comma existed after the word “expired”, so that the five-year requirement related back to the institution of suit; the only reasonable interpretation of the provision. However, a literal grammatical reading of the 1921 Constitutional provision, without the imaginary comma, makes the five-year requirement relate to service of notice. The 1974 Constitution editors in dressing up the wording and style, apparently restated the literal grammatical meaning rather than the meaning as intended and consistently applied under the 1921 Constitution. The effect is to omit any requirement that a suit to annul be instituted within five years after recordation of the tax sale deed.
      The problem was noted in 21 Loy.L.Rev. 99 as follows:
      “Another drafting error occurred in Article VII, Section 25 of the 1974 Constitution which attempted simply to reword Article X, Section 11 of the 1921 Constitution, but in the process may have eliminated the five-year preemption [sic] after recordation of a tax deed. This can and certainly should be corrected by legislation. See La.Rev.Stat. § 47:2228 (Supp.1974).”
      Because of our holding that the peremptive period, if it still exists under the 1974 Constitution, did not accrue in this case and because no question of the viability of the five-year per-emption is raised by the parties, we express no opinion on the effect of the change in language in Article 7, § 25(C).


text:
    John M. SUMERALL, Sr., Individually and as Administrator of Estate of minor, John M. Sumerall, Jr., et ux., Plaintiffs-Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13723.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Edmund M. Thomas, S. Patrick Phillips, Shreveport, for plaintiffs-appellants.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendants-ap-pellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

This is a medical malpractice case against a doctor and his insurer. More than one year having elapsed from the alleged negligence until suit was filed, defendant filed a plea of prescription which was sustained. Plaintiffs appeal and we affirm.

The primary issue is whether the action is one in tort which prescribes in one year. Assuming we find the prescriptive period is one year, the secondary issue is when the time began to run.

Plaintiffs took their six-month-old son to defendant, Dr. Riechman, on December 26, 1974 for treatment of seizure symptoms. The doctor diagnosed an ear infection and congestion and prescribed penicillin. The symptoms did not subside and on January 4, 1975, the child was taken to a hospital where a pediatrician, Dr. Winterton, diagnosed the illness as acute meningococcal meningitis. The child remained in the hospital for two weeks. After the initial hospitalization the child continued to have seizures. He has been hospitalized on subsequent occasions for treatment of conditions secondary to the meningitis. He now suffers from permanent brain damage and mental retardation.

Plaintiffs brought suit against Dr. Riech-man on June 9, 1976 for his failure to diagnose meningitis. In their petition they alleged the cause of action was based upon a contract because the doctor agreed to treat the child in exchange for a fee. In the alternative, the plaintiffs sought relief in tort, alleging they did not know the child was permanently damaged until June 1975. Defendants filed a plea of prescription of one year, contending the suit was a tort action. After considering the depositions of the parents and doctors, the trial court sustained the one year prescriptive plea.

Plaintiffs’ first argument on appeal is that the trial court erred in ruling that this is a tort action. They rely primarily on Henson v. St. Paul Fire and Marine Insurance Co., 354 So.2d 612 (La.App. 1st Cir. 1978) for the proposition that a medical malpractice action may be contractual in nature because the patient and doctor have entered into a contract for treatment. The Louisiana Supreme Court granted writs in Henson and rendered its decision on October 1, 1978. The decision was rendered on other grounds and the court did not address the question of whether a medical malpractice action may sound in contract simply because the doctor and patient have entered an agreement for treatment. Henson v. St. Paul Fire and Marine Ins. Co., 363 So.2d 711 (La.1978).

We adhere to the view that a medical malpractice action is delictual in nature unless the physician warrants or promises a particular result. Carroll v. Aetna Casualty & Surety Co., 363 So.2d 726 (La.App. 2d Cir. 1978); Ball v. Siess, 351 So.2d 845 (La.App. 2d Cir. 1977). See also Dauzat v. St. Paul Fire and Marine Ins. Co., 336 So.2d 540 (La.App. 3rd Cir. 1976); Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974). These decisions are based upon Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963). Since plaintiffs do not contend Dr. Riechman warranted a specific result, the trial court correctly ruled this is a tort action.

Plaintiffs next argue that prescription did not commence running until June 9, 1975, when they were informed their son was permanently damaged. As noted by the trial court, prescription may begin running before the parties are fully aware of all the consequences of a tortious act. In Quick v. Aetna Casualty & Surety Co., 347 So.2d 59 (La.App. 2d Cir. 1977), we stated:

In tort cases prescription generally does not commence to run until the injured party has actual or constructive knowledge of the tortious act, the damage, and the causal relation between the tortious act and the damage. Duhon v. Saloom, 323 So.2d 202 (La.App. 3d Cir. 1975), and cases cited therein.
In Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970), the court stated constructive knowledge to be:
“. . . whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of everything to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry, is sufficient to start the running of prescription.” 347 So.2d at 61

It is undisputed the parents were aware of Dr. Riechman’s failure to diagnose meningitis on January 4, 1975. The question is whether they had actual or constructive knowledge prior to June 1975 of the relationship between the alleged lack of early diagnosis and the resultant permanent damage.

Dr. Winterton stated he discharged the child from the initial two-week hospitalization in January 1975 with a diagnosis of meningococcal meningitis with probable severe motor and mental retardation secondary to meningitis. He did not tell the parents the child definitely would be permanently damaged because such an ultimate prognosis could only be given after the passage of time. However, he did state he was sure he informed them at that time of the possibility of permanent damage and that the child was definitely exhibiting abnormal neurological signs. In February of 1975 Dr. Winterton referred the child to a neurosurgeon. The child was hospitalized by the neurosurgeon who performed certain tests and treated him for hydrocephalus which is secondary to meningitis. In April 1975 Dr. Winterton again treated the child for seizure control.

Considering that the parents had been told the child could be permanently damaged in January 1975, and that the child’s condition worsened during the spring of 1975 requiring further hospitalization and continued medical treatment, the parents had sufficient knowledge prior to June 1975 for prescription to commence running.

The judgment is affirmed at appellants’ cost.


text:
    Lois Lantrip RONCAL et al., Plaintiffs-Appellants, v. Dr. S. G. RONCAL, Defendant-Appellee.
    No. 13725.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Baker, Culpepper & Brunson, Jonesboro, for plaintiffs-appellants.

      Whitten & Blake, Jonesboro, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

The mother of two natural children acknowledged by the father appeals from a judgment rejecting her demands to enforce a 1973 judgment against the father requiring him to provide a home for the children.

After the 1973 judgment, the mother and the children resided in the home in Monroe provided by the father as the court had ordered. When the mother married in December 1977, she and the children moved from the Monroe home to the home of her husband in Sterlington, about 12 miles away. The mother left most of the furniture in the Monroe home, continued to pay utility bills and she and the children periodically returned to the Monroe home during the two months following her marriage.

After a dispute with her husband in February 1978, the mother and the children removed themselves and their belongings from Sterlington and attempted to move back into the Monroe home, but found that the father had changed the locks on the front and rear doors and that they could not gain entry except through a side door which provided limited access. The mother then moved the furniture from the Monroe home and rented another house north of Monroe for herself and her children. When she was unable to meet the rental payments she and the children returned to the Ster-lington home of her estranged husband, with the intention of moving out as soon as she was financially able, and brought the rule against the father to enforce the 1973 judgment as mentioned. She contended that the actions of the father amounted to an eviction and she demanded a $250 per month increase in the children’s support payments in order to provide a home for them.

The lower court considered the mother’s expressed intent to move from Sterlington but concluded that an order for the enforcement of the 1973 judgment would be premature because the children were living in the home provided by their mother’s husband. We disagree and render judgment for the plaintiff in rule.

An order requiring a father to provide a home for children is within the authority and discretion granted by law to trial courts in support cases. Jackson v. Jackson, 275 So.2d 456 (La.App.2d Cir. 1973). Support provisions of a judgment remain effective and enforceable until the judgment is changed or amended according to law. Equitable considerations alone do not abate the force of the judgment. Wallace v. Wallace, 316 So.2d 496 (La.App.2d Cir. 1975). The father had grounds to seek, but did not seek, modification of the judgment before the mother and her husband of December 1977 became estranged.

Accordingly, we reverse and grant judgment to plaintiff-in-rule at the cost of defendant-in-rule, as follows:

Defendant-iri-rule is ordered to provide in the vicinity of Monroe, Louisiana, a home in which the minor children shall reside with their tutrix, within 30 days from the date of this opinion, which home shall be the same or comparable to the home occupied by the children immediately before December 12, 1977, or in lieu thereof, defendant-in-rule is ordered to pay unto plaintiff-in-rule, as natural tutrix of the children, the additional sum of $250 per month for the purposes of the tutrix finding and renting a home for the children, subject to the continued jurisdiction and further orders of the lower court as may be required upon a showing of a change of circumstances.

REVERSED AND RENDERED at ap-pellee’s cost.


text:
    SPECIALTY OIL COMPANY, Plaintiff-Appellant, v. Harold L. ADKINS, Defendant-Appellee.
    No. 13728.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    Cook, Clark, Egan, Yancey & King by Dewey W. Corley, Shreveport, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff, who was defendant’s employer, sued for the recovery of money owed by its employee. The employee reconvened for his $2,400 salary for the last month that he worked. Offsetting judgments were rendered in favor of the employer for $1,130 and in favor of the employee for $1,765, less any payroll deductions required by law to be made from this latter amount. The employer appeals the judgment against it. We reverse.

The record consists of computer and ledger sheets, cancelled checks and testimony covering the entire period of the employment.

The employee began work on August 6, 1974, and was paid $1,200 for that calendar month about August 15, 1974. From this time the method of compensation of the employee changed frequently, from straight salary to salary plus commission to guaranteed salary. It was clearly shown, however, that about the 15th of each month the employee was paid the amount of salary due him for that current month and the amount of commissions earned and compen-sable for the previous month.

From October through December, 1977, the employee was paid a base salary of $2,400 per month, plus sales commissions which exceeded that amount. During this period the employee’s sales commissions did not exceed $2,400 in one month. The employee also received the commissions for all “truckload sales” in addition to other compensation. The “truckload” commissions, like the regular sales commissions, were paid the month following that in which they were earned.

The employee last worked the month of December, 1977, and on the 15th of that month was paid $2,400 salary for that calendar month and for his November “truckload” commissions. He earned no truckload commissions during December, 1977. The employee worked 41 calendar months between August 6, 1974, and December 31, 1977, and received 41 payroll checks from the employer. He was thus owed nothing when he quit work.

The employee testified on direct examination:

“Q But you received a check for your salary on December 15, going up to the 31st of December; is that right?
“A I don’t know how they figured that. The way I was figuring it, that I was paid through November.
“Q But when you received the check on the 15th of the month, wasn’t that for your salary up to the end'of that month?
“A I will be honest with you, I never knew they were paying me in advance.
* * $ jjs * %
“Q Now, then that check was based on your salary for the entire month of December plus whatever commissions you earned in November; is that right?
“A That’s not the way I figure it.
“Q How do you figure it?
“A I figure that money I received from money that I was paid I had due in November."

The employee’s testimony about what was said to him when he terminated shows that he simply did not know that he was being paid in the manner shown by the payroll and other records and the testimony of the employer. When the employer told the employee when he terminated that everything owed him would be determined and a deduction made for what he owed the employer, the employer was talking about commissions which may have been due him for December, and not salary. The testimony of the employer is corroborated by business records. The employee’s testimony, contradicted by positive evidence, does not support the judgment. Jamison v. Reese Variety Stores, Inc., 203 So.2d 859 (La.App.2d Cir. 1967).

Judgment of the lower court on the employee’s reconventional demand is reversed and the employee’s demands are rejected at the cost of the employee.


text:
    RUSTON STATE BANK & TRUST COMPANY, Plaintiff-Appellee, v. George THEODUS et al., Defendant-Appellant.
    No. 13795.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1978.

      Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellant George Theodus.
    Goff, Goff & Levy by A. K. Goff, Jr., Ruston, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

This suspensive appeal by defendant is from an order denying him a jury trial of all issues in this suit on a continuing guaranty agreement. The trial court’s order, grounded on LSA-C.C.P. Art. 1733(2), limits the issues to be tried by the jury to the pleaded defenses of fraud, error and want or failure of consideration; all other issues to be determined by the judge.

It appearing that the appeal is from an order which is neither a final judgment nor an interlocutory order which may cause irreparable injury, this court notified counsel for appellant to show cause why the appeal should not be dismissed. Counsel responded citing Jennings v. Coleman, 250 So.2d 845 (La.App. 4th Cir. 1971) and Wilson Sporting Goods Co. v. Alwes, 17 So.2d 382 (La.App. 1st Cir. 1944), in which appeals from orders denying jury trials were maintained as causing irreparable injury.

The more recent eases hold that orders denying jury trials are not appealable unless a showing of irreparable injury is made. An appeal from such an order was dismissed ex proprio motu in In re Martin, 361 So.2d 1315 (La.App. 1st Cir. 1978). See also Sonnier v. Gray Tool Company, 359 So.2d 1111 (La.App. 3d Cir. 1978); Millet v. Johnson, 352 So.2d 1301 (La.App. 4th Cir. 1977); Bunkie Bank & Trust v. Avoyelles Parish Pol., 347 So.2d 1305 (La.App. 1st Cir. 1977); Triche v. City of Houma, 342 So.2d 1155 (La.App. 1st Cir. 1977); Guidroz v. State Farm Fire and Casualty Co., 334 So.2d 535 (La.App. 1st Cir. 1976).

Appellant also cites American Bank & Trust Company v. Til, 340 So.2d 636 (La.App. 2d Cir. 1976), writ refused 342 So.2d 1111 (1977), which holds that unless a party either appeals or applies for writs from an order denying a jury trial, the party cannot urge the denial as error on appeal after trial on the merits. That case does not do away with the requirement of a showing of irreparable injury in order to maintain an appeal from an interlocutory judgment. In the absence of a showing of irreparable injury, an application for supervisory writs is the appropriate method to seek discretionary review by the appellate court of an interlocutory order.

No showing of irreparable injury is made in this case. Therefore, on this court’s own motion, the appeal is dismissed.


author: GUIDRY, Judge.

text:
    J. D. RUSSELL et al., Plaintiffs-Appellants, v. WINDSOR PROPERTIES, INC. et al., Defendants-Appellees.
    No. 6761.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Smith, Taliaferro, Seibert & Boothe, Leo Boothe, Jonesville, for plaintiffs-appellants.
    Marc Dupuy, Jr., Marksville, Davenport, Files and Kelly, William G. Kelly, Jr., Monroe, for defendants-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiffs instituted this suit for recovery of damages in the sum of $44,313.69, allegedly representing crop loss and insect control costs incurred as a result of the alleged exposure of plaintiffs’ 1974 cotton crop to certain chemicals negligently applied by defendants on property belonging to Windsor Properties, Inc. The trial court rendered judgment in favor of plaintiffs and against defendants in the principal sum of $11,950.83, concluding that defendants were responsible for only a part of the damages which plaintiffs sustained. Plaintiffs appeal and assign as error the trial court’s failure to find that defendants’ spraying operations caused all of the damage to plaintiffs’ crop. Defendants have neither appealed nor answered the appeal of plaintiffs.

The trial judge favored this court with an excellent written opinion with which we agree. Accordingly, we take the liberty of quoting at length from his reasons for judgment:

“This is a suit for damages suffered by plaintiffs as a result of the exposure of J. D. Russell’s 1974 cotton crop to chemicals alleged to have been applied by defendants on property belonging to Windsor Properties, Inc. Plaintiffs are Russell and his lessor. Defendants are Windsor Properties, Inc., James P. Boone, the principal stockholder and operator, Farmers Dusting Co. and its operator.

Plaintiff Russel] farmed cotton and soybeans in 1974 on property belonging to the Louisiana Delta Plantation located in the southern part of Catahoula Parish in an area on Red River called Grand Bend. At this point, Red River has a large bend in its channel and there runs south, east, northerly and thence back East and South. Across the river from the Louisiana Delta Plantation land is property in Avoyelles Parish owned by Windsor Properties, Inc., and others. Russell’s cotton was located in two fields in this Grand Bend area where Red River runs to the east, thence northerly and curves again to the east and south. Defendants’ property is across Red River from the Russell cotton and lies generally to the east and north. Defendant Windsor owns two tracts of land on the east bank of Red River across from the Russell cotton, one tract is a triangular shaped tract containing 120 acres, and another a rectangular shaped tract containing 270 acres. Other landowners own dense timber land surrounding these two tracts and then Windsor owns some 4000 more acres to the east of these woodlands.

Russell’s northerly cotton field is located on the west bank of Red River and contains 76.1 acres, lying generally southwest of the Windsor 270 acre tract and northwest of the Windsor 120 acre tract, and across Red River from them. The Russell southern cotton field contains 175.8 acres and lies southwest of both of the Windsor tracts.

The record shows that in 1973 the Windsor properties sustained considerable flooding, and after the flood waters receded, there emerged a large infestation of cockle-burs. The court was favored with the testimony of very fine experts, particularly Mr. Mason, Mr. Odom and Mr. Davis, in explaining the propensities of the chemicals involved here, and their affect on cotton plants. It is claimed that defendants sprayed a 2-4D type material on the Windsor property east of Red River and that it drifted or was blown by wind onto the Russell cotton. It was shown that Mr. James P. Boone, the chief stockholder and operator of Windsor Properties, Inc., engaged the services of Farmers Dusting Co. to spray the 270 acre tract and/or the 120 acre tract to kill the cockleburs. Pursuant thereto the Farmers Dusting Company did apply by aerial application a material called A-3-D, an invert material. This is a chemical which when mixed with kerosene as in this case, under certain pressure, emulsifies and acquires the consistency of mayonnaise. The purpose of using this type of material in this manner in spraying is to prevent winddrift and special equipment is needed for that purpose. This material was applied by Farmers Dusting Co., on July 12 and 13, 1974. The record also shows that for two or three days after the aerial spraying of the 270 and/or 120 acre tracts of defendant, Mr. Boone had his employees to spot spray areas on these tracts (or at least the 270 acre tract) where the aerial spraying was not effective. A substance known as Dow Formula 40 was used, it also being a 2-4D Amine type of material. This spot spraying was done with a ground rig, being a tractor with spray attachment on a boom about 20 inches above the ground. Apparently these operations took place within a few days of the aerial spraying.

Plaintiffs noticed evidence of damage to the Russell 175.8 acre cotton field on July-24, 1974, and immediately the Louisiana Department of Agriculture was notified and after which the crops were carefully watched. Thereafter the crop was handled in accordance with department recommendations.

There is no doubt that these first symptoms of damage were traced to the spraying conducted by defendants during the middle of July, 1974. The time element and the appearance of the symptoms are compatible. However, it is very significant to note that all of the expert witnesses testified that the Russell 175.8 acre cotton was subjected to more than one exposure — that is, more damage was suffered than could have been made in the middle part of July. They testified that their examination of the plants indicated without doubt that this cotton was subjected to chemical exposure at least twice and perhaps three times, some of which would have had to come much later than the July exposure. Some effort was made to prove other spraying by defendants later in the year, but only ground rig spraying several miles away may have been indicated, and we do not feel any connection was proved between that, if in fact there was any, and the crop damage here. It was shown that soybean farmers in the area including plaintiff Russell, sprayed a similar material called Butarac by air and this also was several miles away. This could have as easily caused plaintiff’s later damage as defendant’s later ground rig spraying, if indeed there was any.

Under the settled jurisprudence of this state the defendants are answerable for any danage (sic) caused by their spraying of chemicals. It makes no difference how careful they may have been or how much precaution they may have taken to prevent damage, they are strictly responsible for damages which may be attributable to their activities. However, it must be proved that there is a causal connection between defendant’s activities and plaintiff’s damage. It must not be left to conjecture and speculation. The fact that it was proved that defendants conducted spraying operations in July which caused some damage does not prove that similar activities were conducted in August or later which caused further damage. Because defendants are guilty of the July operation, they should not be condemned and presumed guilty of August or subsequent damage, without proof of same.

The expert testimony shows that symptoms of cotton damage when exposed to this type of material are visible to laymen within 7 to 10 days. When plaintiffs observed the symptoms to the Russell 175.8 acre cotton field on July 24, 1974, there is no doubt that this was reasonably attributable to defendants July activities. However, at this time the Russell 76.1 acre field was not affected. Even on August 28, 1974, when Mr. Davis was taken to the property to observe the damage, they passed by the 76.1 acre field and no mention was made of damage to it, in fact it was discussed that it would be a good field to use as a comparison in assessing damage to the other field. Therefore, the July spraying could not have caused the damage to this field.

According to the experts, cotton may be exposed to this type of chemical and if not re-exposed recover to make a reasonable crop. Here they estimate that the damage resulting from the first exposure was at most about 35%. Since it is not found that the 76.1 (sic) cotton field was damaged by the July spraying, no damage will be assessed with regard to it. As to the 175.8 acre field, 35% will be allowed, based on the area average yield of 444.52 lbs. per acre, at the average price received in the area of 40.120 per pound. Also the loss of pesticide expenses on the 175.8 acre field will be allowed.

These damages are as follows:

Area average production 444.52 lbs. per acre
175.8 acre field production 40.52 lbs. per acre
Loss per acre 404.00 lbs.
404.00 X 175.8 = 71028.2 @
40.12‡ per lb. = $28,494.50 X 35% = $9,973.08
Cost of Russell's
pesticide per acre $18.52
Average cost 7.27
Loss per acre $11.25
$11.25 X 175.8 = 1.977.75
Total loss $11,950.83

Therefore judgment will be rendered in favor of plaintiffs as tenant and landlord, as their interests appear, against the defendants in solido, in the sum of Eleven Thousand Nine Hundred Fifty and 83/100 ($11,950.88) Dollars, plus legal interest from date of judicial demand and for costs.”

We believe that our learned trial brother correctly determined that defendants are strictly liable for all damages occasioned to plaintiffs’ 1974 cotton crop which are shown to have been proximately caused by defendants’ spraying operations, regardless as to whether or not the evidence shows that such spraying operations were conducted with all reasonable care and in accordance with modern and accepted methods. Further we conclude that we need not-determine whether defendants’ responsibility to plaintiffs results from the application of LSA-C.C. 667 (See Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957); Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (1971); Hero Lands Company v. Texaco Inc., 310 So.2d 93 (La.1975)) or whether defendants’ liability to plaintiff is founded upon the strict liability of a proprietor under LSA-C.C. Article 2315 for damages resulting from his conduct of ultrahaz-ardous activities and/or enterprises on his property. (See Reymond v. State, Department of Highways, 255 La. 425, 231 So.2d 375 (1970); Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971) and, concurring opinions in Chaney, supra, and Hero, supra). Irrespective of whether liability be founded on art. 667 or on fault under art. 2315 as analogized from the conduct required under art. 667, it is made clear from a reading of Gotreaux, Reymond, Langlois, Chaney and Hero, supra, that the absence of negligence on the part of a landowner who conducts extrahazardous activities on his property (application of herbicides by a farmer to his crops) is immaterial to his liability for damage caused by such activities. We consider it to be equally settled that, under such circumstances, liability attaches also to the agent or contractor who becomes solidarily liable with the proprietor. See D'Albora v. Tulane University, 274 So.2d 825 (La.App. 4th Cir. 1973). Be this as it may, plaintiffs are only entitled to recover from defendants such damages as are shown by a preponderance of the evidence to have been proximately caused by defendants’ activities. As noted in Watson v. Mid-Continent Aerial Sprayers, Inc., 170 So.2d 149, 151 (La.App. 2nd Cir. 1964):

“Whatever language, doctrine or legal principle is relied upon, the court in each case must ultimately come face to face with the issue of burden of proof and proximate cause. We must not become so obsessed with the application of legal theories of common-law doctrines that we forget the primary principle of law that the plaintiff must prove he was damaged by some act of defendant. Whether liability be determined to be under LSA Civil Code Article 667 or by reason of the proper application of res ipsa loquitur, it is elementary that the plaintiff prove by a preponderance of the evidence that the alleged instrumentality did in fact cause the damage."

This is precisely the issue currently before the court, i. e., did the plaintiffs offer sufficient evidence to prove that the defendants were solely responsible for the damage to plaintiffs’ crops. In order to hold a defendant liable under Articles of our Civil Code pertaining ’ to liability for acts causing damage or under other articles proscribing limitations on use of property, plaintiff has the burden of proving the defendant’s actions were a cause in fact of the injuries sustained. It is true that causation may be shown by circumstantial evidence and such evidence need not negate all other possible cause, but nevertheless such evidence must exclude other reasonable hypothesis with a fair amount of certainty. Reese v. South Coast Corporation, 328 So.2d 169 (La.App. 1st Cir. 1976). In the event that the plaintiff does not meet his burden, his action must fail.

Here, the trial judge found that the defendants were responsible for some of the damage to plaintiffs’ crops. The defendants, in their brief, admit this liability. However, after a full consideration of the evidence, the lower court found that plaintiffs had not met the burden of proof as to all the damages sought. This is a factual question and, on review, in the absence of manifest error on the part of the trial court, must not be disturbed. Canter v. Koehring Company, 283 So.2d 716 (La.1973). A careful examination of the record reveals that there was more than adequate support for the trial court’s conclusion as to the extent of defendants’ liability and the amount of damages which their spraying operation caused. We find no manifest error in the decision of the trial court.

For the above and foregoing reasons, the judgment appealed from is affirmed and all costs are assessed against the plaintiffs-appellants.

AFFIRMED.

      . Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.