author: REDMANN, Judge. LEMMON, Judge STOULIG, Judge

text:
    Herman ACOSTA, Sr. v. Harry MASTERS.
    No. 8047.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 1976.
    John F. Fox, Jr., Walter R. Fitzpatrick, Jr., New Orleans, for mover.
    Charles H. Livaudais, Chalmette, for respondent.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

Defendant-appellant, after posting a $750 cash appeal bond, filed a rule in this court to obtain some relief from a $652.50 transcript cost which he says he is unable to pay. His rule raises the issue of “jurisdiction,” La.C.C.P. 2088, of trial and appellate courts after the appeal bond is filed. Concluding that jurisdiction lies with the trial court, we dismiss.

Appellant seeks to reduce his bond to $200, freeing $550 towards payment of transcript. Appellant has need for some protection: it has been held that the clerk has no authority to apply the cash bond to cost payment, and that the deposit of even ample cash as security for appeal costs does not relieve appellant of paying those costs prior to return day, under penalty of dismissal of the appeal; Case v. Case, La.App. 2 Cir. 1975, 316 So.2d 418 ($750 cash security for costs, $291 transcript and filing costs, appeal dismissed). The first problem, however, is whether this court can entertain appellant’s rule.

C.C.P. 2088, as amended by Acts 1964 No. 4 (and Acts 1968 No. 128) provides “[t]he jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond . . .” (Emphasis added.) The further language of Art. 2088 is confusing in that it again denies jurisdiction in the trial court “over these [reviewable] matters except” for eight specified matters, none of which is reviewable under the appeal anyway, so that none is actually an exception to the general rule as worded since the 1964 amendment.

Prior to that amendment art. 2088 read “[t]he jurisdiction of the trial court over the case shall be divested, and that of the appellate court shall attach . . . .” (Emphasis added.) The further language repeated the denial of jurisdiction “over the case except” for specified matters which were truly exceptions to the original wording of art. 2088. The original wording caused no hesitancy in an appellate court’s considering an original application for authority to proceed in forma pauperis, Malveaux v. Buller, La.App. 3 Cir. 1961, 135 So.2d 368 (just as appellate courts had done prior to the 1960 Code of Civil Procedure, Buckley v. Thibodaux, 1935, 181 La. 416, 159 So. 603). (Perhaps it was arguable that, even as to those matters excepted from the denial of the trial court’s jurisdiction, the appellate court could have exercised concurrent jurisdiction under the original art. 2088’s general rule.)

The 1964 amendment, however, intended to reduce the “too broadly stated” general rule; 1964 Comment (c) to art. 2088. But Creel v. Creel, La.App. 4 Cir. 1967, 201 So.2d 871, 872, citing Malveaux without referring to the subsequent amendment, recited that under art. 2088 “the jurisdiction of the trial court over the matter now before us was divested . . . .” Creel granted an original forma pauperis application. Most recently, Kliebert v. Kliebert, La.App. 4 Cir. 1976, 334 So.2d 778, citing Creel without referring to the amendment, held that “under C.C.P. art. 2088 the trial court was divested of all jurisdiction . except for certain incidental proceedings and orders specifically enumerated.” Because “forma pauperis is not one of the orders authorized under the exceptions listed,” Kliebert reasoned that the trial court’s forma pauperis order was “invalid” and dismissed the appeal for failure to timely pay transcript and filing fees.

The rule now before us does not request authority to proceed in forma pauperis. The rule requests a reduction in the $750 cash appeal bond already posted, in order to withdraw $550 cash to pay towards the $652.50 transcript cost. This matter might, in theory, be within “objections to the . sufficiency of the appeal bond,” art. 2088(5), despite subd. (5)’s reference to art. 5123 (which requires citing “the party furnishing the bond ... to show cause why the bond should not be decreed insufficient . . . ”). On this theory the trial court would have jurisdiction under subd. (5)’s ’exception.

However, reduction of bond to $200 prior to payment of the $652.50 transcript fee seems at least technically objectionable. A resourceful judge would doubtless find some solution to a problem like appellant’s —perhaps, for example, by ordering the clerk to apply part of the deposit to part of the transcript fee. But would the trial court have jurisdiction for such an order, or any other responsive order not assimilable to “sufficiency” of the bond?

Our answer is that the question of whether an appellant who has posted the appeal bond should be granted some relief, and in what form, from the pre-payment of costs of appeal is not a matter “reviewable under the appeal” within C.C.P. 2088. The jurisdiction of the trial court over that matter therefore is not divested, and that of the appellate court does not attach, upon the filing of the appeal bond.

Creel and Kliebert, perhaps misled by the re-arrangement and continued presence of the “exceptions” to the no-longer-general general rule of art. 2088, erred in overlooking the 1964 amendment to the general rule of art. 2088. Insofar as they would prevent a trial judge from acting in an appealed case on any matter not reviewable under the appeal and granting any proper relief (including forma pauperis authority if entitlement is established), Creel v. Creel and Kliebert v. Kliebert are now overruled.

Since jurisdiction within art. 2088 remains with the trial court, we have no original jurisdiction to consider appellant’s rule. We have only supervisory jurisdiction to decide whether the trial court correctly grants or refuses relief.

Dismissed.

LEMMON, Judge

(concurs specially and assigns additional reasons).

The 1964 amendment to C.C.P. art. 2088 properly answers the question presented in this case. Any issue raised by facts occurring after the appealed judgment is not reviewable on that appeal because the determinative facts do not appear in the record. Such an issue must be raised by application to the trial court, which has original fact-finding jurisdiction. Once the issue is decided by the court of original jurisdiction, this court can review that decision under our appellate jurisdiction, perhaps by consolidation with the original appeal, or under our supervisory jurisdiction, if justification is shown in an application for supervisory writs.

Furthermore, the implications of this decision go far beyond the present case. This court is frequently presented with motions to dismiss an appeal on grounds of irregularity, error or defect imputable to the appellant (C.C.P. art. 2161), usually failure to pay costs timely (C.C.P. art. 2126). Since the facts relative to the grounds for dismissal do not appear in the record, the mover often attaches an affidavit to establish these facts. When the motion and supporting affidavit are not opposed, the appeal is normally dismissed. However, when the motion is opposed and the affidavit contradicted, the appellate court finds itself called upon to originally decide an issue of fact. When this situation occurs, this court will often remand the ease for presentation of evidence. Under the interpretation of C.C.P. art. 2088 in the present case, such motion should be originally filed in the trial court and decided by that court.

Other recurring troublesome situations are also remedied. For example, when an appellant fails to pay costs before the return day and the record on appeal is never lodged in this court, an appellee faces a dilemma in obtaining a dismissal by this court. Some appellees have even paid the appellant’s costs in order to have the record lodged and obtain a dismissal. Under the codal interpretation in this case, the appel-lee can move for dismissal in the trial court (where the record is located), since the trial court retains, jurisdiction over the matter which is not reviewable under the original appeal.

In my opinion the present decision eliminates many of the hairy areas in matters occurring after perfection of the appeal and makes appellate practice safer, simpler and more practical.

GULOTTA, J., dissents for the reasons assigned by STOULIG, J.

STOULIG, Judge

(dissenting).

I respectfully dissent.

The majority opinion seizes upon the phrase “reviewable on appeal” to judicially enlarge upon the exceptions to the divestiture of jurisdiction specifically enumerated by the legislature. To adopt the interpretation of the majority creates a “confusion of proper forums” which the legislature obviously intended to avoid by listing the specific actions the trial court could entertain after an appeal is perfected.

Enough uncertainty exists among lawyers and even my colleagues on this bench over what issues fall with the supervisory jurisdiction or appellate jurisdiction of this court. The majority opinion compounds this confusion by compelling the attorney to make a determination of what is “reviewable on appeal” to ascertain the proper forum for the relief which he seeks and alternatively could result in the filing of identical pleadings in both forums (out of an abundance of caution) in order to avoid the possible loss of some right. Procedural uncertainty breeds delay, additional expense and in some instances the loss of substantial rights.

The majority opinion correctly points out that the 1964 and 1968 amendments to C.C.P. art. 2088 added “the jurisdiction of the trial court over all matters in the ease reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond * * * It notes that the eight exceptions listed in the article are not in fact exceptions since they are not reviewable on appeal anyway. These observations tend to imply that the only purpose for the amendments was to qualify or limit the trial court’s loss of jurisdiction to those matters reviewable on appeal. If such be the case why the need to list the purported exceptions.

A comparative analysis of the article pri- or to and subsequent to its amendment will reveal that the legislature deleted one of the three exceptions in the original article and added six additional exceptions in the amendment. This clearly indicates the legislative intent to grant post-appeal jurisdiction to the trial courts of these enumerated proceedings.

What prompted the insertion of the phrase “reviewable under the appeal” is locked within the undisclosed knowledge of the enactors. However it would be somewhat anomalous to reason the legislature by amendment conferred jurisdiction on the trial court over all matters not reviewable on appeal and then simultaneously declare that the trial courts retain jurisdiction over certain enumerated proceedings, which are themselves nonreviewable on appeal.

Whatever its shortcomings may be, C.C.P. art. 2208 as amended is an explicit, concise and exclusive declaration of the specific proceedings over which the trial courts have post-appeal jurisdiction. Any enlargement or qualification of these actions should be forthcoming from the legislature.

For these reasons, I respectfully dissent.

      . Under this court’s internal rule for overruling, this opinion has been submitted to the entire court, which (with Lemmon, J., concurring with written reasons; Gulotta, J., dissenting for the reasons assigned by Stoulig, J.; Stoulig, J., dissenting with written reasons; and Morial, J., dissenting) has authorized this opinion to be handed down overruling Kliebert and Creel. Any application for rehearing will, under our internal rule, be considered en banc.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Ruth WALKER et al., Plaintiffs-Appellants, v. Julius LANDRY et al., Defendants-Appellees.
    No. 5554.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.

      Bean & Rush, by Warren D. Rush, Lafayette, for plaintiffs-appellants.
    Landry, Watkins, Cousin & Bonin, by Jacob D. Landry, New Iberia, for defendant-appellee.
    Davidson, Meaux, Onebane & Donohoe by L. Lane Roy, Lafayette, for defendant-ap-pellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

Plaintiffs in this action seek to recover for personal injuries they sustained in a motor vehicle accident. Defendants are Julius Landry, and his insurer, Fireman’s Fund Insurance Company, hereinafter referred to as Fireman’s. Plaintiffs by amendment of their petition also named Hartford Accident and Indemnity Company, hereinafter referred to as “Hartford” as a defendant. Hartford is the insurer of the automobile which was being driven by one of the plaintiffs, Debra Prince. Hartford filed a motion for summary judgment. The trial court granted the motion and dismissed the plaintiffs’ suit against Hartford. Plaintiff appealed.

The accident giving rise to this litigation occurred on February 13, 1972, when a car being driven by plaintiff, Debra Prince and owned by Kitty Gentry was struck by an automobile being driven by Barry Landry and owned by Julius Landry. Barry Landry, minor son of the defendant, allegedly lost control of his vehicle and crashed into the Gentry vehicle. Plaintiffs are the driver of the Gentry vehicle, Debra Prince, and her guest passengers, Ruth Walker and Cynthia Lancon. There was in effect at the time of the collision an automobile liability policy issued by Fireman’s to defendant, Landry, which provided liability coverage to Landry, with limits of $5,000.00 per person and $10,000.00 per accident. There was also in effect at that time an automobile liability policy issued by Hartford to Kitty Gentry which provided uninsured motorist coverage on her car in the amount of $10,-000.00. Hartford seeks to be dismissed from this suit on the ground that the Landry vehicle was not an uninsured motor vehicle and therefore Hartford has no responsibility to plaintiffs under the uninsured motorist coverage provided in its policy.

At the time of the alleged accident LSA-R.S. 22:1406(D) provided in pertinent part that no automobile liability insurance policy could be issued in this state unless it provided coverage:

“. . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . ” (Emphasis supplied)

Act 137 of 1972, which became effective on January 1, 1973 broadened the language of the uninsured motorist statute to provide protection to liability insurance policyholders against an “under-insured motorist” in addition to the uninsured driver. The pertinent section of the amendment reads:

“. . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles.” (Emphasis supplied)

Act 137 of 1972 defined an “underinsured” automobile as one with coverage which is less than the uninsured motorist coverage carried by the insured. This statute was again amended by Act 154 of 1974 so as to provide that an uninsured motor vehicle would be “deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured.” (Emphasis supplied)

It was stipulated by the parties at the hearing held on the motion for summary judgment that the combined damage of the plaintiffs exceed the $10,000.00 per accident limit of Fireman’s policy.

Plaintiffs first contend that although the accident in question occurred prior to any amendment of LSA-R.S. 22:1406 extending uninsured motorist coverage to accidents involving “underinsured motor vehicles” that such amendments being remedial in nature should be given retroactive effect. This contention of plaintiff has been consistently rejected in decisions of this Court and other appellate courts.

In Doucet v. Insurance Company of North America, 302 So.2d 731, 734 (La.App. 3rd Cir. 1974), certiorari denied 305 So.2d 134 (La.), we held:

“We do not find the 1974 amendment to the law regulating uninsured motorist coverage to be remedial or curative as these terms are used in our jurisprudence. See McGuirt v. Gillespie. 141 La. 586, 75 So. 419 (1917); Fullilove v. U. S. Casualty Company of New York, 129 So.2d 816 , (La.App. 2 Cir. 1961) cert. den. On the contrary, we find that this amendment is a broadening of coverage by the Louisiana Legislature.”

See Richard v. Zurich Insurance Company, 318 So.2d 83 (La.App. 3rd Cir. 1975); Curry v. Travelers Insurance Company, 301 So.2d 757 (La.App. 2nd Cir. 1974), writ refused, 304 So.2d 671 (La.S.Ct.1974); Smith et vir v. State Farm Mutual Automobile Insurance Company, 328 So.2d 679, (La.App. 3rd Cir.). The cited decisions clearly reflect the conclusion that LSA-R.S. 22:1406 prior to the 1972 and 1974 amendments afforded protection against only the “uninsured” driver and did not include an “underinsured motorist”, and that such amendments extending coverage against damages caused by underinsured drivers were not to be given retroactive effect.

Plaintiff also argues that as a result of the accident the defendant Fireman’s has already paid claims in the amount of $6,500.00 with the result that only $3,500.00 remains available of the $5,000.00/$10,-000.00 policy which insured Barry Landry, and thus Landry is an “uninsured motorist” under the Hartford policy. We find no merit in this argument which was likewise rejected by this court in Doucet v. Insurance Company of North America, supra, and Richard v. Zurich Insurance Company, supra.

We conclude that prior to January 1, 1973, the effective date of Act 137 of 1972, Louisiana law contained no provision for underinsured motorist coverage. Plaintiffs in this case cannot recover from their uninsured motorist carrier as the alleged offending driver was covered by some liability insurance. We further conclude that even though the liability coverage provided by the Defendant’s insurance policy was partially depleted defendant was still an insured motorist under the provisions of LSA-R.S. 22:1406(D). The trial court correctly granted Hartford’s motion for summary judgment, dismissing plaintiffs’ claim against Hartford.

For the reasons assigned the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    MOTORS INSURANCE CORPORATION et al., Plaintiffs and Appellants, v. Eugene W. MELDER et al., Defendants and Appellees.
    No. 5572.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Bruscato & Loomis by Albert E. Loomis, III, and Percy A. Ford, Jr., Monroe, for plaintiffs and appellants.
    Vincent Hazelton, Alexandria, for defendant and appellant.
    George & George by Robert D. Hoover, Baton Rouge, for intervenor and appellant.
    Teekell & Chaudoir by Lloyd G. Téekell, Stafford, Randow, O’Neal & Scott by Hodge O’Neal, III, Alexandria, for defendants and appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a companion case to Dixon, d/b/a Dixon Trucking Company v. Melder, et al., 336 So.2d 958 and Dietzel v. Melder, 336 So.2d 958, in which separate decisions are being rendered by us this date. These three cases, which were consolidated for the trial and appeal, are for damages sustained when a tractor-trailer rig collided with several cows on a highway. The plaintiffs in the present suit are Motors Insurance Corporation and Adam J. Dixon, who are respectively the subrogated collision insurer and the owner of the tractor-trailer rig which was damaged. Adam J. Dixon also filed the second suit, seeking damages for loss of use of his truck. The plaintiff in the third suit is Lester Dietzel, driver of the truck, who seeks damages for personal injuries. There was an intervention by Rollins International, Inc., seeking reimbursement for medical expenses and workmen’s compensation benefits paid to Dietzel. The defendants in all three cases are the alleged owners of the cattle. The trial judge found the evidence insufficient to prove that defendants owned the cattle involved in the collision. From judgments in each case dismissing their suits, all plaintiffs and the intervenor have appealed.

The decisive issue is whether the evidence reasonably supports the finding of fact by the trial judge that defendants did not own the cattle.

The general facts are undisputed. On July 17, 1976, at 12:45 a. m., plaintiff, Lester Dietzel, was driving south on U. S. Highway 165 between Alexandria and Forest Hill, Louisiana in a Mack tractor-trailer rig owned by his employer, plaintiff, Adam J. Dixon. The rig’s tank-type trailer was loaded with highly explosive nitromethane. The posted speed limit on the two-lane highway was 50 miles per hour. That portion of the highway where the accident occurred is one of the roads listed in LSA-R.S. 3:2803 upon which owners of livestock cannot knowingly, willfully, or negligently permit their livestock to go at large.

Dietzel testified that he was driving at a rate of about 45 miles per hour with his low-beam lights on as he approached the bottom of a gently sloping hill. Suddenly, he was confronted by an indeterminate number of cows standing in his lane of the highway about 40 feet in front of him. Dietzel applied the brakes and swerved left into the north bound lane of the highway to avoid the cows. While in the north bound lane, Dietzel encountered another cow standing near the center line. The rig then collided with several cattle and went out of control, traveling back across the south bound lane and onto the shoulder of the road. The tractor’s wheels struck a concrete culvert on the shoulder, which caused the rig to tip over and finally come to rest on the shoulder of the highway.

As a result of the accident, the tractor-trailer rig sustained $14,950.16 in damages, Dietzel, the driver, sustained personal injuries, and four cows were killed. A Louisiana Highway Department crew deposited the dead cows in a nearby dump.

Plaintiffs-appellants Dixon, Dietzel and Motors Insurance Corporation, and Interve-nor-appellant Rollins International, Inc., concede in their joint brief that there is no direct evidence to support their contention that the subject cattle were owned by defendants. Our review of the record confirms this concession. There were no admissions of ownership of the cattle. Eight of the nine witnesses who were questioned as to whether the dead cows were branded said that they saw no brands. Louis Powell,' a member of the Louisiana Highway Department crew which removed the dead cows from the accident scene, testified that one of the cattle was branded on its hip, but he could not remember the configuration of the brand. All cattle owned by the Melders at the time of the accident were branded.

Plaintiffs resorted to indirect or circumstantial evidence in their attempt to prove that defendants owned the subject cattle. A summary of this circumstantial evidence follows.

Admittedly, two contiguous tracts of land on either side of Highway 165 at the site of the accident were owned by defendants. The southernmost of the two tracts was owned in indivisión by defendants Parks W. Sansing, Alice S. Chrisp and Neonah Sans-ing (The Sansing defendants). The other tract was owned by defendant E. W. Meld-er. Both tracts were enclosed by a barbed wire fence.

The Sansing defendants owned two cows and a bull which were pastured on the Sansing tract at the time of the accident. These cows were found alive on the Sansing property after the accident. Defendants-appellees Billy Jean Melder and his father, E. W. Melder, owned an indeterminate number of black and brown cows which were pastured on the E. W. Melder tract at the time of the accident.

Examinations of the Sansing and Melder fences on the day of the accident revealed that these fences had been cut at three separate locations. A common fence running perpendicular to the highway between the adjoining properties was cut at a point near the highway right of way. The fence along the highway right of way was also cut, once, on the Sansing segment on the fence and once on the Melder segment. Testimony was in conflict as to the exact location of the cuts in the fence running along the highway but the weight of the evidence indicates the cut in the Sansing fence was about 200 feet north of the resting place of the overturned tractor-trailer, and the cut in the Melder fence was approximately 150 feet north of the Sansing cut. Several witnesses reported observing fresh cattle tracks leading through the cut in the Sansing segment of the right of way fence. There is some dispute as to whether there were cattle tracks at the other two points where the fences were severed, but a preponderance of the evidence indicates that there were none. Witnesses testified that there were cattle tracks on the highway right of way adjacent to the crash scene. Plaintiff-appellant Dixon testified that cattle tracks led from the cut in the Sansing segment of the fence abutting the highway in a westerly direction across the right of way, continued across the highway at the scene of the accident, and eventually passed under a railroad trestle on the opposite side of the road.

There was no evidence of other cows being lost, stolen, or loose in the area of the crash, nor were there any reports of other nearby fences being down.

Trooper Poole, one of the State Police officers investigating the accident, testified that he saw a live cow wandering around the crash scene about one hour after the accident occurred. At around 9:00 or 10:00 a. m., on the day of the accident, the same or another live black cow bearing the J-9 brand registered to E. W. Melder was seen and photographed as it wandered on the highway right of way at the crash site. Mike Melder, son of defendant Billy Melder, captured this cow at about 11:00 a. m. on the morning of the wreck and returned it to the Melder property.

Conflicting testimony indicated that two of the four dead cows were probably black and the other two some shade of brown. E. W. Melder admitted on cross-examination that he owned both black and red cattle at the time of the accident.

From review of the preceding circumstantial evidence, we must decide whether the trial judge erred in holding that the subject cattle were not owned by defendants. Undisputed testimony shows that the three cows owned by the Sansing defendants were found alive on the Sansing property after the accident. Based upon this testimony, we affirm the lower court’s holding that the subject cattle were not owned by the Sansing defendants. We move next to a consideration of the case against the Melders.

Plaintiffs admit that their case against the Melders is built entirely upon circumstantial evidence. We must judge the sufficiency of circumstantial evidence against this standard:

“Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes.” Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905, 913 (La.1973); Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395, 397 (1963).

This test allows the trier of fact to weigh other reasonable hypotheses against the one offered by plaintiff to determine whether the evidence as a whole constitutes a preponderance. Our review of the evidence discloses several other reasonable hypotheses, including the following: The cattle involved in the collision could have come from one of the numerous open range areas within walking distance of the accident scene. Cattle owned by Aubrey Henderson, which were pastured on the east side of the highway, directly across from the Melder property, could have gained access to the highway via the railroad trestle or by another route. The cattle could have been owned by any of the several cattlemen pasturing their animals in the neighborhood of the accident. Even if some of the tracks at the accident scene were left by Melder’s cattle, it is not unreasonable to infer that the animals left their enclosure and returned before the accident occurred. Plaintiffs’ circumstantial evidence fails to exclude these and other reasonable hypotheses with a fair degree of certainty.

Even the presence of the Melder cow at the accident scene can be explained by hypotheses other than the one urged by plaintiffs. The trial judge recognized two such counterhypotheses when he referred in his written reasons to testimony indicating that the cow may have been drawn to the crash scene by the scent of the dead cattle’s blood or by a natural curiosity.

Perhaps the most compelling argument for rejecting plaintiffs’ inference that the cattle belonged to defendants is the fact that the dead cows were unbranded, while all of the Melder cattle were branded. The trial court stressed the importance of this discrepancy in its written reasons for judgment.

The lower court’s determination that defendants did not own the subject cattle is essentially a finding of fact. On review, the appellate court should not disturb this factual finding in the absence of manifest error. Justice Tate explained the manifest error rule in Canter v. Koehring Company, 283 So.2d 716 (La.1973), as follows: “ * * the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Our adherence to this rule leads us to the conclusion that the trial judge’s determination of ownership of the subject cattle should not be disturbed.

Plaintiffs argue that the fact situation of the instant case is analogous to that of McFatter v. Welch, 205 So.2d 607 (La. App.3rd Cir. 1967), a case where plaintiff’s circumstantial evidence was found sufficient to constitute a preponderance. McFatter was a suit by a sheep owner against the owner of the dog which allegedly killed his sheep. The appellate court affirmed the trial judge’s inference that defendant’s dog, which had been seen in the vicinity of the dead sheep, had killed them. The trial court’s rulings on causation in McFatter and on ownership in the instant case are findings of fact which should not be disturbed by appellate courts in the absence of manifest error. This is the underlying principle of both cases. If the trial judge in the instant case had determined that defendants owned the subject cattle, we might well have affirmed his finding on appeal for reasons similar to those stated by the appellate court in McFatter. Under the circumstances, however, we feel that our holding is consistent with the Canter guidelines.

Having determined that defendants did not own the subject cattle, we take up the question of whether plaintiffs have any grounds for recovery of damages. Plaintiffs urge two bases for recovery of damages in this suit. Their first basis is Civil Code Article 2321, which states that owners of animals are answerable for damages caused by them. Their second argument is based on LSA-R.S. 3:2803, the “Stock Law”. This provision has been interpreted by the courts to place a heavy burden on the owners of livestock struck on stock law highways to prove that the animals did not escape as the result of their owner’s negligence. Obviously, plaintiffs cannot recover damages under either of these two provisions without first -proving that defendants owned the cattle involved in the collision. Therefore, our affirmance of the trial court’s finding that defendants did not own the cattle effectively bars plaintiffs’ recovery.

We reach neither the issue of the alleged negligence of defendants in maintaining their fences nor the issue of whether Diet-zel was negligently operating his vehicle at the time of the collision.

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are assessed to appellants.

AFFIRMED


text:
    Adam J. DIXON, d/b/a Dixon Trucking Company, Plaintiff and Appellant, v. E. W. MELDER et al., Defendants and Appellees.
    No. 5573.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Bruscato & Loomis by Albert E. Loomis, III, and Percy A. Ford, Jr., Monroe, for plaintiffs and appellants.
    Vincent Hazelton, Alexandria, for defendant and appellant.
    George & George by Robert D. Hoover, Baton Rouge, for intervenor and appellant.
    Teekell & Chaudoir by Lloyd G. Teekell, Stafford, Randow, O’Neal & Scott by Hodge O’Neal, III, Alexandria, for defendants and appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a companion case to Motors Insurance Corporation et al. v. Melder et al., 336 So.2d 954, in which a separate decision is being rendered by us this date. For the reasons stated in our decision in that case, the judgment of the district court in the present case is affirmed. All costs of this appeal are assessed against the appellants.

AFFIRMED.


text:
    Lester DIETZEL, Plaintiff and Appellant, v. E. W. MELDER et al., Defendants and Appellees.
    No. 5574.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Bruscato & Loomis by Albert E. Loomis, III, and Percy A. Ford, Jr., Monroe, for plaintiffs and appellants.
    Vincent Hazelton, Alexandria, for defendant and appellant.
    George & George by Robert D. Hoover, Baton Rouge, for intervenor and appellant.
    Teekell & Chaudoir by Lloyd G. Teekell, Stafford, Randow, O’Neal & Scott by Hodge O’Neal, III, Alexandria, for defendants and appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

For the reasons stated in the companion case of Motors Insurance Corporation et al. v. Melder et al., 336 So.2d 954, in which a separate decision is being rendered by us this date, the judgment of the district court in the present case is affirmed. All costs of this appeal are assessed against the appellants.

AFFIRMED.


author: REDMANN, Judge.

text:
    Thelma HARDY v. MERCY HOSPITAL OF NEW ORLEANS et al.
    No. 7451.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 23, 1976.
    Rehearing Denied Sept. 14, 1976.
    Writ Refused Dec. 1, 1976.
    Frank S. Bruno, New Orleans, for plaintiff-appellant.
    James F. Holmes, Christovich & Kearney, New Orleans, for defendants-appellees.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

From a workmen’s compensation award of $49 for 100 weeks for the loss of use of her right index finger, plaintiff appeals. The award was apparently for permanent impairment of a' physical function, La.R.S. 23:1221(4)(p). Plaintiff seeks an award for permanent total disability, or alternatively one for loss of a hand or an arm § 1221(4)(e) or (f), and penalties and attorney’s fees. We affirm.

Plaintiff has a flexion contracture of the finger, which she says causes her disabling pain and which makes the finger virtually useless and, experts estimated, the hand 20 to 35% disabled.

“A permanent total loss of the use of a member is equivalent to the amputation of the member,” § 1221(4)(n), but a 35% disability is not a total loss of use and therefore would not support an award for loss of the hand (much less the arm). (Loss of the finger would support only 30 weeks’ compensation, § 1221(4)(b).)

Permanent disability to work without substantial pain supports an award for total permanent disability, Ball v. American Marine Corp., 1963, 245 La. 515, 159 So.2d 138. But our trial judge apparently did not believe plaintiff’s testimony of disabling pain and we are not in a position to disagree with that credibility evaluation.

Similarly, inability to compete in the ordinary labor market will support a total permanent disability award; Washington v. Independent Ice & C. S. Co., 1947, 211 La. 690, 30 So.2d 758. Plaintiff’s permanently bent right index finger may be a disadvantage in competing for employment, but it is not a substantial disadvantage disabling her from competing.

Penalties and attorney’s fees are not due because there was a bona fide dispute over whether there had been a compensable accident.

Affirmed.


author: SAMUEL, Judge.

text:
    Earl MATIRNE and Glenn Washington v. Helen WILSON and Volkswagen Insurance Company.
    No. 7386.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Rehearing Denied Sept. 14, 1976.
    Writ Refused Dec. 1, 1976.

      J. Terrell Heath, New Orleans, for plaintiff s-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, Leonard A. Young, New Orleans, for Volkswagen Ins. Co., defendant-appellee.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   SAMUEL, Judge.

Plaintiffs have taken this appeal from a judgment dismissing their suit for personal injuries, medical expenses, lost wages and rental cost of a temporary substitute vehicle, all allegedly resulting from a collision involving a Volkswagen owned and driven by plaintiff, Matirne, in which the other plaintiff, Washington, was a passenger, and a Buick driven by the individual defendant, Wilson. The other defendant, the insurer of the Volkswagen, is sued under the uninsured motorist provision of its policy. Damages to the Volkswagen were paid by the defendant driver prior to suit.

The accident occurred between 4:30 and 5 p. m. on October 18, 1973 on General De-Gaulle Drive near its intersection with Farragut Street in the ,City of New Orleans. At the site of the accident, approximately one block from the Greater New Orleans Mississippi River Bridge, DeGaulle consists of three traffic lanes, one a special turning lane for vehicles exiting from DeGaulle into Farragut and the other two for traffic proceeding on DeGaulle toward the bridge. Immediately prior to the accident, the defendant automobile was stopped in the turning lane and the plaintiff car was proceeding on DeGaulle in the lane immediately adjacent to the turning lane.

The only evidence contained in the record regarding the manner in which the accident occurred is the testimony of the three individual litigants and the investigating police officer. The record also contains a photograph of the damaged left rear fender of the Volkswagen.

According to plaintiffs’ version, their automobile was almost parallel with the Buick when the defendant driver proceeded to pull out of her stopped lane of traffic into their lane, striking the plaintiff automobile in the rear. Defendant’s version of the accident is that she was stopped in a line of traffic in the turning lane. She saw the center lane was open in front of her and, solely by looking in her rear view mirror, saw there were no vehicles in the center lane to her rear, other than a bus which was a sufficient distance away so that she could safely move into that lane. She did not see the plaintiff car until they sideswiped each other and she believed it also was changing lanes because she had not seen it when she looked in the mirror. The investigating police officer found the Volkswagen in the extreme right lane and the Buick on the center dividing line between the right and left lanes. From the debris he concluded the apparent point of impact was at the location where the Volkswagen was resting.

While the trial court did not pass upon the question of negligence, the record leaves no doubt that the proximate cause of the accident was the negligence of the defendant driver in failing to see the approaching Volkswagen and in pulling out of a stopped lane of traffic into its path. With the exception of the claim for the rental cost of a temporary substitute vehicle, the trial court judgment is based upon a finding that plaintiffs’ injuries were either “faked” or not caused by the accident in suit. The trial judge also was of the opinion that the claim for the rental cost of a temporary substitute vehicle had not been proven by the required preponderance of evidence.

Relative to personal injuries, the defendant driver testified: The impact was very slight and caused very minor damage. As soon as the plaintiff driver got out of his car he asked if she had insurance. Upon learning she did, he put his hand behind his neck and said: “I feel a whiplash coming on.” She invited him to go to the hospital immediately, but he refused because he was expected in another part of town. Both plaintiffs assured both her and the investigating police officer that they were not hurt. The police officer stated that when he arrived at the scene he inquired as to injuries and all of the litigants told him they were not injured.

The plaintiff driver, Matirne, testified: His shoulder, back and legs hurt immediately on impact and he was dizzy when he got out of his car after the accident. He felt an ache in his back shortly after he left the scene as he was crossing the bridge. At the same time his guest passenger began to complain about his neck so they both went to a doctor about two hours after the impact. The doctor prescribed medication for both men and treated him three times a week over an extended period. He stated he had missed two days of work as a limousine driver for which he was being paid $2.40 per hour and tips. He also said it took a month and a half to repair his car and he had to rent a replacement vehicle at a cost of $120. A bill from Avis Car Rental in the sum of $260.21 was introduced in evidence. He also sells newspapers for a small profit and was unable to resume his regular route for three weeks.

Washington, the plaintiff passenger, testified: He did not begin to feel injured until an hour or two after the accident. At that time the neck, and the upper part of his back “got tight” and became stiff. Any movement caused pain. The doctor prescribed medication following examination. He was unable to return to work as a welder because it hurt to wear his helmet, a necessary requirement on his job. His employment was terminated when his employer learned he would be unable to perform his duties because of the accident. A month and one-half later he got a job as a school bus driver. He had to remain at home because walking was too strenuous and his neck caused headaches. His condition improved within two or three weeks after the accident and, although not completely cured, he was able to move around and could endure the pain. He received heat treatments three days a week for the first six weeks and lesser treatment as the muscles began to get better. He was under medical care for approximately three months.

The physician seen by the plaintiffs testified: He saw both plaintiffs on the date of the accident and treated Matirne for pain in the lower back and the left hip. At the initial examination of Matirne, the lower back muscles were tender and painful and movement caused discomfort and pain. Straight leg raising and flexion tests caused pain and discomfort in the lower back and hip, and there was some discomfort in the left shoulder girdle. The neurological examination was essentially negative. Ma-tirne was seen thereafter on five other occasions in October, nine occasions in November, and six occasions in December. Treatment consisted of muscle relaxants and physiotherapy. At the initial examination of Washington, the trapezius muscles were sore and the lower back revealed tenderness to palpation and pain and discomfort on movement. This patient was treated for a cervical strain. Indocin, a muscle relaxant, was prescribed and physiotherapy ordered. He was seen on twenty occasions between the date of the accident and December 28, 1973.

The trial judge based his conclusion that plaintiffs’ injuries were either non-existent or not caused by the accident in suit on the fact that he did not believe their testimony regarding injuries. In addition to his observation of the plaintiffs as they appeared before him, his written Reasons for Judgment state there were too many discrepancies within the evidence to justify a belief in their credibility. Among those discrepancies he noted: (1) the fact that both plaintiffs told the investigating police officer they were not injured, yet Matirne testified that, immediately on impact, he felt pain in his legs and was dizzy, both plaintiffs testified they felt pain shortly after leaving the scene of the accident, and both saw the physician less than two hours after the collision; (2) after being told by the individual defendant that she had insurance, Matirne stated he felt a whiplash coming on; (3) while mindful of the fact that a slight blow may cause serious injuries, the impact and damage in this accident were extremely slight and not of the type likely to produce the “whiplash” injuries complained of, a sideswipe which only “dulled” but did not scratch the side of the Buick and damaged the Volkswagen only to the possible extent of slightly enlarging a dent already present in the left rear fender; and (4) as brought out on cross examination, Matirne had been in several other recent automobile accidents, all of which he admitted on cross examination only after being given the dates of those accidents, in all of which he made claims for injuries similar to those claimed here, and in all of which he was treated by the same doctor as here.

While we are satisfied the sole proximate cause of the accident was the action of the defendant driver in pulling out of a stopped lane of traffic at a time when it was unsafe to do so, we agree with that line of jurisprudence which establishes that the trial judge’s factual determination regarding injuries, particularly in those cases where the claim would depend in some degree upon plaintiff’s sincerity and truthfulness, are not to be overturned in the absence of a clear showing that the determination is erroneous. After weighing and evaluating all of the medical and lay testimony the trial judge may accept or reject the opinion expressed by any medical expert, depending on how impressed he is with the qualifications, credibility and testimony of that expert. As it is the duty of the trial judge to seek the truth, he should evaluate the testimony of a medical witness according to the same rules applicable to other witnesses. Regarding appellate action on factual findings by the trial court where those findings are based upon reasonable evaluation of credibility, in Canter v. Koehring Company, the Supreme Court of Louisiana said:

“When there is evidence before the trial of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.”

In the instant case, we are satisfied that all of the complaints of both plaintiffs regarding their injuries were subjective, and this is true even after due consideration of the testimony of their physician. Under these circumstances, a determination of whether the injuries complained of actually existed or, if they did exist, whether they were incurred as a result of the accident in suit is dependent upon the credibility of the plaintiffs themselves, and we find no manifest error in the trial judge’s evaluation of that credibility. Accordingly, we affirm his conclusion relative to the injuries.

In the absence of liability for injuries sustained in the accident, defendants cannot be held liable for the claimed medical expenses and lost wages allegedly resulting from such injuries. Insofar as the claim by Matirne for the rental cost of a temporary substitute vehicle is concerned, we agree with the trial court finding that this claim has not been proved with sufficient certainty.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . She only had collision coverage of her own automobile.

      . See Sonnier v. United States Casualty Company, 246 La. 401, 165 So.2d 3; Ware v. Aetna Casualty & Surety Company, La.App., 108 So.2d 824.

      . See Touchet v. Fidelity and Casualty Co. of New York, La.App., 264 So.2d 752.

      . See Frame v. Majors, La.App., 224 So.2d 65; Williams v. Southern Advance Bag & Paper Company, La.App., 87 So.2d 165.

      . 283 So.2d 716, 724 (S.Ct. 1973).


text:
    Frank DIMARCO v. STERLING ELECTRONICS CORPORATION et al.
    No. 7476.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 23, 1976.
    Patrick M. Reily, Morrison & Reily, New Orleans, for Frank Dimarco.
    T. George Delsa, Kehl & Pickering, New Orleans, for Jim Corporron.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal on exception to the jurisdiction over the person of a Texas resident who was the fiduciary established by plaintiff’s employer in Louisiana to effect employee stock purchases through payroll deductions. We conclude the Texan did business in Louisiana and we therefore reverse.

Plaintiff’s employer was a foreign corporation of which the defendant Texan was a vice-president. The corporation supplied printed forms in Louisiana appointing defendant “trustee” to receive the payroll deductions and purchase stock in the open market, with the obligation to deliver the certificates to the employee on written request. The defendant obviously consented to the corporation’s soliciting in Louisiana the execution of the contracts naming himself as fiduciary to receive funds and buy stock. Defendant thus did business in Louisiana “by an agent” and thereby subjected himself to the jurisdiction of Louisiana courts in respect to any cause of action arising from that business; La.R.S. 13:3201(a). His affidavit that he did no business in Louisiana is a mistaken conclusion of law.

Reversed.


author: LEMMON, Judge.

text:
    Idabelle Cloutman, wife of Charles Darwin SLATER v. Charles Darwin SLATER.
    No. 7815.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Dart & Dart, Henry P. Dart, III, New Orleans, for plaintiff-appellant.
    Provensal & Fitzmaurice, Edmond H. Fitzmaurice, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and BEER, JJ. .
   LEMMON, Judge.

This is a suspensive appeal from a judgment maintaining an exception of lis pen-dens and dismissing Mrs. Charles Slater’s Jefferson Parish suit for divorce, on the basis that, at the time of the trial of the exception,, the judgment dismissing her husband’s earlier suit in Plaquemines Parish (for lack of jurisdictional venue) had not yet become definitive.

The following events and dates are pertinent:

June 19, 1975 Mr. Slater filed a suit for separation in Plaquemines Parish. A supplemental petition for divorce was filed in July.
September 18, 1975 Mrs. Slater filed the present suit for divorce in Jefferson Parish.
February 10, 1976 Mr. Slater’s Plaque-mines Parish suit was dismissed by this court for lack of venue, based on our finding that Mr. Slater was not domiciled in Plaquemines Parish. See 327 So.2d 616.
February 18, 1976 The district court in Jefferson Parish dismissed the present suit on an exception of lis pendens. (This judgment of dismissal is the subject of this appeal.)
May 4, 1976 The Supreme Court denied the application for certiorari in Mr. Slater’s Plaquemines Parish suit.

I

When two or more suits are pending in Louisiana courts on the same cause of action, between the same parties, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto. C.C.P. art. 531. The exception of lis pendens thus has the same requirements of identities as the exception of res judicata. See C.C. art. 2286. Both exceptions serve to promote efficient judicial administration and to prevent harassment or undue oppression. The exception of lis pendens, however, is applicable before judgment on the merits is rendered in any of the pending suits, while the exception of res judicata is applicable after judgment has been rendered in one of the suits.

The relatively simple concept of lis pendens becomes complex when an attack is leveled in the first suit at the court’s jurisdiction over the subject matter. The applicability of lis pendens necessarily depends upon the valid jurisdiction of the court in the first suit (just as the applicability of res judicata depends upon the valid jurisdiction of the court which rendered the judgment). Sims v. Sims, 247 So.2d 602 (La.App. 3rd Cir. 1971).

At the time the trial court in the present case considered the exception of lis pendens, our judgment declaring the Plaquemines Parish court’s lack of jurisdiction had not become definitive and acquired the authority of the thing adjudged under C.C. art. 3556(31) and C.C.P. art. 1842. Perhaps the trial court could have overruled the exception, taking cognizance that the first suit was a nullity unless and until our decision was changed by the Supreme Court, reserving to defendant the right to file another lis pendens exception if the Supreme Court changed our decision. Or perhaps the trial court could have continued the hearing on the exception until our decision in the Plaquemines Parish suit became definitive, notwithstanding Robertson v. Aetna Cas. & Surety Co., 232 So.2d 829 (La.App. 4th Cir. 1970).

We find it unnecessary, however, to decide on the propriety of the trial court’s dismissal under the circumstances existing at that time, because Mrs. Slater suspended the effect of that dismissal by perfecting a suspensive appeal. C.C.P. art. 2123. Thereafter, while her suspensive appeal was pending, our decision in the Plaquemines Parish suit became definitive, effectively rendering Mr. Slater’s suit void from its inception. C.C.P. art. 3941.

Under the circumstances of this case, where a suspensive appeal has been taken from the judgment maintaining an exception of lis pendens, and where the suit forming the basis for the exception is subsequently determined to be void from its inception, we hold that the appellate court must take cognizance of the situation existing at the time of consideration of the merits of the appeal. Justice in this court would indeed be blind if we allowed to stand this judgment dismissing the suit on an exception of lis pendens, when the highest court in this state has ruled in effect that the suit forming the basis for the exception was void from its inception. We conclude that the exception of lis pendens must now be overruled, whether or not the trial court judgment maintaining that exception was correct when rendered.

II

Mrs. Slater also complains that the trial judge, prior to ruling on the exception of lis pendens, rescinded his earlier order which had enjoined Mr. Slater from disposing of or encumbering any community property. However, since counsel have informed us that an injunction has been issued in another divorce suit filed recently by Mrs. Slater in Orleans Parish, we decline to consider the propriety of the trial judge’s rescission of the injunction order in this suit. Of course, when this suit is remanded for further proceedings, the issue of injunctive relief can immediately be re-presented to the trial judge.

For these reasons, the judgment of the trial court is set aside, and it is now ordered that the exception of lis pendens be overruled and the case remanded to the trial court for further proceedings. Costs will be assessed upon final disposition of the matter.

      . An earlier suit by Mrs. Slater, filed on June 25, 1975 in Jefferson Parish, had been dismissed on an exception of lis pendens on September 15, 1975, and no appeal was taken. The present suit was filed three days later, but service was withheld until February 12, 1976.

      . In Cardino v. Scroggins, 190 La. 53, 181 So. 810 (1938) the Supreme Court held that a second suit between the same parties on the same cause of action was susceptible to an exception of lis pendens while an appeal in the first suit was pending. In that case, however, there had been no attack on the jurisdiction of the court in the first suit.

      .The Robertson case held that a district court cannot merely stay proceedings in the second suit, but must dismiss that suit under C.C.P. art. 531.

      . We are informed that Mr. Slater filed another suit in Plaquemines Parish on the afternoon that the exception of lis pendens was maintained in this suit, asserting that he has now established a domicile in Plaquemines Parish. Therefore, Mrs. Slater could not simply refile a suit in Jefferson Parish when the Supreme Court denied certiorari in Mr. Slater’s first Plaquemines Parish suit, but was faced with another litigation of her husband’s assertion of domicile.

      . The basic dispute is that Mrs. Slater demands an absolute prohibition against disposition or encumbrance, while Mr. Slater contends he needs financial flexibility to operate his vast business enterprises, but does not object to being enjoined from disposing of or encumbering property to the detriment of the community.


author: BEER, Judge.

text:
    Succession of Laura Davis, widow of Anthony J. ADAMS.
    No. 7569.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Rehearing Denied Sept. 14, 1976.

      Robert F. Fleming, Jr., New Orleans, for defendant-appellant.
    A. Lambert Voorhies, New Orleans, for plaintiffs-appellees.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

Laura Davis, widow of Anthony J. Adams, died at her home in New Orleans on April 17, 1950. On April 21, 1950, her half sister, Mary Jones, widow of Joseph Camp, filed a petition in the Civil District Court for the Parish of Orleans, seeking an order authorizing a search for decedent’s last will. The order was signed on the same date.

On September 13, 1950, Victoria Adams Haynes, of Chicago, Illinois, through her attorney, Alcide J. Weysham, petitioned the Civil District Court seeking to have registered and executed an alleged last will and testament of the decedent, Laura Davis Adams, in nuncupative form by public act before Alcide J. Weysham, notary public, dated March 9, 1949. The order for registration and execution was signed on the same day. Also signed on the same date was a judgment recognizing Victoria Adams Haynes as the sole legatee designated in the last will and testament of Laura Davis Adams.

On November 24,1950, Mary Jones Camp filed a petition to nullify, revoke and set aside “all proceedings thereunder, particularly the order dated September 13, 1950, ordering the registration and execution of said pretended will and the judgment rendered and signed on the 13th day of September, 1950, recognizing Mrs. Victoria Adams Haynes, wife of Mitchell Haynes, as sole legatee and putting her into possession of all property left by the decedent . . ”

On March 6, 1951, Victoria Adams Haynes sought and obtained an extension of time within which to file responsive pleadings to the petition to annul and set aside the last will and testament of Laura Davis Adams, and, on April 13, 1951, she sought and obtained an order requiring Mary Jones Camp to show cause on April 27, 1951, why she (Mary Jones Camp) should not be required to file a cost bond. The cost bond was subsequently filed by Mary Jones Camp on May 2, 1951.

Then, on May 14, 1951, Victoria Adams Haynes filed exception of non-joinder of proper parties plaintiff and of no right or cause of action.

Proceedings were dormant until May 13, 1954, when additional pleadings were filed seeking to substitute and add parties at interest. This was necessary because of the death of Mary Jones Camp and the realization on the part of her heirs that there were other parties at interest in the litigation.

On May 1, 1959, the exceptions filed on May 14, 1951, were fixed for trial on May 8th and, thereafter, continued to July 10, 1959, at which time the exception of non-joinder was overruled and the exception of no right of action was referred to the merits.

Again, a lengthy period of dormancy was followed by the filing, on July 6, 1964; of a petition seeking further substitutions necessitated by the fact that more of the alleged parties at interest had died and were survived by parties seeking to be substituted in their place.

On December 29, 1964, an answer was filed by respondent, Harry Minor.

On November 26, 1969, an answer was filed in behalf of respondents, Joseph Minor and Harold Perrault, Jr., by Maurice Gomil-la, curator.

On June 1,1971, over 21 years after these proceedings had begun, the attorney for the petitioners seeking to nullify the alleged nuncupative will of Laura Davis Adams filed a motion to set the matter down for trial on its merits, but the case was not set for trial until December 6, 1973, and then continued and reset on February 7, 1974.

The commencement of the proceedings on that date resulted in the court granting a day’s delay for the calling of one Alma Roberson Gorman and to permit counsel for Victoria Adams Haynes to prepare certain responsive pleadings which the record indicates were filed on February 8,1974, at 1:15 p. m.

Thus, on February 8,1974, almost a quarter of a century after the death of Laura Davis Adams, the stage was set for a definitive ruling on the issue of whether or not her alleged nuncupative will by public act before Alcide J. Weysham, notary public, was or was not null.

But, delay, the hallmark of this case, loomed again in the form of the still undecided exceptions of no cause or right of action filed on May 14, 1951. The record shows that those exceptions were overruled by the able trial judge on February 8,1974, upon the court’s concluding that Alma Roberson Gorman was the “legitimate issue of the relationship existing to show that her grandmother, maternal grandmother, was Elvira Jones Bourgeois, who was the half sister of the decedent, Laura Jones Davis and as such she has capacity to stand as plaintiff in this suit, so the exception of no right of action is overruled and dismissed.”

Having dealt with the exception just a little over 25 years after the date upon which it was filed, the court had finally cleared the tracks for the purpose of reviewing, on its merits, the contended invalidity of the nuncupative will. This issue was resolved by the trial court, who observed that: “. . . the will is invalid, being void for want of form and, form being sacramental in Louisiana, such a document has no probative value whatsoever.”

From this judgment, Victoria Adams Haynes suspensively and devolutively appealed on February 22, 1974. The trial court granted a suspensive and devolutive appeal, returnable to this court on April 19, 1974.' But delays were to continue to plague these proceedings: extensions of the return date were granted by the district court on June 18, 1974, August 16, 1974, October 15,1974, December 13,1974, February 10, 1975, April 11, 1975, June 10, 1975, August 8, 1975, October 6, 1975, December 5, 1975, and January 2, 1976. The matter came before us for argument on July 2, 1976, over 26 years after the original pleadings had been filed in the Civil District Court.

The issues on appeal really boil down to two: (1) do those who attack the will have standing (a right of action) to mount the attack, and (2) is the will a nullity.

But there is a curious twist to all of this for, in order to parry the thrust of the exception of no right of action, those who attack the validity of the will must show that they have standing to bring the matter on for hearing on its merits and, to do that, they must, for all intents and purposes, prove their right to come to the succession (for, otherwise, their “standing” to claim that the will is null is in doubt).

But this unusual situation may not have to be dealt with if the will is valid. Let us, then, turn our attention to that issue:

The will is violative of LSA-C.C. Article 1579 and in contravention of the clear holding of this court in Succession of Guidry, 145 So.2d 613 (La.App.4th Cir., 1962), rehearing denied 1962, certiorari denied 1963. It is not valid.

We must, accordingly, deal with the question of “standing.”

We are of the view that the able trial judge properly resolved that issue by overruling the exception of no right of action. We find no merit in the contention that Alma Roberson Gorman lacks capacity to bring this action nor can we agree with able counsel’s argument regarding abandonment.

LSA-C.C.P. Article 561 provides as follows:

“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
“An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year.”

No ex parte motion of any party or other interested person has ever been filed seeking dismissal for abandonment under the provisions of LSA-C.C.P. Article 561. Reference to the record indicates the filing of an “exception of prescription” alleging the applicability of LSA-C.C. Article 3519, but this “exception” is a part of the answer filed at 1:15 p. m. on February 8, 1974.

But, assuming, arguendo, that reference to LSA-C.C. Article 3519 has the effect of interposing all of the effects of LSA-C.C.P. Article 561, we find no factual basis for its application here since five full years never elapsed without some action being taken which we deem to be determinative of the rights of parties at interest to these proceedings.

Specifically, we are of the view that the five year period described in LSA-C. C.P. Article 561 is interrupted when any party to the proceedings takes a step in the prosecution or defense of the action. Such parties need not be the named petitioners. Thus, the filing of an answer by an heir who had been cited to assert any claim that he might have in the succession and the filing of an answer by an attorney at law appointed to represent two absent heirs who had been similarly cited are, in each instance, “step(s) in the prosecution or defense.”

For such use as a reviewing court may wish to make of it, we annex to this opinion a diagram which shows the various substitutions of parties at interest and the relationship of Alma Roberson Gorman to Laura Davis Adams. The diagram also shows the relationship existent between the decedent and the original petitioner, Mary Jones Camp. (It was prepared by us in the course of our deliberations and, though we believe it to be correct in all respects, we make mention of its source in order to obviate any possible misunderstanding that it may form a part of the record.)

Accordingly, for the reasons stated, the judgment of the Civil District Court for the Parish of Orleans is affirmed, all parties to this appeal to bear their own costs.

AFFIRMED.

      . See attachment “A.


text:
    Augustine LUGO v. Wayne H. VEST.
    No. 7553.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Rehearing Denied Sept. 14, 1976.
    Kiefer, Glorioso & Fleming, Robert F. Fleming, Jr., New Orleans, for defendant-appellant.
    Favret, Favret & Demarest, J. Paul De-marest, New Orleans, for plaintiff-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

An oral agreement to a month-to-month apartment rental, at $200.00 per month, was confected between plaintiff-ap-pellee, Augustine Lugo (hereafter, “Lugo”) and defendant-appellant, Wayne H. Vest (hereafter, “Vest”). A condition imposed by Vest was a $100.00 “damage deposit” which would be returned, upon termination of the agreement, unless inspection revealed damages to the property. Exactly what “damages” were covered was, and continues to be, contraverted. When Lugo vacated the premises in late March of 1975, he sought the return of his deposit following the provisions of LSA-R.S. 9:3251, et seq., which, as we have indicated previously, were enacted by our legislature to allow a tenant with an economically unfeasible litigious right to protect himself from arbitrary refusal by a landlord to return his deposit. See Cantelli v. Tonti, 297 So.2d 766 (La.App. 4th Cir., 1974) and Calix v. Whitson, 306 So.2d 62 (La.App. 4th Cir., 1974). Vest made a timely response to this demand by deducting $72.70 worth of items, listing same, and mailing a check for the balance ($27.30) to Lugo.

Lugo seriously questioned the withholding of any of his deposit; sought its full return and, failing that, instituted these proceedings which, after issue being joined and a reconventional demand made, were tried in the First Parish Court.

From a judgment in favor of Lugo in the total amount of $300.00 ($100.00 to cover return of deposit and $200.00 as provided in LSA-R.S. 9:3252) plus $250.00 attorneys’ fees and all costs, Vests appeals, assigning error to the trial court on procedural as well as substantive grounds. (The dismissal of the reconventional demand was not appealed.) We affirm.

Vest contends that Lugo was without a cause or right of action because he instituted suit on April 22, 1975, less than thirty days after he had vacated the premises and made formal demand for the return of his deposit. In our view, this contention is entitled to no greater consideration than a dilatory exception which, according to LSA-C.C.P. Article 928, can be waived by joining issue and permitting the matter to be litigated to judgment.

Turning to the merits of the case, we find no manifest error on the part of the trial judge who concluded that there was not a proper basis for Vest’s failure, upon demand, to return the full amount of Lugo’s deposit.

In each of these kinds of eases, the trial court, hearing the testimony and observing the demeanor of the witnesses, has the difficult job of drawing a fine line between a landlord’s comprehensible over-zealousness in his own behalf and a calculated intention to disadvantage an unsuspecting or unenlightened tenant. In such instances, small differences in factual conclusions can, of course, precipitate large differences in judicial result. Whether or not substantial charges for the replacement of a few light bulbs and the patching of a couple of small holes in screens falls into the first or the second category is a determination properly left to the trier of the facts who saw and heard the witnesses. We can conceive of situations where, depending on the amount of rent charged and the kind of premises rented, such charges might fall into the first category described instead of the second. In this case at any rate, the able trial court has made a determination that such “charges” triggered the application of the protective provisions of the applicable statutes, and our review of the record signals no compelling reason for us to substitute our judgment for his. Quite the contrary, we are in agreement with him, for, in our view, the record discloses a landlord who might, at best, be described as arbitrarily overzealous and who might be more even handedly described as clearly embarked upon the very conduct which LSA-R.S. 9:3251, et seq., seeks to proscribe.

The record indicates that the holes in the front screen door (for which the landlord claims a $10.00 repair fee) and the burn of the formica cooktop (a $5.00 claim) actually existed before Lugo moved into the apartment. The replacement of light bulbs (a $11.70 claim) is a maintenance item and is not “damage.” The hole behind the front door (a $3.00 claim) was caused by the absence of a door stop which is not attributable to Lugo. Replacement of bathroom tile (a $28.00 charge) was a repair required because of faulty plumbing which had been reported to the lessor, Vest. The labor claimed for door knob replacement for the bathroom door was abandoned at trial. The only “damage” claim that had any justification whatsoever was one for three small holes in the rear screen door, but the charge for repairing same (alleged to be $10.00) was not proven.

Lugo has answered the appeal, seeking both an increase in the amount of attorneys’ fees for the trial court proceedings and attorneys’ fees for this appeal. We believe that the amount awarded by the trial judge was not manifestly erroneous and will not disturb same. We do, however, conclude that Lugo is entitled to an additional award of attorneys’ fees for the handling of this appeal in the amount of $250.00.

Accordingly, the judgment of the First Parish Court for the Parish of Jefferson is, in all respects, affirmed, and it is now further ordered, adjudged and decreed there be judgment in favor of plaintiff-appellee, Augustine Lugo, and against defendant-appellant, Wayne H. Vest, in the additional amount of $250.00 to cover attorneys’ fees due for the handling of this appeal. All costs of these proceedings are to be borne by defendant-appellant.

AFFIRMED.


author: BEER, Judge. LEMMON, Judge

text:
    RAI-LYNNE REALTY, INC. v. Joseph N. KERN.
    No. 7545.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1976.
    Laborde & Brooks, John H. Brooks, New Orleans, for plaintiff-appellant.
    James O. Manning, Metairie, for defendant-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, Rai-Lynne Realty, Inc., seeks to recover $3,623.08 from its former sales manager, Joseph Kern, contending that is the amount by which Kern’s drawing account exceeded his earned commissions upon termination of his employment on February 20, 1974. After trial, there was judgment in Rai-Lynne’s favor but only in the amount of $475.94. They now appeal, seeking the full amount of their claim.

Kern’s responsibility to repay advances in excess of his earned commissions depends upon the interpretation which is judicially accorded to two separate contracts between the parties — one dated July 5, 1973, the other, January 8, 1974-

Mrs. Rai Lynne Jarabica, president and owner of Rai-Lynne Realty, testified that she hired Kern as sales manager for the newly formed corporation in July, 1973. She testified that Kern wanted a salaried position but reluctantly agreed to a compensation schedule based on his own commissions plus an override from the sales of agents under his supervision. She maintains that she made it quite clear to him that he was obliged to repay the cash draw advanced to him if it was less than the total amount of his commissions. She testifies that he understood and consented to this procedure. The first contract, dated July 5, 1973, was, accordingly, executed. However, a second contract, dated January 8, 1974, was, thereafter, entered into by the parties. Mrs. Jarabica maintains that this second contract was confected primarily to clarify the question of when Kern would be bound to repay the cash advances. She insists that the cash drawings were no more than loans and that all checks were marked “advances.” She stated that $6,650.00 was advanced to Kern during the entire period of his employment and that $4,123.09 represents the excess of Kern’s drawings over commissions earned. She later amended the net excess amount to $3,623.08, the figure upon which the suit is based.

We note that subsequent to the signing of the second contract, Kern received a $1,000.00 “advance.” During the period between the date of the second contract (January 8, 1974) and the date of his termination (February 20, 1974), Kern earned a total of $524.06 in commissions ($118.86 in January and $405.20 in February, 1974). The difference, $475.94, is the amount of the trial court’s judgment in favor of Rai-Lynne.

J. Earl Pedelahore, accountant for Rai-Lynne, indicated that he treated all of the cash advanced to Kern as a receivable on Rai-Lynne’s income tax return, and further stated that no taxes were deducted from Kern’s checks. He testified Kern was not given “any information to indicate that the amounts paid over to him were taxable

Kern maintains he was only willing to accept a compensation program whereunder the cash advance would be repaid from earned commissions. He avers that he signed the contracts because they contained no provisions relative to his personal liability. In response to a question regarding his treatment of the cash advances as “income” on his 1973 tax return, he testified that he “included a sum from Rai-Lynne Realty in my tax returns.” Though he acknowledges receipt of $5,500.00 in cash advanced from Rai-Lynne in 1973, he reported only $3,500.00 of that amount. He states that this resulted from an accounting oversight.

The trial court’s judgment in favor of Rai-Lynne for $475.94 covered the amount by which the single 1974 cash advance of $1,000.00 exceeded commissions earned by Kern since the signing of the new contract in January, 1974. The court observed that the first agreement signed by the parties in July, 1973, did not contain provisions for repayment of the advances. Citing Grace v. Morales, 210 So.2d 60 (La.App. 1st Cir., 1968), the court was of the view that:

“In the absence of an express or implied agreement so providing, an employer cannot recover from a commissioned employee unearned advances which were to be charged against future commissions earned.”

In support of this holding, we also note, generally, the following cases: Bardwell v. Szatmary, 99 So.2d 420 (La.App. 2nd Cir., 1957), Landry v. Huber, 138 So.2d 449 (La.App. 3rd Cir., 1962), and Shushan Brothers, Inc. v. Ortego, 160 So.2d 800 (La.App. 3rd Cir., 1964).

Indeed, the general law with respect to the matter at bar seems clear. The issue in this litigation is not a question of law. It centers around the interpretation accorded the two written contracts between the parties. The trial court concluded that the first contract neither expressed nor implied any agreement requiring Kern to repay the unearned advances, whereas the second contract did do so. The pertinent portion of the first contract provides that Kern “shall be entitled to a monthly draw in the amount of One thousand dollars paid against funds due for personal commissions and override commissions. In the event his monthly income should exceed the One thousand dollar draw, he may take such excess in cash or apply it to the stock options outlined in paragraph 2.”

The second contract contains the same language noted above but, in addition thereto, also contains the following provision: “If this agreement is terminated, the balance of Joseph N. Kern’s drawing account is due immediately less commissions pending pursuant to the conditions of Paragraphs A and B.”

In written reasons, the trial court succinctly stated its findings and conclusions as follows:

“The requirement for repayment first appeared in the second agreement signed on January 8th. Though Mrs. Jarabica testified that both parties understood this was the arrangement from the beginning, Mr. Kern denied that such was the case.
“The first written contract, prepared by Mrs. Jarabica, was silent on the point. Parole testimony should not be heard to enlarge the written agreement, and having been prepared by Mrs. Jarabica, it should be construed against her.
“The second writing clearly requires repayment but there is nothing in it to suggest that it should be given retroactive effect. In the absence of such an expression of mutual intent, it will be given prospective effect only.” (Emphasis ours.)

Notwithstanding the language in his written reasons, the trial judge made certain observations from the bench at the conclusion of the taking of testimony in connection with the trial of this matter. He stated:

“The first contract is admittedly vague on that, in fact it’s silent on the point. The second contract is explicit on the point though not very artful and I conclude it was intended to be retrospective in its application and was nothing more than a confirmation of the arrangement as they (the parties) had previously understood it. That’s a conclusion I reach.”

Thus, it becomes apparent that the trial court’s initial reaction to the evidence, including the testimony of the parties, was to accord retrospective effect to the language contained in the second contract, i. e. make the wording of the second contract applicable to the provisions of the first contract regarding Kern’s obligation to repay Rai-Lynne the amount by which his drawing account exceeded his earned commissions.

However, it is also apparent that the trial court, upon reflection, concluded that the applicable language of the second contract should not be given retrospective effect but “prospective effect only.”

When we refer back to the trial court’s reasons for judgment, we note that the court acknowledges the conflict between the testimony of Mrs. Jarabica and Mr. Kern. Mrs. Jarabica urges that the “arrangement” with respect to repayment of unearned commissions was “understood . from the beginning.” Mr. Kern denies this. The trial judge heard the testimony, observed the witnesses and, apparently, made a credibility determination with respect to this basic factual disagreement between the litigants.

If, before the first contract had been signed, the principals had categorically agreed that Kern was required to make dollar for dollar reimbursement to Rai-Lynne for all cash advances not offset — dollar for dollar — by earned commissions (either his own or his overrides), then the total amount of Rai-Lynne’s claim would have to be recognized. It is obvious to us that the trial judge was aware of this legal conclusion.

In order to apply the generally unambiguous repayment provision of the second contract to all of the advances made pursuant to the first contract required the trial court to make a factual determination of the intent of the parties at the time of the signing of the first contract. True, the court could be influenced in this determination by the verbiage of the second contract, but also true was the fact that the court could be — and, in this instance, doubtlessly was — influenced by the testimony of the parties.

Since there is no express agreement in the first contract which grants the employer the specific right to recover unearned advances and since no agreement to this effect can be implied without a finding that both parties clearly and unequivocally intended such implication, the ultimate determination of this critical issue rests with the trial judge’s factual finding with respect to the intent of both of those parties.

In spite of the closeness of the call, we cannot say that the trial court, who heard the witnesses and noted their demeanor, composure and reactions, was manifestly erroneous in making the credibility determinations which prompt its decision on the critical issue of intent. And, if there was an absence of mutual intent, there can be no implied agreement. Without an agreement — express or implied — the holding previously noted in Grace v. Morales, supra, must apply. Accordingly, the judgment of the Civil District Court for the Parish of Orleans must be affirmed; each party is to bear his own costs of this appeal.

AFFIRMED.

SAMUEL, J., concurs.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

At the conclusion of the evidence the trial judge expressed a credibility evaluation of the conflicting testimony on the factual issue as to whether or not the parties verbally agreed at the inception of the employment relationship that Kern’s advances in excess of' commissions would be repaid upon his termination. However, apparently upon reflection after reviewing a memorandum of authorities, the trial judge declined to allow a swearing match determination to operate to supplement a written contract by adding terms which were not expressed and could not be implied from the contract itself or from the circumstances surrounding the relationship. Furthermore, there was nothing that was expressed in the second contract or that could be reasonably implied from the surrounding circumstances which could serve as a basis for retroactive application of the newly added provision for repayment.

I therefore agree with the legal conclusion of the trial judge that, under the circumstances of this case, testimony as to a contemporaneous oral agreement could not serve to change the law between the parties.

      . In V-8 Taxicab Service, Inc. v. Hayes, 322 So.2d 442 (La.App. 4th Cir., 1975), we noted that: “An implied in fact contract is one which rests upon consent implied from facts and circumstances showing a mutual intention to contract.” (Emphasis ours.) This observation is consistent with the mandate of LSA-C.C. Article 1797, which provides: “When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties to the contract.” In construing these various provisions, the Supreme Court, in Gov. Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970), stated: “While assent to a contract may be implied, that implication must be established and cannot be presumed.”
      In McMorris v. Pepperdene, 292 So.2d 892 (La.App. 1st Cir., 1974), writs denied 294 So.2d 840, the court observed: “. . . our review of the evidence convinces us that there never was any meeting of the minds of the parties hereto, and in the absence of such consent, the prerequisite to the existence of a contract, no such contract, verbal or otherwise, has been established by a requisite preponderance of the evidence.”
      In Pooler Building Materials, Inc. v. Hogan, 244 So.2d 62 (La.App. 1st Cir., 1971), our brothers of the First Circuit observed: “In this case, as in the case of all contracts, there must be consent by both parties as to all aspects of the subject of the contract. The consent may be express or implied from the actions of the parties. In cases not expressly covered by law, it is left to the discretion of the judge to determine if consent is to be implied in the particular circumstances of the case. Civii Code, Article 1818.” (Emphasis ours.) Article 1818 states: “Where the law does not create a legal presumption of consent from certain facts, ..then, as in the case of other simple presumptions, it must be left to the discretion of the judge, whether assent is to be implied from them or not." (Emphasis ours.)

      . Indeed, Mrs. Jarabica testified that the “main purpose” of the second contract was to renew Kern’s options which had expired.


author: BOUTALL, Judge.

text:
    In the Matter of the Commitment of Susan SCHINDLER.
    No. 8031.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 10, 1976.
    Lawrence R. Anderson, Jr., Anderson & Roberts, Baton Rouge, for Susan Schindler; Lemuel E. Hawsey, III, Baton Rouge, George M. Strickler, Jr., New Orleans, and John Reed, Gen. Counsel, ACLU of Louisiana, New Orleans, of counsel.
    John M. Mamoulides, Dist. Atty., Parish of Jefferson, State of Louisiana, Abbott J. Reeves, Director, Research and Appeals, Gretna, for Dr. Charles Odom, Coroner and Dr. Oliver Sanders, Asst. Coroner, and the Parish of Jefferson.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Sam L. Levkowicz, Staff Atty., Barbara S. Bruckner, Staff Atty., Dept, of Justice, State of Louisiana, for the State of Louisiana, Ex Rel., William J. Guste, Jr., Atty. Gen.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

An application by the father of Susan Schindler was made for her examination and/or confinement for treatment in accordance with L.R.S. 28:52. After examination and study of the patient at East Jefferson General Hospital for several days, the patient was on May 27, 1976 ordered to be confined at Southeast Louisiana State Hospital at Mandeville for short term hospitalization not to exceed 60 days (to be computed from original confinement May 24, 1976) for further evaluation and treatment.

Through her attorney Susan Schindler then filed petition on May 28, 1976 for a judicial or court hearing under provisions of L.R.S. 28:56. The court granted a hearing on June 4,1976, found that Susan Schindler “is incapable of caring for herself and that she is suffering from a mental illness” and ordered her committed to the Southeast Louisiana State Hospital for treatment and observation, requiring the hospital to report and advise the Court at appropriate times of her condition. The judgment was appealed to this court and when the record was lodged, expedited hearing was requested. We granted immediate hearing.

The main issues argued to this Court were the denial of due process rights relative to the statutory authority of a coroner to confine without a hearing and the unconstitutionality of any commitment based on the statutory standard that the patient be suffering from a mental illness which causes him to be “incapable of caring for himself or his personal safety”. See for example O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). Appellees have urged to us the constitutional regularity of the proceedings and argue the matter is moot under the rationale of Hickman v. Fletcher, 317 So.2d 219 (La.App. 3rd Cir. 1975).

We point out that in the Hickman case there were before the Court both a habeas corpus filed by the patient and a petition for judicial commitment filed by Hickman. The Court’s ruling granted a judicial commitment and the patient was no longer confined on the coroner’s confinement. In the case at bar we find no judicial commitment petition as specified in L.R.S. 28:53. The matter came before the court only on the request for a court hearing by the patient as permitted by L.R.S. 28:56. While that hearing is conducted proeedurally as set out in L.R.S. 28:53 it is certainly not a judicial commitment petition. A patient who seeks no relief except release from the 60 day maximum coroner confinement surely cannot be committed beyond that term in the absence of some positive action being taken by the filing against him of a petition for judicial commitment by a person authorized under L.R.S. 28:53. The scope of a court hearing only on the validity of a confinement by the coroner is restricted to that issue alone.

It appearing that no judicial commitment was ever petitioned for, the Judgment of Commitment was improvidently granted except insofar as it intended to uphold the coroner’s confinement. Since the 60 day maximum detention allowed by law under a coroner’s confinement, as well as that specified in the coroner’s order, has already passed, appellant is entitled to immediate release from confinement.

For the above reasons, it is ordered that: the judgment appealed from is annulled insofar as it ordered a judicial commitment beyond the scope of the coroner’s confinement; the appeal is dismissed as moot insofar as the judgment intended to uphold the coroner’s confinement; and, the coroner’s confinement having expired, the appellees and the treating facility, Southeast Louisiana State Hospital, at Mandeville, Louisiana, forthwith release Susan Schindler from confinement; judgment to be effective immediately, Coleman v. Marzullo, 4 Cir., 296 So.2d 437, writ refused, La.App., 297 So.2d 206.

JUDGMENT ANNULLED IN PART, AND RELEASE ORDERED.


text:
    Jimmy FONTENOT, Individually and on behalf of his minor child, William James Fontenot, Plaintiff and Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, et al., Defendants and Appellees.
    No. 5576.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.

      Guillory, McGee and Mayeux by A. Frank McGee, Eunice, La., for plaintiff and appellant.
    Raggio, Farrar, Cappel & Chozen by R. W. Farrar, Jr., Lake Charles, for defendants-appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

Plaintiff seeks damages for personal injuries sustained by his five year old child. While running across a highway, the child was struck by an automobile driven by the defendant, Mrs. Betty Henry. The trial judge held the defendant motorist free of negligence and dismissed plaintiff’s suit. Plaintiff appealed.

The decisive issue is whether the defendant motorist was negligent.

The scene of this accident is on Louisiana Highway 27 near Creole, Louisiana. At this location, the highway is straight and runs north and south through the coastal marsh. It has two lanes, is of asphalt construction and the speed limit is 55 miles per hour. A canal, dug to excavate soil for the road bed, runs along the west side of the highway. A shoulder, about 14 feet in width, slopes from the pavement down to the canal.

On the morning of June 21, 1975, the Fontenot family and three relatives traveled in Mr. Fontenot’s automobile to the accident scene for a day of crab fishing. The party of four adults and four children dispersed along the bank of the canal near the parked automobile to fish. The Fonten-ot vehicle was parked on the west shoulder of the highway, facing south. A station-wagon, also facing south, was parked behind the Fontenot vehicle. Since the child ran between these two parked vehicles onto the highway, an important fact is how close they were together. The trial court concluded on the basis of conflicting testimony that the stationwagon “was parked near enough to the Fontenot vehicle so as to obscure a view of the rear of the Fontenot automobile by a south bound vehicle approaching the parked vehicle.

Defendant, Betty Henry, was driving south on Louisiana Highway 27 with her passenger, Ann Doan, at a rate of between 45 and 50 miles per hour. Both testified that they did not see the child until he ran from between the two parked cars and appeared in the south bound lane only 15 or 20 feet in front of the Henry vehicle. The trial court concluded that the sudden and unexpected appearance of William Fonten-ot did not allow the defendant motorist sufficient time to apply her brakes. The force of the impact with the automobile threw the five year old boy into the ditch on the east side of the road. Betty Henry brought her- vehicle to rest in her south bound lane a short distance in front of Mr. Fontenot’s parked car.

The trial court concluded, “that the Henry vehicle was not traveling at an excessive rate of speed under the circumstances, and in all probability did not go even as fast as 45 miles per hour.” The court based its conclusion upon the testimony of the occupants of the vehicle, the short distance between the point of impact and the final stopping place of the Henry vehicle, and upon the fact that the child’s injuries consisted only of a fractured leg and bruises and contusions from which he recovered without residual disability.

Plaintiff argues Mrs. Henry often traveled this highway, that she knew adults and children frequently fished and crabbed from the shoulder, and that the parked cars should have alerted her to the probable presence of children. He contends the cars were far enough apart to offer defendant a view of William Fontenot as he passed between them. On this basis, plaintiff argues the defendant motorist was negligent in not reducing her speed and using extra care to observe for children.

The following from Layfield v. Bourgeois, 142 So.2d 799, 801 (La.App. 3rd Cir. 1962), quoted recently in Ardoin v. Swint, 315 So.2d 839 (La.App. 4th Cir. 1975), defines the motorist’s duty to small children:

“There is no dispute as to the law, it being well established in our jurisprudence that a motorist who sees or should see children near the roadside, must exercise a high degree of care in view of the propensity of children to run or dart into the street * * *. On the other hand, a motorist is not an insurer of the safety of children playing in the street. If a motorist is proceeding at a lawful and reasonable speed and obeying all the rules of the road as to proper lookout, etc., he will not be liable where a child suddenly darts or runs into his path from a concealed position in such a manner that the motorist is unable to avoid striking the child * * (citations omitted)

The trial court concluded that the defendant could not reasonably expect an unattended five year old child would dart from a concealed position onto this open stretch of highway through the marsh. Even if Mrs. Henry should have known that adults and children from the two parked cars might be fishing in the canal, she could assume, in the absence of some indication to the contrary, that any children would be in the care of adults. Actually, there is no evidence that Mrs. Henry saw or should have seen any adults or children near the highway. They were all down near the canal crabbing or cutting bait.

Plaintiff argues that Moore v. Mouledous, 305 So.2d 717 (La.App. 4th Cir. 1974) and Dawson v. Fleming, 260 So.2d 95 (La.App. 1st Cir. 1972) support his contention that defendant breached her duty to see William Fontenot. These cases are inapplicable to this litigation. In Moore, the court found liability where defendant struck a child while speeding through a school zone in a residential area on a school morning. Liability in Dawson was predicated upon the fact that defendant was speeding through a residential area where he knew children played in the street. In contrast, defendant in the instant case was driving her vehicle through marshland on a state highway where the only people outside their cars were fishing or crabbing completely off the highway.

Having determined that Betty Henry was not negligent, we need not reach the issue of the contributory negligence of William Fontenot’s parents.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff appellant, Jimmy Fontenot.

AFFIRMED.