author: GUIDRY, Judge.

text:
    Nathan WALKER, Jr., et ux., Plaintiffs-Appellees, v. UNION OIL MILL, INC., et al., Defendants-Appellants.
    No. 6463.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearing Denied Aug. 4, 1978.
    Theus, Grisham, Davis, Leigh & Brown by R. L. Davis, Jr., Monroe, for defendants-appellants.
    Dale, Richardson & Dale by R. R. Reeves, Jr., Harrisonburg, for plaintiffs-appellees.

      Before WATSON, GUIDRY and CUT-RER, JJ.
   GUIDRY, Judge.

On December 18, 1958, Nathaniel Stevenson, then fifteen years of age, died of suffocation when he apparently became trapped in a storage tank owned by Union Oil Mill, Inc. and operated by Victor Cross d/b/a United Elevator Company. Nathan Walker, Jr. and Martha Walker, the decedent’s parents, originally brought this wrongful death and survival action against Victor Cross, Union Oil Mill, Inc. and its liability insurer, Employer’s Liability Assurance Corporation Ltd. The case was tried on its merits on June 17,1960 and was then taken under advisement by the trial court.

Martha Walker died on September 1, 1962. On June 16, 1965, plaintiffs obtained an order substituting the children of Martha Walker as parties plaintiff. That same day, all plaintiffs filed a motion for summary judgment. On June 24,1965, defendants filed a Dilatory Exception of Unauthorized Use of Summary Proceedings along with Peremptory Exceptions of No Cause or Right of Action and Prescription. This matter was then set for trial on three successive dates, to-wit: November 4, 1968, February 21, 1969 and September 26, 1969.

The record reflects no further activity until September 22, 1977, when the trial court rendered judgment:

(1) In favor of Nathan Walker, Jr., against all defendants, in solido, in the amount of $1,000.00;

(2) In favor of James Henry Lewis, Marjorie Marie Lewis, Hattie Louise Walker, Yvonne Phillip Johnson and Jessie Mae Fel-ton as heirs and substituted parties plaintiff for Martha Walker against all defendants, in solido, in the amount of $25,000.00.

Both plaintiffs and defendants have perfected appeals from the judgment of the trial court. Plaintiffs’ appeal and answer to defendants’ appeal, requests an increase in the quantum awarded.

Defendants’ primary contentions on appeal are:

(1) Plaintiffs’ cause of action should be considered abandoned under the provisions of LSA-C.C.P. art. 561 inasmuch as more than five years elapsed without any steps being taken in the prosecution or defense of this case in the trial court;

(2) The claim of Martha Walker should be dismissed for failure to substitute parties plaintiff within one year from her death; and

(3) The trial court erred in finding negligence on the part of defendants and invoking the doctrine of res ipsa loquitur.

We pretermit a discussion of the procedural issues raised by defendants as we conclude that a consideration of the merits of this case warrants a reversal of the trial court’s judgment.

The record establishes the following facts:

The tank in which young Nathaniel lost his life is part of a large grain elevator facility which is used for the storage and processing of soybeans and grain in Ferri-day, Louisiana. This facility consists of five cylindrical tanks along with several structures and other supporting equipment. Four of these tanks are situated in a line adjacent to a road and are used mostly for the storage of soybeans. A cross conveyor apparatus traverses the tops of these tanks. A ladder affixed to the exterior of one of the tanks allows a person to reach the top of any of the four tanks.

Tank number 1 in which Nathaniel met his death, measures 19 feet in diameter with a height of 40 feet, 4 inches. Access to the interior of this tank was provided by means of a manhole located in the top of the tank measuring 1 foot, 7 inches in diameter, and also by a small door located in the side of the tank approximately 12 feet above the ground. This side door opens inward, and thus can be opened only when the level of the beans in the tank falls below the level of the door. Otherwise, pressure from the inside makes this door impossible to open. However, entrance by way of the top manhole can be made at any time, regardless of the level of the beans in the tank. A wooden ladder extends from the manhole down into the tank, allowing a person to descend until he is standing on top of the beans. There are no locks to prevent unauthorized persons from entering the tank through either the side or top entrance. There are no warning signs present.

Part of the storage process requires a continuing transfer of the beans from one storage tank to another. This is accomplished by allowing the beans to drain out of the tank by means of gravity flow through a six inch line where they are then conveyed elsewhere. However, when the level of the beans drops to a certain point, gravity is no longer sufficient and the beans will cease flowing on their own. A motor is then used to turn a screw in the center of the tank which pulls the remaining beans out. While being emptied, it is necessary for someone to stand by outside of the tank to clear the line should it become clogged with foreign matter.

There is no danger to a person entering the tank while it contains beans, if the beans are not moving, i. e., if they are not being drained out of the tank. But it is dangerous to enter the tank if the beans are being transferred as they have a tendency to cave in.

After the level of the beans drops below the side door, it often becomes necessary for someone to enter the tank to rake or knock some of the remaining beans loose with sticks. However, this is only done when the bean level is near the bottom of the tank.

Nathaniel’s older brother, James Henry Lewis, was employed at the grain elevator. The record shows that Nathaniel hung around the grain elevator and sometimes assisted his brother with some of the cleanup work. At trial, Mr. Cross denied that Nathaniel was an employee or that he had ever observed him in the tanks. There is some evidence to the effect that Mr. Cross had on occasion instructed James Henry Lewis to give Nathaniel some money out of his paycheck. This was denied by Mr. Cross, who further testified that Nathaniel had been advised to leave the premises quite often. Nathaniel had been in the tanks with his brother when the latter’s duties required him to enter them to rake out the remaining beans when they reached a low level. James Henry Lewis testified that Nathaniel was familiar with the premises and knew how the entire operation worked.

The record indicates that on the morning of December 18, 1958, tank number 1 was approximately % full. The beans were being transferred out of the tank by means of the gravity flow process described above. James Henry Lewis was on duty that morning. He testified that Nathaniel was there that morning to assist him with some cleaning under the scales.

Victor Cross’ brother, Howard, sometimes assisted in the operation of the grain elevator. He testified that he stopped by soon after 9:00 A.M. He advised Nathaniel to go home and then left the premises.

Nathaniel left sometime before noon. After a break for lunch, both James Henry Lewis and Nathaniel returned to the grain elevator at about 1:00 P.M. James Henry Lewis testified that he left the premises at about 2:00 P.M. to visit with a cousin. When he left, Nathaniel was around the base of the tanks. When he returned about fifteen or twenty minutes later, he was no longer there. He did not search for Nathaniel, as he thought he had gone home. The next day, Nathaniel’s body was recovered from the tank. At that time, the tank was approximately V2 full.

The trial judge did not render written or oral reasons for judgment therefore, we do not know on what basis he concluded that defendants were negligent and responsible in tort damages to plaintiffs.

Plaintiffs on appeal take the position that a bean storage tank, while in the process of being mechanically emptied, is a dangerous instrumentality. Plaintiffs thus allege that defendants failed to exercise reasonable care in leaving a fifteen year old minor alone and in charge of managing such dangerous machinery. In support of their contentions, plaintiffs place much emphasis on the doctrine of res ipsa loquitur and on the rule of law that where there are no eyewitnesses to an accident, it is presumed that the decedent acted with ordinary care for his own safety. Stansbury v. Mayor and Councilmen of Morgan City, 228 La. 880, 84 So.2d 445 (1955); Le Jeune v. State, Department of Highways, 215 So.2d 150 (La.App. 3rd Cir. 1968, writ refused). Alternatively, plaintiffs rely on the doctrine of attractive nuisance.

Defendants, on the other hand, contend that plaintiffs have failed to demonstrate any negligence on their part, and that the doctrines of res ipsa loquitur and attractive nuisance are inapplicable to the case at bar. We agree.

The mere fact that a person is injured on the property of another does not give rise to a presumption of negligence on the part of the defendant. Rousseau v. Deramus, 342 So.2d 276 (La.App. 3rd Cir. 1977). In a tort action, plaintiff has the burden to prove that, more probably than not, his injury was caused by the negligence of defendant. Boudreaux v. American Insurance Company, 262 La. 761, 264 So.2d 621 (1972).

Res ipsa loquitur is a rule of evidence which under certain circumstances may assist plaintiff in carrying his burden of proof. It does not dispense with the necessity that plaintiff prove negligence on the part of the defendant. Boudreaux v. American Insurance Company, supra; Alexander v. St. Paul Fire & Marine Insurance Company, 312 So.2d 139 (La.App. 1st Cir. 1975, writ refused); Aetna Casualty & Surety Co. v. Rothman, 331 So.2d 81 (La.App. 1st Cir. 1976).

Three prerequisites for the application of the doctrine of res ipsa loquitur are set forth in Alexander v. St. Paul Fire & Marine Insurance Company, supra, as follows:

“It is also well established that for the doctrine of res ipsa loquitur to apply, it must be shown: (1) The circumstances are such as to create an inference of negligence on defendant’s part; (2) control and management of the instrumentality causing the damage was in the exclusive control of defendant, and (3) plaintiff was not in a position to know the particular circumstances which caused the instrumentality to operate to plaintiff’s injury, whereas, the facts were such that defendant is presumed to possess superior knowledge in this regard.” (citations omitted)

Our Supreme Court, in Boudreaux v. American Insurance Company, supra, stated:

“Nevertheless, when all the evidence is in and the question is whether, by reason of the res ipsa loquitur rule, the plaintiff has preponderantly proved that the defendant is responsible in tort for his injury, we have in our most recent decision on the issues noted that the real test of applying res ipsa loquitur to be as follows: ‘Do the facts of the controversy suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident?” Pilie v. National Food Store, 245 La. 276, 158 So.2d 162, 165 (1963). (Italics ours.) On the other hand, application of the principle is defeated if ‘an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence.’ 158 So.2d 165 (Italics ours.) See also Comment, 25 La.L.Rev. 748, 764 (1965). This is simply another formulation of the burden of a plaintiff in a tort action to prove that, more probably than not, his injury was caused by the negligence of the defendant.”

We conclude that the facts of this case do not warrant application of res ipsa loquitur. There is no evidence in the record tending to show that the tank in question or its appurtenances were in any way defective in design or construction. We cannot say that a bean storage tank is a dangerous instrumentality per se.

There were no eyewitnesses to this tragic accident. All that plaintiffs are able to show is that their decedent was found suffocated in a bean storage tank which was being drained of its contents after he was observed around the tank at some time before his disappearance. The absence of eyewitnesses to an accident does not establish a prima facie case of negligence against an alleged tort feasor. Davis v. Reliance Electric Company, 351 So.2d 1238 (La.App. 1st Cir. 1977).

It is reasonable to conclude that Nathaniel entered the tank by way of the top manhole, as the level of the beans in the tank would prevent access through the side door. However, there is a complete absence of evidence showing how he came to be trapped in the beans themselves. We do not know how or why he came to be inside of the tank. We do not know if Nathaniel lost his balance and fell into the tank while peering inside, or if he voluntarily climbed down into the tank and then somehow became engulfed in the beans. Any attempt on our part to resolve this matter would be based on pure speculation and conjecture.

Plaintiffs are unable to point to any specific negligent conduct on the part of defendants. Considering the known facts in this case, an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to defendant’s negligence. Boudreaux v. American Insurance Company, supra. Under these circumstances, we find the doctrine of res ipsa loquitur inapplicable to the instant case.

We likewise find that plaintiffs are not entitled to any recovery under the doctrine of attractive nuisance. The record reflects that Nathaniel was old enough and intelligent enough to appreciate the danger of entering the tank when it was being drained of beans. Thus, the attractive nuisance doctrine is inapplicable. Richards v. Marlow, 347 So.2d 281 (La.App. 2nd Cir. 1977).

We conclude that in the instant case, plaintiffs have failed to sustain their burden of proving that the accident was caused by negligence on the part of defendants.

For the above reasons, the judgment of the trial court is reversed. It is ordered, adjudged and decreed that there be judgment in favor of defendants Union Oil Mill, Inc., Victor Cross, d/b/a United Elevator Company, and Employer’s Liability Assurance Corporation, Ltd. and against plaintiffs, dismissing plaintiffs’ suit. Costs on the trial and appellate level are assessed to plaintiffs.

REVERSED AND RENDERED.

WATSON, J., concurs in the result being of the opinion that the deceased youth was presumptively an employee of defendants and the rights of his survivors are governed by the Compensation Act. LSA-R.S. 23:1044.

ON REHEARING

Applicant notes that through inadvertence and error, the written reasons assigned by the trial court were not made a part of the record on appeal and were not therefore considered when the court heard the case and rendered its original opinion. The record has since been supplemented and this court has considered the written reasons assigned by the trial judge.

We have reviewed the trial court’s reasons in light of our original opinion and conclude that our original opinion is correct.

Accordingly, applicant’s application for rehearing is hereby denied.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    Calvin BOSTICK, Plaintiff-Appellant, v. INTERNATIONAL MINERALS & CHEMICAL CORPORATION, Commercial Solvents Corporation, M. W. Kellogg, Inc., Ford Bacon & Davis, Continental Insurance Company, Aetna Casualty & Surety Company, Royal Globe Insurance Company, Frank Patterson, Ralph Stifle, Claude Stringer, Paul Easom and Wade Russell, Defendants-Appellees.
    No. 13577.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.

      Cave, McKay & Poirier, Baton Rouge, by Donald G. Cave, Baton Rouge, for Calvin Bostick plaintiff-appellant.
    Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for International Minerals & Chemical Corp., et al., defendants-appellees.
    Hudson, Potts & Bernstein by Jesse D. McDonald and Henry J. Miltenberger, Jr., Monroe, for Royal Globe Ins. Co., Frank Patterson, Ralph Stifle, Claude Stringer, Paul Easom and Wade Russell, defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff appeals a judgment sustaining an exception of no cause of action in his executive officer tort suit based upon injuries sustained by him during the course and scope of his employment.

Plaintiff alleges his injuries were caused by the failure of his employer’s supervisors and executive officers to provide him with a safe place to work. Plaintiff’s job-related injury occurred September 26, 1976. On October 1, 1976, Act 147 of the 1976 Regular Session of the Louisiana Legislature became effective. This act amended R.S. 23:1032 and 23:1101 to eliminate an injured employee’s tort cause of action against any officer, director or stockholder, partner or employee of his employer or principal.

The trial court held Act 147 of the 1976 Legislature was procedural, remedial, and curative rather than substantive. Because the act was found not to be substantive, it was applied retroactively, eliminating plaintiff’s cause of action even though his injury occurred five days before the effective date of the statute.

Plaintiff urges the trial court erred in applying the statute retroactively.

The issue is should the statute be construed as substantive and not subject to retroactive application or is it only procedural, remedial, and curative, and for that reason, retroactive in application?

Our general rule of statutory construction is that a law can prescribe only for the future; it can have no retrospective operation. C.C. Art. 8. This general rule excepts those instances where the statute specifically provides for retroactive application or where the statute does not affect a substantive right, but is only procedural or remedial. Young v. Staman, 200 So. 187 (La.App., 2d Cir. 1940); American Finance Corporation of Coushatta, Inc. v. Small, 250 So.2d 768 (La.App., 2d Cir. 1971).

In Shreveport Long Leaf Lumber Company v. Wilson, 195 La. 814, 197 So. 566 (1940) a statute designed to change the method of maintaining the viability of a material-man’s lien beyond one year after recordation from the filing of suit to reinscription of the lien was held to be remedial in nature and subject to retroactive application.

In Brown v. Indemnity Insurance Company of North America, 108 So.2d 812 (La.App., 2d Cir. 1959) the court found a statute providing an additional venue for a workmen’s compensation suit was procedural in nature and it was applied retroactively.

In Young v. Staman, supra, it was held a statute which gave the owner of a mineral lease a right to participate in the proceeds of a sale of immovable property by Imitation granted a substantive right. The decision distinguished a substantive statute from a remedial statute by pointing out that a remedial statute is one which confers a remedy and a remedy is employed to enforce a right or redress an injury.

In Manuel v. Carolina Casualty Insurance Company, 136 So.2d 275 (La.App., 3d Cir. 1961), the court interpreted a statute which amended C.C. Art. 2315 to give a cause of action to major children for the wrongful death of their parents. The court concluded the statute was substantive in nature as it provided a cause of action where before there had been none, and for that reason it was not subject to retroactive application. The court recognized that a statute which is remedial or procedural and which also has the effect of making a change in the substantive law must be construed to operate prospectively only.

In Walker v. Johns-Mansville Products Corporation, 311 So.2d 506 (La.App., 4th Cir. 1975), a statute amending the Louisiana Workmen’s Compensation Act to provide that an employee was entitled to recover compensation benefits where his disability was related to an occupational disease was found to be substantive and not retroactive in application.

When our Workmen’s Compensation Act was passed in 1914, an employee’s cause of action in tort against his employer, which previously existed under the provisions of C.C. Art. 2315, was removed and in substitution for it he was given his right to the benefits under the Workmen’s Compensation Statute. Footnote 1.

In Kimbro v. Holladay, 154 So. 369 (La.App., 2d Cir. 1934), decided twenty years following passage of the Louisiana Workmen’s Compensation Act, an employee, who was injured while riding as a passenger in a car negligently operated by his supervisor, was recognized to have a cause of action against his supervisor under the provisions of C.C. Art. 2315:

“ * * * The contractual relationship existing between the employer and his employee, who is injured and damaged through the fault of a fellow employee, has nothing whatever to do with the injured employee’s right to recover from his fellow employee who committed the tort.” Id. page 371.

LSA-R.S. 23:1032 provides the right to workmen’s compensation benefits “shall be exclusive of all other rights and remedies of such employee.” This section means workmen’s compensation benefits are exclusive of other rights and remedies (i. e., tort cause of action) insofar as they are applicable to the person (i. e., employer) against whom the employee has been granted the right to workmen’s compensation benefits.

The court in Kimbro recognized plaintiff had not been given a statutory claim for compensation against his supervisor and therefore concluded 23:1032 did not deprive plaintiff of his tort cause of action against a negligent supervisor. The supervisor was not included as an “employer” against whom plaintiff was deprived of rights and remedies other than workmen’s compensation.

LSA-R.S. 23:1101 provides the injured employee retains his cause of action in tort against persons “other than the employer.” The statute goes further to clarify that “person other than the employer” shall be referred to as “thirdperson.” The meaning of Sections 1032 and 1101 when read separately are discernible, but when read in pari materia, there is no doubt the Legislature intended to leave the employee his tort cause of action against all persons excluding his employer.

In Canter v. Koehring Company, 283 So.2d 716 (La.1973) our Supreme Court refers to a cause of action similar to the one here asserted as one based upon an injury suffered by an employee due to the breach of the duty corporate officers owed to the employee.

In Fontenot v. Insurance Company of North America, 283 So.2d 733 (La.1973), decided the same day as Canter, the court there referred to a cause of action similar to the one here asserted:

“This is a wrongful death action under Civil Code Article 2315. . . . ”
The Canter and Fontenot decisions refer to a duty owed and a cause of action, the existence of which have now been eliminated by Act 147 of 1976. This is a substantive result and not procedural, nor remedial nor curative.

Defendants urge the proper way to determine whether a statute is procedural, remedial or curative is to look at the intent of the Legislature which they urge may best be determined by examining the mischief that Act 147 was designed to correct.

The intent of the Legislature was to eliminate an employee’s C.C. Art. 2315 cause of action against a co-employee of his employer or principal. The action of the Legislature can be said to be curative or remedial in the sense that it changes a substantive law that the Legislature determined was bad public policy, (i. e., tort suits against co-employees, executive officers). This connotation cannot, however, detract from the fact that the law is substantive because it extinguishes a right and cause of action which previously existed under C.C. Art. 2315 in favor of an injured employee and against any officer, director or stockholder, partner or employee of his employer or principal. For this reason Act 147 of the 1976 Session cannot have retroactive effect.

Our conclusions here are supported by the following appellate decisions which have held Act 147 of 1976 applies prospectively, not retroactively. Green v. Liberty Mutual Insurance Company, 352 So.2d 366 (La.App., 4th Cir. 1977); Billedeaux v. Adams, 355 So.2d 1345 (La.App., 3d Cir. 1978); Guillory v. McClinton, 359 So.2d 223 (La.App., 1st Cir., 1978) and Wilkinson v. Viccinelli, 359 So.2d 634 (La.App., 1st Cir., 1978).

The judgment of the district court is reversed and set aside and the case is remanded, at appellees’ costs.

      . Before amendment R.S. 23:1032 and 1101 read:
      “§ 1032. The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents or relations . . .”
      “§ 1101. When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury, and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury.”
      As amended R.S. 23:1032 reads:
      “§ 1032. The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or com-pensable sickness or disease . . . (emphasis added)
      As amended § 23:1101 reads:
      “§ 1101. When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom the said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations or personal representatives against such third person, . . . ” (Emphasis added).


author: SAMUEL, Judge.

text:
    MARTIN EXPLORATION COMPANY v. JOLI SERVICES, INC.
    No. 9228.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Liskow & Lewis, Stephen T. Victory and George J. Domas, New Orleans, for plaintiff-appellee.
    Chaffe, McCall, Phillips, Toler & Sarpy, Peter Frank Liberto, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   SAMUEL, Judge.

Plaintiff, Martin Exploration Company, filed suit against defendant, Joli Services, Inc., to recover damages for breach of an agreement to pay a proportionate share of the cost of drilling an oil well in Terrebonne Parish, Louisiana.

Several pleadings and exceptions were filed which have no bearing on the issue now before the court. Eventually, defendant filed an amended answer and reconven-tional demand against plaintiff alleging two causes of action. In the reconventional demand defendant alleged it acted with regard to plaintiff as agent or nominee for two individuals, Whipple and Simmons, but alternatively asserted the reconventional demand in its own right if it could not assert them as agent.

Simultaneous with the filing of the recon-ventional demand, Whipple and Simmons filed a petition of intervention which contained the two causes of action set forth in defendant’s reconventional demand and a third distinct cause of action. In the intervention, intervenors admitted that two of the causes of action set forth in the intervention were identical to the causes of action set forth by defendant in its reconven-tional demand.

In response to the intervention, plaintiff filed an exception of lis pendens against the first two causes of action and an exception of no cause of action against the third cause of action. In response to defendant’s recon-ventional demand, plaintiff filed exceptions of lis pendens and lack of procedural capacity-

After a hearing, the trial court overruled the exceptions of no cause of action and lis pendens filed against the intervention, but sustained the exception of lis pendens directed against defendant’s reconventional demand and dismissed that demand. The defendant, Job Services, Inc., has appealed from that judgment.

The record does not indicate whether the reconventional demand or the intervention was filed first. The court stated that while Article 531 of the Code of Civil Procedure requires dismissal of all but the first suit, the lack of evidence regarding which demand was filed first required him to use his discretion in making a dismissal. He dismissed the reconventional demand because it was filed by defendant as agent for inter-venors, and the two causes of action set forth in the reconventional demand were also set forth in the intervention. Consequently, the trial judge concluded no harm or prejudice would be incurred by any party by his acting in this manner.

We conclude the trial judge acted incorrectly in maintaining plaintiff’s exception of lis pendens. Code of Civil Procedure Article 531 provides:

“When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.” LSA-C.C.P. Art. 531.

This article is clear in its requirement that two or more “suits” be pending in one or more Louisiana courts for lis pendens to be applicable. The parties do not cite, nor were we able to locate, any case which allowed an exception of lis pen-dens to defeat an action brought in the same suit before the same judge on identical or similar causes of action.

As originally drafted, the Code of Practice of 1870 forbid bringing the same suit in different courts, but allowed bringing the same suit in the same court. Code of Practice Article 94 provided “The same cause cannot be brought before two separate courts . . . .” Code of Practice Arti-

cle 335, consistently supplemented Article 94 by allowing a declinatory exception to a suit when “it arises from the fact of another suit being pending, between the same parties, for the same object, and growing out of the same cause of action, before another court of concurrent jurisdiction.” Article 94 was amended by Act 62 of 1918 to provide that the “same cause cannot be brought before the same or separate courts, . .” Article 335 was never amended and was generally followed by the courts of this state.

A case germane to the one before us is Federal Ins. Co. v. T. L. James & Co., which was decided under Article 335. In that ease, Reynolds Metal Company filed suit against T. L. James & Company for damages to an airplane it owned. In a subsequent suit Federal Insurance Company also filed suit against T. L. James & Company as insurer and subrogee of Reynolds for the same damages to the same airplane, alleging Reynolds acted at plaintiff’s direction and for its use and benefit in filing the first suit. During the course of the opinion, this court made the following statements:

“The situation then amounts to this: Two suits are pending against the same defendants in the same court on the same cause of action and for the identical amount, one brought by the agent of Federal Insurance Company and one by the Federal Insurance Company in its own name. There is no law of which we are cognizant which forbids a plaintiff to institute two suits against the same defendant on the same cause of action in the same court. A plea of lis pendens which incidentally was not filed, would not have sufficed to terminate or retard the second suit. The jurisprudence is to the effect that a plea of lis pendens under C.P. art. 335 has no basis to rest on when predicated upon the pendency of a suit in the same court as that in which it is pleaded. Saint v. Martel, 126 La. 245, 52 So. 474; Weems v. Moise, 3 La.App. 224. In the former case the Supreme Court said [126 La. 245, 52 So. 476]:
‘If it had been the intention to legislate against the bringing of such suits in the same court, it is not to be supposed that language would have been used which, ex vi termini, limits the prohibition to the bringing of them in ‘separate courts,’ and which declares that one may except to the jurisdiction of a court when he has already been sued by the same plaintiff for the same thing on the same cause of action in ‘another court of concurrent jurisdiction,’ but does not declare that he may plead such exception when so sued in the same court in which the first suit was brought. The distinction is obvious and the reason for it is not less so; for, if a multiplicity of suits by and against the same person arising from the same cause of action and for the same thing, could be brought in as many different courts, the defendant would be unnecessarily harassed, and there would result a multiplicity of judgments, which might either conflict with each other, or, each being for the same thing, lead to confusion, and, perhaps, injustice in their execution; whereas, such suits brought in the same court may be cumulated, but, even if that be not done, it is not likely that the same judge will make rulings which conflict with each other, or that he will twice condemn a litigant for the same thing. * *
In Bogart v. Rils, 8 La.Ann. 55, a judgment maintaining a plea of lis pendens against the second of two suits on the same cause of action in the same court was reversed on appeal. In remanding the case the Court said:
‘ * * * Upon due proof the Court might, ex officio, have ordered the two to be cumulated, according as it might have served to the dispatch of business, without prejudice to the interests of the parties litigant, and we shall leave that to its discretion.’
Under the peculiar circumstances presented by the two appeals we think that the suits should be cumulated in the court below in order that the court might determine the interest of each of the plaintiffs in the claim asserted if judgment is to be rendered against the defendants.”

Although the above quoted statements cannot be controlling in this case because that case was decided under another codal provision, it nevertheless appears the same reasoning applies to the case before us. Code of Civil Procedure Article 531 allows an exception of lis pendens when two or more “suits” are pending in a Louisiana court or courts. We conclude the legislature intended to substitute the word “suit” for the words “cause of action” in the Code of Practice for several reasons. Immediately preceding the lis pendens provision in Article 531 are the articles on cumulation of actions, which reintroduced the civilian concept of cumulation into the new code after that concept had been rendered judicially useless by commingling with common law concepts. Article 461, Code of Civil Procedure, provides for the joinder of separate actions in the same judicial demand by a single plaintiff against a single defendant or by one or more plaintiffs against one or more defendants. Article 463 elaborates by providing plural parties may be joined in the same suit as plaintiffs or defendants if there is a community of interest between them, if the actions cumulated comply with jurisdiction and venue provisions, and if the actions cumulated are mutually consistent and use the same form of procedure. Under the cumulation articles, it is clearly possible a situation as the one before the court could arise where multiple parties assert the same cause of action against an identical defendant in the same suit. Given these provisions on cumulation of actions and the broadened provisions of the new code on the incidental actions of reconvention, intervention, and third party demands, it is clear the legislature intended, in Article 531, to prohibit the assertion of the same cause of action only in two or more “suits” in the same or different courts and not to prohibit bringing the same cause of action by different parties in the same “suit” in the same court.

Having decided plaintiff’s exception of lis pendens is inapplicable to the present case, we must decide the merits of its exception to the defendant’s lack of procedural capacity to bring the reconventional demand. In both the reconventional demand and in the intervention, the parties allege that defendant, Joli Services, Inc., is the agent of Whipple and Simmons, and that the latter are the primary parties in interest in the reconventional demand filed by defendant as their agent. In opposition to plaintiff’s attack on defendant’s procedural capacity, defendant filed powers of attorney by both intervenors authorizing it to file the reconventional demand and ratifying its action in so doing.

Article 694, Code of Civil Procedure, provides an agent may sue to enforce the right of his principal when specially authorized to do so. Article 700 further provides that when a plaintiff sues as agent for his principal, he must prove his authority to so act when that authority is challenged by dilatory exception.

In the present case, the defendant’s right to file the reconventional demand was challenged by plaintiff, and defendant met the challenge by filing powers of attorney by the principals authorizing and ratifying the action of the defendant agent in bringing the reconventional demand. We conclude defendant has met the burden imposed upon it by Article 700 and plaintiff’s exception must be dismissed.

While it is true that both the intervenors and the defendant acting as their agent cannot obtain the same judgment against the plaintiff, that is a matter which can be properly disposed of at the conclusion of trial. And, as a practical matter, since the plaintiff seeks a judgment only against the defendant, it appears to us that the defendant is entitled to make its defenses and reconventional demands, especially in the alternative as is the case here.

For the reasons assigned, the judgment appealed from is reversed insofar as it maintains the exception of lis pendens to the reconventional demand and dismisses that demand; and it is now ordered that plaintiff’s exceptions of lis pendens and lack of procedural capacity be overruled. In all other respects the judgment appealed from is affirmed, and this matter is remanded for further proceedings in accordance with law and with the views herein expressed. Plaintiff is to pay all costs of this appeal; all other costs are to await a final determination.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . See the strict interpretation of this provision in Article 531 by the Supreme Court in the recent case of Mitchell v. Bertolla, La., 340 So.2d 287.

      . See Historical Note—Prior Laws—2 LSA-C.C.P. Art. 531 at page 340.

      . La.App., 69 So.2d 636.

      . See preliminary statement preceding Article 461, Code of Civil Procedure.

      . In addition, defendant filed a similar power of attorney by one Sam Israel, who stated in the document that he owned approximately 2% of the lease which forms the basis of plaintiffs original suit against defendant. This, together with statements in prior mooted pleadings that intervenors were the majority but not the sole shareholders of the defendant corporation strongly imply lis pendens is also inapplicable because the pleadings did not involve “the same parties in the same capacities.” See Art. 531, Code of Civil Procedure.


author: REDMANN, Judge.

text:
    Joe Ann LARNED v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics, et al.
    No. 9252.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    J. Michael Cumberland, Badeaux, Discon, Cumberland & Barbier, New Orleans, for plaintiff-appellee.
    H. M. Westholz, Jr., New Orleans, for defendant-appellant.
    Robert E. Winn, J. David Forsyth, Sessions, Fishman, Rosenson, Snellings & Bois-fontaine, New Orleans, for Adoptive Couples Together, Inc., et al., amici curiae.
    Herman L. Lawson, Mansfield, for North Louisiana Adoptive Parents Org., Inc., ami-cus curiae.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   REDMANN, Judge.

Petitioner, adopted in 1935, obtained a court order to inspect her original birth certificate, alleged to be sealed and in respondent’s possession. Respondent appeals, arguing the meaning and retroactivity of La.R.S. 40:81 A as amended by La. Acts 1977 No. 659.

We affirm without reaching respondent’s argument. R.S. 40:81 A, as was every one of its forebears beginning with Acts 1938 No. 428 § 10, is inapplicable to adoptions prior to July 27, 1938 (the effective date of the 1938 Act).

Applicable alone are R.S. 40:75 and 76, derived from Acts 1940 No. 269, which for the first time authorized new birth certificates and sealing of the original certificates for persons adopted before the 1938 Act. Pre-1938 statutes made no provision whatsoever for concealing adoptions from the adopted person or either parents. Even the “files and records of such proceedings” in Juvenile Court (itself held to then have no jurisdiction in adoption cases, Succession of Dyer, 1936, 184 La. 251, 166 So. 68) under Acts 1932 No. 46, § 7, under which petitioner was adopted, are closed only to strangers, and

shall be open to inspection only by parties in interest, or their attorneys, but the act of adoption [signed by the biological parent or parents or custodian] together with the order of approval thereof shall be filed and recorded in the office of the recorder of deeds in the parish where said judgment of approval was rendered.

Petitioner’s own act of adoption is recorded in the conveyance records, and is open to the public, but it is signed not by her biological parent or parents but by the representative of Memorial Mercy Home.

If, indeed, petitioner’s original birth certificate has been sealed, it was because her adoptive parents utilized the 1940 Act, now R.S. 40:75, to obtain a new certificate and have the old one sealed.

R.S. 40:76 provides, for persons adopted prior to the 1938 Act, whose previously open birth records have been later placed in a sealed package under § 75, “This package shall be opened only by order of a court of record.” We cannot attribute to this rule any purpose beyond a shielding from the prying eyes of idle curiosity-seekers, as the history of statutes in pari materia shows was their purpose; see Chambers v. Parker, La.App. 4th Cir. 1977, 349 So.2d 424, writ refused 351 So.2d 170.

Affirmed.

      . §81. Record of Adoption decrees
      A. Whenever a final decree of adoption shall be entered, the clerk of court shall forward, on a form supplied by the office of family services of the Department of Health and Human Resources, his certificate of the decree to the state registrar who shall make a new certificate of live birth of the person adopted, in the new name if the' name has been changed in the decree. If the child is adopted by a single person and the surname of the child is changed, the word “adopted” shall be written on the new birth certificate. The state registrar shall seal and file the original certificate of birth with the certificate of the decree. This sealed package may be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the state registrar, for compelling reasons and only to the extent necessary to satisfy such compelling necessity.

      . § 75. Record of adoptions prior to July 27, 1938
      When any person, who adopted prior to July 27, 1938, any person born in Louisiana, by observing the legal requirements for adoption in Louisiana existing at the time of the adoption, presents the original or a certified copy of the birth certificate of the adopted person and a certified copy of a final judgment decreeing the adoption or the notarial act of adoption, in accordance with the legal requirements existing on the date of the judgment or act of adoption, the state registrar shall make a record showing:
      (1) the date of birth of the person adopted;
      (2) the new name of the person adopted, if his name was changed in accordance with law; and
      (3) the names and addresses of the adoptive parents.
      § 76. Certified copy of record for adoptive parents; filing of adoption records.
      Upon completion of the record provided for in the previous Section, the state registrar shall issue to the adoptive parents a certified copy of the record and shall place the original birth certificate and the copy of the judgment or the copy of the act of adoption in a sealed package and shall file the package in its archives. This package shall be opened only by order of a court of record.


author: FORET, Judge.

text:
    STATE of Louisiana in the Interest of Donald FEAZELL.
    No. 6510.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.

      Whitehead & McCoy by Charles R. Whitehead, Jr., Natchitoches, for appellant.
    Eric Harrington, Asst. Dist. Atty., Natch-itoches, for appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

This case is consolidated with that of State of Louisiana In The Interest of Peter Clark, 360 So.2d 909 (La.App. 3 Cir. 1978), (our docket number 6509), in which a separate decision is being rendered this date.

The appellants, Clark and Feazell,- were adjudicated delinquents on June 16, 1977, for possession of marijuana in violation of R.S. 40:966, The Louisiana Uniform Controlled Dangerous Substance Law.

The assistant principal at Campti High School, Samuel Jackson, requested Feazell, a student, to leave his class and follow him to the office. Mr. Jackson was acting upon information that Feazell had marijuana in his possession.

In the privacy of his office, Jackson asked Feazell if he had marijuana in his possession. The student stated that he did not. Jackson reiterated the question and again Feazell gave a negative response. Jackson then told Feazell that he was going to search him. Feazell asked Jackson if he had a warrant authorizing such a search, as that was the only way he could do so. Jackson then told Feazell that if he did not consent to the search, he would call the sheriff’s department, and deputies would come to the school and search him. Throughout this conversation, Jackson was seated at his desk and Feazell stood in front of it, according to Jackson’s testimony at the hearing on the motion to suppress. (Due to a malfunction of the court reporting recorder, no evidence was recorded at the trial on the merits.)

Feazell then said to Jackson that he had marijuana in his possession but that it was not his. Jackson told Feazell to give it to him, and Feazell placed the bag of marijuana on the desk. The two then went to the principal’s office and the sheriff’s department was called.

Jackson testified at the hearing on the motion to suppress that at no time did he touch Feazell or threaten him in any way. Feazell does not contradict this.

The appellant Clark was arrested after Feazell gave authorities information implicating Clark in the offense.

The appellants claim that when Feazell was taken to the assistant principal’s office and questioned about possession of marijuana, he was in police custody and under arrest. Furthermore, contend the appellants, there was no reasonable or probable cause for Jackson to take Feazell into custody. The appellants thus conclude that the arrest of Feazell was illegal and the seizure without being advised of his rights, was also illegal.

We can find no jurisprudence, and none is cited by the appellants which holds that the brief detention of a student in the office of the principal or the assistant principal constitutes an arrest.

While the standards of the Constitutional prohibition against unreasonable search and seizures applies to school authorities, State v. Mora, 330 So.2d 900 (La.1976), we are of the opinion that brief detentions of students in the office of the principal do not constitute an “arrest” even when made for the purpose of questioning the student about possible possession of drugs.

We are of the opinion that under the facts no “search” was conducted. Even if one concludes a search was made, it must be conceded that Feazell consented to it without undue coercion and while knowing of his right to require a search warrant. There is no evidence to indicate that the admission and relinquishment of possession of the marijuana was involuntary or coerced. No warrant is needed when the individual consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

We conclude that there is no error in the trial court’s overruling of the defendant’s motion to suppress or in the admission into evidence of the marijuana at the trial on the merits.

AFFIRMED.


text:
    STATE of Louisiana in the Interest of Peter CLARK.
    No. 6509.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Whitehead & McCoy by Charles R. Whitehead, Jr., Natchitoches, for appellant.
    Eric Harrington, Asst. Dist. Atty., Natch-itoches, for appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

For the reasons stated in the companion case of State of Louisiana In The Interest of Donald Feazell, 360 So.2d 907 (La.App. 3 Cir. 1978), (our docket number 6510), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Jennings Jack DOFFLEMYER, Plaintiff-Appellee, v. Gary D. GILLEY et al., Defendants-Appellants.
    No. 6524.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.

      Smith & Wise, James A. Smith, Lake Charles, for defendant-appellant.
    Raggio, Farrar, Cappel & Chozen, Frederick L. Cappel, Lake Charles, Brame, Bergst-edt & Brame, David A. Fraser, Lake Charles, for defendant-appellee.
    Scofield, Bergstedt & Gerard by Robert L. Hackett, Lake Charles, for plaintiff-ap-pellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This appeal involves the granting of summary judgment in favor of Government Employees Insurance Company, one of several named defendants, in this tort action.

In order to understand the posture of this case, a brief recitation of alleged facts is necessary. According to plaintiff’s pleadings, on June 26, 1976, he was involved in an automobile accident allegedly caused by the negligence of Gary Gilley, a major, and Frederick Moore, Jr., a minor, on Bord-de-lac Drive in Lake Charles, Louisiana. Apparently, Gilley was driving the minor’s 1973 Plymouth, and the minor was riding as a passenger.

Plaintiff’s original petition named as defendants, the minor’s father, Frederick Moore, Sr., as well as Gilley and Government Employees Insurance Company. A supplemental and amending petition was filed adding American Indemnity Company as a defendant, based upon a liability policy insuring the minor’s automobile. For some reason, which the record does not make clear, Government Employees was voluntarily dismissed from the suit on plaintiff’s motion, and the prayer for relief was modified accordingly by a second supplemental and amending petition. However, a third supplemental and amending petition was later filed in which Government Employees was made a defendant once again on the basis of a homeowner’s insurance policy issued in favor of Moore, Sr., and his wife, which appeared to provide indemnity for the father in the event that he was cast in judgment. Moore, Sr., in his answer, filed a third party demand against Government Employees on the basis of the same insurance policy.

Government Employees contended that there was no coverage for the accident under its policy and moved for a summary judgment. The trial court granted the summary judgment, dismissing Government Employees from the suit. Moore, Sr. appeals contending that the trial judge erroneously granted the summary judgment.

Under Article 966 of the Louisiana Code of Civil Procedure, summary judgment shall be granted if there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law. We find that there is a genuine issue of material fact, and, therefore, we reverse.

The policy in question was a general homeowner’s policy which, among other things, provided for personal liability coverage, as follows:

“COVERAGE E — PERSONAL LIABILITY
This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. This Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of this Company’s liability has been exhausted by payment of judgments or settlements.”

However, in the exclusions section of the policy, the following language is found:

“This policy does not apply:
1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) . . . ; or
(2) any motor vehicle owned or operated by, or rented or loaned to any Insured; but this subdivision (2) does not apply to bodily injury or property damage occurring on the residence premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the residence premises or kept in dead storage on the residence premises;

Finally, in the section on definitions, the definition of “insured” is found:

“8. DEFINITIONS: (Refer to Section 11 of the Form made a part of this policy for Additional Definitions).
When used in this policy the following definitions apply:
a. ‘Insured’ means
(1) the Named Insured stated in the Declarations of this policy;
(2) if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured; and

The question arises, therefore, of whether Moore, Jr. was a resident of Moore, Sr.’s, the named insured’s, household at the time of the accident. If the son was a resident, then the exclusionary provision applies. However, if he was not a resident, the exclusionary provision would not apply, and it would seem that Government Employees could be liable to Moore, Sr., if the latter was cast in judgment.

The trial judge, in his written reasons, found that a minor’s “legal residence” was always that of his father. Apparently equating the term “legal residence” and “residence,” the trial judge granted summary judgment as a matter of law.

We do not feel that the issue can be disposed of that simply. At the outset, we make a few observations of the distinctions between “domicile,” “residence,” and “legal residence.”

“Domicile” is a specific legal term, which has a specific definition in the law, and from which specific legal consequences flow. In Louisiana, domicile is treated in Book I, Title II of the Civil Code. Article 38 states that “domicile” is the parish where each citizen has his principal establishment. Article 39 establishes that the domicile of an unemancipated minor, which Is the situation involved in the present controversy, is that of his father, mother, or tutor. Of course, in the average familial setting, where both parents are still married to each other, the domicile of the minor would be with his father. Tutorship will not be applicable, hence there is no tutor; and, under Article 39, the domicile of the mother will be the same as that of the father.

“Residence,” on the other hand, is not a specific legal term. It is a term in common usage and has a variety of meanings. One may have residence in a home, institution, town, city, parish, state, country, continent,, etc. As has been noted in several cases, the term is nebulous and really has no precise meaning. E. g., Vinet v. Hano, 281 So.2d 183 (La.App. 4th Cir. 1973), writ denied 283 So.2d 501 (La.1973); Harrison v. Commission Council of Bogalusa, 169 So.2d 159 (La.App. 1st Cir. 1964). The major distinction between domicile and residence lies in the fact that although a person may have only one domicile, he may have several residences. Taylor v. State Farm Mutual Automobile Insurance Company, 248 La. 246, 178 So.2d 238 (1965); Branam v. Traders and General Insurance Company, 344 So.2d 1073 (La.App. 3rd Cir. 1977); Ehrhard v. State Farm Mutual Automobile Insurance Company, 274 So.2d 911 (La.App. 1st Cir. 1973), application denied 279 So.2d 202 (La.1973). In addition, simply because one’s domicile is in a particular place, it does not necessarily follow that one must also have a residence at that place. See Ehrhard v. State Farm Mutual Automobile Insurance Company, supra; Harrison v. Commission Council of Bogalusa, supra, and Dunn v. Government Employees Insurance Company, 229 So.2d 465 (La.App. 3rd Cir. 1969). For example, one who joins the Armed Forces will normally retain his parish of domicile prior to enlistment, even though he may no longer have a residence in that parish.

Finally, “legal residence,” the term causing confusion in this case, seems to be a hybrid akin to “domicile.” This unique term was discussed in the Supreme Court’s opinion in Taylor v. State Farm Automobile Insurance Company, supra.

In Taylor, an unemancipated minor, who had been domiciled with his parents in Arkansas all of his life, moved to Louisiana in order to live and work with his uncle. One morning, while the minor was driving the uncle’s pickup truck in which the uncle was riding, an accident occurred. The uncle sued both his own liability insurer and that of the minor’s father for damages sustained in the accident. The policy issued to the minor’s father covered residents of the insured’s household. The question presented to the Court was whether the son could be considered such a resident. The Court answered affirmatively and found in favor of coverage. In making this determination, the Court stated the following:

“Residence and domicile are not synonymous terms. LSA-C.C. Art. 38; Oglesby v. Turner, 127 La. 1093, 54 So. 400; Foreman v. Jordan, La.App., 131 So.2d 796; Harrison v. Commission Council of Bogalusa, La.App., 169 So.2d 159; Stephens v. AAA Lumber Company, 238 Ark. 842, 384 S.W.2d 943; Vehrs v. Jefferson Insurance Company, La.App., 168 So.2d 873, 877; In Re Watson, D.C., 99 F.Supp. 49. Even though a person, which could include a child, might have several residences, despite the fact that he has one domicile, the legal residence of an unemancipated minor (with which we are herein concerned) is that of his father unless changed by law. McInnis v. Terry, La.App., 121 So.2d 329; Watkins v. Cupit, La.App., 130 So.2d 720. This is reasonable and understandable because, as stated supra, the father has numerous obligations to his child (including his support and maintenance), is invested with parental authority, LSA-C.C. Art. 216, and is responsible in great measure for his actions.” [Footnote omitted]

After making the determination that the minor was a legal resident of the father’s home, the Court observed that the policy provision used the term “resident” and not “legal resident.” Obviously finding the distinction significant, it then stated that “residence” is a question of law and fact to be determined from all the facts and circumstances of' each particular case. After a discussion of the words “resident” and “of the same household,” the Court finally concluded that under the facts presented, the minor was a resident of the father’s household, stating the following:

“We conclude that under the facts of the instant case, Daniel Taylor’s legal residence was that of his father, Garnie William Taylor, Camden, Arkansas. Daniel was a member of his father’s family; there had been no divestiture of relationship; and, he visited his parents. Although he did want to work with his uncle, there is no showing that Daniel was not free to go home at any time he pleased, and there is also no showing that his parents were unwilling or were not obligated to support him. There is no conclusive evidence of record that Daniel had made a permanent residence in Louisiana at the time of the accident.
We conclude that while he was an un-emancipated minor Daniel had to be considered as temporarily absent from his parent’s home. We find that it was not necessary that he be under his parents’ roof at all times in order to be a ‘resident of the same household.’ We further find that under the facts as presented, Daniel Taylor was a ‘resident of the same household’ as the insured, Garnie W. Taylor.”

As we interpret the Taylor opinion, there is a distinction between “residence” and “legal residence.” Although, under Taylor, a minor’s “legal residence” is with his father as a matter of law, the minor’s actual “residence” is a question of both law and fact. In the instant case, as in Taylor, the insurance policy uses the term “resident” and not the term “legal residence” or “domicile.” If the insurer wanted to avail itself of the concept of “domicile” or “legal residence,” it could have used these terms in its policy. It chose not to do so. Therefore, although a minor’s domicile or legal residence may be persuasive to a determination of his actual residence, these concepts will not necessarily be controlling.

We reiterate that the question involved in this appeal is only whether summary judgment was proper. We intend to express no opinion on the question of the minor’s actual residence. With this in mind, we look to the motion and accompanying data.

It appears that the minor may have moved from the family residence at 1140 West McNeese Street in Lake Charles at some time prior to the accident. The father’s deposition states that on or about April 29, 1976, the son moved from the father’s home, returning only occasionally for meals or to launder his clothes. On the date of the accident, June 26, 1976, all of the son’s clothes, except two dress suits which he never wore, were gone from the premises. The father also stated that after the son left in April, neither he nor his wife were certain of where the son resided. In fact, if they wanted to contact their son, they had to reach him at work. In addition to the father’s deposition, certain attached documents show that the son was using an address at 613 West Claude Street in Lake Charles. These documents included a 1975 traffic ticket, a 1975 accident report, a 1975 W-4 form (Employee’s Withholding Allowance Certificate), a 1976 W-2 form (Wages and Tax Statement), a 1976 motel receipt, and an envelope addressed to the minor with a 1976 postmark. We think that this clearly indicates that the residence of the son is a fact which is in dispute and which must be resolved upon a full and complete adjudication. Accordingly, we hold that summary judgment was improper.

For the above reasons the judgment of the district court dismissing Government Employees Insurance Company from the suit is reversed, and the case is hereby remanded to the district court for full proceedings not inconsistent with the views expressed herein. Costs of this appeal are assessed against the defendant, Government Employees Insurance Company. Final costs are to await the outcome of the litigation.

REVERSED AND REMANDED.

      . But see Box v. Doe, 221 So.2d 666 (La.App. 4th Cir. 1969), writ refused 254 La. 457, 223 So.2d 868 (1969).

      . For a similar case concerning the use of the term “resident” rather than “domicile” see Ehrhard v. State Farm Mutual Automobile Insurance Company, supra.


text:
    John H. WHITE, d/b/a White Construction and Equipment Rental Company, Plaintiff-Appellant, v. RIMMER & GARRETT, INC., Defendant-Appellee.
    No. 6568.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.

      Camp, Carmouche, Palmer, Carwile & Barsh, Karl E. Boellert, Lake Charles, for plaintiff-appellant.
    Aaron, Aaron & Chambers, Noble M. Chambers, Jr., Crowley, for defendant-ap-pellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

This case is before us on appeal after remand by the Louisiana Supreme Court for the introduction of evidence relative to the assessment of damages due plaintiff as a result of defendant’s breach of a construction subcontract. This appeal is limited solely to the issue of quantum.

The facts giving rise to this suit as well as the history of previous litigation may be summarized as follows:

On October 9, 1971, John H. White d/b/a White Construction & Equipment Rental Company (White), as subcontractor, and Rimmer & Garrett, Inc. (R & G), as contractor, entered into a written subcontract agreement whereby White undertook to perform certain excavation and dirt hauling work in accordance with a primary contract previously entered into between R & G and the Louisiana Department of Highways for the construction of a portion of the 1-210 bypass in Lake Charles, Louisiana. The portion of the primary contract that was to be performed by White was designated as Item 203(5) and was further described as “Cubic Yards Special Borrow Excavation’ ”. The approximate quantity of material required was listed as 1,738,540 cubic yards. Article 2 of the subcontract provided that White was to furnish all labor, materials and equipment and to perform all work for Item 203(5). White’s principal duties involved the excavation of dirt from a “borrow pit” and the transportation of this material to the highway construction site. The unit price for the work was set forth on a declining scale according to the quantity of special borrow excavation.

On October 14, 1971, the parties signed a supplemental agreement which further delineated White’s obligations under the terms of the contract. Among other things, this agreement specifically excluded any special borrow located north of Interstate 10 from the terms of the contract, and provided that White’s responsibilities under Item 203(5) would include loading, hauling and spot dumping on the project. The agreement further contained a provision which stated “The minimum special borrow quantity will be 1,000,000 Cubic Yards”.

A dispute concerning the configuration of the borrow pits resulted in a second supplemental and amending agreement between the parties dated April 10, 1972. This second agreement consisted of fourteen numbered paragraphs and provided, inter alia, that the shape of the pit was to be as shown on a plat of the Waterloop Subdivision dated January 21,1972. R & G agreed to pay White at a flat rate of $.915 per yard for all material heretofore and subsequently removed. A handwritten provision which stated “one million cu. yd. Guaranteed” was added and initialed by the parties.

Work on the project was resumed. However, difficulties which arose between the parties eventually culminated in the filing, on March 19, 1973, of a suit by White against R & G seeking specific performance, accounting and/or damages. R & G reconvened seeking damages allegedly incurred as a result of the failure of White to abide by the terms of the contract. At the time that White ceased work, it appeared that White had only hauled 985,650 cubic yards of dirt.

White was claiming that he was entitled under the terms of the contract to excavate and haul all of the dirt required for the completion of Item 203(5) with the exception of the area located north of Interstate 10 and a “scraper” item which, pursuant to an oral agreement, was to be excavated by R & G. On the other hand, R & G took the position that White was only entitled to excavate and haul 1,000,000 cubic yards of material.

The trial court determined that White was entitled to excavate and haul only 1,000,000 cubic yards. Based upon a finding that White had received payment for 985,650 cubic yards of material, the trial court awarded White the contract price of $.915 for the difference, i. e., 14,350 cubic yards, which amounts to the sum of $13,-130.25. R & G’s reconventional demand was denied.

On appeal, this court held that the subcontract as amended by the two supplements was ambiguous, and that parol evidence was admissible to ascertain the true intent of the parties. White v. Rimmer & Garrett, Inc., 328 So.2d 686 (La.App. 3rd Cir. 1976). After considering the evidence in the record, we affirmed the trial court’s determination that White was entitled to haul only 1,000,000 cubic yards of dirt. The trial court’s damage award was however amended and reduced by awarding White his average profit over the contract period (13.95$ per cubic yard) for each additional yard that White was entitled to haul (14,350 cubic yards) which equals the sum of $2,001.83.

Writs were granted by our Supreme Court. After concluding that the contract as amended was not ambiguous and thus parol evidence was not admissible to vary the terms of the contract, the Supreme Court held that White enjoyed the exclusive right, with some exceptions, to excavate and haul all of the dirt required for Item 203(5) and that White was entitled to damages for R & G’s usurpation of this right. White v. Rimmer & Garrett, Inc., 340 So.2d 283 (La.1976). These damages were to be assessed according to the amount of loss sustained and the profit of which White had been deprived. Lost profit was to be determined by deducting the cost of labor and materials from the total contract price. The Supreme Court noted that the Court of Appeal was in error in assessing White’s lost profit on the proportionate basis of his net income experience on the job, as this figure would also include expenses which were fixed and not variable with the amount of dirt actually hauled. The ease was remanded for the purpose of the introduction of evidence relative to the computation of White’s lost profits and also for the determination of the amount of cubic yards on which to assess damages.

The Supreme Court set forth the proper formula for the determination of this latter item as follows:

“. . the amount of dirt actually used for Item 203(5) less (1) the dirt White actually hauled and was paid for (985,650); (2) the 86,000 cubic yards of fill hauled by R & G north of I — 10 and (3) the amount R & G was responsible for as the ‘scraper’ item.”

On remand, the court was directed to ascertain the total amount of dirt actually used for Item 203(5) and the amount of the “scraper” item.

On rehearing, the Supreme Court, in a brief per curiam opinion, recognizing that final figures for the yardage actually used in Project Item 203(5) varied substantially from the yardage estimates the parties had initially agreed to use, amended its decree as follows:

“In our original opinion we stated that the case is remanded to ascertain the total amount of dirt used on Item 203(5) and the amount of the ‘scraper’ item. In order to avoid any injustice to either party, on remand the court will not be bound by any figures mentioned in the opinion. Thus, on remand, the parties may introduce evidence to determine the figures in the formula for determining the amount of cubic yards on which to assess the damages: the amount of dirt actually used for Item 203(5) less (1) the dirt White actually hauled and was paid for; (2) the cubic yards of fill hauled by Rim-mer & Garrett, Inc. north of I — 10 and (3) the amount Rimmer & Garrett, Inc. was responsible for as the ‘scraper’ item. In all other respects the original opinion is correct.”

On remand, evidence relevant to the issue of quantum was taken by the trial court. The district judge, in detailed written reasons, computed the amount of cubic yards that White was entitled to haul as follows:

“Amount of dirt actually used for Item 203(5) -1,398,459.70
Less:
(1) Dirt White actually hauled and was paid for- 912,801.00
(2) Fill hauled by R & G north of 1-10 _ 141,126.10
(3) Scraper item_ 121,885.31
TOTAL_ 222,647.29”

The trial judge next computed the amount of White’s gross profit to be $.421 per cubic yard. This figure was then multiplied times the amount of yards that White was entitled to haul but was prevented from hauling (.421 X 222,647.29) resulting in total lost profits of $93,734.50. From the latter sum the trial judge deducted the total amount of an alleged overpayment received by White, i. e., the sum of $66,-656.84, and rendered judgment in favor of White for the net sum of $27,077.66, with legal interest from March 19, 1973, until paid. R & G was cast for all costs.

White has appealed from the judgment of the trial court contending (1) that the trial court erred in concluding that White had received an overpayment in the sum of $66,-656.84 and (2) that, the trial court erred in its determination of the amount to be allowed as the “scraper” item.

R & G answered White’s appeal, contending that the judgment of the trial court should be reversed and the damage award reduced to zero, and further that interest on any damage award, if any is made, should be awarded only from the date of the signing of the trial court’s judgment on remand in December of 1977.

The record reflects that White did all of his excavation and hauling out of Borrow Pit No. 1 which was also known as Water-loop Pit No. 1. White began work in November, 1971 and ceased hauling in March 1974. R & G began hauling out of this same pit, although from a different area in approximately April, 1972. R & G also hauled dirt from other borrow pits. The Department of Highways, by means of “cross sectioning” the borrow pits, arrived at monthly estimates of the amount of dirt that was being excavated. Separate measurements by “cross sectioning” were taken of the areas that were being excavated by White and R & G. Payments were made by the Department of Highways to R & G on the basis of these monthly estimates. R & G would, in turn, make payments to White in accordance with these same estimates. An error in measuring the quantity of dirt taken from the borrow pits somehow occurred, resulting in an overpayment by the Department of Highways to R & G. A portion of this error occurred in Borrow Pit No. 1.

The record indicates that from the first through the twenty-sixth partial estimates, the Department of Highways made payment for 1,196,365.78 cubic yards of material out of Borrow Pit No. 1, from which White did all of his hauling. Subsequent to these estimates, White hauled and was paid for an additional 30,000 cubic yards of material out of this same pit. The Department of Highways, therefore, paid for a total of 1,226,365 cubic yards of material out of Borrow Pit No. 1. However, the final figures of the Department of Highways reflected that only 1,135,722 cubic yards of material were actually excavated and hauled out of this Borrow Pit. This amounts to an overpayment by the Department of Highways in the amount of 90,643 cubic yards in Borrow Pit No. 1.

The trial judge apportioned the overpayment in the following manner:

In order to establish the percentage of the whole that each party was paid for hauling, the total number of yards that White was paid for hauling (985,650) was divided by the total number of yards that the Highway Department had paid for out of Borrow Pit No. 1 (1,226,365). The trial judge thus determined that White was paid for hauling 80.37% of the material that was taken out of Pit No. 1.

The trial judge then computed White’s pro-rata share of the overpayment by taking 80.37% of the total overpayment which occurred in Pit No. 1 (90,643), arriving at the amount of 72,849.77 cubic yards. By deducting this amount (which represents the quantity of dirt that White received payment for but did not haul) from the total yardage for which White received payment (985,650) the trial judge found that White had actually hauled only 912,801 cubic yards of material. The trial judge thus ultimately concluded that White had been overpaid the amount of $66,656.84 (72,849 cubic yards X $.915) and that this sum must be deducted from any amount found to be owing to White by R & G.

We find sufficient evidence in the record to support the trial judge’s conclusion and are of the opinion that the trial court properly determined that White must bear his pro-rata share of the overpayment made by the Department of Highways to R & G for material excavated from Borrow Pit No. 1. The exact area of Pit No. 1 in which the error occurred was never determined. It is also not known whether the error was made in a particular cross section or occurred on a cumulative basis. The record, however, clearly indicates that the payments that White received from R & G were based on the same monthly yardage estimates upon which payments were made by the Department of Highways to R & G. Therefore, any excess payment made by the Department of Highways to R & G on the basis of an erroneous monthly estimate was necessarily passed on to White.

Although it is impossible to precisely ascertain the exact amount of the overpayment received by White, we conclude that, under the circumstances, the method of apportionment utilized by the trial court reaches a fair and equitable result.

White’s only remaining contention concerns the amount allotted by the trial court as the “scraper” item. This item consists of an oral agreement between the parties which allowed R & G to haul some of the top soil required for the project by means of its “scraper” machinery. The dispute is over the quantity of dirt which R & G was entitled to haul pursuant to this agreement. White contends that the trial court erred in including in the “scraper” item 82,922.04 cubic yards of material that was hauled by R & G from a pit (known as the Trouard Pit) which it acquired subsequent to the oral agreement between the parties. White argues that the “scraper” item exclusion should apply only to areas that were known to the parties at the time of the verbal agreement. R & G, on the other hand, refers to the deposition of Mr. White that was taken in October, 1973 in which Mr. White stated that he agreed that R & G could haul 100,000 to 125,000 yards of dirt with the scrapers. The trial judge determined the amount of the “scraper” item to be 121,885.31 cubic yards. In arriving at this figure the trial judge apparently concluded that the quantity of dirt hauled from the Trouard Pit should be included as part of this item. This basically involves a factual determination of the intentions of the parties at the time they entered into this oral agreement. We discern no manifest error in the factual conclusions of the trial judge in regard to this issue. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The trial judge determined from evidence in the record that White’s gross profit per yard of dirt hauled was $.421,. depreciation of equipment not being included. White does not complain of this determination. In brief before this Court, R & G contends that depreciation for use of White’s trucks should be included in arriving at the gross expense per cubic yard.

The Supreme Court, with regard to expenses which were properly allowable in computing the amount of White’s profit, stated:

“However, it was error for the Court of Appeal to assess White’s lost profit on the proportionate basis of his net income experience on the job, for such a figure also includes expenses which are fixed and not variable with the amount of dirt actually hauled by White. The proper deductions only include those expenses, such as fuel, oil, truckers’ salaries, etc., which would have been incurred had White completed the job." (emphasis added)

Our resolution of this issue depends on whether depreciation is to be considered a fixed or variable expense. Although each yard of dirt hauled necessarily resulted in some degree of wear and tear on White’s trucks, from evidence in the record, we determine that it is an acceptable accounting practice to treat depreciation as a fixed cost unless it is computed on a unit of output method. The evidence reflects that White followed the accounting practice of treating depreciation as a fixed cost. We also find it significant that depreciation was not enumerated as an item of variable expense by the Supreme Court. We conclude that the trial court properly disallowed depreciation in computing the amount of White’s gross profit.

R & G, in its answer to White’s appeal, contends that the trial court erred in awarding interest from the date of judicial demand and asserts that, for lack of a better date, interest should be awarded only from the date of the signing of the trial court’s judgment on remand. We conclude that the trial court erred in awarding interest from date of judicial demand, however, we reject R & G’s contention that White is entitled to interest only from the date of the trial court’s judgment on remand.

Interest on claims ex-contractu is recoverable only from the time that they become due, whether liquidated or not. LSA-C.C. art. 1938; Calhoun v. Louisiana Materials Co., Inc., 206 So.2d 147 (La.App. 4th Cir. 1968, writ refused).

In the recent case of Alexander v. Burroughs Corporation, 359 So.2d 607, Louisiana Supreme Court Docket No. 61106 (1978), the court, although concluding that in matters of contract seven per cent per annum interest, unless otherwise stipulated, on a damage award is due from the moment of an active violation of a contract or from the time the debtor has been put in default when the breach is passive, determined that interest in such cases is awardable only from the date the amount of the award is ascertainable.

The record in this case indicates that the contract in question had not been completed on the date that suit was filed by White. In fact, additional yardage continued to be hauled by White for approximately one year after White’s suit was filed. When suit was filed the exact number of cubic yards of dirt necessary for completion of Item 203(5) was unknown. The exact amount of dirt required for completion of the project was not ascertainable until the last load was hauled and spot dumped. Ascertainment of the amount of damages to which plaintiff is entitled was totally dependent upon the total number of cubic yards required for completion of Item 203(5). The record is not clear as to when the last load of dirt was hauled, however, the evidence does show that on December 19, 1974, the Louisiana Department of Highways accepted Project Item 203(5). Clearly, on the latter date all sums due in relation to that project item were due and ascertainable. We will therefore award interest to White from the date Item 203(5) was accepted and the trial court judgment will be so amended.

The record initially reflects that R & G has withheld the sum of $6,764.02 from White as retainage on the project. R & G admits that White is entitled to be paid this sum. White is entitled to recovery of this amount in addition to that awarded by the trial court.

For the above and foregoing reasons, the judgment of the district court is amended so as to award White judgment for the retainage and to award interest on the amount of judgment from the date Item 203(5) was accepted. In all other respects the judgment appealed from is affirmed. Accordingly, the judgment appealed from is recast to read as follows: IT IS ORDERED, ADJUDGED AND DECREED, that there be judgment in favor of plaintiff, John H. White, d/b/a White Construction & Equipment Rental Company and against defendant Rimmer & Garrett, Inc., in the amount of $33,841.68 with legal interest thereon from December 19, 1974, until paid. Rim-mer & Garrett, Inc. is cast for all costs in the trial court. Costs of this appeal are assessed one-half to John H. White d/b/a White Construction & Equipment Rental Company and one-half to Rimmer & Garret, Inc.

AFFIRMED AS AMENDED.

      . For reasons expressed later in the body of this opinion, we conclude that White actually hauled less than 985,650 cubic yards of material.

      . As more fully explained hereafter, the figure in Item (I) of the trial judge’s computations is substantially less than the previous quantity of 985,650 cubic yards which had been heretofore utilized as the quantity of dirt that White had actually hauled and was paid for. The trial judge determined that because of an error in measurement that was somehow made by the Louisiana Department of Highways White was paid for hauling 985,650 cubic yards of dirt, but he did not actually haul this amount of material.


author: CUTRER, Judge.

text:
    Irma Williams COLLINS et ux., Plaintiffs-Appellees, v. Charles Ray SWEAZIE, Defendant-Appellant.
    No. 6564.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1978.
    P. Spencer Torry, Alexandria, for defendant-appellant.
    Edward Larvadain, Jr., Alexandria, for plaintiffs-appellees.
    Before CUTRER, DOMENGEAUX and WATSON, JJ.
   CUTRER, Judge.

MOTION TO DISMISS

Ex proprio motu we issued a show cause order questioning this court’s jurisdiction because the appeal from the trial court’s denial of a preliminary injunction was not perfected within fifteen days as required by LSA-C.C.P. art. 3612.

We dismiss the appeal.

The trial court judgment denying the preliminary injunction was signed December 13, 1977. Notice of Judgment, though not required since the matter had not been taken under advisement, was mailed to the defendant the same day. On December 19, 1977, the defendant was granted a devolu-tive appeal conditioned on furnishing a $250 bond. The appeal bond was filed December 29, 1977.

An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. LSA-C.C.P. art. 3612.

The defendant has answered the rule, admitting that his bond was filed a day late, but pleading that “The court, in the administration of justice, should in every case, decide the issue on the merits and not deny a party, on mere, minute. technicalities, especially when they are not prejudicial in nature to the appellees’ position.” We disagree with that position. When the appeal bond is not timely filed, this court is without jurisdiction. Eyraud v. Com. on Alcoholic Beverage Control, 282 So.2d 578 (La.App. 1st Cir. 1973); State v. Robouche, 332 So.2d 600 (La.App. 3rd Cir. 1976).

The appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.