author: REDMANN, Judge. GULOTTA, Judge SAMUEL, Judge MORIAL, Judge

text:
    Roudolf SORAPURU v. Warner SYLVIAN et al.
    No. 7294.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 29, 1975.
    Paul Aucoin, Vacherie, for plaintiff-appellant.
    G. Walton Caire, Edgard, for defendant-appellee.
    Before the Court En Banc.
   REDMANN, Judge.

One candidate for police juror, “district one, St. John the Baptist parish,” attacks the nominating papers of another candidate as invalid for failure to be signed by 300 electors as required for “parochial offices” by La.R.S. 18:394.1, subd. C. The trial court rejected the argument that a police juror is a parochial officer. We affirm.

La.Const. art. 6 § 5, authorizing adoption of a home rule charter by any “local governmental subdivision,” defined by § 44(1) as any parish or municipality, places one limit on such a charter in subsection (G) : “Parish Officials and School Boards Not Affected. No home rule charter or plan of government shall contain any provision affecting a school board or the offices of district attorney, sheriff, assessor, clerk of a district court, or coroner, which is inconsistent with this constitution or law.”

Similarly, La.Const. art. 6 § 7, authorizing elections to grant powers to parishes (and municipalities), repeats in its subsection (B): “Parish Officials and School Boards Not Affected. Nothing in this Section shall affect the powers and functions of a school board or the offices of district attorney, sheriff, assessor, clerk of a district court, or coroner.”

Thus the Louisiana Constitution does not include police jurors among “Parish Officials.”

The designation on defendant’s nominating papers of police juror from a district (rather than ward), we are informed by oral argument, is the result of a court’s reapportionment of the police jury. Historically, police jurors were elected by “police jury wards” since La.Acts 1813, March 25, and at least through La.R.S. 33:1221-1223 (1950) until 1968. Acts 1968, No. 445, repealed §§ 1222-1223 and amended § 1221 in such fashion that it is no longer express that jurors are to be elected by wards, although “police jury wards” are still retained, § 1224. (The title to that amendatory Act gave no hint of a purpose to provide election at large throughout a parish, the Act does not so provide expressly, and there is no suggestion that the Act by implication provides such a result.) Although the conclusion is supportable that the office of police juror was, from 1825 until 1968, a “ward office,” we need not decide whether it is a ward office today.

We do hold that it is not a parochial office. It is not argued to be a “district office,” requiring 400 signatures, R.S. 18:394.1, subd. C, despite the description of the parish subdivision by the court order as a “district,” since no Louisiana law describes as a “district” the area from which a police juror is elected. Moreover, to interpret R.S. 18:394.1, subd. C to require 400 signatures for an office voted on by a ninth or tenth (see R.S. 33:1221, subd. C) of a parish’s population, but only 300 signatures for an office voted on by the entire parish’s population, would be grotesquely inconsistent with the statute’s evident general scheme of requiring the highest number of signatures (1,000) for offices elected by the entire state, lower numbers for lesser portions of the state, and the lowest number (25) for “ward officers and for any other office not otherwise provided for herein.”

The sole statutory argument that appellant makes is that a police juror is not a “ward office.” He cites R.S. 18:393, providing for qualifying by declaration and good-faith deposit' — a procedure to which the nominating papers here involved are an alternative — and specifying the required deposits as:

. . district judge or Senate — two hundred dollars; House of Representatives, and district or parish offices not otherwise provided for herein — one hundred fifty dollars; police jury and-school hoard — seventy-five dollars; ward offices and any other office, other than district or parish offices, not specifically provided for herein — fifty dollars.”

Appellant argues that police juror is either a parochial office or a ward office, and that it cannot be a “ward office” because, he argues, the clause “not specifically provided for herein” modifies only “any other office,” rather than both “ward offices and other office.” Although we decline to decide whether or not police juror is a ward office, we note the obvious grammatical possibility that “ward offices” is modified by “not specifically provided for herein” in § 393.

We conclude that, for purposes of R.S. 18:394.1, subd. C a police juror is a “ward officer[s] [or] . . . other officefr] not otherwise provided for herein,” requiring only 25 electors’ signatures.

Affirmed.

GULOTTA, Judge

(concurring).

I concur with the result. It is my opinion that the office of police juror is a ward office. Although a police juror is elected from a district, historically, a police juror has been regarded as a ward office holder. Both counsel acknowledge in oral argument that the geographical limits of the district are the same as the geographical limits of the ward.

Further support for allowing defendant to qualify is found in LSA-R.S. 18:394.-1(c) which provides that 25 signatures are required for ward officers and “for any other office not otherwise provided for herein.” A police juror is not provided for in the above statute.

SAMUEL, Judge

(concurring).

I concur.

MORIAL, Judge

(dissenting).

I respectfully dissent.

The majority of this Court, in my opinion, has grossly erred by interpreting the absence of “police jurors” in the enumeration of “Parish Officials” in La.Const. Art. 6, §§ 5(G) and 7 to mean a police juror is not a “parish official.” La.Const. Art. 6 provides in part:

§ 5. Home Rule Charter
Section 5. (A) Authority to Adopt; Commission. Subject to and not inconsistent with this constitution, any local governmental subdivision may draft, adopt, or amend a home rule charter in accordance with this Section. The governing authority of a local governmental subdivision may appoint a commission to prepare and propose a charter or an alternate charter, or it may call an election to elect such a commission.
******
(G) Parish Officials and School Boards Not Affected.
No home rule charter or plan of government shall contain any provision affecting a school board or the offices of district attorney, sheriff, assessor, clerk of a district court, or coroner, which is inconsistent with this constitution or law.

§ 7. Powers of Other Local Governmental Subdivisions

Section 7. (A) Powers and Functions. Subject to and not inconsistent with this constitution, the governing authority of a local governmental subdivision which has no home rule charter or plan of government may exercise any power and perform any function necessary, requisite, or proper for the management of its affairs, not denied by its charter or by general law, if a majority of the electors voting in an election held for that purpose vote in favor of the proposition that the governing authority may exercise such general powers. Otherwise, the local governmental subdivision shall have the powers authorized by this constitution or by law.
(B) Parish Officials and School Boards Not Affected.
Nothing in this Section shall affect the powers and functions of a school board or the offices of district attorney, sheriff, assessor, clerk of a district court, or coroner.

Parishes are creatures of the state and have been historically governed by police juries. National Liberty Ins. Co. of America v. Police Jury of Natchitoches Parish, 5 Cir., 96 F.2d 261. La.Const. Art. 6, § 5 provides for a procedural method by which a “local governmental subdivision,” i. e., a parish via its governing authority (police jury) can change its form of local government, e. g., abolish the police jury and substitute a home rule councilmanic, commission form, or city-parish plan of government. Article 6, § 5(G), and Article 6, § 7(B) merely prohibit existing authority of a local governmental subdivision or a new form of local governing authority from affecting the enumerated offices. To have the office of “police juror” included in the enumeration of “Parish Officials” would be absurd for the change from a police jury form of government to home rule necessarily implies a change affecting the “powers and functions” of the- office of “police juror.” The absence of “police juror” from the enumeration does not exclude the officer from the characterization of “Parish Official.” A “police juror” has been and is now a “parish official.” LSA-R.S. 33:1221; Centani v. Marrero, 13 Orl.App. 185, 193 (1915).

In my opinion the office of police juror is a “parochial office.” A member of a police jury, whether elected from within traditional ward boundaries, a “police jury ward,” or a district (See LSA-R.S. 33:1221 and 1224), is not a ward officer. The powers and duties of the police jury have for their object the administration of the affairs of the parish (not merely the administration of the affairs within the limited territorial boundaries from which a juror is elected). LSA-R.S. 33:1236.

Correspondingly, while a representative is now elected from an area designated a “representative district” without regard to ward boundaries, he cannot be a district officer. It cannot be argued that membership in the House of Representatives is a “district office” within the purview of LSA-R.S. 18:394.1 subd. C. The House of Representatives being a house of the state legislature has for its object the legislative administration of the affairs of the state and like a police jury not merely the affairs of the territorial area from which a member is elected.

Though, as the majority correctly states, police jurors were historically elected from “police jury wards,” they have, at least since Act 161 of 1894 had the character of parish officer. See Centani v. Marrero, supra. Election from within a ward does not absolutely assign to the office to which elected the designation “ward office.” I look to the nature of the powers and duties delegated and assigned to determine the character of the office.

A “police juror” must possess the same qualifications as a member of the House of Representatives. LSA-R.S. 13:1225. Since LSA-R.S. 18:394.1 subd. C requires the same number (300) of signatures of qualified voters for a candidate for a parochial office as for a member of the House of Representatives, it is apparent that “police juror” was intended to be included in the term “parochial offices.”

Finally, absent anything to the contrary. I presume that in 1975 the legislature had available to it sufficient data and information from which it could conclude that there was no “police jury ward”- from which a candidate for the “parochial office” of “police juror” could not have obtained the 300 signatures required by LSA-R.S. 18:394.1 subd. C because of the insufficiency of the number of registered voters therein.

      . “Nominating papers must be signed for each candidate by qualified voters entitled to vote in the election for which the candidate files nominating papers in the number of at least one thousand for any candidate to be voted for by the electors of the state at large, five hundred for justices of the supreme court, judge of the court of appeal, member of the public service commission, member of any state board or commission or other office of state character whose election is provided by law, four hundred for senators, district and judicial offices, three hundred for members of the House of Representatives and parochial offices, one hundred for municipal officers in municipalities with a population of less than twenty-five thousand, one hundred seventy-five for municipal officers in municipalities with a population of twenty-five thousand or more but less than fifty thousand, two hundred for municipal officers in municipalities with a population of fifty thousand or more but less than one hundred thousand, two hundred fifty for municipal officers in municipalities with a population of one hundred thousand or more but less than three hundred thousand, five hundred for municil>al officers in municipalities with a population of more than three hundred thousand, and twenty-five for ward officers and for any other office not otherwise provided for herein.”

      . The Act of March 25, 1813, “Further defining the organization, authority and functions of police juries,” in Sec. 1 provided for the first time that parishes should be divided “into as many wards as their local situation may require or permit, for the purpose of securing to each of the said wards an equal representation in the police jury.” Sec. 2 provided that the inhabitants of each ward in each parish were to elect “such number of representatives as they are entitled to have in the police jury of their said parish . . . .” (La.Acts 1813, pp. 154-156.)
      Earlier, La.Acts 1811-1812, ch. 36, at pp. 180-181, an Act of April 30, 1811, “Supplementary to and amending an Act intitled [sic] ‘An Act relative to wards, levees and to the police of cattle [sic], and for other purposes,’ ” See. 3, described the parish governing authority for the first time as “the parish meeting, or police jury,” provided a change in composition to “a jury of twelve inhabitants presided by the parish judge,” and provided for the 12 members to be elected at large by the qualified voters of the entire parish.
      For earlier history, see Calhoun, “The Origin and Early Development of County-Parish Government in Louisiana (1805-1845),” 18 La.Historical Q. 56, 93-99 (1935).

      . Although not in evidence, Louisiana Almanac (9th ed. 1975), citing the U. S. Department of Commerce, Bureau of the Census, Census of Population (1970), lists wards with far fewer than 300 total inhabitants (not electors), e. g., Caldwell Ward 6, population 138, and Red River Ward 8, population 130.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    COMMERCIAL UNION INSURANCE COMPANY et al., Plaintiffs-Appellees, v. Brooks R. MONTGOMERY, Defendant-Appellant.
    No. 12678.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.

      Luther S. Montgomery, Shreveport, for defendant-appellant.
    Cook, Clark, Egan, Yancey & King by Stephen R. Yancey, Shreveport, for plaintiffs-appellees.
    Before BOLIN, HALL and MARVIN, JJ-
   HALL, Judge.

Plaintiffs, Commercial Union Insurance Company and its insured under a collision policy, Flavia Leary, sued defendant, Brooks Montgomery, for damages to the Leary automobile sustained in a collision with the Montgomery automobile. Montgomery denied negligence on his part, reconvened for damages to his automobile, and, alternatively, pled Miss Leary’s contributory negligence in bar of recovery by plaintiffs.

After trial, judgment was rendered in plaintiffs’ favor for the stipulated amount of property damage and rejecting defendant’s reconventional demand. Defendant appealed.

The accident occurred in Shreveport on Jordan Street near its intersection with Stephens Street. Jordan Street is a four-lane thoroughfare running east and west. Stephens is a two-lane inferior street running north and south, entering Jordan Street from the south, forming a “T” intersection. There is a stop sign for traffic moving north on Stephens Street before entering Jordan Street.

The residence of Montgomery’s parents is located on the north side of Jordan Street. Their driveway enters Jordan Street approximately forty feet west of the west line of Stephens.

Miss Leary drove her automobile north on Stephens and stopped at the stop sign. Montgomery’s automobile was parked in his parents’ driveway. The accident occurred in the westbound portion of Jordan Street after Miss Leary made a left turn and headed west and as Montgomery backed out of the driveway into Jordan with the intention of proceeding west. The right front fender of the Leary automobile collided with the left rear taillight of the Montgomery automobile.

Miss Leary testified she stopped at the stop sign, looked both ways, saw no traffic on Jordan, made her left turn, and proceeded west on Jordan. There was a car parked on the north side of Jordan immediately east of the Montgomery driveway. The Montgomery automobile backed out of the driveway into her path and she could not avoid a collision. The front end of the Montgomery automobile was still in the driveway when the impact occurred.

Montgomery testified he looked both ways on Jordan and for traffic on Stephens both before and after he got into his car to back out. He backed out, angling easterly in order to proceed west on Jordan. He was all the way out into Jordan and was still in reverse gear when the collision occurred. He did not see the Leary automobile prior to impact.

There were two passengers in the Leary automobile. One was not looking and did not see the accident. The other generally corroborated Miss Leary’s version. There were no other witnesses.

A motorist backing out of a private driveway into a thoroughfare must exercise a high degree of care and must make certain the maneuver can be accomplished in safety. As the trial judge concluded, Montgomery did not exercise the degree of care required of him. If he looked, he should have seen the Leary car entering Jordan Street. Based on the much greater distance the Leary automobile traveled from its original stopped position as compared to the distance the Montgomery automobile traveled from its original stopped position, the Leary automobile necessarily entered Jordan Street prior to the Montgomery vehicle. Montgomery’s view may have been partially obscured by the parked automobile, but this factor only increased the degree of care required of him. Even accepting his version of the accident as completely accurate, it nevertheless must be concluded that his negligence was a legal cause of the accident.

Defendant argues that Miss Leary also had the duty of exercising a high degree of care before entering a through street from an inferior street, which is correct. However, it is not shown that she did otherwise. She stopped, looked, and traffic on Jordan was clear at the time she entered the intersection and commenced her left turn onto Jordan.

Defendant further argues plaintiff should have seen his automobile backing into Jordan sooner and taken steps to avoid the accident. The evidence does not support defendant’s argument. If plaintiff had seen defendant’s automobile in the driveway after she entered Jordan, she was entitled to assume he would remain stationary or if moving, would stop. At the time she could have first realized he was going to proceed on into Jordan, it was too late for her to take evasive action. Defendant has not borne his burden of establishing negligence on the part of plaintiff.

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

Affirmed.


author: LEMMON, Judge.

text:
    Alice Villa, widow of Joseph Ayala and Joseph R. AYALA v. BAILEY ELECTRIC COMPANY, INC., et al.
    No. 6603.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 29, 1975.
    Rehearing Denied Sept. 9, 1975.
    Writ Granted Nov. 14, 1975.

      Arthel J. Scheuermann, New Orleans, for plaintiffs-appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., New Orleans, for Bailey Electric Co., Inc. and Travelers Ins. Co.
    Robert J. Young, Jr., Michael K. Fitzpatrick, and Edward L. Levert, Jr., New Orleans, for Louis Bastion.
    Edward F. Wegmann and Fred P. Wes-tenberger, New Orleans, for Lee Del Buno.
    Before LEMMON, STOULIG and MORIAL, JJ.
   LEMMON, Judge.

This is an action for damages resulting from a fire allegedly caused by the negligence of an employee of Bailey Electric Company, Inc. The fire began on Bailey’s business premises and spread to the adjoining apartment building owned by Mr. and Mrs. Joseph Ayala. The judgment, rendered after a trial on the merits, awarded Mrs. Ayala the cost of repairing the building and damages for the wrongful death of her husband, who sustained a fatal heart attack during the fire.

Issues include the negligence of Bailey’s employee, the legal causation between that negligence and Ayala’s death, Ayala’s contributory negligence, and the quantum of damages, as well as incidental issues involving indemnification and appellate procedure.

LIABILITY

Negligence of Bailey’s Employee

Prior to the fire Lee Del Buno, Bailey’s employee, was cleaning an armature, using an air compressor to spray mineral spirits. He applied the flammable spray within three feet of a gas baking oven, which although turned off had a pilot light that usually remained burning.

Del Buno testified that, while he was cleaning the armature, a fire “started on the ground” and spread; that he tried to stpmp it out, but when unsuccessful he called, the fire department; and that he made no attempt to use the fire extinguishers on the premises.

Although there was no direct evidence as to the cause of the fire, the circumstances surrounding the occurrence justify an inference of negligence and further indicate that Del Buno’s negligence, in using a flammable spray in close proximity to an ignition source, is the most plausible explanation as to the cause of the fire. Hanover Ins. Co. v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir. 1974). We therefore hold that Del Buno’s negligent causation of the fire was established by a preponderance of the evidence and that Bailey and its insurer are liable for the resulting damages.

Bailey’s Action for Indemnity Against Del Buno

By third party demand Bailey asserted its right to indemnity against Del Buno, for whose negligence Bailey was vicariously liable as employer. However, Bailey’s general manager admitted Del Buno was using equipment furnished by Bailey and was following cleaning procedures established by Bailey, as he had routinely done under the direction of his supervisors.

Bailey’s liability was therefore based on more than an employer-employee relationship; indeed, Bailey’s executives were independently negligent in setting up a cleaning procedure with a flammable spray in the area adjacent (tothe baking oven. See Hall v. Hartford Acc. & Indent. Co., 278 So.2d 795 (La.App. 4th Cir. 1973), cert. den. La.App., 281 So.2d 753. While an employer is entitled to indemnification against its employee when the employer’s liability is merely vicarious, the right to indemnity does not exist when the employer’s independent negligence was a contributory cause of the accident. See Hebert v. Blankenship, 187 So.2d 798 (La.App. 3rd Cir. 1966).

Liability of the Building Owner

The trial court’s original judgment of July 9, 1973 also cast the owner of the building leased by Bailey. On July 11 the owner applied for a new trial, and on July 25 Bailey and its insurer perfected a sus-pensive appeal. The court subsequently granted the new trial to the owner only. Then, on November 29, 1973, the court rendered a judgment on the new trial and dismissed the owner from the suit. There were no further appeals.

Since no party appealed from the November judgment after the owner was granted a partial new trial, that judgment decreeing the owner to be free from liability is now final and definitive. C.C.P. art. 1842; C.C. art. 3556(31). The owner’s liability is therefore not before us on this appeal.

Del Buno’s Negligence as the Legal Cause of Ayala’s Death

Mrs. Ayala testified: She and her husband were watching television about 12:45 a. m. when an explosion “rocked” the building. Determining that the adjacent shop was on fire, her husband instructed her to call the fire department and to alert the building tenants, and he then began to spray the side of their house with a garden hose in the narrow alleyway between the two buildings. She saw him again after their house had caught fire, and he wondered why the fireman had not yet started the hoses pumping. He “went back in there”, and when he came back out into the street, she saw him bend down as if to help the firemen straighten out a hose, whereupon he collapsed as he began to stand up. After firemen attempted to revive him on the scene with resuscitation and oxygen, they rushed him to the hospital, where he was pronounced dead on arrival at 1:30 a. m. She estimated that her husband had hosed the building for about 20 minutes.

A friend of the Ayalas’ married son testified: He came to the scene upon hearing explosions and, after offering help, walked across the street. Because the fire was increasing in intensity, he ran to telephone the Ayalas’ son and arrived back at the scene about the same time as the fire department. After Ayala said something about asking firemen to put water on the house, he saw Ayala go into the alleyway, but didn’t see what he was doing. He then saw Ayala come out into the street and, while in the area of the fire hoses, grab his side and collapse. He did not see Ayala assist with the hoses.

Ayala had suffered a myocardial infarction in 1963 and an episode of dizziness and rapid heart beat in February, 1971. The fire occurred on June 2, 1971.

Ayala had suffered a myacardial infarc-that, under the circumstances described to him, the “excitement and physical exertion he (Ayala) went through that night could have easily produced a heart attack.”

Tort liability is founded upon the existence of a duty and the breach thereof which causes damages. We have held that Del Buno had a duty to use reasonable care in handling flammable materials. The present inquiry is the scope of tort liability to be imposed for breach of that duty. Bailey has admitted liability for damage to the residence (if the finding of Del Buno’s negligence is affirmed) ; however, Bailey denies liability for Ayala’s death, asserting that Del Buno’s negligence was not the legal cause thereof.

Using the procedure for determining legal cause as outlined in Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970), we first inquire into causation in fact, which is a “but for” question. But for Del Buno’s negligence, the fire would not have started and Ayala would not have undergone the exertion and excitement, to which his death was attributed. Stated conversely, since Del Buno caused the fire, and the fire caused Ayala excitement, intense heat and physical exertion which in medical fact caused his death, Del Buno’s failure to use care was a cause-in-fact of Ayala’s death.

We next inquire whether the duty imposed upon Del Buno was intended to grant protection against risks to persons in Ayala’s situation, which is the crucial determination in the case.

Bailey conceded in argument that the rule of conduct, imposing a duty to handle flammable materials carefully, offers protection to persons who are killed or injured in an adjoining building when a negligently caused fire spreads to that building. See Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972). We further believe that this rule affords protection to adjoining owners who are killed or injured while attempting to preserve their property from. damage or destruction by the negligently caused fire. See 42 A.L.R.2d 494 (1955).

Bailey conténds, however, that the duty imposed by this rule does not encompass the risk that a person watching the fire will sustain a heart attack. The question raised by this contention is whether a defendant’s responsibility should extend to the results in this particular case.

The exact scope of protection to be afforded against risks created by violation of a duty depends upon the facts and circumstances of each case. There is no fixed rule for determining this element of legal cause.

In the present case the factual findings as to Ayala’s activities just before and at the time of his fatal attack are extremely important. In this respect the trial judge stated:

“. . . Ayala (was) hosing down the side of his house. At the instructions of firemen on the scene, he ceased this activity and moved away from his home into the street. Moments later, he died of a heart attack.”

Thus, the trial judge found as a fact that Ayala was not just simply watching the fire as defendants contend, but rather had undergone physical exertion and exposure to intense heat moments before his death. Under the facts found by the trial judge as supported by the record, Ayala’s efforts to protect his property continued until moments before his death. Since the rule of conduct, imposing a duty to carefully handle flammable materials, reasonably contemplates protection of persons killed or injured while prudently acting to preserve their property endangered because that rule was breached, we hold defendants liable for Ayala’s death in the course of protecting his property.

Ayala’s Contributory Negligence

Defendants argue that Ayala was con-tributorily negligent in exerting himself with a known heart condition.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, La., 276 So.2d 286 (1973). In our opinion Ayala acted as any reasonable man would when confronted with a sudden explosion and fire which endangered his property. We conclude defendants have failed to prove contributory negligence.

QUANTUM

Property Damage

Mrs. Ayala testified that she could not for financial reasons undertake the immediate repair of all damage to the building, but that she purchased materials and hired workmen and eventually expended $10,354.-84 for repair of the fire damage. She identified receipts and cancelled checks in that amount.

Two contractors inspected the fire damage shortly after the fire and testified that their itemized estimates of the cost of repairs were $16,740.00 (exclusive of plumbing and electrical) and $17,603.00.

The trial judge awarded $3,624.19, stating this amount included a deduction for depreciation (apparently a 65% deduction). We disagree with this approach. When property'can be adequately repaired, the measure of damages is the cost of restoration, plus the loss of use during the time reasonably necessary for the repairs. Haywood v. Carraway, 180 So.2d 758 (La.App. 1st Cir. 1965); Lambert v. American Box Co., Ltd., 144 La. 604, 81 So. 95 (1919). No deduction is imposed unless the value of the property is enhanced by the repairs. McCormick, Law of Damages § 124 (1935); Oleck, Damages to Persons and Property §§ 208, 216 (1961). Since the evidence established Ayala had worked steadily in renovating the property for I1/2 years and the 50-year old building was in generally good condition before the fire except for the plumbing, we disallow the deduction and increase the award to $10,278.84. ($10,354.84 minus $76.00, the latter amount representing a refund of rent.)

The trial judge also awarded $603.00 for loss of rent, based on Mrs. Ayala’s testimony. However, although Mrs. Ayala stated her son had moved on July 13 into one apartment which had rented for $76.00 per month, she claimed a rent loss of $228.00 for that apartment. Since the vacancy by her own testimony existed only for 1]4 months, the loss for this apartment was only $114.00. We reduce the award for loss of rent to $489.00.

We also reduce the award of $713.00 for damage to clothing and furniture. Mrs. Ayala testified she gave away damaged clothing and substantiated this with receipts from a charitable organization. However, she replaced the damaged furniture and included the bills for replacement items in the receipts for repairs. To allow this amount would thus allow double recovery, and we therefore reduce the award to $288.00, the value of the damaged clothing.

Mrs. Ayala’s appeal reurges her claim for mental anguish caused by the damage to her property. Recovery of damages for emotional stress, unaccompanied by physical injury, has been limited to those cases where the disturbance causes bodily harm or illness. Carimi v. Saia, 301 So.2d 895 (La.App. 4th Cir. 1974). We therefore reject this claim.

Wrongful Death Damages

Ayala was 54 years old at the time of his death. His only income was derived from rental property which he maintained and managed. After Ayala’s death his wife collected the rents and hired workmen to perform maintenance and repairs as required.

Mrs. Ayala is entitled to damages for loss of her husband’s services based on the pecuniary value of the benefits she would reasonably have expected, had her husband not died as a result of negligence. A method of measuring the value of this loss is by determining the cost of replacing the services.

A real estate management expert testified for the purpose of estimating the value of services for maintaining and managing the properties. He stated the normal fee for management and rental collection was 10% of the amount collected, and the fee for obtaining estimates and supervising maintenance repairs was also 10%. Projecting the anticipated normal repairs over the next five years, he estimated a' fee for repair supervision at $178.83 per year. Since Ayala’s rent collections were about $5,700.00 per year, the fee for management and collection would be $570.00 per year. Thus, Ayala’s services (exclusive of the repair work done by him) were reasonably valued at about $750.00 per year. The value of his services as a repairman was difficult to estimate, since his tax returns showed only the amounts he paid for materials and for labor by others, and these amounts fluctuated greatly. Mrs. Ayala’s tax return for 1972 showed only small expenditures for labor and materials during that year.

The award of $25,200.00 for the loss of these services was based on an undiscount-ed value of $1,400.00 per year over Ayala’s life expectancy of 18 years. Mindful that awards of this type are speculative in nature and not calculable with mathematical certainty, we nevertheless conclude that this award was excessive in view of the evidence. On this record we believe that an award of $8,500.00 for this item of damages would accomplish substantial justice.

Defendants concede funeral expenses were proved in the amount of $1,170.00.

Defendants contest as excessive, however, the awards for loss of love, companionship and affection in the amounts of $25,000.00 to the wife and $12,500.00 to the son, while Mrs. Ayala’s appeal seeks an increase in her award.

Mr. and Mrs. Ayala enjoyed a close relationship during their 24 years of marriage. Ayala was very attentive to his wife, and she was extremely dependent upon him. In view of these considerations and Ayala’s life expectancy, we cannot say that the award was so excessive or inadequate as to constitute an abuse of discretion.

Ayala’s son visited him often, and Ayala helped his son with house and car repairs and contributed to support the son, who was a college student in 1971. We cannot say from the evidence that the award of $12,500.00 was excessive.

As to the final issue raised by Mrs. Ayala’s appeal, the evidence does not establish that her husband sustained conscious pain and suffering prior to his death, and we decline to grant an award for this element of damages.

DECREE

Accordingly, the judgment of the trial court is amended to reduce the total amount of the award to $58,225.84. As amended, the judgment is affirmed.

Amended and affirmed.

      . As to any argument that Del Buno’s failure to use the fire extinguisher superceded the prior negligence by Bailey’s executives, we cannot say from the record that, if he had used the extinguisher, he would have gotten the fire under control.

      . The application for a new trial by one defendant did not suspend the operation of the judgment as to a co-defendant who did not apply for a new trial. Payton v. Aetna Life & Cas. Co., 299 So.2d 489 (La.App. 4th Cir. 1974), cert. den. La., 302 So.2d 617.

      . This question is pertinent whether the defendant’s responsibility is based on strict liability under O.C. art. 667 et seq and 2315, as plaintiffs urge [see Langlois v. Allied Chemical Co., 258 La. 1067, 249 So.2d 133 (1971)], or on simple negligence.

      . In the determination as to whether there is a duty-risk relationship, foreseeability is a relevent inquiry, but is not the sole criterion. Rules of conduct and duty are designed to protect some people under some circumstances against some risks. Always pertinent, however, is an inquiry into the ease of association between the rule relied upon and the injury produced from the risk created by violation of that rule. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Malone, Ruminations on Cause-in-Fact, 9 Stanford L.Rev. 60 (1956). In the present case there is an ease of association of the duty breached with the risk of fire and with the additional risk that owners of adjacent property will be injured in attempting to protect their property.

      . Since compensation is based on the loss of value sustained, the most accurate method of measuring the loss in value is to ascertain the cost of restoring the property to substantially the same condition. No adjustment to this measure is warranted unless the restored property has a substantially lesser or greater value than it had before the injury.

      . Defendants concede a reasonable rent loss of approximately $500.00.


author: BARNETTE, Judge.

text:
    John D. KOPFLER v. Edwin EDWARDS et al.
    No. 10576.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 27, 1975.
    Writs Refused Sept. 4, 1975.

      Cyrus J. Greco, Greco, Thompson & Gremillion, Baton Rouge, for appellant.
    Kenneth C. Dejean, Baton Rouge, for Governor Edwards.
    Joseph H. Simpson, Amite, for defendant-appellee Clerk and Judge.
    Arthur W. Macy and Duncan S. Kemp, III, Macy & Kemp, Hammond, for Mr. Branch.
    Before LOTTINGER, BARNETTE and PICKETT, JJ.
   BARNETTE, Judge.

The plaintiff, Appellant, John D. Kop-fler, brought this proceeding as a mandamus action to compel the election officials charged with the duty of calling and supervising elections in Tangipahoa Parish, and particularly those charged with the duty of calling and supervising a special election for the office of Judge of the City Court for the City of Hammond, Seventh Ward, Tangipahoa Parish, to call a special election to be held on November 1, 1975, and December 13, 1975, for the election of Judge of the City Court of Hammond, according to law. He seeks to have the Tan-gipahoa Parish Democratic Executive Committee ordered to provide for a qualifying period and to fix the fee for qualification, open to him and to all persons who may wish to qualify as candidates in said election according to law.

The defendants named and cited are (1) Edwin Edwards, Governor of the State of Louisiana, (2) Charles A. Branch, Chairman of the Tangipahoa Parish Democratic Executive Commitee, (3) Wade O. Martin, Secretary of State of the State of Louisiana, (4) Estelle S. Stire, Clerk of Court of Tangipahoa Parish, (5) H. W. Martens, Clerk of the City Court for the City of Hammond and (6) Edward B. Dufreche, Judge of the City Court for the City of Hammond.

Following a trial of the issues presented in the District Court on August 18, 1975, judgment was rendered providing in pertinent part as follows:

“After hearing the testimony, reviewing the pleadings in the exhibits, etc. the Court considering the law and evidence to be in favor of defendants herein.
“IT IS ORDERED, ADJUDGED AND DECREED that the alternative writs of mandamus issued herein to Estelle S. Stire, H. W. Martens, Wade O. Martin, Jr., Charles A. Branch, Governor Edwin Edwards are hereby recalled.
“IT IS FURTHER ORERED, ADJUDGED AND DECREED that plaintiff’s suit be dismissed at his cost.”

From that judgment the plaintiff has appealed.

There are no seriously disputed facts and the issues presented for our decision are questions of law only.

The Honorable Leon Ford, III was the duly elected Judge of the City Court of the City of Hammond and was serving in that capacity in August, 1974, when he was elected in a special election to a vacancy in the office of District Judge for the Twenty-first Judicial District Court. Upon assuming the office of District Court Judge on October 14, 1974, he vacated the office of Judge of the City Court for the City of Hammond, with more than four years of unexpired term in that office remaining. The term to which he had been elected as City Court Judge expires on December 31, 1978.

On October 15, 1974, the defendant, Edward B. Dufreche was appointed by Governor Edwin Edwards as Judge of the City Court for the City of Hammond pursuant to the authority vested in him by Article 7, Section 69, subd. A(l) of the Constitution of 1921. The appointee, Judge Dufreche, immediately took the oath of office and assumed the office of City Court Judge for the City of Hammond and has continued' to serve in that capacity to the present.

. The Tangipahoa Parish Democratic Executive Committee met on August 2, 1975 pursuant to law, for the purpose of calling elections and providing for a period for qualification of candidates and to fix the filing fees to be required of candidates for the several elective offices within its authority. The said committee failed to provide for an election and to set the time and fee for qualification of candidates seeking election to the office of Judge of the City Court for the City of Hammond.

On August 7, 1975, the plaintiff, John D. Kopfler, made timely attempt to qualify as a candidate for the office of Judge of the City Court for the City of Hammond by presenting properly executed qualifying forms with certified check for an admittedly sufficient amount to Charles A. Branch, Chairman of the said Executive Committee, but Chairman Branch refused to accept the qualifying forms and the tendered payment of fee, for the alleged reason that no election had been called for the office of Judge of the City Court for the City of Hammond. Whereupon Mr. Kop-fler mailed the qualifying forms and certified check to cover the required fee by certified mail in accordance with Acts 1 and 199 of 1975 (R.S. 18:393). There is no issue regarding the form of the proffered qualifying papers nor the sufficiency of the tendered fee. As stated above the Committee simply did not include in its official acts provision for the qualifying of candidates for election to the office of Judge of the City Court for the City of Hammond. There was no call for a special election to said office.

Apparently the refusal and or failure by all the named defendants having responsibility for calling and providing for a special election for the office of Judge of the City Court for the City of Hammond was in reliance upon an opinion of the State Attorney General, given in the form of a letter to the Governor’s appointee, Judge Edward B. Dufreche, dated May 9, 1975 and being opinion 75-629, which in pertinent part is as follows:

“This is in reference to your letter of May 5, 1975, inquiring as to the dates of the end of your term as Judge of the City Court of Hammond, and of the end of the term of the marshal of the same Court.
“You inform us that you were appointed on October 15, 1974 to fill the vacancy created by the election of Leon Ford to District Judge. You inform us that the present marshal was appointed on December 31, 1974 to fill the vacancy created by the retirement of his predecessors. The terms of the judgeship and of the marshal run concurrently from January 1, 1974 through December 31, 1978, or six years.
“We assume that the dates of your, and of the marshal’s appointments are also the dates of your swearing-in. If either swearing-in took place after midnight, December 31, 1974, then a different result might obtain, since the Constitution of 1974 would then apply. Art. XIV, Sec. 35, Const. of 1974; cf. Art. V, Sec. 22, Const. of 1974.
“For your reference we enclose a copy of Opinion No. 75-253 which discusses the same issue. Therein you will note that it is our opinion that Article XIV, Section 15 of the new Constitution authorizes an appointed officeholder, in this case a city court judge and marshal, to remain in office until the term of the office to which he was appointed ends or until the office is abolished.
“In this latter regard, we note for your information Article V, Section 15 of the new Constitution which authorizes the Legislature to abolish city courts and their marshals by establishing courts of limited jurisdiction with parishwide territorial jurisdiction and subject matter jurisdiction which shall be uniform throughout the State. To date, the Legislature has not created such courts.
“Therefore, it is our opinion that absent the creation of such courts, your term as Judge of the City Court of Hammond, and the term of the present marshal of that Court, will end on December 31, 1978. The election for the next term of the judgeship shall be held at the regular congressional elections in 1978. Art. V, Sec. 22, Const, of 1974.”

The opinion 75-253, referred to, and dated April 8, 1975, relates to the same subject matter and was addressed to Honorable Burrell J. Carter, Judge of the Twenty First Judicial District Court (Division A). In pertinent part that opinion is as follows :

“Article XIV, Section 15 of the Constitution of 1974 provides in part:
A person holding an office by appointment [on the effective date of this constitution] shall continue to exercise his powers and duties until his office is abolished, his term ends, or he is removed or replaced under the provisions of this constitution or by law.
“By the plain wording of the Section you are to continue holding the office of judge until your term ends. It is the opinion of this office that the term contemplated is clearly the existing term of the judge which you were appointed to replace. See Art. V, Sec. 22(B), Const, of 1974.
“Article V, Section 22(C) of the Constitution of 1974 provides:
A judge serving on the effective date of this constitution shall serve through December thirty-first of the last year of his term or, if the last year of his term is not in the year of a regular congressional election, then through December thirty-first of the following year.
* * * * * *

The trial court Judge gave no reasons for judgment but we assume he also relied on the Attorney General’s opinion. In any event, however, we do not concur in the opinion of the Attorney General. His error stems from an erroneous interpretation of the term for which the Governor’s appointee was appointed.

Article 14, Section IS of the Constitution of 1974 (which became effective January 1, 1975) reads in full as follows:

“A person holding an office by election shall continue to exercise his powers and duties until his office is abolished, his successor takes office or the office is vacated, as provided by law. A person holding an office by appointment shall continue to exercise his powers and duties until his office is abolished, his term ends, or he is removed or replaced under the provisions of this constitution or by law. Each public body shall continue to exercise its powers and duties until changed as provided by this constitution or by law.” (Emphasis added)

As stated above Governor Edwards appointed Judge Dufreche on October IS, 1974 under the then existing authority of Article 7, Section 69 of the Constitution of 1921. That Section provides in pertinent part as follows:

“[Section 69] A. Subject to the provisions of Paragraph C:
“(1) Vacancies in the office of judge of a district, juvenile, family parish or city court, district attorney, sheriff, assessor, clerk of a district court and registrar of conveyances, recorder of mortgages and state tax collector in Orleans Parish shall be filled by appointment by the Governor, with the advice and consent of the Senate.
******
“C. If, at the time a vacancy occurs in an office for which appointment is provided in Sub-section A., the unexpired portion of the term of office is more than one year, a- special election to fill the vacancy shall be held, without the necessity of a call by the Governor, to coincide with the next scheduled election to be held more than six months after first receipt of notice of the vacancy by the Secretary of State, to be given as hereinafter provided, in the district, parish, or other political subdivision in which the vacancy occurred, and in such case the appointment provided for in Sub-section A. of this Section shall be effective only until a successor is duly elected and qualified; provided, that in case the special election would coincide with the election at which the office is to be filled for the succeeding term, no special election shall be held and the appointment shall be effective for the remaining unexpired portion of the term of office.
“Upon being informed of the occurrence of a vacancy in any of the offices specified in Sub-section A. of this Section, the Clerk of the District Court in the parish where the vacancy occurred, and in the Parish of Orleans the Clerk of the Criminal District Court, shall, within 24 'hours after being thus informed, notify the Secretary of State in writing by registered or certified mail of the occurrence of the vacancy. Upon receipt of such notice, the Secretary of State, shall, within 24 hours after such receipt, notify in writing by registered or certified mail all election officials, including party committees and boards of supervisors of elections, having any duty to perform in connection with a special election to fill such vacancy. (Emphasis added)
******

Clearly the appointive authority of the Governor authorized by the foregoing constitutional section, is restricted and limited to appointment of a judge to a vacancy in one of the named judicial offices (with confirmation by the Senate) to a term no longer than until a special election shall be held to fill the vacancy without the necessity of a call by the Governor to coincide with the next scheduled election to be held more than six months after receipt of notice of the vacancy. The above, section, authorizing Judge Dufreche’s appointment further provides that his appointment "shall be effective only until a successor is duly elected and qualified.” Clearly this contemplates a special election, (in this case, on November 1 and December 13, 1975) at which time the appointive term of Judge Dufreche will expire.

It should be noted that the provisions of Article 7, Section 69 of the Constitution of 1921 are mandatory and the special election mandated “shall” be held without the necessity of a call by the Governor.

Article 7, Section 69 of the Constitution of 1921, which is the controlling constitutional authority for Judge Dufreche’s appointment and the requirement for the holding of a special election is self operating in respect to the calling of a special election. It provides that when the unexpired term is more than a year from the date the vacancy occurred a special election to fill the vacancy shall be held without the necessity of a call by the Governor. The Secretary of State is required by the same section to notify the proper election officials “having any duty to perform in connection with a special election to fill such vacancy.” Clearly this section does not empower the Governor to appoint a successor for the “unexpired” term when it is longer than one year and requires the special election without the necessity of a call for same by the Governor. The section itself provides for the notification of the officials whose duty it is to provide for and conduct the special election.

There is no conflict of intent and purpose with respect to the filling of a vacancy in a judgeship between that article and section and the corresponding Article and Section (Art. 5, Sec. 22) of the Constitution of 1974. The appointive authority is now vested in the Supreme Court and the special election shall be called by the Governor and held within six months.

The Attorney General’s opinion, therefore, is in error wherein it concludes that the “term” for which Judge Dufreche was appointed was the unexpired term of Judge Ford. The Governor had no authority to appoint him for a term ending in December, 1978 and made no such attempt.

We therefore hold that Article 14, Section 15 of the Constitution of 1974, providing that an appointed judge in office on the effective date of the Constitution (January 1, 1975) shall continue to exercise his powers and duties “until * * * his term ends * * * ” means in this case that Judge Dufreche shall continue to serve in the judgeship to which he was appointed only to the next election for State, District and Parish officials at which time a special election shall be held for the office of Judge of the City Court for the City of Hammond.

Article 7, Section 69 of the Constitution of 1921, which applied to the vacancy in the judgeship in question, as above quoted, requires the Clerk of Court of the Parish in which the vacancy has occurred to notify the Secretary of State of the vacancy within 24 hours by registered or certified mail. It provides also that the Secretary of State then, within 24 hours from receipt of the notice, shall in like manner notify the proper election officials having the duty to provide for a special election to fill the vacancy.

Apparently the required notices were not formally given in the manner required by the statute, of the vacancy created by Judge Ford’s election to and induction into the office of District Judge. But it is not denied that all the authorities having responsibility for filling the vacancy by appointment and by later special election had actual knowledge thereof. In fact Governor Edwards’ letter to the Secretary of State, October 15, 1974, notified him of the vacancy and directed him to prepare the commission of appointment of Judge Ford’s successor.

It would have served no purpose had the formal notices required by the statute been given. Furthermore the failure of public officials to perform their ministerial duties will not be permitted to circumvent and defeat the clear intent of the Constitution.

Both the Constitution of 1921 and the Constitution of 1974 were carefully drafted in respect to the manner of filling vacancies in judicial offices. There can be no doubt whatever that under both constitutions the filling of a vacancy in a judgeship shall be by special election if the unevpired term of the office vacated is more than one year, under the Constitution of 1921 and more than six months under the Constitution of 1974 (Article 5, Section 22). Authority for appointment by the Governor, under the 1921 Constitution, and by the Supreme Court, under the Constitution of 1974, is for an interim appointment only until the orderly process of an election can be assured. Clearly both constitutions intend that the Judges of the Courts of this State shall be elected and the appointive authority has been carefully restricted and limited as to time to insure the election of judges as expeditiously as possible under an orderly process, while at the same time providing a continuity of the office in the public interest.

Article 14, Section IS of the Constitution of 1974, referred to in the Attorney General’s opinion is one of the “Transitional Provisions” of the new constitution to insure the orderly transition of all elected and appointed public officials from authority under the old constitution to authority under the new constitution. It was not intended to be used as a device to extend the term of office of any elected or appointed public official.

Article 5, Section 22(C) of the Constitution of 1974 referred to in the Attorney General’s opinion is for the obvious purpose of terminating all judgeships at the end of even numbered years (the years of regular congressional elections). The purpose of this is to insure that there will be no “lame duck” judges serving out a year of unexpired term following a defeat for reelection at the congressional election held more than a year before the end of his term. See for example, Court of Appeal Judges, Article 7, Section 22H of the Constitution of 1921.

Other issues of law raised in the trial court involved the timeliness of the filing of certain answers and exceptions by some of the named defendants. R.S. 18:364. and R.S. 18:420 (Act 1 of 1975 entitled “Open Election System”) require answer to be filed in election contest suits within five days after service of the petition and order. The defendants contend that this is not an election contest but an ordinary mandamus proceeding and hence governed by the procedural rules in the Code of Civil Procedure. The trial judge maintained plaintiff’s objection to late filing, holding this to be an election contest, citing State ex rel. Vullo et al. v. Plaquemines Parish Police Jury et al., 238 La. 328, 115 So.2d 368 (1959). He then permitted a proffer of the answers and exceptions.

We find no error in the trial judge’s ruling on this issue under the authority of the Vullo case. But this is of no consequence in view of the rationale of this opinion. The timely filing of the answers and exceptions could not affect the final judgment.

The conclusion we have reached in this matter finds further support in the provisions of Article 14, Section 26 of the Constitution of 1974, also one of the Transitional Provisions of the new constitution, which is as follows:

“Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”

Clearly no right existed under the Constitution of 1921 for the continuance of the appointment of Judge Dufreche beyond the term for which he was appointed under and by the authority of the Constitution of 1921.

For the foregoing reasons the judgment of the trial court is reversed and there is now judgment in favor of the plaintiff, appellant, John D. Kopfler, against Wade O. Martin, Jr., Secretary of State of the State of Louisiana, ordering and commanding him forthwith to notify in writing by registered or certified mail, all election officials, including party commissions and boards of supervisors of elections having any duty to perform in connection with a special election to fill the vacancy in the office of Judge of the City Court for the City of Hammond, Seventh Ward, Tangi-pahoa Parish, Louisiana.

It is further ordered, adjudged and decreed that the defendant, Charles A. Branch, Chairman of the Tangipahoa Parish Executive Committee immediately and forthwith convene said Committee and take such action as necessary to provide for a special election for the office of Judge of the City Court for the City of Hammond, Seventh Ward, Tangipahoa Parish, Louisiana and to provide a time and set the fee for the qualifying -of all candidates who may wish to qualify to participate as candidates in said election and that he, Charles A. Branch, Chairman of said Committee, is ordered and commanded to accept the qualifying forms and tendered fee of the plaintiff, John D. Kopfler, if found to be in proper form, and further to accept the qualifying forms and fees of all other candidates, if in proper form, who may wish to participate as candidates in said special election.

All costs of this suit are cast against the defendants, Appellees, in solido, insofar as costs may legally be assessed against the named public officials, defendants.

Reversed and judgment rendered.


author: HOOD, Judge. WATSON, J.,

text:
    Lucille McVAY, Plaintiff-Appellee, v. Earl Wayne McVAY, Defendant-Appellant.
    No. 5038.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.

      Jack D. Barnett, Shreveport, for defendant-appellant.
    Garrett & Ryland by B. Dexter Ryland, Alexandria, for plaintiff-appellee.
    Before HOOD, CULPEPPER and WATSON, JJ.
   HOOD, Judge.

Mrs. Lucille McVay instituted this action against her former husband, Earl Wayne McVay, to recover damages for the alleged wrongful conversion of (1) an automobile owned by the parties in indivisión, and (2) personal property owned solely by plaintiff. The trial judge rendered judgment for plaintiff, and defendant appealed.

The issues presented are whether plaintiff is entitled to recover damages for the alleged wrongful conversion, particularly of the automobile owned in indivisión by them, and if so, whether the award made by the trial court is excessive.

The parties were married in 1947. A judgment decreeing a separation from bed and board between them was rendered in September, 1972. During the same month defendant instituted an action against his wife seeking a partition of the community which theretofore had existed between them. The action for a partition has never been tried and is still pending. A judgment decreeing a final divorce between the parties was rendered on January 25, 1974.

; The property belonging to the community included, among other items, some real property, a 1971 Buick automobile and a 1967 Ford pickup truck.

Mr. McVay purchased the 1971 Buick automobile in March, 1971, while he was living with plaintiff. Mrs. McVay used that vehicle generally as her personal car from the day it was purchased until the parties were judicially separated. She retained possession and control of it after the separation decree was rendered, and she used it exclusively for personal matters and to transport her to and from her place of employment from that date until April 23, 1974. She has not possessed or used it at any time since the last mentioned date.

On the morning of April 23, 1974, Mrs. McVay drove the 1971 Buick automobile to the place of her employment in Alexandria, and she parked it in a parking lot adjacent to that establishment, as she customarily did every working day. Mr. McVay had keys to the automobile, and about 2:00 P. M. that day he removed the automobile from the parking lot without notifying plaintiff, and he concealed it from her by parking it in a building used by the Rap-ides Bank and Trust Company for storing repossessed automobiles. The bank had not repossessed the car, but defendant took it to that storage garage in the hope that he might be able to sell it. He determined within the next day or two that he could not sell it without his wife’s signature, so he then removed it from that building and stored it in a garage attached to his brother’s home. The car has been concealed or hidden from view since that time in such a way that plaintiff has been unable to locate it. Defendant has retained possession of the car continuously since the date he removed it from the parking lot. Although he keeps it concealed during the day, he uses it frequently during evening hours.

The automobile was purchased on credit, and defendant made many payments on the purchase price. There was a balance due on that purchase price, however, when defendant removed the automobile from the parking lot. Shortly after taking the car, defendant telephoned Mrs. McVay at her place of employment and informed her that “the bank had picked the car up,” and that she could get it back by paying the balance due on the note and by paying him one-half the remaining value of that vehicle. Mrs. McVay contacted her attorney immediately, and he determined that the bank had not repossessed .the car. This suit was instituted on May 3, 1974.

Mrs. McVay has been living in the community-owned family home since she separated from her husband. Her elderly mother stays with her in that home at times. Plaintiff has been employed as a sales person at a store in Alexandria, and prior to April 23, 1974, she used the Buick automobile to get to and from work. She also used it for transporting herself and her mother on personal missions, such as buying groceries, meeting doctors appointments, shopping and running errands. After defendant removed the car from her possession, Mrs. McVay has depended upon relatives and friends to provide her with transportation to and from her place of employment, and for the other above mentioned purposes. Plaintiff testified that the lack of any means of transportation has caused her much embarrassment, inconvenience and mental anguish.

Some boxes of artificial flowers belonging solely to plaintiff were in the trunk of the 1971 Buick automobile at the time defendant removed it from the parking lot. Plaintiff had used those flowers on the grave of her deceased father. The flowers have never been returned to Mrs. McVay. The evidence does not show the market value of the flowers, if they had any value, but plaintiff apparently wanted them and she testified that the loss of them caused tier to suffer mental anguish.

The evidence also shows that Mrs. Mc-Vay pui'chased a new set of tires for the 1971 Buick automobile on June 9, 1973. The tires were purchased with plaintiff’s separate funds, and they were on the automobile at the time it was taken by defendant. Plaintiff contends that the tires were her separate property, and that she is entitled to recover the value of them from defendant.

Mr. McVay has used the 1967 Ford pickup truck for personal purposes, and as a means of transportation to and from his place of employment at a bakery, continuously since he separated from his wife. He also has had the exclusive use of a 1971 Oldsmobile automobile, and later a new 1973 Buick, both of which were purchased for him by his brother, with the understanding that after the community is settled defendant would repay his brother the amount expended for those cars. Since April 23, 1974, defendant has retained possession and has used the 1967 Ford pickup truck, the 1973 Buick purchased for him by his brother, and the 1971 Buick which he took from plaintiff. Mrs. McVay has not had the use of any of those vehicles since that time.

Defendant justifies his action in removing the 1971 Buick from the parking lot by showing that he has made payments on the purchase price of that automobile, while plaintiff has made no such payments. He also points out that he has made payments on the mortgage indebtedness due on the community-owned home occupied by Mrs. McVay and that she has paid no rent and has made no payments on the above indebtedness. He argues that since he and Mrs. McVay own the 1971 Buick automobile in indivisión, he has as much right to use it as she does, that his action in taking sole possession of the car in April, 1974, did not constitute conversion, and that plaintiff thus is not entitled to recover damages from him.

The trial judge held that, regardless of whether defendant was guilty of “conversion” under the common law, plaintiff is entitled to recover damages from defendant under Article 2315 of the Louisiana Civil Code. He found that:

“The facts of this case disclose a rather shabby and contemptible course of conduct on the part of the defendant directed at the plaintiff. By means obviously calculated to harass and embarrass his former wife, Earl Wayne Mc-Vay has, in effect, taken the law into his own hands ....
“. . ... defendant not only took the vehicle without request or notice to his wife, but he has gone to well calculated and studied means to see to it that she is deprived of its use. He makes no secret of his deliberate intent to do just that ....
“The evidence is convincing that Mr. McVay is holding the 1971 Buick and depriving his wife of its use in an effort to force her to negotiate community property matters on his terms Mr. McVay offered absolutely no justification for his action. . . .
“In the present case the embarrassment and humiliation was greatly increased by the obvious malice on the part of defendant ....
“Mr. McVay has no use for the car, but out of what can only be interpreted as pure malice he saw fit to shut the car up every day so that his former wife could not use it ...
“Mrs. McVay satisfied the undersigned that the incident came as a sudden shock attended by extreme mortification, emotional frustration and a deep sense of hurt which she was helpless to assuage.”

The trial court also found that the parties, through their attorneys, negotiated for about three months for the return of the Buick automobile to plaintiff, but that the negotiations broke down in July, 1974. He felt that during that time plaintiff reasonably believed that possession of the car would be returned to her, that she was justified in not purchasing another automobile during that time, and that she thus is entitled to recover $180.00 as the estimated cost of renting a vehicle during that three month period. He also concluded that she was entitled to an award of $3,500.00 for her embarrassment, humiliation and mental suffering. Judgment accordingly was rendered in favor of plaintiff and against defendant for $3,680.00.

We believe that the right of one co-owner to use and possess the property owned in common with someone else is equal to that of the other co-owner. Ordinarily the co-owner having possession cannot be dispossessed or deprived of the use of the property by the co-owner who is not in possession, the remedy of the latter being to sue.for a partition of the property. LSA-C.C. arts. 491 and 494; Spencer v. Spencer, 273 So.2d 605 (La.App. 4 Cir. 1973); Coon v. Miller, 175 So.2d 385 (La.App. 2 Cir. 1965); Arcemont v. Arcemont, 162 So.2d 813 (La.App. 4 Cir. 1964); Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (1955).

The cases cited relate to real property, but we think the principle applied is applicable to movable property.

The 1971 Buick involved in the instant suit is owned in indivisión by Mr. and Mrs. McVay, and each has an equal right to use it. Since plaintiff was in possession of it on and prior to April 23, 1974, however, defendant did not have the right to take the car from her on that date, his remedy being to seek a partition by licitation. He, of coursé, had previously filed a partition suit, and that suit was pending at the time the car was taken. If he felt that the car should be impounded pending the partition, he could have sought that type of relief. In any event, we think he had an adequate remedy in that proceeding. By spiriting the car away and concealing it from plaintiff, defendant has wrongfully deprived Mrs. McVay of her right to continue to possess and use it until the partition is effected or until otherwise ordered by the court.

Plaintiff contends that she is entitled to recover damages because of defendant’s unlawful “conversion” of the automobile. We have held that “conversion” is an act of dominion wrongfully asserted over the property of another in denial of, or inconsistent with the owner’s rights therein. Lincecum v. Smith, 287 So.2d 625 (La.App. 3 Cir. 1973), and Hamilton v. Travelers Indemnity Company, 248 So.2d 617 (La.App. 3 Cir. 1971).

We are not convinced that there has been a “conversiop” of the 1971 Buick, as that term is ordinarily used, in view of the fact that defendant is a co-owner of it, that the vehicle cannot properly be said to be the property of another, that it has not been destroyed or altered, and that it is still available for partition or for use by either of the co-owners. Lincecum and Hamilton, supra, relied on by plaintiff, are not applicable here, because no issue of co-ownership was presented in those cases, and in each instance the subject property was either destroyed or permanently altered.

Regardless of whether there has or has not been a conversion of the automobile, plaintiff nevertheless sustained injuries as the result of defendant’s deliberate and malicious acts in taking and concealing the car, and we believe that she is entitled to recover damages from defendant under Article 2315 of the Louisiana Civil Code. The amount of the award should be the same whether the taking of the car is or is not classified as a conversion.

We agree with the findings of the trial judge that defendant took the 1971 Buick from plaintiff for the express purpose of harassing and embarrassing her, and of forcing her to negotiate community property matters on his terms. He did not need the automobile, since he had adequate means of transportation, and he in fact kept the car concealed most of the time simply to deprive plaintiff of the use of it. His actions were deliberate and malicious, they compelled plaintiff to seek and depend upon the charity of her friends and neighbors in meeting her transportation needs, and they caused plaintiff to suffer embarrassment, inconvenience and emotional frustration.

In Tarver v. Tarver, 242 So.2d 374 (La.App. 2 Cir. 1970), the plaintiff’s former husband wrongfully dispossessed her of an automobile which had belonged to the community, and the trial judge awarded plaintiff $500.00 for “embarrassment and humiliation.” In that case the parties had at least partially partitioned the community property prior to the conversion, and plaintiff was the sole owner of the automobile which was taken from her. In the instant suit the community property had not been partitioned, and Mrs. McVay was not the sole owner of the 1971 Buick automobile. She, however, had the legal right to continue to use it until the partition was effected or until otherwise ordered by the court, and defendant deliberately, maliciously and without justification deprived her of that use. We think the plaintiff is entitled to an award of damages for embarrassment and humiliation, as was the plaintiff in Tarver.

The trial judge awarded plaintiff $3,500.00 for her embarrassment, humiliation and mental suffering. The damages sustained by Mrs. McVay were greater than those sustained by the plaintiff in Tarver, supra, but we believe that the award made by the trial court for that item of damage nevertheless was excessive. In our view, an award of $1,000.00 to Mrs. McVay for embarrassment, inconvenience and mental anguish would be fair and adequate.

On July 1, 1974, following negotiations between counsel for both parties, Mr. McVay made a formal offer to convey the 1971 Buick to Mrs. McVay for $2,000.00 apart of which purchase price was to be used to pay the remaining balance of $902.-00 due on the chattel mortgage indebtedness on that car, and the remainder was to be divided equally between the parties. Mrs. McVay thereupon made arrangements to borrow from a local bank the amount needed to complete that transaction, and she formally accepted defendant’s offer. Mr. McVay then attached some additional conditions to the offer, with the result that the negotiations broke down on July 22, and the sale was never completed.

The evidence convinces us that defendant was not in good faith iij conducting those negotiations and in making the offer to sell the car, and that he deliberately misled plaintiff into thinking that she eventually would regain' possession of the car. Under those circumstances we agree with the trial judge that plaintiff is entitled to recover the expenses which ordinarily would be incurred by her in renting a car during that three month period. We think an award of $180.00 for that purpose is fair.

Mrs. McVay spent $146.48 for new tires for the 1971 Buick on June 9, 1973. We believe that the tires became merged with, and became a part of, the automobile and that they ceased to be her separate property when they were put on that vehicle. The tires had been driven about 6,000 miles at the time the car was taken by defendant, and the evidence does not show how much they were worth at the time the car was taken. We conclude that plaintiff is not entitled to recover in this action the amount she paid for the tires.

It is appropriate for us to observe here that the awards made to plaintiff in this suit are not to be charged or credited to either party in partitioning the community property. We regard the 1971 Buick automobile as still being owned by the parties in indivisión, and as such it is subject to partition. We express no opinion as to whether, in the eventual partition of the community property, plaintiff is entitled to credit for the amount spent for tires, whether either party should be charged or credited with the value of the use of any vehicle belonging to the community or whether depreciation of any vehicle should be considered in those proceedings. We make it clear, however, that the award made in this case is not intended to affect the partition of community property, and that plaintiff is to receive the amount of the award made here in addition to any amounts to which she may be entitled in that partition proceeding.

For the reasons herein set out, the judgment appealed from is amended by reducing the award made to plaintiff from $3,680.00 to the sum of $1,180.00. In all other respects the judgment appealed from is affirmed. One-half the costs of this appeal are assessed to defendant-appellant, and the remaining costs of this appeal are assessed to plaintiff-appellee.

Amended and affirmed.

WATSON, J.,

concurs in the result but dissents as to the award of $180 for rental of a vehicle when no vehicle was rented.


author: CULPEPPER, Judge.

text:
    MFA MUTUAL INSURANCE COMPANY, Plaintiff and Appellee, v. FIDELITY & CASUALTY COMPANY OF NEW YORK et al., Defendants and Appellants.
    No. 5100.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    James Crawford Downs, Alexandria, for defendant-appellant.
    Gold, Hall, Hammill & Little, Eugene J. Sues, Alexandria, for plaintiff-appellee.

      Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a suit by a subrogated collision insurer for damages to the vehicle of its insured, Mrs. Mary Raxdale Maxwell. Mrs. Maxwell was proceeding in the west bound lane of Brown’s Bend Road in the. city of Alexandria. She collided with an automobile being backed out of a private driveway north of the road by defendant, John R. Cooper. At the site of the accident, Brown’s Ben Road is a two-lane, two-way asphalt road, relatively straight for some distance in either direction. A light rain was falling and the surface of the road was wet. But it was daylight and visibility was good.

The trial judge found the accident was caused solely by defendant Cooper’s negligence. The judgment awards plaintiff $221.08, but assesses all costs against plaintiff. Defendant appealed. Plaintiff answered the appeal, seeking assessment of costs against the defendant.

It is clear, as the trial judge held, that defendant Cooper was negligent in backing out of his driveway into Mrs. Maxwell’s path when it was not reasonably safe. The principal issue is whether Mrs. Maxwell was contributorily negligent in not avoiding the collision.

Mrs. Maxwell testified that she was driving about 25 miles per hour when she first saw Cooper’s vehicle about 100 feet ahead backing out of the driveway onto the road. She was unable to observe Mr. Cooper’s automobile prior to that time because of a row of pecan trees which paralleled the roadway. She says she immediately applied her brakes, but her tires skidded on the wet pavement. The rear of her car skidded around clockwise. The left front side of her car struck the right rear of the Cooper vehicle.

Mrs. Maxwell testified that Mr. Cooper’s car was about a third out into the road when the collision occurred. The stipulation entered in lieu of Trooper Noel Reed’s testimony placed the point of impact about three feet to the right (north) of the center of the road, based on debris found there.

Mr. Cooper testified that he thinks his car was some six to twelve inches off the pavement and stopped at the time of the collision. But the trial judge found the accident occurred in the manner described by Mrs. Maxwell and corroborated by the investigating officer.

“Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review.” Canter v. Koehring Company, 283 So.2d 716 (La.1973); Bloodworth v. Bloodworth, 306 So.2d 812 (La.App., 3rd Cir. 1975). Under these rules, we find no error of fact by the trial judge.

Counsel for defendant-appellant urges that due to the testimony of Mrs. Maxwell that, had she not gone into a spin she could have gone around the Cooper vehicle, the case becomes indistinguishable from that of Grimes v. Rivers, 301 So.2d 739 (La.App., 3rd Cir. 1974). Grimes is distinguished. There, a pulpwood truck was parked partially on the blacktop on a dark foggy night. We held plaintiff con-tributorily negligent for driving blindly through the fog at such a speed that he could not see the truck in time to avoid striking it. Here, it was daylight and visibility of the road ahead was clearly sufficient to justify a speed of 25 miles per hour. There was no obstruction on the road until Cooper’s car backed out 100 feet ahead. Mrs. Maxwell acted reasonably in applying her brakes, rather than trying to go around the rear of Cooper’s car, because she could not anticipate that Cooper would cease his backing maneuver before blocking the east bound lane.

Counsel for defendant-appellant also urges that our decision in Ardoin v. Trav elers Insurance Company, 229 So.2d 426 (La.App., 3rd Cir. 1969) should control the instant case, and that Mrs. Maxwell should be held contributorily negligent for assuming her path was clear.

We distinguish Ardoin from the instant suit. In that case we found that the following driver was negligent in having failed to observe a vehicle 300 or 400 feet ahead of him, when there was nothing to obstruct his vision and the forward vehicle did not suddenly enter his lane of traffic. In the instant suit, Mrs. Maxwell could not see the Cooper vehicle until it suddenly backed out into the street about 100 feet ahead of her. She was driving at a reasonable rate of speed, she saw the Cooper car as soon as she was able to see it, and she immediately tried to avoid a collision.

We conclude plaintiff is not guilty of contributory negligence.

While this is the same result on the merits as was reached by the trial judge, he assessed all costs against the plaintiff. On this point, we reverse the assessment and decree that all costs be paid by the defendant-appellant. LSA-C.C.P. Article 1920 provides:

“Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
“Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

In Gonzales v. Southwest Mobil Homes, Inc., 309 So.2d 780 at 785 (La.App., 3rd Cir. 1975), we held that “The broad authority granted to the trial judge under Code of Civil Procedure Article 1920 does not mean that there are no guidelines to govern the taxing of costs. Greenberg v. Fourroux, 300 So.2d 641 (La.App. 3rd Cir. 1974); Johnson v. Marshall, 202 So.2d 465 (La.App. 1st Cir. 1967).” Under these rules, we think that costs should be paid by the defendant-appellant.

For the reasons assigned, the judgment appealed is amended to assess all costs in both the trial and appellate courts against the defendant. Otherwise, the judgment is affirmed.

Affirmed, as amended.


author: MARVIN, Judge.

text:
    COMMERCIAL SECURITIES CO., INC. v. James ROSS.
    No. 12682.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.

      Clyde Lain, Jr., Monroe, for defendant-appellant.
    Pipes & Pipes, by William F. Pipes, Jr., Monroe, for plaintiff-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   MARVIN, Judge.

This is an appeal from an order in exec-utory proceedings instituted in the City Court of Monroe. A writ of seizure and sale issued directing the city marshal to seize and sell with benefit of appraisal, a 1969 Pontiac Bonneville owned by the defendant-appellant, James Ross, which was mortgaged to secure an indebtedness to plaintiff-appellee, Commercial Securities Co., Inc. Ross suspensively appealed, raising the defense of payment and contending that the seizure was premature. Finding these contentions to have no merit, we affirm.

In March, 1972, Ross purchased the Pontiac automobile. To finance the purchase, he executed a promissory note for $2,677.-20 to Commercial Securities, payable in thirty monthly installments, secured by the chattel mortgage. The note provided the failure to pay any installment would mature the note in its entirety and that attorney’s fees equal to 25 percent of the total amount due would come due should the note be placed with an attorney for collection. The mortgage with which the note was paraphed imported a confession of judgment and a waiver of demand for payment. The mortgage required the payment of a late charge on delinquent installments and required the mortgagor to insure the motor vehicle against loss or damage with a loss payable clause to mortgagee. It was also provided that mortgagor’s failure to provide the insurance would allow the mortgagee to secure coverage at the mortgagor’s expense, with payments by the mortgagor to begin the month following the last installment.

Ross made monthly payments on the indebtedness beginning in May, 1972. On March 9, 1973, Ross was notified that his insurance coverage had expired and that Commercial Securities was exercising its option under the mortgage to renew the insurance. As a result, a premium of $225.-42 was charged to Ross’s account.

On June 29, 1973, Ross requested and received an extension on his monthly installments for $18.66, also charged to his account.

On March 11, 1974, Commercial Securities again contacted Ross about renewing the insurance. A charge of $138.64 for this premium was added to the account. The next month, Ross obtained another extension and his account was charged $12.-50.

Ross contends he made a “final payment” on October 4, 1975. The amount paid by Ross on the indebtedness during the extended term of the contract totaled $2,446.72. Since no payments were made after October 4, 1974, Commercial Securities elected to mature the note and instituted executory proceedings on January 7, 1975.'

The petition for executory process complied with all requirements necessary to effectuate a proper seizure and sale. There is no contention as to authenticity. In addition to this compliance however, Commercial Securities prayed that Ross be ordered to show cause why the writ should not issue. This procedure was followed in order to provide Ross with an opportunity for a hearing under a most liberal interpretation of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

On January 24, 1975, after hearing, judgment was rendered on the rule ordering that the writ of seizure and sale issue. It is from this decree that Ross appeals.

La.C.C.P. Art. 2642 provides the basis through which a party may suspen-sively appeal from an order issuing a writ of seizure and sale. Generally, on an appeal from such order, the sole contention that can be raised is the authenticity of the process itself. Dufossat and Dufossat v. Laizer, 24 La.Ann. 618 (1872); Franek v. Brewster, 141 La. 1031, 76 So. 187 (1917); The Rights of a Defendant in Executory Process, 17 Tulane Law Review 630 (1943). However, the unique facts of this case take this appeal one step further. The judgment ordering the issuance of a writ of seizure and sale also made absolute the rule to show cause why the writ should not issue. The issues litigated at hearing on the rule are properly before this court.

Ross argues that the debt was extinguished by payment and that these exec-utory proceedings are improper. The record discloses Ross’s original indebtedness to be $2,677.20. Commercial Securities received payments totaling $2,446.72 during the period beginning in May, 1972, and ending in October, 1974. Ross has not borne the burden of proving extinguishment.

In addition to the original indebtedness, insurance premiums were charged to the defendant’s account in 1973 and 1974. Ross contends that Commercial Securities should be denied recovery of these charges since no demand was made that insurance be obtained by him. Alternatively, Ross contends that if demands were made, recovery of the financed premiums should be precluded under R.S. 6:956(F) since no policies or copies were sent to him in accordance with the mortgage provisions. This contention is also without merit. Ross has made no showing that he filed a written complaint with the Louisiana Motor Vehicle Commission as provided in R. S. 6:954 to exhaust his administrative remedies. The chattel mortgage expressly required that insurance coverage be maintained at all times. At the time of expiration of annual coverage in 1973 and again in 1974, Commercial Securities exercised its option in the mortgage to renew the coverage at the expense of Ross after sending Ross letters inviting him to raise objections. Commercial Securities received no response from Ross, renewed the coverage, and added the cost of the premiums to Ross’s account. Such action was contemplated by the terms of the mortgage.

Ross next contends that the consideration given for the extensions on June 29, 1973 and April 5, 1974, should be applied to the original indebtedness since the extensions were never granted. Commercial Securities’ records show this contention to be falacious. After each payment on the dates specified above, extensions were given to Ross on the records of Commercial Securities.

The final specification of error raised by Ross is that the seizure of the automobile came before the expiration of the delays for applying for a new trial and suspensive appeal. Such contention fails to take into consideration the nature of ex-ecutory proceedings. La.C.C.P. Art. 2642 and the comments thereunder specifically state that there can be no new trial in ex-ecutory proceedings. In addition, La.C.C. P. Art. 2721 provides :

“The sheriff shall seize the property affected by the mortgage or privilege immediately upon receiving the writ of seizure and sale, but not before the expiration of the delay allowed for payment in the demand required by Article 2639, unless this demand has been waived.
“The sheriff shall serve upon the defendant a written notice of the seizure of the property.”

In the instant case, notice of seizure was served upon Ross. The demand for payment had been specifically waived. U'nder the terms of the foregoing article, the city marshal was required to seize the property immediately irrespective of the delay for suspensive appeal. For these reasons, the writ of seizure and sale was properly executed and was not premature.

The judgment of the trial court is affirmed at appellant’s cost.

DENNIS, J., concurs.


author: DENNIS, Judge.

text:
    McCARY’S SHREVE CITY JEWELERS, INC., Plaintiff-Appellee, v. R. L. SAUCIER, Defendant-Appellant.
    No. 12673.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.

      Hal V. Lyons, and James L. Fortson, Jr., Shreveport, for defendant-appellant.
    Hamilton & Sermons by Gayle K. Hamilton, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and DENNIS, JJ.
   DENNIS, Judge.

This is a suit by a retail jewelry firm for the collection of an open account resulting from the sale and mounting of a diamond which defendant received as a gift from his wife. The trial court rendered judgment for plaintiff in the amount of $1,601.86, with legal interest from judicial demand, and we affirm.

The material facts are undisputed. Defendant’s wife, from whom he was estranged but not judicially separated, purchased from plaintiff a diamond to be mounted in defendant’s class ring. Plaintiff agreed to charge the cost of the jewel and the work to Mrs. Saucier’s account, because she wished to surprise her husband with a gift. When the work was finished, she presented the ring to her husband. Mr. Saucier accepted it, but shortly afterward filed suit against his wife for separation. Later, plaintiff requested payment from him, and defendant caused a corporation of which he was president to make three payments totaling $300 on the account. At the trial, defendant testified that he had pledged the ring as security for a $5,000 loan and did not have it in his possession. Before the suit was filed Mr. Saucier made no effort to notify his wife or the plaintiff that he objected to the transaction or that he did not intend to pay for the diamond and the mounting.

Both parties contend that the governing principles of law for this case were set forth in Watson v. Veuleman, 260 So.2d 123 (La.App., 3d Cir. 1972), as follows:

“Article 2404 of the Louisiana Civil Code provides that the husband is the head and master of the community. Ordinarily he alone, and not his wife, may obligate the community. Several exceptions to this general rule have been established, however, under which the community may become obligated for debts contracted by the wife. The only such exceptions which merit consideration here are: (1) When the debt is incurred by the wife under the husband’s obligation to supply necessaries; (2) when the wife is an agent of the community; and (3) when the obligation is ratified by the husband. . . . ” Id. p. 126.

The Watson v. Veuleman opinion and others have been criticized for incorrectly implying either that the community of ac-quets and gains is a juridical person or entity for which the wife may act as agent or that the husband may become responsible for a debt by ratifying an act of the wife not contracted originally on his behalf or in his interest, Pascal, Work of the La. Appellate Courts, 1972-73 Term, 33 La. L.Rev. 219, 221 (1973); Pascal, Work of the La. Appellate Courts, 1970-71 Term, 32 La.L.Rev. 219, 226 (1972). Cf., Creech v. Capitol Mack, Inc., La., 287 So.2d 497 (1973).

Nevertheless, these divergent authorities appear to agree on the proposition that a debt contracted by a wife for the personal benefit of her husband may be ratified by him. In view of the basic principles of mandate, this conclusion would seem to follow. Article 3010 of the Civil Code provides that a principal may ratify the unauthorized acts of his agent:

“The attorney can not go beyond the limits of his procuration; whatever he does exceeding his power is null and void with regard to the principal, unless ratified by the latter, and the attorney is bound by it in his individual capacity.”

In elaborating upon the Code articles pertaining to ratification, the Third Circuit Court of Appeal, in LeDoux v. Old Republic Life Insurance Company, La.App., 233 So.2d 731, 736 (1970), stated:

“The doctrine of ratification is firmly established in our civil law, LSA-C.C. Articles 1840 and 3010; Planiol Vol. 2, Section 2255. Many cases in our jurisprudence hold that the unauthorized contract of the agent is ratified by the principal who, with knowledge of such contract, does not repudiate it within a reasonable time but instead accepts and retains the benefits. . . . ” (Citing authorities)

Applying these principles to the instant case, we conclude that Mr. Saucier ratified his wife’s contract to purchase and mount the diamond in his class ring. There is a dispute as to whether he knew of her plans beforehand, but he undoubtedly knew of the purchase after accepting the gift. By his own admission, rather than repudiating the debt, Mr. Saucier had his corporation make partial payments on the account. He personally used the ring and later pledged it to obtain a loan for his benefit. Thus, his acts clearly distinguish this case from those in which the husbands timely repudiated the contract, refused to accept its benefits, and thereby avoided ratification of the wife’s unauthorized act. Watson v. Veuleman, supra; Nationwide Finance Company of Gretna, Inc. v. Pitre, 243 So.2d 326 (La.App., 4th Cir. 1971).

For the foregoing reasons, the judgment below is affirmed at the cost of appellant.

Affirmed.