text:
    STATE of Louisiana v. Gerald R. ROGERS.
    No. 59659.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Gerald R. Rogers applying for writs of certiorari.

Writ denied. No error of law.


source: Caselaw Access Project

license: Public Domain

text:
    Manuel BAILEY v. AMERICAN SUGAR REFINERY a/k/a Amstar Corporation.
    No. 59710.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Manuel Bailey applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Bernard. 342 So.2d 1268.

Not considered. Not timely filed.


text:
    Dave Haas EWELL, Jr., et al. v. PETRO PROCESSORS, INC., et al.
    No. 59713.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Dave Haas Ewell, Jr., et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 241.

Writ granted. The appeal is reinstated. The order of the trial judge fixing appeal bond is correct. Case is remanded to the Court of Appeal for a hearing on the merits.


text:
    STATE of Louisiana ex rel. Donald ARBUTHNOT v. Hon. Israel M. AUGUSTINE, Judge, Section "I" Criminal District Court Parish of Orleans, N. O. LA.
    No. 59669.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Donald Arbuthnot applying for supervisory writs of certiorari and/or review, mandamus and prohibition.

Writ granted. Relator has failed to first make application to the district court for relief sought. Hence, relator’s application will be transferred to district court so that the district judge can act on relator’s application.


text:
    STATE of Louisiana ex rel. Billy Clay CLARK v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59666.
    Supreme Court of Louisiana.
    May 6, 1977.
   In re: Billy Clay Clark, applying for writ of habeas corpus.

Writ denied: After examining the record in the appeal from the applicant’s conviction (decision reported at State v. Clark, La., 332 So.2d 236) we find no error in the trial court’s determination that the allegations do not merit an evidentiary hearing.


text:
    Frank N. BERNARD v. Camille J. ROCQUIN.
    No. 59815.
    Supreme Court of Louisiana.
    May 10, 1977.
   In re: Frank N. Bernard applying for writ of certiorari, prohibition, mandamus and stay order.

Writ denied. The ruling of the trial court is correct.


text:
    CAPITAL BANK & TRUST COMPANY v. G. Emitte CORE et al.
    No. 59772.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Jack Roberts, Jr., and Donald J. Mills applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 284.

Writ not considered. Not timely filed.


text:
    Rudolph WALKER and Bertha Landeche, his wife v. The ST. PAUL INSURANCE COMPANIES et al.
    No. 59722.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Rudolph Walker and Bertha Lan-deche applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 251.

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


text:
    Jeffrey Allen BARBAY and Kathleen Wall Barbay v. The PARISH OF EAST BATON ROUGE.
    No. 59718.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Parish of East Baton Rouge applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 343 So.2d 235.

Writ denied. No error of law.


text:
    Russell CUCCIA v. KENT WELDING & MACHINE, INC., et al.
    No. 59715.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Russell Cuccia applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 343 So.2d 272.

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


text:
    STATE of Louisiana ex rel. Vernell RICHARDSON v. Israel M. AUGUSTINE, Jr., Judge, et al.
    No. 59703.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Vernell Richardson applying for writ of mandamus.

Writ denied. The trial judge rendered judgment on January 13,1977 and the mandamus to compel action is moot.


text:
    STATE of Louisiana v. Clyde J. LIRETTE. STATE of Louisiana v. Russel J. BRAUD.
    No. 59650.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Clyde J. Lirette and Russel J. Braud applying for writs of certiorari, prohibition or mandamus.

Writ denied. Application premature. Contentions here have not yet been passed upon by the trial judge.


text:
    STATE of Louisiana v. Wilburn G. MONK.
    No. 59810.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: Wilburn G. Monk applying for writs of certiorari, prohibition, mandamus and stay order.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Ted R. Broyles, Judge of the 30th Judicial District, Court for the Parish of Vernon, to transmit to the Supreme Court of Louisiana, on or before the First day of June 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. MIDTOWN NEWS.
    No. 59825.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: State of Louisiana, applying for writs of certiorari, mandamus and prohibition.

Writ denied. The ruling of the trial judge is correct. This is a massive seizure violative of the freedom of expression. State v. Neal, 279 So.2d 172 (La.1973).


text:
    STATE of Louisiana v. OLIVER’S NEWS STAND.
    No. 59824.
    Supreme Court of Louisiana.
    May 11, 1977.
   In re: State of Louisiana applying for writ of certiorari, mandamus and prohibition.

Writ denied. The trial judge correctly held this to be a massive seizure violative of freedom of expression. See State v. Neal, 279 So.2d 172 (La.1973).


author: DOMENGEAUX, Judge.

text:
    LIBERTY MUTUAL INSURANCE COMPANY et al., Plaintiffs and Appellees, v. Mabel H. CAESAR, Defendant and Appellee, and Lula Mae Hurks, Defendant and Appellant.
    No. 5911.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Refused June 30, 1977.
    Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, and Guillory, McGee & Mayeux by Donald L. Mayeux, Eunice, for defendant-appellant.
    Allen, Gooch & Bourgeois by Joel E. Gooch, Lafayette, for plaintiffs and appel-lees.
    Before DOMENGEAUX, GUIDRY, and ROGERS, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Liberty Mutual Insurance Company, workmen’s compensation insurer, and South Louisiana Contractors, Inc., employer, filed a petition for declaratory judgment to have the court determine their obligations to defendant — appellee, Mabel Caesar, and defendant — appellant, Lula Mae Hurks, each of whom claim dependent death benefits under the workmen’s compensation act as alleged legal surviving spouse and common law surviving spouse of John Caesar, respectively.

John Caesar was injured on December 15, 1975, during the course and scope of his employment with South Louisiana Contractors, Inc., and subsequently died on December 30, 1975.

The matter was tried and the district judge held in favor of the surviving spouse Mabel Caesar and denied recovery to Lula Mae Hurks. Defendant Lula Mae Hurks has appealed to this court. We affirm the holding of the district court.

John Caesar was the husband of Mabel Caesar. He left her approximately five years before his death and without obtaining a legal separation or divorce began to live with Lula Mae Hurks. The evidence established that defendant Hurks was completely dependent on the decedent for food, clothing, and shelter. However, it was also established that Mrs. Mabel Caesar continued to receive money from the decedent to pay the mortgage note on their home and to pay various other expenses. Mrs. Caesar was gainfully employed full time; defendant Hurks was not employed. Defendant Hurks has no claim to compensation as a widow of John Caesar. Louisiana Law does not recognize “common law marriage”, and Lula Mae Hurks was not even a putative spouse of defendant.

Defendant Hurks also claims compensation as an “other dependent” of decedent. The Louisiana Supreme Court has held in Humphreys v. Marquette Casualty Company, 235 La. 355, 103 So.2d 895 (1958), that concubines are not entitled to death benefits under the workmen’s compensation act as dependents. See also to the same effect, Moore v. Capitol Glass and Supply Co., 25 So.2d 248 (La.App. 1st Cir. 1946), writ refused May 27, 1946; and Patin v. T. L. James and Co., 39 So.2d 177 (La.App. 1st Cir. 1949), writ refused May 31, 1949.

Defendant Hurks also argued that the exclusion of concubines from recovery under the workmen’s compensation act was a denial of equal protection under the 5th and 14th amendments of the U.S. Constitution, citing Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and Glona v. American Guarantee & Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968). We feel that issue is pretermitted because the case has been disposed of on the basis of the Hum-phreys rule. Our brethren of the Second Circuit, faced with this issue in Dickerson v. Employers Mutual Liability Insurance Company of Wisconsin, 248 So.2d 852 (La.App. 2nd Cir. 1971) adequately discussed the effect of Levy and Glona, as follows:

“Plaintiff contends on this appeal the trial judge erred in holding that for a dependent spouse to recover workmen’s compensation benefits for the death of her husband, she must have been either his legal or his putative wife. Appellant also complains the court was in error in not affording her relief under the equal protection clause of the Fourteenth Amendment.
Although counsel for appellant acknowledges the Supreme Court of this State has ruled adversely to his position in the case of Humphreys v. Marquette Casualty Company, 235 La. 355, 103 So.2d 895 (1958), a decision which has not been overruled, he contends this decision is not in keeping with the social purpose of the Workmen’s Compensation Statute and should be no longer followed in view of the rulings of the United States Supreme Court in the later cases of Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968).
Appellant argues that the principles enunciated in these cases justify this court to disregard the Humphries case as a controlling precedent. We cannot agree with this contention. The Levy and Glona cases involved different areas of the law. Levy dealt with the right of illegitimate children to bring an action for wrongful death of their mother under Article 2315 of the La.Civil Code. In the Glona case the Court considered the constitutionality of the Louisiana law excluding the mother of an illegitimate child from maintaining an ex delicto action for the wrongful death of the child. Although the Court found our state law in each of these cases to be in violation of the equal protection clause of the Constitution, in the later case of Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), the court declined to extend the holdings in Levy and Glona to other areas of law in the following language:
‘In this Court appellant argues that Louisiana’s statutory scheme for intestate succession that bars this illegitimate child from sharing in her father’s estate constitutes an invidious discrimination against illegitimate children that cannot stand under the Due Process and Equal Protection Clauses of the Constitution. Much reliance is placed upon the Court’s decisions in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and Glona v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968). For the reasons set out below, we find appellant’s reliance on those eases misplaced, and we decline to extend the rationale of those cases where it does not apply. Accordingly, we affirm the decision below.’
In view of the Labine v. Vincent decision restricting the doctrines of Levy and Glona to the specific areas of law under consideration in those cases, we consider the Humphreys case to still be the controlling law of this State on the question now before us, and are constrained to follow this decision of our Supreme Court.
For the foregoing reasons the judgment appealed from is affirmed. All costs to be paid by appellant.”

For the assigned reasons, the judgment of the district court is affirmed at the cost of defendant-appellant, Lula Mae Hurks.

AFFIRMED.

      . La.R.S. 23:1232(1).

      . C.C. Art. 88.

      . C.C. Art. 117 and 118.

      . La.R.S. 23:1232(8).

      . See note 1 in McDermott v. Funel, 258 La. 657, 247 So.2d 567 (1971) where Justice Tate, the organ of the Court, recognized the continuing validity of the Humphreys decision.
      See also cases cited in The Employment Relation, Malone, Plant & Little (West 1974) at p. 435.
      For arguments in favor of allowing the concubine to recover, see Judge Tate’s dissent in the Humphreys decision by the Court of Appeal, 95 So.2d 872 at 876. See also Malone, Louisiana Workmen’s Compensation Law and Practice, (West 1951) § 304, p. 399.


author: CHIASSON, Judge.

text:
    GREATER BATON ROUGE AIRPORT DISTRICT et al. v. Mrs. Florence Hobgood HAYS et al.
    No. 10908.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Writ Refused Jan. 19, 1977.

      Joseph Keogh, Charles Pitcher, Edward Fetzer, Baton Rouge, for appellants.
    Ashton Stewart, Baton Rouge, for appel-lees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

The Parish of East Baton Rouge, the Greater Baton Rouge Airport District, Bertrand Roussel, Director of Finance of the Parish of East Baton Rouge, and Francis J. Fitch, Treasurer of the Greater Baton Rouge Airport District, filed a petition for Writs of Prohibition, Certiorari, Mandamus and Review in this Court seeking to have this Court direct the Honorable Judge Luther F. Cole, Judge of the Nineteenth Judicial District Court, State of Louisiana, to reverse his ruling and judgment of April 26, 1976, making peremptory the Writ of Mandamus ordering Bertrand Roussel and Francis J. Fitch to pay the sum of $85,385.00 to defendants, Mrs. Florence H. Hays, Edward Chase Hobgood, John Pugh Hobgood and Bill Arp Hobgood, in part payment of a judgment previously rendered in the amount of $198,753.00 in an expropriation suit.

Before considering the merits of the application, we note that petitioners have a right to a suspensive appeal. CCP Article 2123. Rosteet v. City of Lake Charles, La.App., 215 So.2d 668.

The supervisory jurisdiction of the Appellate Courts may not be invoked except in those cases where irreparable injury will otherwise result, or appeal affords an inadequate remedy. No such showing has been made in this case.

We, therefore, hold that petitioners have an adequate remedy by suspensive appeal. For these reasons, the Writs previously issued by this Court are recalled and vacated. All costs pertaining to this application, to the extent permitted by law, are assessed against relators. All other costs are to await a final determination on the merits.

WRITS RECALLED AND VACATED.


author: LANDRY, Judge.

text:
    DIVISION OF ADMINISTRATION v. DEPARTMENT OF CIVIL SERVICE, State of Louisiana and the Civil Service Commission, State of Louisiana.
    No. 11059.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 13, 1976.
    Rehearing Denied March 21, 1977.

      Phil E. Miley, Baton Rouge, La., for Division of Administration.
    R. Gray Sexton, Baton Rouge, La., for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

The Division of Administration, Office of the Governor, through its Director, the Honorable Charles E. Roemer, (Applicant), invokes the supervisory jurisdiction of this court to stay an order of the Civil Service Commission, State of Louisiana, (Respondent), directing Applicant to bring into the classified service of the state (Civil Service) all employees of the Division of Administration other than the two (2) unclassified positions permitted by Article 10, Section 7, La. Const, of 1974. We grant the requested stay order.

Pursuant to its claimed authority, the Civil Service Commission, State of Louisiana, (Commission), instituted hearings to determine the civil service status of certain employees of the Division of Administration. On July 8, 1976, the Commission rendered an opinion decreeing that all employees of the Division of Administration, save the Commissioner and two employees, be brought into the Civil Service System, within forty-five days, in compliance with the Commission’s rules and regulations. Applicant timely appealed. This application was filed August 5, 1976. The Commission’s order becomes effective August 22, 1976.

Rule XVI, Section 6, Uniform Rules, Courts of Appeal, permits the Appellate Courts to stay a Commission ruling pending appeal. The sole issue before us at this time is whether the requested stay order should be issued pending the outcome of this controversy on appeal.

Due to the lack of controlling authority in our own jurisprudence pertaining to a stay of an Administrative order, both Applicant and Respondent cite and rely upon the often cited authority of Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958), which sets forth what the Federal Jurisprudence has characterized as “traditional standards” applicable in cases of this nature. See Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed. 166; Eastern Air Lines v. Civil Aeronautics Board, 261 F.2d 830 (2d Cir. 1958); Associated Securities Corp. v. SEC, 283 F.2d 773 (10th Cir. 1960); Schwartz v. Covington, 341 F.2d 537 (9th Cir. 1965); American Home Products Corporation v. Finch, 303 F.Supp. 448 (Dist.Del.1969).

Virginia Petroleum Jobbers Association, above, involved an attempt to enjoin enforcement of an order of the Federal Power Commission rendered after administrative hearings. The court denied the application for the requested stay order, noting that the granting or denial of the requested relief must be determined in the light of the following applicable rule:

“We come, then, to a consideration of whether petitioner has shown sufficient grounds warranting the exercise of the court’s powers to grant the extraordinary relief requested. Essentially, four factors influence our decision:
(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? Without such a substantial indication of probable success, there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review. (2) Has the petitioner shown that without such relief, it will be irreparably injured? The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. But injury held insufficient to justify a stay in one case may well be sufficient to justify it in another, where the applicant has demonstrated a higher probability of success on the merits. (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? On this side of the coin, we must determine whether, despite showings of probable success and irreparable injury on the part of petitioner, the issuance of a stay would have a serious adverse effect on other interested persons. Relief saving one claimant from irreparable injury, at the expense of similar harm caused another, might not qualify as the equitable judgment that a stay represents. (4) Where lies the public interest? In litigation involving the administration of regulatory statutes designed to promote the public interest, this factor necessarily becomes crucial. The interests of private litigants must give way to the realization of public purposes. The public interest may, of course, have many faces — favoring at once both the rapid expansion of utilities and the prevention of wasteful and repetitive proceedings at the taxpayers’ or consumers’ expense; both fostering competition and preserving the economic viability of existing public services; both expediting administrative or judicial action and preserving orderly procedure. We must determine, these many facets considered, how the court’s action serves the public best.” (Emphasis in original).

It also appears that Federal Jurisprudence has adopted the rule that in matters of this nature much discretion is vested in the Appellate Court. In Scripps-Howard Radio, Inc. v. Federal Communications Commission, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229, the question of granting a stay order to a party seeking judicial review of an F.C.C. order was before the Court. In affirming the Court of Appeal’s certificate on the stay order, the Supreme Court stated:

“A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant (cases cited). It is an exercise of judicial discretion. The propriety of its issue is dependent upon the circumstances of the particular case.”

See also 73 C.J.S. Public Administrative Bodies and Procedure, § 180, pages 526-527.

We deem both of the cited rules to be logical and founded upon reasonable principles. In the absence of jurisprudence of our own on the subject matter, we adopt these rules and apply them herein.

Considering the likelihood of Applicant prevailing upon appeal, we note that Applicant raises a serious issue predicated upon Article 10, Section 2(B), La. Constitution of 1974, which provides that the unclassified state and city civil service systems shall include:

“10. employees, deputies, and officers of the legislature and of the offices of the governor, lieutenant governor, attorney general . . . .”

Article 10, Section 2(B)(2), above, provides that the unclassified .systems shall include the heads of each principal executive department appointed by the Governor. Article 10, Section 2(B)(7), above, states that the unclassified systems shall further include one person holding a confidential position and one principal assistant or deputy to any officer named in Section 2(B)(2), above.

LSA-R.S. 39:1 currently provides that the Division of Administration is created as a division of the office of the Governor.

Simply stated, Applicant’s position is that the Division of Administration being legislatively created as a division or department of the office of the Governor, all employees of the division are employees of the Governor’s office. Consequently all such employees are included in the unclassified service as defined in Article 10, Section 2(B)(10), above.

Conversely, Respondent urges that Subsections (2) and (7) of Article 10, Section 2(B), above, are applicable and that only the head of the Division of Administration and two other assistants or deputies fall within the unclassified category.

We are not herein called upon to decide the merits of the controversy. We find it suffices that Applicant’s position presents a serious legal question for resolution. Because the criterion under discussion is not solely dispositive of Applicant’s right to a stay order, we conclude Applicant has satisfied this condition.

Concerning the issue of irreparable injury, Applicant notes that the Governor, among other duties, is constitutionally required to furnish the legislature with reports, at the beginning of regular sessions, containing recommendations and information concerning the affairs of the state, particularly a complete report of the state’s financial condition. La. Constitution of 1974, Article 4, Section 5(B). Applicant also points out the obligation of the Governor to submit an operating budget and a capital outlay budget to the legislature pursuant to Article 4, Section 5(D), La. Constitution of 1974. According to Applicant, the employees sought to be classified fall into numerous positions of expertise, especially those dealing with budget preparation. If classified, the future of these positions will be rendered uncertain in that they will be open to classified personnel. Applicant suggests that classifying these positions will result in lower salaries being fixed pursuant to civil service rules, thus resulting in a loss of expert and experienced personnel to the detriment of the state. Moreover, according to Applicant, those employees choosing to remain as classified employees will be subjected to the requirement of taking qualifying examinations to remain in state service. This circumstance, it is argued, will unquestionably affect the morale and efficiency of the employees in question at a time when their undivided attention is required for the performance of their specialized duties. It is also contended that capable replacements for those employees who leave the Division of Administration under the circumstances, may not be available at civil service salary schedules, thus jeopardizing the efficiency of the division.

Applicant also notes that if the requested stay is not granted and the Commission’s order is reversed on appeal, the function of the Division will be twice disrupted in that the affected employees will be immediately placed in the classified service and subsequently removed therefrom.

Respondent contends, however, that should the order be reversed, employees lost as a result of failure to grant the stay order could be reinstated with back pay and restoration of all benefits, and that with Respondent’s assistance all delays could be avoided. In opposition, Respondent also contends that there is no proof that the state service is more efficiently served by the employment of unclassified personnel. Respondent notes that the Commission can provide qualified personnel by establishing both job requirements for the positions in question and tests designed to insure selection of individuals possessing the requisite capabilities.

As stated in Virginia Petroleum, above, injuries, however substantial in terms of money, time, and energy, do not fulfill the requirement of irreparable injury. The possibility that adequate compensatory or other corrective relief will be available in the future, weighs heavily against a claim of irreparable harm.

We are concerned with approximately 30 positions in an agency which, by law, is designated as a division or department of the office of the Governor. While the monetary loss or inconvenience to the personnel concerned may be adequately compensated for in the event of our refusal to grant the stay order, nevertheless the disruption of a vital state service which will most probably ensue upon our refusal to stay, is a matter that cannot be measured in monetary terms. In this regard we judicially note that the legislature is presently in special session. We also note media announcements of an impending second special session, possibly in October, 1976. These circumstances place extra stress and obligations on the office of the Governor and the Division of Administration. To disrupt the normal function of the office of the Governor and the Division of Administration at this time could cause incalculable harm to a vital state service. In the exercise of our discretion, we are not disposed to achieve such a result.

Despite the contention of the Commission that its image will be tarnished and its integrity held suspect if its order is not immediately implemented, we see no possibility of harm to the Commission resulting from our staying its decree. The record adequately reflects that the Commission has long pursued the matter in question. Classification of the employees in question has been a bone of contention between the Commission and the Division of Administration over a period of many years. The Commission has been most diligent in pressing its claim that the employees in question are classified employees. We recognize and declare the Commission’s right to pursue this attempt at classification on the Commission’s own initiative. Such action is entirely compatible with the letter of the Civil Service Article of the Constitution. La. Constitution of 1974, Article 10, Section 10(B).

Rather than reflecting adversely upon the integrity of the Commission, we find the Commission has acquitted itself nobly in undertaking this litigation. In so doing the Commission has again displayed the commendable characteristic of independence and the keen desire to zealously discharge the constitutional duty imposed upon it, irrespective of what governmental agency is involved.

In deciding where the public interest lies herein, we are mindful that the instant case is somewhat unusual on its facts in that we are concerned with a situation in which the administrative order sought to be stayed has a direct effect upon another governmental unit. This fact, we believe, is an additional circumstance to be given considerable weight in resolving this present controversy. We readily concede it greatly influenced the exercise of our discretion in this matter.

We find no basis for concluding the interest of the Commission will be substantially harmed by granting the requested order. There is no reason to believe that if the Commission’s decree is sustained on appeal of the merits, the Division of Administration will .decline to comply. We find the record supports Applicant’s position that it is in the public interest to maintain the status quo pending appeal. As contended by Applicant, the procedural problems attending the ordered reorganization will be held to the greatest possible minimum in that there will be only one reorganization if the Commission’s order is set aside and no reorganization should Applicant prevail on appeal. Any reorganization necessarily results in impairment of departmental functioning, irrespective of the time and manner of its accomplishment. A reorganization which casts doubt and uncertainty upon the job future of the personnel concerned can be even more disruptive than a reorganization posing no such threat. In this regard, we again note that the legislature is presently in special session with another special session in the offing.

It is ordered, adjudged and decreed that enforcement of the order of the Civil Service Commission rendered herein, be and the same is hereby stayed pending disposition of the appeal of this matter on the merits. It is further ordered, adjudged and decreed that the Civil Service Commission be cast for all costs for which it is liable by law.

Writ granted, stay order issued.


author: PONDER, Judge.

text:
    Mrs. Helen Klingman GUIDRY v. Clarence A. GUIDRY.
    No. 11040.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 22, 1976.
    Cleveland J. Marcel, Jr., Houma, for appellant.
    Ted J. Borowski, Houma, for appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Judgment in this case was rendered, read and signed on February 9, 1976. Notice of judgment was sent on February 12, 1976. Petition for appeal was filed and granted on May 11,1976. Cash bond in the required amount was filed on July 8, 1976. This court on July 26th issued a show cause order to determine whether the appeal bond was timely filed. Appellee filed a brief supporting the conclusion that the bond was not timely filed; the appellant has not yet filed a brief.

We conclude that the appeal bond was not timely filed. C.C.P. Art. 2087. Appellate court jurisdiction does not attach unless the bond is timely filed. C.C.P. Art. 2088; Zeno v. J. A. West Company, La.App., 300 So.2d 856 (1st Cir. 1974); Jones v. Galloway, La.App., 259 So.2d 623 (1st Cir. 1972).

For these reasons we dismiss the appeal at appellant’s cost.

Dismissed.


author: COVINGTON, Judge:

text:
    Lillie Mae LE DUFF et al. v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    No. 11074.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 29, 1976.

      Byron Magbee, Baton Rouge, for appellants.
    Charles W. Wilson, III, Baton Rouge, for appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

We dismiss this appeal on contradictory motion of defendant-appellee, The Prudential Insurance Company of America, for lack of jurisdiction, since the devolutive appeal was not timely perfected.

The judgment in the instant case was rendered on May 29, 1975, and signed by the trial court on June 3, 1975, dismissing plaintiffs claim for damages arising out of a credit life insurance policy. There was no application for a new trial. On August 29, 1975, the plaintiff’s motion for devolutive appeal was granted conditioned on the plaintiff furnishing bond in the amount of $500.00. On October 22, 1975, without having furnished bond, the plaintiff obtained an ex parte order modifying the previous appeal order and allowing the plaintiff, Lillie Mae Le Duff, to proceed with the appeal in forma pauperis. The record shows that the plaintiff, prior to the ex parte motion on October 22, 1975, had not litigated the suit in the trial court as an indigent.

On October 28, 1975, defendant-appellee filed a rule to show cause why the order allowing the plaintiff to proceed in forma pauperis should not be set aside and the appeal dismissed on the grounds that the delay for perfecting the appeal expired on September 8, 1975, and no bond has been furnished.

The plaintiff-appellant’s basic contentions are first, that LSA-C.C.P. art. 2087 pertains only to the situation where security is required, so that plaintiff herein, having obtained an indigency order under LSA-C.C.P. art. 5181, is not bound by any time limitation in which to obtain an order allowing her to proceed in forma pauperis; and second, that the indigency order modified the appeal order so that the order relates back to August 29, 1975, and is thus timely.

We have answered both of the plaintiff - appellant’s contentions adversely to her in Donica v. Donica, 324 So.2d 847, 851 (La. App. 1st Cir. 1975) and Brumfield v. Community Mobile Homes, Inc., 315 So.2d 901 (La.App. 1st Cir. 1975).

In the Donica case, the judgment was signed on April 18, 1975. The application for a new trial was denied June 10, 1975. On June 19,1975, the appellant obtained an order for a devolutive appeal. On July 7, 1975, the appellant furnished bond in the amount of $2000.00. On July 16, 1975, a motion to test the surety was filed. This motion was heard on July 24, 1975 and it was admitted that the security was inadequate. On the same date, July 24,1975, the appellant moved to prosecute the appeal in forma pauperis. The court denied the request as untimely and remarked:

“The timely filing of a bond or obtaining an order to proceed in forma pauperis is essential to the perfection of an appeal and relate directly to the question of jurisdiction and must be strictly complied with.
“Assuming, arguendo, that plaintiff’s circumstances were such that at any time between June 10, 1975 and July 10, 1975, the period afforded her to perfect an appeal, she was entitled to proceed in forma pauperis, it behooved her to petition the court to do so. Having failed in this regard and having elected to perfect her appeal by the furnishing of security she must comply with the provisions of C.C.P. Art. 5124 which grants her an additional four days, exclusive of legal holidays, following the rendition of a judgment holding the bond insufficient or invalid to furnish new security.
“We fully recognize that appeals are favored in law. However, we know of no procedure (and none has been cited) that permits a pauper order to be substituted in lieu of a surety bond after the delays for perfecting an appeal have expired. The privilege to proceed under C.C.P. Art. 5181 is one that all indigent litigants should have every reasonable opportunity to avail themselves. But it must be done within the appropriate delays and can not be used as a means to extend, either intentionally or by result, the delays for perfecting an appeal. There is but one exception that we know of whereby an insufficient bond may be corrected and those are the four days permitted under C.C.P. Arts. 5124 and 5126.”

In Brumfield, the judgment was signed on February 22, 1974. There was no application for a new trial. On March 18, 1975, a devolutive appeal was taken. No bond was ever furnished. On September 6,1974, the appellant moved to appeal in forma pauperis. On its own motion, this court dismissed the appeal as not having been timely perfected, holding that an order allowing plaintiff to further prosecute his case without pre-payment of court costs, or as they accrue, or to furnish bond must be obtained during the period of time provided by law for the filing of the appeal bond. The time limitations for perfecting an appeal may not be successfully circumvented by seeking an order to proceed in forma pauperis after the delays for perfecting an appeal have elapsed.

The reason for this is that once the delays have elapsed, the action is ended. There is no longer any matter before the courts in which a party can exercise his privilege of litigating without prior payment of costs accorded him by LSA-C.C.P. art. 5181.

The pauper statutes do not grant an indigent person an infinite length of time in which to ask for this special privilege. They grant such a person relief from the obligation of paying court costs in advance, so that he will not be deprived of his day in court merely because of his poverty or lack of means.

In the instant case, it is not the poverty or lack of means of the appellant which bars her further prosecution of this suit. The right existed; however, the effort to exercise such right was not well-timed.

Accordingly, it is ordered that the plaintiffs appeal be and the same is hereby dismissed at the plaintiff’s cost.

APPEAL DISMISSED.


author: LANDRY, Judge. PONDER, Judge, COLE, Judge,

text:
    FREEMAN BAPTIST CHURCH, Plaintiff-Appellant, v. HERMAN DEMPSEY HILLEN et al., Defendants-Appellees.
    No. 10901.
    Court of Appeal of Louisiana, First Circuit.
    March 3, 1977.

      Leslie D. Ligón, Jr., Clinton, for plaintiff-appellant.
    Robert A. Connell, Jackson, for defendants-appellees.
    Before LANDRY, COVINGTON, EDWARDS, PONDER and COLE, JJ.
   LANDRY, Judge.

Freeman Baptist Church (Appellant), an unincorporated association, appeals from judgment dismissing its petitory action for failure to sufficiently establish its alleged record title. After original argument before a three judge panel, two members of the panel were for reversal with one member dissenting. Accordingly, this matter was scheduled for re-argument before a five judge panel as provided by Louisiana Constitution 1974, Article 5, Section 8(B). We affirm.

Subject property consists of a three acre strip of land measuring approximately 82 feet in width by 1,572 feet in length. The parcel fronts on the East side the Ethel-Jackson Highway, in East Feliciana Parish. It is bounded on the North and West by property of Defendant Marion Lee Wallace and on the South by lands of Defendant Herman Dempsey Hillen.

Plaintiff alleges its ownership of the property in dispute and Defendants’ possession thereof. Defendants denied Plaintiff’s ownership and admitted Defendant’s possession. As hereinafter shown, Plaintiff claims by record ownership only. In the trial court Plaintiff made no claim of ownership by acquisitive prescription. Defendants make no claim of ownership. The possession which Defendants enjoy is admittedly based on sufferance of a third party whom Defendants believe to be owner.

Three basic issues are presented: (1) Has Plaintiff sustained its burden of proving title; (2) May a plaintiff in a petitory action claim ownership by acquisitive prescription of 10 and 30 years urged initially on appeal; and (3) Does the nature and character of defendant’s possession affect plaintiff’s burden of proof in a petitory action where plaintiff alleges defendant is in possession of the subject property and defendant admits being in possession.

Plaintiff acquired subject property from William Henry Price by deed translative of title, on July 20,1974. The land in question was part of a 25 acre tract acquired by Price at a tax sale on October 23,1937. On December 6, 1944, Price sold 22 of the 25 acres to John P. Jones, reserving to himself the three acres involved herein. At the time of Jones’s purchase of the 22 acres from Price, the original 25 acre tract was marked by a fence along its southern boundary. After his purchase, Jones moved this boundary fence approximately 82 feet northerly to mark the southern boundary of his 22 acres. In 1968, Jones’s widow, Mary Lou Jones, sold the 22 acre tract to Defendant Wallace. Following a survey made by Wallace, his deed was corrected in 1970 to include Price as Wallace’s ancestor in title.

In 1970, Defendant Hillen purchased the property which bounds subject three acre tract on the south. A survey of Hillen’s property shows his northern boundary running parallel to the southern boundary of subject acreage. The survey also shows Wallace’s property bounding subject tract on the north. It is conceded that neither the survey by Wallace nor the one by Hillen includes subject tract as belonging to either of said parties.

In or about 1972, by mutual agreement, Hillen and Wallace cleared an area on subject tract which they believed to be midway of and parallel to their respective northern and southern boundaries. In this cleared area they constructed a fence which in effect severed subject property in half from east to west. Hillen’s vendors previously offered to sell him the disputed strip. They told Hillen the land belonged to their mother. Hillen was verbally authorized by these alleged owners to use the land as Hillen saw fit. Wallace, relying upon Hillen’s representations, assisted in clearing the land for the fence and in building the fence. Wallace testified that he cleared the land on his side of the fence and took possession thereof with intent to possess as an adverse owner.

One week after Plaintiff’s purchase, representatives of the association went on the property to clear the land for use as a church cemetery and recreational area. On this occasion, Hillen advised Plaintiff’s representatives that Plaintiff did not own the land because Plaintiff’s alleged vendor was not the true owner. By mutual agreement, Plaintiff’s representatives cleared the underbrush but refrained from cutting trees until the question of ownership was settled. On returning to the land one week later, Plaintiff’s representatives were barred by a single strand wire fence erected across the front of the property.

In support of its claim of ownership, Plaintiff introduced in evidence the following: (1) A tax sale of 25 acres from the Estate of Albert Freeman to Price dated October 23, 1937; (2) Sale from William Henry Price to John P. Jones, dated December 6, 1944, conveying 22 acres to John P. Jones, and reserving subject 3 acres to vendor; (3) Quitclaim deed from Mary Lou Jones, Widow of John P. Jones, to William Henry Price, dated June 17, 1975; and, (4) Deed from William Henry Price to Plaintiff, dated July 20, 1974.

Near the end of the trial, Plaintiff presented a deed from W. R. McKowen to Albert Freeman, dated March 22, 1906, which instrument was introduced under proffer.

Plaintiff in a petitory action bears the burden of establishing his title. LSA-C.C.P. Article 3653 makes a significant distinction between the onus incumbent upon plaintiff where defendant is in possession of the disputed property and the burden which plaintiff must discharge when defendant is not in possession. The cited article provides as follows:

“To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
(1) Make out his title thereto, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.”

In the recent case of Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974), our Supreme Court interpreted Article 3653(1), above, to mean that where defendant is in possession, plaintiff in a petitory action must make out title good against the world, regardless of the character or quality of defendant’s title.

However, Plaintiff suggests that Verret v. Norwood, 311 So.2d 86 (La.App. 3rd Cir.), writ denied 313 So.2d 842, distinguishes Skinner, above, by holding that where defendant is in possession, plaintiff need only prove a record title in order to shift the burden of proof to defendant. Our reading of Verret, above, does not lead to the proposition advanced by Plaintiff herein. Verret appears to apply the harsh burden of proof pronounced in Skinner, above.

Plaintiff also contends our jurisprudence recognizes a distinction between a mere possessor and one possessing with some semblance of title. In this respect, Plaintiff argues that where defendant is a trespasser (as Plaintiff alleges Defendants to be in this instance), plaintiff need establish only some color of title to prevail in a petitory action. In support of this position, Plaintiff cites and relies upon Zeringue v. Williams, et al., 15 La.Ann. 76 (1860); Taylor v. Williams, 162 La. 92, 110 So. 100 (1926), and numerous other authorities. We note all such cases were decided prior to the 1960 adoption of LSA-C.C.P. Article 3653, and the Skinner decision, above.

We observe that a distinction between a mere possessor and one holding under some color of title would result in defendant’s title or lack thereof becoming an issue in every petitory action. Such a result appears contrary to the provisions of Article 3653, above, especially when that article is interpreted along with LSA-C.C.P. Article 3651, which defines the petitory action dis-junctively as follows:

“The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right, against another who is in possession or who claims ownership thereof adversely, to obtain judgment recognizing the plaintiff’s ownership.” (Emphasis added by the court.)

Plaintiff in brief argues that Defendants are precarious possessors and therefore cannot be considered adverse possessors. While Defendants concede they commenced possession with the consent of the party they believed to be owner, Plaintiff has alleged Defendants’ possession. Plaintiff may not, without leave of court, amend his petition to convert his suit into a possessory action once he admits his lack of possession. Additionally, Plaintiff may not cumulate the petitory and possessory actions in one suit. LSA-C.C.P. Article 3657.

The trial court correctly found that Plaintiff’s establishing a recorded chain of title to 1937, and the offer of a 1907 instrument, conceding the latter to be admissible, did not suffice to discharge the burden of proof required of Plaintiff. In a petitory action, the burden of proof does not shift to a defendant in possession, irrespective of the nature of such possession, until plaintiff makes out his title good against the world, meaning a showing of title by an unbroken chain commencing with a separation from the sovereign. Pure Oil Company v. Skinner, above; Deselle v. Bonnette, 251 So. 68 (La.App. 3rd Cir. 1971), writ denied, 259 La. 881, 253 So.2d 215.

In this court Plaintiff urges title predicated upon acquisitive prescription of 10 and 30 years. However, the record establishes that upon trial, Plaintiff relied exclusively upon his record title and did not plead either of said prescriptive periods. It also appears that Plaintiff offered evidence of his authors’ possession which was timely objected to on the ground that plaintiff had not pled title by acquisitive prescription, and to admit such evidence would enlarge the pleadings. The trial court admitted evidence of such possession solely in support of Plaintiffs record title. Plaintiff did not request leave to amend his pleadings to include a claim of title by acquisitive prescription but elected to rest his case upon proof of ownership by recorded title. Under the circumstances, we cannot consider the pleas of prescription initially made in this court.

Appellant’s final argument is that the legislature could not have intended to enact a rule as harsh as the Skinner interpretation of Article 3653, above. Appellant correctly notes that Skinner, above, enables a trespasser to entrench himself on property and take advantage of a defect in the title of a record owner pursuant to a deed trans-lative of title. We are fully mindful of the effects of Skinner, above. We note, however, that Skinner, above, expressly overruled Hutton v. Adkins, 186 So. 908, (La. App. 2d Cir. 1939), and that Hutton, above, involved a petitory action brought by a record owner against a trespasser. We find the instant case indistinguishable from Hutton, above. We note also the import of Skinner, to the effect that Hutton, above, was decided prior to the enactment of Article 3653, above, which the Supreme Court deems controlling.

We seriously question the wisdom and practicality of the application of the rule laid down in Skinner, above, to an instance in which the record owner brings a petitory action against a trespasser or one possessing with no claim of recorded or prescriptive title. Nevertheless, the holding in Skinner, above, is clear and unmistakable. We apply it in this instance only because we must.

For whatever comfort it may afford Appellant, it appears that Appellant need not rely solely on the strength of his recorded title to obtain relief against a trespasser. Other relief is available in the form of a possessory action or a claim of ownership based on either 10 or 30 years acquisitive prescription. See Skinner, above. See also 2A. Yiannopoulos, Louisiana Civil Law Treatise, Section 137 (1967).

The judgment is affirmed at Appellant’s cost.

Affirmed.

PONDER, J., concurred in part and dissented in part and filed opinion.

COLE, J., dissented and filed opinion.

PONDER, Judge,

concurring in part and dissenting in part.

I agree that Pure Oil Company v. Skinner, La., 294 So.2d 797 (1974) requires affirmation of this case.

However, to avoid a patently inequitable result, I would remand the case to allow plaintiff to amend its petition and present whatever evidence it can to prove its title.

Furthermore, while the petition, and especially the prayer, are not artistically drawn, I believe they are broad enough to encompass an action in trespass as well as a petitory action. I know of no law to prevent the cumulation in one suit. I know of no jurisprudence that requires the application of the Pure Oil Co. test to trespass actions.

COLE, Judge,

dissenting.

Believing, as I do, that the majority holding in Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974), particularly as applied to the facts of this case, is an erroneous statement of law, and finding comfort in the fact that the civilian heritage of our law permits me to exercise my independent judgment without disrespect to my learned brothers of our highest court, I respectfully dissent.

I find no valid bases in our law upon which to predicate the harsh jurisprudential rule of Skinner to the effect that a plaintiff in a petitory action, as against a mere squatter or trespasser, must establish a perfect title. Surely, this is not what our Legislature intended when it enacted Article 3653 of our Code of Civil Procedure. And, as explained by Justice Summers in his well reasoned dissent to Skinner, historical interpretations do not substantiate a result which “is virtually to require the impossible in some cases.” To the contrary, I agree with Justice Summers that the weight of our authorities only require such a plaintiff to prove “an apparently valid title.” That burden was borne in the case now before us.


text:
    Mary Alice GUILBEAU et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 10470.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 15, 1977.
    Joseph J. Piccione, Lafayette, for plaintiffs-appellants.
    Christopher E. Lawler, New Orleans, for defendant-appellee Cotton Belt Ins. Co.
    David W. Robinson, Baton Rouge, for defendants-appellees E. A. Caldwell Contractor, Inc. and Continental Ins. Co.
    Robert J. Vandaworker, Baton Rouge, for defendants-appellees Gains P. Wilson & Son, Inc. and Liberty Mut. Ins. Co.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

On remand from the Supreme Court, Guilbeau et al. v. Liberty Mutual Insurance Company, La., 338 So.2d 600 (1976), this matter involves: (1) the tort claims of a widow on behalf of herself and minor children, for the death of their husband-father decedent, who was killed when struck by a dump truck while at work; (2) the alleged coverage of the truck driver under policies covering corporate members of a joint venture to whom the truck and driver had been leased by the truck driver’s general employer; (3) the quantum to be awarded the widow and children in the event the alleged policy coverage be found; (4) the apportionment of $10,000 found by the Supreme Court to be due the widow and children by the insurer of the dump truck involved in the accident; and, (5) the amount due, from the ultimate award, to certain intervenors as compensation insurers of the joint venture members.

John Albert Guilbeau, husband of plaintiff Mary Alice Guilbeau and father of the minors John Albert Guilbeau, III, Kimble Keith Guilbeau, Felicia Marie Guilbeau, Kevin Dewane Guilbeau and William Fitz Guilbeau, was killed on August 11, 1974, when struck by a dump truck being operated by Marion Lee Higgins, which vehicle was owned by J. B. Higgins and insured by Cotton Belt Insurance Company (Cotton Belt). At the time of the accident, the truck and driver were leased by its owner to Gaines P. Wilson & Son (Wilson) and E. A. Caldwell Contractor, Inc. (Caldwell), which concerns were engaged in the joint performance of a highway improvement project pursuant to a contract with the Department of Highways, State of Louisiana. Wilson’s workmen’s compensation and automobile liability insurance was carried by Liberty Mutual Insurance Company (Liberty); Caldwell’s similar coverage was carried by The Continental Insurance Companies (Continental).

Wilson was prime contractor on the construction project. By contractual arrangement, Wilson and Caldwell shared the work, responsibility, and profits, in such manner as to make their participation therein a joint venture. For the details of the arrangement, see the opinion of this court, 324 So.2d 571.

Decedent Guilbeau was hired as a mechanic by Caldwell’s foreman, Savoy, the day before the accident. Savoy, and a crew under him, was primarily engaged in operating an asphalt spreader to which hot asphalt was being hauled by truck. On the day of the accident, decedent was working on or around the spreader, and the leased truck and its driver were engaged in hauling asphalt to the same machine. Decedent was killed when he was struck from behind, while walking toward the spreader, by the leased truck which was backing toward the spreader to deliver a load of asphalt.

Plaintiffs sued Wilson, Liberty, Caldwell, Continental, Cotton Belt, Marion Lee Higgins, J. B. Higgins, Billy Works, Caldwell’s Supervisor, Alex Manuel, a Caldwell employee, Morris Brown, a Caldwell employee, and all officers, directors and safety officers of Wilson and Caldwell. Plaintiffs alleged inter alia, that Marion Lee Higgins was insured by Liberty and Continental pursuant to comprehensive automobile liability insurance policies issued by said insurers to their respective insureds. Liberty and Continental intervened in plaintiffs’ suit seeking recovery of workmen’s compensation benefits paid plaintiffs from the time of the accident to the time of suit.

The trial court rejected plaintiffs’ demands in tort against Wilson, Liberty, Caldwell, and Continental, on the ground that neither Caldwell nor Wilson were negligent and that, as Guilbeau’s joint venture employer, said concerns and their insurers were liable to plaintiffs only for workmen’s compensation benefits. Plaintiffs’ demands against J. B. Higgins, Marion Lee Higgins, all other individual defendants, and Cotton Belt, were rejected by the trial court on a finding that decedent was contributorily negligent.

On appeal we affirmed that portion of the trial court decree which held that Wilson and Caldwell were engaged in a joint adventure and as such, they and their insurers were liable only for workmen’s compensation benefits, because decedent was an employee of the joint venture. We also held that the truck driver, Higgins, was the borrowed servant of the joint enterprise, and as such, neither his general employer, nor the insurer of his general employer was liable for his tort actions in this instance. We pretermitted the matter of the alleged contributory negligence of decedent as regards the demands against all the above named individuals and corporate employees on the ground that said parties were neither cited nor was issue joined as to them. We rejected plaintiffs’ recovery under the automobile liability insurance coverage policies issued by Liberty and Continental to Wilson and Caldwell, on finding that the policies afford individual coverage only as to the use of company owned vehicles and therefore afforded no coverage to Marion Lee Higgins in the use of the truck belonging to J. B. Higgins.

The Supreme Court granted certiorari and found: (1) No employee of either Caldwell or Wilson was guilty of negligence causally related to decedent’s death; (2) Marion Higgins, the truck driver, was not the employee of either Caldwell or Wilson; (3) The dump truck and its driver were leased by Higgins to the joint venture composed of Caldwell and Wilson; (4) Neither Caldwell nor Wilson was responsible for the negligence of the truck driver, Marion Lee Higgins; (5) Plaintiffs’ remedy against Caldwell and Wilson is for workmen’s compensation benefits only; (6) Caldwell’s and Wilson’s insurers, Continental and Liberty, are not liable to plaintiffs under their general comprehensive liability policies; (7) Marion Lee Higgins, the truck driver was liable to plaintiffs under the last clear chance doctrine; and, (8) Cotton Belt, liability insurer of J. B. Higgins, is liable to plaintiffs in its policy limits of $10,000.00.

The Supreme Court was of the view that policies issued by Liberty and Continental to Wilson and Caldwell, respectively, and designated “Comprehensive Automobile Liability Insurance” could conceivably cover Marion Lee Higgins under certain insuring provisions contained therein.

We address this coverage question as directed. The mentioned policies contain the following similar and pertinent provisions:

“Exclusions
This insurance does not apply to bodily injury or property damage arising out of (1) a non-owned automobile used in the conduct of any partnership or joint venture of which the insured is a partner or a member and which is not designated in this policy as a named insured .
“Persons Insured
(a) the named insured;
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission .
“None of the following is an insured:
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment;
(ii) the owner or lessee (of whom the named insured is a sublessee) of a hired automobile or the owner of a non-owned automobile, or any agent or employee of any such owner or lessee.
“Additional Definitions
‘hired automobile’ means an automobile not owned by the named insured which is used under contract in behalf of, or loaned to, the named insured . ‘non-owned automobile’ means an automobile which is neither an owned nor a hired automobile.”

We understand the rationale of the Supreme Court decision to be that since the exclusion clause is specifically made applicable only to non-owned automobiles used in the conduct of a joint venture in which the insured is engaged, the exclusionary clause might be interpreted to indicate coverage could be applicable to a hired vehicle used in a joint venture. We so conclude because the policy definition of “non-owned automobile” excludes a “hired automobile”, whereas the exclusionary clause refers only to a non-owned vehicle.

The Supreme Court indicated that Clause (c) under “persons insured”, above, is sufficiently broad to afford coverage of the driver of the truck, “assuming that the truck thus furnished the joint venture (of which Wilson and Caldwell are members) was a ‘hired automobile’ furnished to the joint venture and thus ‘used in behalf of’ the respective named insureds”.

Because, however, both policy definitions of “non-owned automobile” expressly exclude a “hired automobile”, it is necessary to determine whether the dump truck in question was a “hired automobile” within the definition of the term “hired automobile” as contained in each policy. The trial court, this court and the Supreme Court found Higgins’ truck and driver were leased to the joint venture. We adhere to this determination.

We find the above quoted policy definitions of “hired automobile” to be substantially in accord with our codal definition of the contract of lease or hire. In this regard, we find the following codal articles pertinent:

“LSA-C.C. Article 2669
Lease or hire is a synallagmatic contract, to which consent alone is sufficient, and by which one party gives to the other the enjoyment of a thing, or his labor, at a fixed price.
“LSA-C.C. Article 2674
To let out a thing is a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay him.
“LSA-C.C. Article 2677
He who grants a lease is called the owner or lessor. He to whom a lease is made is called the lessee or tenant.”

Considering that the Higgins truck is conclusively shown to have been leased to the joint venture of Wilson and Caldwell, and was under contract on behalf of said parties to the joint venture, the truck was clearly a hired vehicle under our statutory definition of hiring. It was also a hired vehicle within the meaning of the policy definitions of the term, inasmuch as it was a vehicle not owned by either insured, but was being used on behalf of each insured as a member of the joint venture.

In considering the “persons insured” provisions of the policies, the Supreme Court referred solely to paragraph (i) which excludes from coverage an employee with respect to bodily injury to a fellow employee injured in the course of his employment. In so doing, the Supreme Court commented:

“[CJonsidering that the decedent Guil-beau was hired by the joint venture (as the court of appeal held) or by Caldwell (as his widow contends), it is apparent that a serious doubt exists as to whether Guilbeau could be a ‘fellow employee’ of the truckdriver (employed by and paid by Higgins, not by the joint venture or by Caldwell) for purposes of an exclusion clause in each policy which provides: ‘None of the following is an insured: (i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment * * *.’ (Italics ours.) Cf. Pullen v. Employers’ Liability Assurance Corp., 230 La. 867, 89 So.2d 373 (1956).”

We note, however, the Supreme Court made no reference whatsoever to paragraph (ii) which expressly excludes coverage of the owner or any agent or employee of the owner of a hired automobile. We believe paragraph (ii), above, is dispositive of the coverage issue, thus eliminating the necessity of determining whether decedent and the truck driver were co-employees.

In reaching our conclusion on the question of coverage, we are mindful of the rule applicable to interpretation of exclusionary clauses, as set forth by the Supreme Court in Pullen v. Employers’ Liability Assurance Corp., 230 La. 867, 89 So.2d 373 (1956), as follows:

“The exclusion clause must necessarily be examined and interpreted in the light of its own design and intent, as well as in view of the objects and purposes of the policy. Once coverage has been extended, as it is quite clearly the purpose of the policy to do and as has been done here, it should be withdrawn only when exclusion is established with certainty. And because comprehensive exclusion is violative of the purpose and intent of policy coverage, exclusion must necessarily be specific and not general. It is specific, as distinguished from comprehensive, when it particularly identifies the insured or insureds intended to be excluded. The exclusion clause, as its name implies, sets forth the traits, characteristics and circumstances that mark an insured for exclusion. And the insured or insureds to be excluded must bear the marks and traits, or conform with the circumstances, described and particularized in the exclusion clause as the basis for exclusion.”

We are also mindful of the rule that ambiguities in insurance policies are to be construed in favor of the insured and against the insurer. Jennings v. Louisiana & Southern Life Insurance Company, 280 So.2d 291 (La.App. 1st Cir. 1973). Doubt as to the meaning of policy provisions are to be construed in favor of coverage and the insured. Graves v. Traders & General Insurance Company, 252 La. 709, 214 So.2d 116 (1968).

Plaintiffs contend it is anomalous and conflicting and therefore ambiguous to provide coverage of a hired vehicle (which it is contended results from the failure to include a hired automobile within the term “Exclusions”), and then take away such coverage depending upon who is driving such a vehicle as provided in paragraph (ii).

We find no such anomaly. Neither do we find these provisions ambiguous or conflicting. In our view, paragraph (ii) is a clear and unambiguous extension of the exclusions concerning which the insurer declined to offer coverage. We can readily appreciate that an insurer might be willing to insure a hired vehicle being operated by its insured or an agent or employee of its insured, and at the same time be loath to insure such a vehicle being operated by its owner or an employee or agent of its owner. We think the difference in the risks involved are obvious.

The Supreme Court found that the truck driver Higgins, was an employee of J. B. Higgins d/b/a Higgins Trucking Company “employed by and paid by Higgins, not by the joint venture or by Caldwell”. We are bound by this determination. It follows that the truck driver was not covered under the automobile liability policies in question because he was driving a hired vehicle as an employee of the vehicle’s owner, and not as employee of either insured.

Finding no coverage under the automobile liability policies of Liberty and Continental, there remains the issue of the amount due intervenors for Workmen’s Compensation benefits paid decedent’s widow and surviving minor children.

The Supreme Court awarded judgment in favor of plaintiffs and against Cotton Belt in the sum of $10,000. We are mandated to apportion this amount between Liberty and Continental, who have stipulated that each has contributed 50% of workmen’s compensation benefits paid plaintiffs since decedent’s death on August 11, 1971. The record discloses that Liberty and Continental have paid compensation benefits of $49.00 weekly since August 11, 1971, an aggregate in excess of the $10,000 for which Cotton Belt is liable. Considering our determinations herein, there is no need to apportion the amount to be awarded Liberty and Continental.

It is ordered, adjudged and decreed that plaintiffs’ demands against Liberty and Continental pursuant to the Comprehensive Automobile Liability Policies issued by said insurers to Wilson and Caldwell are denied on the ground that said policies do not cover Marion Lee Higgins under the circumstances of this case.

It is further ordered, adjudged and decreed that there be judgment herein in favor of plaintiff Mary Alice Guilbeau, individually and on behalf of her above named minor children, against Cotton Belt in the sum of $10,000, with legal interest thereon from date of judicial demand, until paid.

It is further ordered, adjudged and decreed that there be judgment herein in favor of intervenors Liberty and Continental and against plaintiffs Mary Alice Guilbeau and her above named minor children and Cotton Belt, in the sum of $10,000, together with legal interest thereon from date of judicial demand, until paid, said sum of $10,000 to be shared by Liberty and Continental in equal portions, all costs of these proceedings, on trial and appeal to be paid by Cotton Belt.

It is further ordered, adjudged and decreed that in all other respects the judgment of this court rendered in La.App., 324 So.2d 571, is affirmed.

AMENDED AND AFFIRMED.


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    Charles D. GRIFFIN v. CROWN ZELLERBACH CORPORATION.
    No. 11168.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Floyd J. Falcon, Jr., Baton Rouge, for plaintiff and appellee.
    William A. Norfolk, Baton Rouge, for defendant and appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

This appeal by Crown Zellerbach Corporation (Crown), is from judgment awarding its employee, Charles D. Griffin (Employee), workmen’s compensation benefits for total permanent disability resulting from a heart attack suffered by Employee within the course and scope of his employment by appellant. We affirm.

Two salient issues are presented herein, namely: (1) Did Employee sustain in “accident”; and (2) If so, was the accident and resulting disability causally related to Employee’s work.

Crown operates a paper mill in which Employee was employed as a millwright. Employee was a member of a multi-craft union and had been an employee of Crown for approximately 15 years preceding the alleged “accident”. Employee’s duties consisted primarily of general maintenance work including the repair of machinery and equipment. Prior to the alleged accident, Employee had no history of a heart condition although he had been treated by his family physician, Dr. Harry S. Morris, for high blood pressure, for several years. On the morning of July 17, 1974, Employee reported to work, as usual, about 6:45 A.M. He was assigned to work with a fellow employee, Lynn Carney, on a “turnaround” of a paper making machine. We understand a “turnaround” to be a temporary shutdown of a unit for repair and cleaning preparatory to commencement of a new production cycle. The work involved the use of hand tools, pipe wrenches of varying sizes, and a mall. In the course of the work, Employee and Carney encountered some difficulty in removing a heavy chain situated inside a housing on the machine. Carney described the machine as being about 22 feet long and 20 to 25 feet wide. At about 9:00 A.M., Employee complained of severe chest pains and reported to the nurse’s station in Crown’s plant. The attendant Registered Nurse checked Employee’s pulse, respiration and blood pressure and found these vital signs within normal limits. Being familiar with Employee’s history of high blood pressure, and based on Employee’s complaint of a feeling of fullness, she prescribed antiacid tablets in the belief that Employee was suffering from indigestion. She advised Employee to return if the tablets did not afford him relief. Employee resumed work until about 2:30 P.M., at which time he returned to the nurse’s station in obvious acute distress from chest pains. The nurse summoned a company ambulance, called Dr. Harry S. Morris, Employee’s personal physician, and transported Employee to Dr. Morris’ office. Dr. Morris hospitalized Employee immediately. In the hospital, Employee’s chest pains persisted. On Friday, July 17, 1974, Employee became unconscious and remained so until the following day. Upon Employee regaining consciousness, his family retained a heart specialist who moved Employee to another hospital. After a few days treatment, Employee’s condition stabilized. Employee remained hospitalized about three weeks, and was then discharged to recuperate from the effects of a myocardial infarction which damaged the anterior surface (front) of his heart.

Dr. Morris’ record of Employee’s hospital admission contains a history of complaints of diarrhea, stomach cramps and weakness commencing Sunday, July 14, 1974. Employee steadfastly denied having related such a history to Dr. Morris and could not account for such information being contained in the record. Dr. Morris’ report also notes evidence of indigestion and heartburn.

On July 29,1974, Employee made application to Crown for sick benefits (non work related benefits) pursuant to union contract. Employee was paid such benefits for approximately six months.

Despite Dr. Morris’ report to the contrary, Employee testified he was not ill prior to experiencing chest pains on the morning in question. He did not recall having told Dr. Morris otherwise. He related that the chest pain began unexpectedly after he had been engaged in strenuous physical work which included swinging a mall. He also stated the temperature was so hot a blower fan was being used to afford relief from the heat. Upon experiencing pain, he went to the nurse’s station complaining of chest pain, not a feeling of fullness. He was given some tablets and instructed to return if the tablets did not bring relief. He continued work although the pain returned from time to time: At lunch time he did not eat but gave his lunch to a fellow employee. He continued work until about 2:30 P.M. when his chest pain became so severe he again reported to the nurse’s station. He conceded he knew he had had high blood pressure for some time but had no reason to believe he had a heart condition. He testified he was having no discomfort whatsoever when he left home for work on the morning he was stricken.

The testimony of Lynn Carney corroborates that of Employee concerning the strenuous nature of the work in which they were engaged. Carney explained that removing the heavy chain from the machine was a task never previously encountered. He found it a most frustrating and difficult undertaking. He also stated there was some degree of emotional pressure involved in that a certain amount of time was allotted to accomplish the turnaround. He testified further that Employee made no complaints whatsoever on the day in question until the first incident about mid-morning. Carney confirmed that Employee’s chest pains continued after Employee’s first visit to the nurse’s station. At one time, Carney asked Employee if Employee thought the trouble was with his heart and Griffin replied he thought it was something he had eaten. Carney had not worked with Griffin on either the Monday or Tuesday preceding the incident.

Employee was hospitalized under care of Dr. Morris from July 17, 1974, to July 20, 1974, during which interval three electrocardiograms were taken, the last showing definite signs of a myocardial infarction. When this information was communicated to Employee’s family, a cardiologist, Dr. Virginia S. Thurmond, was retained to treat Employee.

On July 20, 1974, Employee was seen by Dr. David Wall, an associate of Dr. Thurmond. Employee was moved to a hospital in Baton Rouge and thereafter remained under the care and treatment of Dr. Thurmond. Initial examination by Dr. Thurmond disclosed that Employee was suffering from obvious symptoms of myocardial infarction. This diagnosis was based on Employee’s history, his complaints of chest pains, an arteriogram, and enzyme studies which showed positive damage to anterior portion of the heart which produced congestive failure, meaning fluid in the lungs. The arteriogram showed arteriosclerosis with several arterial blockages, including total blockage of one of the two main arteries supplying the left side of the patient’s heart.

Dr. Thurmond concedes that Employee’s arteriosclerotic condition was not caused by any condition of Employee’s work. She explained that the patient sustained an occlusion, or stoppage, which commenced when Employee began feeling ill and suffering chest pains on the afternoon in question. She also stated that a person in Employee’s state of health should, at all costs, avoid any form of physical, emotional or mental stress or strain because such circumstances can aggravate the arteriosclerotic condition and precipitate an occlusion, meaning arterial stoppage, which can result in an infarction, meaning damage to heart muscle tissue. Dr. Thurmond conceded that a person in Employee’s condition could suffer a heart attack under any circumstances, even while lying down, and that such an individual could function normally without being aware of his true condition. She was of the opinion that Employee’s condition was such that he should not have been doing the kind of work in which he was engaged. She added that had she examined Employee before the incident, she would have recommended that he not undertake such employment. Dr. Thurmond was emphatic in the view that stress or strain, physical, mental or emotional, can hasten a heart attack in a person in Employee’s condition. Dr. Thurmond also stated that there are many factors which may aggravate the condition Employee had. For this reason she would never attempt to say with absolute certainty what factor or factors triggered an occlusion. The clear import of her testimony is, however, that she is of the opinion it is at least reasonably probable that plaintiff’s occlusion resulted from the work in which he was engaged when stricken. Additionally, her testimony is unequivocally to the effect that plaintiff is totally and permanently disabled from doing the type of work in which he was engaged.

The question of whether a heart attack sustained in the course of one’s employment constitutes an “accident”, has been settled by numerous decisions holding that an employee may recover for a disabling heart attack and that the statutory requirement of an “accident” is met if the employee can show that he performed duties requiring the use of physical effort which precipitated the attack. Nickelberry v. Ritchie Grocer Co., 196 La. 1011, 200 So. 330 (1941); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968); Danziger v. Employers Mutual Liability Insurance Company, 245 La. 33, 156 So.2d 468 (1963); LeLeux v. Lumbermen’s Mutual Insurance Company, 318 So.2d 15 (La.1975). In LeLeux v. Lumbermen’s Mutual Insurance Company, above, the Supreme Court has apparently carried the “accident” test one step further. LeLeux involved the claim of the widow of a truck driver stricken with a cerebral vascular stroke while on the job. In holding that an “accident” was established, the Supreme Court stated:

“It is necessary only that the death or disability be precipitated by the usual actions, exertions, and conditions of employment. Ferguson v. HDE, Inc., supra, 264 La. 204, 270 So.2d 867 (1972), and Bertrand v. Coal Operators Casualty Company, supra.”

On the question of causal relationship between an accident and the employee’s work, in cases of this nature, we note the following language in LeLeux, above:

“The causal relation may be inferred when there is proof of an accident during the course of employment and an ensuing disability or death with no intervening cause. Gradney v. Vancouver Plywood Co. Inc., La., 299 So.2d 347 (1974); Johnson v. Travelers Insurance Co., La., 284 So.2d 888 (1973); Bertrand v. Coal Operators Casualty Co., supra.”

Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975), decided the same day as LeLeux, above, stated the following on the question of causal relation between an employee’s work and a heart attack which occurs on the job:

“The only remaining issue for determination is whether plaintiff proved by a preponderance of evidence that the fatal heart attack which occurred on the job was caused by decedent’s employment. Difficulty in proving causation arises from the fact that a pre-existing heart infirmity can produce disability at any moment irrespective of any outside influence. However, it is well settled that benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Hence, it is of no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. Further, it is not necessary that the accident resulting in disability or death be caused by extraordinary activities of the employee, or that said activities be the exclusive cause of the accidental injury. As previously stated, it is only necessary that the death or disability resulting from the accidental injury be caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Ferguson v. HDE, Inc. and Bertrand v. Coal Operators Casualty Company, supra.
In the instant case, the record reveals that decedent was engaged in manual labor as a machinist in the refinery at the time of the fatal heart attack. He was performing the usual and customary duties of his employment. We have no hesitancy in concluding that these activities were strenuous in nature. There is no dispute that decedent did, in fact, have a history of hypertension and that he did suffer a myocardial infraction resulting in immediate death while performing the duties of his employment. It is established by the medical testimony that the myocardial infarction suffered by decedent on the job which resulted in his death could have been caused or precipitated by the usual and customary actions and exertions of decedent’s duties as a machinist. Causal connection was thus clearly established by a preponderance of evidence in this case.”

Applying the foregoing pertinent authorities to the case at hand we find that Employee sustained an accident in this instance and that the accident was causally related to his employment by Crown. The incident in question occurred on the job while Employee was in the course of performing his ordinary duties, which involved strenuous physical labor performed under some degree of stress and in rather warm temperature. The medical evidence discloses the reasonable probability that such conditions could have caused or precipitated the occlusion which Employee is shown to have suffered. Under these circumstances, Employee is entitled to workmen’s compensation benefits as decreed by the trial court.

In oral argument and brief, Employee requests penalties and attorney’s fees which were disallowed by the trial court. Since Employee has neither appealed nor answered Crown’s appeal, the relief requested cannot be granted, even if warranted. LSA-C. C.P. Article 2133; Arrow Construction Company, Inc. v. American Employers Insurance Company, 273 So.2d 582 (La.App. 1st Cir. 1973).

The judgment is affirmed, all costs to be paid by Crown.

Affirmed.


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    Mattie HUTCHINSON et ux. v. F. W. WOOLWORTH et al.
    No. 11171.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Hobart O. Pardue, Jr., Springfield, for Mattie Hutchinson, et ux., plaintiffs-appel-lees.
    France W. Watts, III, Franklinton, for F. W. Woolworth, et al., defendants-appellants.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Defendants F. W. Woolworth and The Travelers Insurance Company, Woolworth’s liability insurer, appeal from judgment awarding plaintiffs Mattie Hutchinson and Thomas Hutchinson, husband and wife, damages for personal injuries sustained by Mrs. Hutchinson in a fall in Woolworth’s Hammond, Louisiana store. We affirm.

Plaintiff’s petition alleges the fall occurred on or about December 11, 1973, when Mrs. Hutchinson slipped on the floor of the Woolworth store made slippery by the use of a dangerous substance thereon. Defendants answered, denying any negligence on the part of Woolworth or its employees, and, alternatively pleading contributory negligence on Mrs. Hutchinson’s part. On appeal, defendants urge their plea of contributory negligence and alternatively pray for a reduction in damages awarded Mrs. Hutchinson for personal injuries.

Mrs. Hutchinson testified she entered the store about noon to purchase some curtains. She was accompanied by her sister Virline Pinestraw, who died prior to trial, and her sister’s husband Clarence Pinestraw. After entering the store, Mrs. Hutchinson proceeded down an aisle slightly ahead of her sister and brother-in-law. Upon entering the establishment she noted the floor had been waxed because she could readily observe several “shiny spots” on the floor. Mrs. Hutchinson admitted no one was walking ahead of her and that she had an unobstructed view of the floor ahead. She proceeded to walk normally along and noted a shiny spot about 20 feet ahead. This particular spot appeared about the same as others she had traversed. She had no reason to believe the floor was dangerous and had no idea that she would fall. When she reached this particular spot, however, her foot slipped from beneath her and she fell to the floor. While on the floor she noted the floor was heavily waxed and that the spot where she fell was much shinier than the others she had noticed. She was assisted up by her brother-in-law. Upon arising she felt numb. She did not then report the incident to any store employee because she did not realize she had been injured. After leaving the store and proceeding about half a block she experienced pain and a burning sensation in her back. Later that day she called the store manager from her home and reported the accident. She stated that the store manager told her he would not say the floor was not slippery because it was, due to the fact that he had caused a heavy wax to be used on the floor. It is significant that no employee of defendant Woolworth was called as a witness and plaintiff’s testimony stands uncontradicted on this vital issue. In substance, Mrs. Hutchinson’s testimony is corroborated by her brother-in-law, Clarence Pinestraw.

Mrs. Hutchinson’s testimony also discloses that since the accident, she has suffered almost continuously from back and leg pain, principally pain in the right leg, and could not sleep at night. Because of the pain, she has had to enlist the aid of her 15 year old daughter to perform household duties that she would normally do herself. In a deposition taken May 9, 1975, Mrs. Hutchinson stated the accident occurred December 19, 1974. At trial she testified the accident happened December 11, 1973. We find the latter date correct, inasmuch as the record discloses Mrs. Hutchinson was first seen on December 18,1973, by Dr. I. Rosen, General Practitioner, for treatment for back and neck pain which she related to have resulted from a fall on December 11, 1973. In essence, she testified she could not recall when she first consulted Dr. Rosen but that she sought medical treatment when her pain became unbearable.

When Dr. Rosen first saw Mrs. Hutchinson, the patient related a history of a fall in a Woolworth Store on December 11, 1973. Mrs. Hutchinson complained of pain in the lumbosacral area with right side radiation and also pain in the neck area and between the shoulders. Examination disclosed a knot (hematoma) on her right patella (knee) area and 20% restriction of neck motion. The patient also complained of low back pain on raising her left knee, which indicated ligamentous injury. Dr. Rosen prescribed pain tablets and muscle relaxants. On February 19,1974, Dr. Rosen noted minimal paraspinal muscle spasm. When Mrs. Hutchinson returned March 27, 1974, Dr. Rosen found no change in her condition. On April 14, April 29, and May 10, 1974, Mrs. Hutchinson complained of intense back pain and on the latter date she complained also of right side radiation. Dr. Rosen recommended consultation with an orthopae-dist and prescribed use of a sacroiliac belt for back support. The patient returned June 17, July 5 and August 2, 1974, on which latter visit Dr. Rosen recommended a myelogram. In Dr. Rosen’s opinion, Mrs. Hutchinson sustained a ligamentous injury sufficient to cause her complaints of severe persistent pain. Dr. Rosen saw Mrs. Hutchinson on March 21,1975, and found her pain somewhat abated and on April 10, 1975, he found her condition substantially the same. He discharged the patient May 5, 1975, believing he had brought her to maximum recovery. He felt that her complaints as of this latter date were not justified by objective symptoms and believed that she had a neurotic overlay that needed further treatment. He was of the view that Mrs. Hutchinson was not a malingerer but had a very low threshold of pain, and that she was neurotic in that she was more prone to pain than the average patient. He believed, however, that she actually experienced the pain about which she complained, and that he would not have recommended a myelogram had he suspected her of malingering.

Mrs. Hutchinson was seen by Dr. John Thomas, Orthopaedic Surgeon, on October 30, 1974. He found limitation of the lumbo-sacral area, especially on forward flexion and mild paralumbar muscle spasm. X-ray examination of the lumbosacral spine, pelvis and hips proved negative. Based on the patient’s history of a fall and continued low back pain radiating into both legs, Dr. Thomas diagnosed the patient’s condition as contusion or strain of the lumbosacral spine. He found no objective symptoms to support her complaints of pain.

Dr. William M. Fisher, Jr., saw Mrs. Hutchinson on November 5, 1974, at the request of her counsel. He found no muscle spasm and no objective signs of injury. Because of the patient’s complaint of persistent intense pain, he performed a myelo-gram on November 7, 1974, the results of which proved negative.

A storekeeper is not the insurer of the safety of his customers and patrons. He is liable, however, for injuries to customers resulting from his own negligence, or that of his employees. Fugler v. Atlantic & Pacific Tea Company, 253 So.2d 683 (La.App. 1st Cir. 1971); Jones v. W. T. Grant Company, 187 So.2d 470 (La.App. 3rd Cir. 1966).

A storekeeper or shop owner owes an affirmative duty to those who use his premises to exercise reasonable care to keep his aisles, passageways and floors in a safe condition. Kavlich v. Kramer, 315 So.2d 282 (La.1975), and authorities cited therein.

The duty of a storekeeper to his customers includes that of protecting them from foreign substances on the floor, which obligation imposes the burden of reasonable care under the circumstances. Reasonable care includes periodic inspection calculated to keep aisles and passageways free of substances or objects which may cause customers to fall. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976), and authorities therein cited.

If a storekeeper or his employees create a hazardous condition in the aisles or on the floors of the storekeeper’s establishment, the storekeeper is charged with actual knowledge of the hazard and is liable to a customer injured as a result thereof. Lofton v. The Travelers Insurance Company, 208 So.2d 739 (La.App. 3rd Cir. 1968).

In rendering judgment for plaintiff, the trial court had to find that the condition of the floor was hazardous. Not only do we fail to find error in this determination, we concur therein. The record establishes that Mrs. Hutchinson fell on a spot made slippery by the application of excessive floor wax. Such a condition is inherently dangerous.

It is well established that one pleading contributory negligence bears the burden of proof. Wiggins v. Kansas City Southern Railway Company, 240 So.2d 744 (La.App. 2nd Cir. 1970).

It is elementary that in determining either negligence or contributory negligence, each case must be determined in the light of its own peculiar facts and circumstances.

Despite plaintiff’s admitted knowledge that there were shiny spots on the floor, we find no contributory negligence on her part in this instance. She had negotiated the floor a distance of approximately 20 feet inside the front door before she fell. She was paying attention to where she was walking and she was proceeding at a normal gait. Granting that she saw a shiny spot ahead, she had no particular reason to suspect it was dangerous. Practical experience teaches that a newly waxed floor will appear shiny. We reject the contention that a shiny floor is necessarily a warning of danger sufficient to alert the average individual to extraordinary precaution for his own safety. Under the circumstances, we find Mrs. Hutchinson was exercising that degree of care expected of a reasonably prudent individual, consequently she was not negligent in legal contemplation.

Mrs. Hutchinson was awarded $5,000.00 for pain and suffering. The record establishes that her pain persisted for many months following her injury. It is further shown her pain was intense and required prolonged medication and treatment. Unfortunately for defendants, she has a low threshold of pain which caused her to suffer perhaps more than would have a more stoic individual. Nevertheless, the tort feasor takes his victim as he finds him. Graves et al. v. Traders & General Insurance Company, 200 So.2d 67 (La.App. 1st Cir. 1967).

The medical evidence is clear that Mrs. Hutchinson’s pain and suffering was real, and that she was not a malingerer. In the award of quantum the decision of the trier of fact is not to be disturbed save in the case of a clear abuse of the much discretion vested in the trier of fact in such matters. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Temple v. Liberty Mutual Insurance Co., 336 So.2d 299 (La.App. 1st Cir. 1976). We find the award in this instance to be well within the discretion of the trial court.

The judgment is affirmed, all costs of these proceedings to be paid by defendants F. W. Woolworth and The Travelers Insurance Company.

Affirmed.