author: BEER, Judge.

text:
    Clyde J. WELCKER v. Beulah E. Little, wife of Clyde J. WELCKER.
    No. 7791.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused March 31, 1977.

      Young & Mars, Theodore A. Mars, Jr., and Maurice Gomila, New Orleans, for plaintiff-appellant.
    Evangeline M. Vavrick, New Orleans, for defendant-appellee.
    Before BOUTALL, SCHOTT and BEER, JJ.
   BEER, Judge.

Clyde J. Welcker, appellant, seeks injunctive relief to prohibit his divorced wife, nee Beulah Little, from any further use of his surname, “Welcker.” Appellee, a retired principal in the New Orleans public school system, contends that she has been generally known, during the seven-year period of her marriage to appellant, and subsequent to the judgment of divorce, as “Beulah Little Welcker.” This is the name that she continuously used during her marriage and since the divorce in applying for and maintaining checking accounts, charge accounts, automobile title registration, social security registration, insurance, retirement benefits, etc. Thus, we are confronted by the res nova question of whether or not the dissolution of marriage by divorce forms a basis for injunctive relief in behalf of a former husband seeking to prevent his former wife from using a combination of her Christian name, her family surname and her former husband’s surname, such as, in this instance: “Beulah Little Welcker.”

In support of their contentions, each of the parties rely upon Wilty v. Jefferson Parish Democratic Executive Committee, 245 La. 145, 157 So.2d 718 (La.1963).

However, Wilty, supra, though persuasive on several points, is not controlling, for it deals with parties who were separated, not divorced.

Also persuasive but not controlling are the commentaries which are found in 1 Pla-ñid, Traite Elementaire De Droit Civil (An English Translation by the Louisiana State Law Institute) (1959).

Of particular interest are these observations of Planiol:

“390. Preservation of the Wife’s Patronymic Name
Contrary to the general opinion, marriage does not cause the wife to acquire the name of her husband. Nothing in the law assumes that marriage entails the change of her name, as it does of her nationality. There is, moreover, no reason why it should have this effect, because a name indicates descent. A married woman has, therefore, no name other than that of her family, her maiden name received from her father. It is by it that she should be designated in civil and judicial acts which concern her. And, in practice, most notaries and other draftsmen of acts observe this rule. But her name should be followed by mention of her marriage and by the name of her husband.
“392. The Wife’s Right to Use Her Husband’s Name
A universal right exists to designate a married woman by her husband’s name. This usage may be held to have been recognized by the law of February 6,1893 (Infra No. 395). This does not contradict what has just been said. The wife preserves her patronymic name but she has the right to use her husband’s name in all acts of her civil and even of her commercial life. In practice, she often even refers to herself by the “given name” of her husband.
“395. Effect of Divorce
Inasmuch as marriage does not cause a woman to acquire the name of her husband, the question of the divorcee’s name is solved in advance. It is asked whether a wife has a right to continue to bear her husband’s name after divorce? Evidently, no, because this name did not belong to her even during marriage. If it was given to her, it was solely to attest a fact, her status as a married woman when obtained. The fact having ceased, this designation may no longer be used.
“The husband thus has a right to constrain his wife not to use his name any more. He may, for this purpose, apply to the courts and if need be, obtain damages.”

On the other hand, we take judicial notice of what is common knowledge, human experience, and “. . . social . . conditions prevailing in this state . LSA-R.S. 15:422; also see Saia Motor Freight Lines, Inc. v. Agerton, 275 So.2d 393, 395 (La.1973); Elba v. Thomas, 59 So.2d 732, 736 (La.Ct. of Appeals, Orls. 1952); State, Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir., 1970).

Thus, we judicially recognize the generally existent custom under which divorced women are known by a combination of their Christian name, their family surname and their former husband’s surname, and, in view of the fact that no express or positive law exists in this jurisdiction, we justifiably look to established custom and equity for assistance in deciding this case. See LSA-C.C. Art. 21 in pari materia with Art. 3. Also see Tete, The Code, Custom and the Courts: Notes Toward a Louisiana Theory of Precedent,, 48 Tul.L.Rev. 1, 12, esp. 22 (1973); Franklin, Equity in Louisiana: The Role of Article 21, 9 Tul.L.Rev. 485 (1935). Indeed, the courts of Louisiana have long taken cognizance of custom as a source of law. W. B. Thompson and Co. v. Gosserand, 131 La. 1056, 60 So. 682, 685 (1913); Strahan v. Garis, 183 So.2d 392 (La.App. 4th Cir., 1966). In Esso Standard Oil Co. v. Crescent River Port Pilots’ Assn., 235 La. 937, 106 So.2d 316 (1958), the Supreme Court stated: “. . . custom which has existed over a long period of time takes on the force of law. Rev.Civ. Code, Art. 3; Broussard v. Bernard, 7 La. 211 (1834); Etna Forge and Bolt v. Youngstown Sheet and Tube Co., 282 F. 786 (C.C.A. 3 1922).”

Significantly, the French civil law acknowledges the legitimacy of custom praeter legem (i.e. custom as to a matter not covered by legislation) as a source of law. See Loussouarn, The Relative Importance of Legislation, Custom, Doctrine and Precedent in French Law, 18 La.L.Rev. 235, 248, 251.

On the other hand, we are mindful of our civil law traditions, and, thus, we are also much influenced by Planiol’s commentaries and by LSA-C.C. Art. 159, which states that a divorce shall place the parties in the same situation with respect to each other as if no marriage had ever been contracted between them.”

Consequently, we are cognizant that, on one side, are Planiol’s commentaries and certain codal implications which validate appellant’s contention, and, on the other side, generally established judicially noted custom which validates the contention of appellee.

An additional factor for consideration is our recognition of the right of a divorced woman to revert to the use of her maiden name. See “Right to Use Maiden Surname,” 67 A.L.R.3d 1266, Sees. 3, 4; Cf. Succession of Kneipt, 172 La. 411, 134 So. 376 (1931) and Wilty, supra. Is there, implicit in this recognition, an alternative yet unassailable right to be known by her Christian name, her maiden name and the surname of her former husband?

Although there were no children born of this marriage which was of reasonably short duration (approximately seven years), the effect of our judgment must be considered in light of its effect on all divorced women, childless or otherwise and whose marriages were of short duration or otherwise.

It is doubtful that Planiol could have anticipated present-day mores regarding divorce. Statistically and sociologically, it has, for better or worse, become an important factor in the mainstream of modern life and, thus, has provoked the establishment of its own customs. Important among these is the generally acknowledged acceptability of the use of the husband’s surname by his former spouse. We need not burden this opinion with a consideration of the factors which precipitated the establishment of this custom. It is sufficient for our purpose to take judicial notice of its existence and to acknowledge our awareness of the problems that could result from its unwarranted judicial rejection.

We are of the view that appellant has not demonstrated that the trial court erred in its denial of the injunctive relief sought by him, and, thus, we affirm the judgment in all respects. Costs of this appeal are to be borne by appellants, Clyde J. Welcker.

AFFIRMED.


source: Caselaw Access Project

author: STOULIG, Judge. REDMANN, Judge, PER CURIAM.

license: Public Domain

text:
    Henry W. HELMER v. James K. CALLAWAY et al.
    No. 7805.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Adams & Reese, Frank M. Adkins, New Orleans, for plaintiff-appellee.
    Bordelon & Carimi, Owen J. Bordelon, Jr., Richard G. Vinet, Gretna, for Murphy E. Douglas, defendant-appellant.
    Before REDMANN, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Appellant, Murphy E. Douglas, cited as one of four “makers, endorsers, sureties and guarantors” in a suit on a promissory note, has appealed a judgment against him entered by default in the sum of $10,958.40.

The petition alleges that plaintiff, Henry W. Helmer, is an “accommodation endorser and maker” on a guaranty agreement given to the Mercantile Bank and Trust Company (Mercantile) of Gretna, Louisiana, to induce it to loan $125,000 to Southern Oil Specialty, Inc. (Southern). Attached to the petition is a photostatic copy of the $125,000 note payable to Mercantile and signed by corporate officers of Southern, of which appellant is one, and a copy of the ancillary guaranty agreement signed by Douglas individually. Helmer, alleging he paid $10,-958.40 to prevent a default on the Mercan-, tile note, filed this suit to recover from his alleged co-guarantors the amount he himself paid under the guaranty agreement. In essence his claim seems to sound in contribution.

Appellant first contends the trial court improperly rendered a default judgment because issue was joined. In support of this argument he produced a copy of a pro se handwritten answer he allegedly mailed to the Clerk of the Civil District Court for the Parish of Orleans that was not returned to him as undeliverable. The record, however, contains no answer and the court must base its action on what is contained in the record. This contention lacks merit.

We do hold that the judgment was improvidently rendered because plaintiff failed to establish a prima facie case. It was essential for him to prove all the allegations of the petition as though they had been specifically denied and this he failed to do. See Calvert Fire Insurance Company v. Felton, 244 So.2d 311 (La.App.4th Cir. 1971).

The proof tendered is an affidavit and a note of evidence. That part of the affidavit pertaining to the merits of the petition reads:

“That he is the plaintiff in the above entitled and numbered cause; that he is familiar and well acquainted with the defendants in the above captioned cause; that he is the surety and co-maker of the promissory note herein sued upon; that the true and correct amount owed to plaintiff on said note by the above named defendants is TEN THOUSAND NINE HUNDRED FIFTY-EIGHT & 40/100 ($10,958.40) DOLLARS, plus interest and attorney’s fees as prayed for.”

C.C.P. art. 1702 provides an affidavit, in certain cases, shall constitute prima facie proof in confirming a default judgment. It is available in a suit on a promissory note; however, R.S. 10:3-301 limits an action on a promissory note to a litigant who is a holder of the note. Although the petition recites plaintiff is a holder, the affidavit does not and the exhibits indicate the Mercantile or its assignee, the Small Business Administration, is, in fact, the holder.

The proffer of evidence does not cure the deficiencies in this record. Even were we to assume plaintiff could bring a suit on the note itself, it would be incumbent on him to produce the original note or notes for the court’s inspection because this is the best evidence of the alleged debt. Plaintiff relied on photostatic copies attached to the petition and presumably intended to introduce them in this proffer:

“MR. POOLE:
“Your Honor, this is case No. 596-735, Henry W. Helmer vs. James K. Callaway, et al, my name is William S. Poole, I’m with the law firm of Adams and Reese and we represent the plaintiff. This is a suit on a note and we are here today to confirm a default against two of the defendants, Mr. Murphy E. Douglas and Mr. Kenneth E. Smyrl. First I’d like to offer and introduce into evidence the item in the record which reflects that the petition was filed on August 6, 1975. Mr. Murphy E. Douglas was served on August 10, and personal service was accomplished on Mr. Kenneth E. Smyrl on August 18, 1975. Also the preliminary default was taken on September 9, 1975. Since this is a suit on a note I would like to offer the affidavits of nonmilitary service of the two defendants and offer the confirmation of default for your signature.
“THE COURT:
“All right, sir.”

The affidavit is ineffectual and the proffer alludes to inadmissible evidence. Without considering the validity of the legal premises on which this action is based, we dismiss this suit because the evidence does not support a judgment.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that this suit be dismissed at plaintiff’s cost.

Reversed.

REDMANN, J., concurs with written reasons.

REDMANN, Judge,

concurring.

No cause of action is stated by a petition for contribution from co-sureties by a co-surety who alleges neither that he has paid the whole debt (or more than his virile share) nor that his payment obtained the discharge of the co-sureties; see C.C. 2104 and Scott v. Behrman, La.App. 4 Cir. 1973, 273 So.2d 661, 665.

PER CURIAM.

Plaintiff-appellee Henry W. Helmer correctly argues our original decree dismissing his suit with prejudice is unjust. We reversed the default judgment taken by plaintiff because it was not supported by adequate evidence; however, the' record indicates there may be merit to the claim.

For this reason, our original decree is recalled and it is now ordered that the judgment appealed from is reversed and this matter is remanded to permit the litigants to fully present any claims and defenses they may have.

ORIGINAL DECREE RECALLED; REVERSED AND REMANDED.


author: SCHOTT, Judge.

text:
    Robert V. WHITTAKER v. VETSHER, INC. and Century National Bank of New Orleans.
    No. 7811.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused March 25, 1977.

      Montgomery, Barnett, Brown & Read, Stanley McDermott, Jr. and Richard B. Montgomery, Jr., New Orleans, for plaintiff-appellant.
    W. Monroe Stephenson and Gilbert V. Andry, III, New Orleans, for defendant-ap-pellee Vetsher, Inc.
    Frans J. Labranche, Jr., New Orleans, for defendant-appellee Century Nat. Bank.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff Whittaker and defendant Vetsher entered into an agreement of February 17, 1975, under which Vetcher agreed to purchase real estate from Whittaker for $187,200 cash, the act of sale to be passed on or before May 22,1975. Pursuant thereto Vetsher deposited in escrow with Century National Bank the sum of $18,000.

The three parties entered into an escrow agreement which'was made a part of the agreement to purchase and sell requiring that Whittaker obtain a court order from a court of competent jurisdiction authorizing the transfer of the interest belonging to his deceased wife and providing as follows:

“5. Upon Robert V. Whittaker, Sr., obtaining the necessary order of court to sell the described property he shall deliver to Lawyers Title Insurance Corporation a certified copy of same. The said Lawyers Title Insurance Corporation shall then issue its title binder free and clear of any exceptions whatever, to Vetsher, Inc., or its nominee.
“6. Vetsher, Inc. shall have forty-five (45) days from the date on which Robert V. Whittaker delivers the necessary court order to Lawyers Title Insurance Corporation in which the act of sale from Robert V. Whittaker, Sr., et al to Vetsher, Inc. shall be passed.”

A copy of the court order was not delivered to Lawyers Title and the sale could not be passed before the deadline. This suit followed with both parties seeking the $18,-000 in escrow. The agreement provided for forfeiture of the deposit to Whittaker in the event of default by Vetsher but did not provide for penalty provisions in favor of Vetsher in the event of default by Whittaker, only the right to demand specific performance.

The trial judge awarded judgment in favor of Vetsher for the $18,000 with ah order to the bank to deliver said amount, and in favor of Vetsher against Whittaker for legal interest on the $18,000 from May 22, 1975, until paid. Whittaker has appealed.

The trial judge, in reasons for judgment, found that Clause 5 of the contract had not been complied with by Whittaker entitling Vetsher to a judgment.

On April 7, 1975, Whittaker’s attorney sent a copy of the court order he had obtained to Vetsher’s attorney, stating “I am enclosing for your files copy of the judgment . . . ”

Vetsher’s attorney testified: When he got this copy he simply filed it away under the assumption that the original was being sent to Lawyers Title Insurance Company. On May 21, upon contacting Lawyers Title so as to prepare for the sale, he learned that they never received the certified copy of the court order.

The attorney for Lawyers Title, Jess R. Nelson, testified that he knew nothing about the death of Mrs. Whittaker, the need for the court order or the escrow agreement’s provisions until his conversation with Vetsher’s attorney. Nelson testified that the title had been examined previously and a binder issued in 1974 but the succession proceedings would have to be examined before a supplemental binder could be issued. It is reasonable to infer from his testimony that this could not be accomplished in one day.

Plaintiff’s attorney presented evidence that an original loan commitment had been made to Vetsher for the purchase of this property in 1974, but at a meeting among the parties he was informed that the bank had withdrawn its commitment. However, on March 5, 1975, Vetsher’s attorney informed Whittaker’s attorney, “I just wanted to assure you that with or without the loan from First National Bank of Commerce Vetsher will go through with the purchase of the subject land.”

Robert 0. Klein testified that he owned one-third of Vetsher and that the principals of Vetsher were able and willing to finance this transaction despite the bank’s withdrawal of its loan commitment.

Inherent in the decision of the trial judge is an acceptance of the credibility of Vetsher’s attorney and Mr. Klein.

The agreement to purchase and sell expired by its own terms on May 22. Whittaker attempted to exact penalty provisions against Vetsher and had the burden to prove strict compliance on his part with the agreements as well as fault on Vetsher’s part. We cannot say that the trial judge erred in finding that Whittaker failed to carry his burden of proof on these issues.

However, we find no basis for the trial judge’s assessment of interest against Whittaker. The agreement to purchase specifically provides that the “deposit is to be non-interest bearing,” so that both parties waived the right to claim interest otherwise due under LSA-C.C. Art. 2924.

Accordingly that portion of the judgment in favor of Vetsher, Inc. and against Robert V. Whittaker for legal interest on the sum of $18,000 from May 22, 1975, until paid is reversed and set aside;

In all other respects the judgment appealed from is affirmed. Costs of this appeal are to be divided between Robert V. Whittaker and Vetsher, Inc.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


author: BOUTALL, Judge. BEER, Judge,

text:
    Lillie Mae JACKSON v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 7812.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused March 25, 1977.
    Steven R. Plotkin and Jonathan M. Lake, New Orleans, for Lillie Mae Jackson, plaintiff-appellee.
    Floyd F. Green, New Orleans, for New Orleans Public Service, Inc., defendant-appellant.

      Before BOUTALL, SCHOTT and BEER, JJ.
   BOUTALL, Judge.

This is an appeal from a lower court judgment awarding the plaintiff $2,339.58 damages incurred as a consequence of plaintiff’s fall on a Public Service bus.

On November 8, 1974, at approximately 10:30 A.M., plaintiff Lillie Mae Jackson boarded a New Orleans Public Service, Inc. bus as a fare paying passenger. As the plaintiff proceeded past the driver in order to locate a seat, the bus moved forward, causing the plaintiff to slip and fall on the wet floor of the bus. The plaintiff suffered injuries to her right back, right greater trochanter area, and right knee area. The plaintiff received treatment over a two-month period following the accident, and she responded to the treatment without residual disability. The trial court awarded her judgment and we agree. The extent of injury is not contested, only the issue of liability.

Both parties urge to us that the principles stated in the case of Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963) are controlling here. They quote to us the following at 151 So.2d 359:

“The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case. Adams v. Great American Indemnity Company, La.App., 116 So.2d 307; Johnson v. Continental Southern Lines, Inc., La.App., 113 So.2d 114, 74 A.L.R.2d 1328; Coleman v. Continental Southern Lines, Inc., La.App., 107 So.2d 69; Peters v. City of Monroe, La.App., 91 So.2d 428.
“A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. Gross v. Teche Lines, Inc., 207 La. 354, 21 So.2d 378. The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted, to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care. Mire v. Lafourche Parish School Board, La., 62 So.2d 541.”

Our examination of the testimony offered by plaintiff discloses the following.

The plaintiff, Lillie Mae Jackson testified to the following facts. Prior to boarding the bus she was aware that it had been raining outside for a considerable amount of time. As she boarded the bus, she noticed that the steps were wet, even though it had stopped raining at the time of her boarding. She then paid her fare with her right hand, and at the same time held on to her purse with her left hand. Immediately after paying her fare with a transfer, she turned to go to a seat. At that moment, the bus lurched forward in a jerky motion, causing her to fall onto the floor and land on her knees. There was no rail handle readily accessible to the plaintiff at the point where she fell and the floor of the aisle was wet.

Sandra Marie Favaroth testified that she too was a fare-paying passenger on the bus and that she had boarded the bus right behind the plaintiff. Her testimony corroborated that of the plaintiff to the effect that the bus floor was wet even though the rain had stopped. Ms. Favaroth stated that the bus jerked forward and that she prevented her own fall by grasping the coin box attached to the floor at the beginning of the aisle.

We conclude that the above, together with evidence of the injury, established a prima facie case of negligence and imposed the burden on the carrier of convincingly overcoming such case as required in Wise v. Prescott, supra.

The bus driver, Frederick L. Miller, testified that it had been raining prior to the accident and that he had noticed that the major part of the bus aisle was damp as a result of passengers dripping rain onto the floor after boarding. The driver testified that he did pull away from the curb while the plaintiff was moving toward a seat, but in so doing there was not a sudden acceleration or jerk.

Two other passengers testified as to the events that are the subject of this litigation, but their testimony was disregarded by the trial judge because one person’s testimony was conflicting and the other could not recall the events with any certainty.

Under these circumstances, it is necessary for us under the law only to ascertain whether the defendant has sustained the burden of convincingly overcoming the pri-ma facie case of negligence against it. We hold that it has not. The trial judge did not disbelieve the testimony of plaintiff and her witness, and instead ruled that he could not resolve the conflict between their testimony and that of the bus driver. The principle announced in Wise v. Prescott requires a finding in favor of plaintiff in such a situation.

There is no issue as to the extent of injury and quantum, and accordingly, we affirm the judgment appealed from.

AFFIRMED.

BEER, J., dissents.

BEER, Judge,

dissenting.

I respectfully dissent.

The majority concludes that the bus “lurched forward in a jerky motion,” but the trial judge was unable to resolve the controversy in the testimony regarding the question of whether or not the bus started with a jerk or jolt. To me, this signals a failure on plaintiff’s part to prove that critical fact. If that fact had been proven to the trial judge’s satisfaction, I would vote to affirm.

I cannot agree that a prima facie case of negligence existed simply because the bus driver started the bus before everyone was seated or, alternatively, gripping a handrail, even though some passengers had obviously boarded the bus wearing shoes that were wet on the bottoms because of inclement weather.

This would, in my view, impose an unacceptable burden on public transit for, under such rationale, all bus drivers would be obliged to implement a procedure where, either by use of an internal rear view mirror or craning their necks around from the driving position or leaving their seat and looking back into the bus, they checked passengers’ positions as well as the availability and use being made of handrails before embarking from each and every bus stop during inclement weather when passengers were boarding wearing wet shoes and/or carrying umbrellas that still showed signs of having been used in the rain.

The imposition of a requirement of this nature on the part of bus drivers who are already — particularly in inclement weather — charged with the responsibility of seeing that their passengers have been properly boarded and have paid their correct fare (and, in some instances, been issued a transfer) and who must, in spite of the inclement weather, maintain a reasonable semblance of a schedule while, in addition, taking into account and responding to all of the driving and traffic precautions that are properly required of them is, in my view, onerous.

I believe that the requirement that public transit be held to the “highest degree of vigilance, care and skill” is being so overextended by interpretation as to threaten the very existence of this essential service.

Since the trial judge’s conclusions do not, in my view, support a finding that the bus lurched forward in a jerky motion and since I am unwilling to engraft even broader and more onerous interpretations of the duty owed by public transit to its passengers onto those already in existence, I respectfully dissent.


author: REDMANN, Judge.

text:
    Zebe FLUKER v. WOOTEN INTERNATIONAL ENTERPRISES, INC., et al.
    No. 8044.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused March 25, 1977.
    Evangeline M. Yavrick, New Orleans, for plaintiff-appellee.
    Charles E. Leche, Normann & Normann, New Orleans, for defendants-appellants.
    Before REDMANN, STOULIG and MORIAL, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment awarding workmen’s compensation benefits for total and permanent disability from silicosis, plus penalty and attorney’s fees. We affirm.

Plaintiff’s pre-employment medical examination, including chest-x-ray, for a business entity related to defendant, did not indicate silicosis. Thus he proved contracting it at defendant’s work.

The medical evidence is that plaintiff’s “early silicosis which may or may not be complicated by a mycobacterial infection” presently causes “no impairment of lung function”; “no limitation of exercise tolerance is anticipated. [Plaintiff] should not return to sandblasting activity where additional silica exposure is probable but should otherwise be able to effectively engage in a wide variety of occupational activities, including those requiring moderately heavy physical exertion.”

Defendant argues that the trial court’s award of total and permanent disability is irreconcilable with Chivoletto v. Johns-Manville Prod. Corp., La.1976, 330 So.2d 295. We disagree.

Our plaintiff’s injury occurred prior to the 1975 amendment of R.S. 23:1221, and it is therefore governed by the more liberal prior jurisprudence on total and permanent injury which controlled Chivoletto.

Our plaintiff’s silicosis has apparently had a lesser physiological effect than Chivo-letto's asbestosis. But it has had a greater economic effect in that it has caused a very substantial reduction in plaintiff’s earnings (while Chivoletto’s earnings increased); and it has had a greater legal effect, in that our plaintiff is now disabled to perform the skilled or semi-skilled work of sandblaster-painter, while Chivoletto was not disabled as the common laborer he was held to be (including when he “was in time a lathe operator, fashioning asbestos pipe . .,” 330 So.2d at 297).

Whether plaintiff was a skilled or semiskilled laborer is decisive of the case. If he has suffered only a serious permanent impairment of lung function, he might be entitled to 100 weeks at $65 under § 1221(4)(p). Or if he has suffered an impairment of earning due to a permanent partial disability, he might be entitled (under the prior law) to 300 weeks at two thirds of the difference between wages pre-injury and post-injury. (In either of these two cases, his ultimately anticipated permanent total disability from the silicosis could entitle him to 400 weeks less “credit for payments made,” Chivoletto, 330 So.2d at 299.) But if plaintiff is a skilled or semiskilled worker whose silicosis disables him from doing without danger the work for which his training, education and experience qualify him, he is deemed totally disabled; Lawless v. Steel Erectors, Inc., 1969, 254 La. 37, 222 So.2d 849.

We accept the trial judge’s evident conclusion that plaintiff was a skilled worker as sufficiently supported by the evidence of the nature of his work as a sandblaster and his years of experience at that work, especially in the light of the wages he earned: common laborers did not, as a rule, earn $15,727 in 1972 as did plaintiff.

We also affirm the award of penalty and attorney’s fees. The undisputed medical evidence showed that plaintiff could not return to “sandblasting activity” and it was therefore evident that at least a partial disability existed. An offer of partial disability benefits was the minimal reasonable reaction to plaintiff’s demand. Such an offer would have prevented the imposition of penalty and attorney’s fees under R.S. 22:658, even though we find total disability. But we find no “probable cause,” § 658, for failure to pay any compensation whatsoever. Defendant’s assertion that it viewed plaintiff as able to return to his “sandblaster-foreman ” work because not exposed to silica as foreman is not reasonable, in view of the evidence that plaintiff was a working “foreman” for a small, new company. Similarly unreasonable because unsupported by the record is defendant’s suggestion that plaintiff might not have been entitled to workmen’s compensation because some of his work was on offshore installations.

Affirmed.

STOULIG, Judge, concurring.

I concur.


author: BOUTALL, Judge.

text:
    Clarence O. DUPUY, Jr. v. Francis J. DEMAREST, Recorder of Mortgages and Milton E. Dupuy.
    No. 8156.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused April 6, 1977.
    Garon, Brener & McNeely by Milton E. Brener, Arthur L. Ballin and James G. Dal-feres, New Orleans, for Clarence O. Dupuy, Jr., plaintiff-appellee.
    Henican, James & Cleveland, C. Ellis Henican, Jr., Carl W. Cleveland, New Orleans, for Milton E. Dupuy, defendant-appellant.
    Before BOUTALL, SCHOTT and BEER, JJ.
   BOUTALL, Judge.

Defendant suspensively appeals a judgment of the trial court that ordered, after a mandamus proceeding, the cancellation of the recordation of a judgment bearing against the real property of the plaintiff Clarence O. Dupuy.

A history of the litigation surrounding this case is necessary to place the proceeding now before us on appeal in the proper light.

On March 5, 1976, a judgment in the amount of $905,000 was entered pursuant to a jury verdict in favor of Milton E. Dupuy against Clarence O. Dupuy in the United States District Court, Eastern District of Louisiana. Subsequent to that, Clarence O. Dupuy filed a motion for stay of execution and on March 15,1976 the trial judge of the U.S. District Court signed an order of stay of execution of any proceeding to enforce the judgment entered, pending disposition of the motions for judgment notwithstanding the verdict and for new trial, filed by Clarence 0. Dupuy. On March 24, 1976, Milton Dupuy caused the judgment of March 5 to be recorded in the Mortgage Office of Orleans Parish. On June 16,1976, judgment notwithstanding the verdict was granted by the trial judge in U.S. District Court giving judgment in favor of Clarence Dupuy and against Milton Dupuy, dismissing plaintiff Milton Dupuy’s suit at his cost, and granting Clarence Dupuy’s alternative motion for new trial. Rule 50(c)(1) of the Federal Rules of Civil Procedure.

From the record we find no appeal, taken from that judgment signed June 16, 1976, to the United States Court of Appeals Fifth Circuit.

On July 16,1976 Clarence Dupuy instituted this mandamus proceeding in Civil District Court for the Parish of Orleans, State of Louisiana, seeking the cancellation of the alleged wrongful recordation and requesting an award of attorney’s fees. The trial court ordered the cancellation of the inscription, but the judgment made no mention of attorney’s fees. No appeal or answer has been filed by this appellee in regard to the denial of attorney’s fees. Therefore, on appeal we deal only with the issue of the correctness of the trial court’s order cancelling the inscription.

Appellant Milton Dupuy argues that the trial court erred in applying the Louisiana procedural principles and jurisprudence to a case in the United States District Court. Appellant argues that the stay order of the U.S. District Court did not affect his recor-dation because recordation is not a step in the execution of a judgment under the Federal Rules of Civil Procedure. Appellant argues that a writ of execution is necessary under the Federal Rules to constitute an attempt to execute a judgment and appellant notes that no such writ was sought in this case.

Appellee Clarence 0. Dupuy points that under Rule 69(a) Federal Rules of Civil Procedure, the procedure for execution of judgments is to be in accordance with the practice and procedure of the state in which the U.S. District Court is held. Under Louisiana jurisprudence the recording of a judgment on the mortgage records so as to create a judicial mortgage, is, to that extent, an execution of the judgment. State v. Dunn, 148 La. 460, 87 So. 236 (1921); D’Arbonne Sewerage, Inc. v. Sanders, La.App., 255 So.2d 855 (1971).

We agree with appellee’s argument that the effect of a recordation is the effect given by the state in which the U.S. District Court sits. 28 U.S.C.A. § 1962, L.R.S. 13:4204; Ward v. Chamberlain, 2 Black (67 U.S.) 430, 17 L.Ed. 319 (1863); Clements v. Berry, 11 How. (52 U.S.) 398, 13 L.Ed. 745 (1850); Baker v. Morton, 12 Wall (79 U.S.) 150, 20 L.Ed. 262 (1874); Williams v. Banana Distributing Company, 59 F.2d 645 (1939).

From the record we note that the stay order was in effect at the time the act of recordation occurred, March 24, 1976. While the recordation seems to be in violation of the stay order, the interpretation of that issue is a matter for the court that issued the stay order to decide. What is basically at issue here is that the second judgment of the U.S. District Court, that is, the judgment notwithstanding the verdict, rendered the first judgment (entered in compliance with the jury verdict) null and ineffective. Appellant Milton Dupuy cannot now attempt to use state law and state process to give effect to a judgment where such effect would not be countenanced under Federal Law.

It is contended that the state court should not make a determination of the appropriateness and validity of the recordation because of the principle of comity between the federal and state courts. The state courts should refrain from exercising jurisdiction over a matter already the subject of decrees of the federal courts.

Contrary to appellant’s contention, comity is not an issue in this proceeding. We do not have in this case before us the question of a state court interpreting a federal court judgment. We have before us a state court determination arising out of L.R.S. 13:4204 that it was a violation of state law to make a cancelled federal judgment effective as a judicial mortgage, just the same as the state process could not be used to make a cancelled state judgment effective as a judicial mortgage. State v. Dunn, supra; D’Arbonne Sewerage, Inc. v. Sanders, supra. Mandamus is the proper remedy for compelling the Recorder of Mortgages to cancel an illegal inscription purporting to act as a judicial mortgage. Realsco, Inc. v. Green Acres Civic Association, La.App., 169 So.2d 570 (1964).

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . “RULE 69. Execution.

      “(a) In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable. * * * ”
      * * * * * *
      LRS 13:4204 United States courts; recorded judgments as judicial mortgages
      “All judgments rendered by United States courts of original jurisdiction in Louisiana, when recorded in the mortgage records of any parish shall rank as judicial mortgages against all of the immovable property of the judgment debtor situated in the parish to the same extent and effect given by Louisiana law to the recorded judgments of the courts of this state.”

      . “Art. 3321. The judicial mortgage is that resulting from judgment [judgments] (whether these be rendered on contested cases or by default, or whether they be final or provisional), in favor of the person obtaining them.” “Art. 3322. The Judicial Mortgage takes effect from the day the Judgment is recorded in the manner hereinafter directed. (As amended by Acts 1900, No. 78).


author: GULOTTA, Judge.

text:
    King LANAUX v. COMMISSION ON ALCOHOLIC BEVERAGE CONTROL, DEPARTMENT OF PUBLIC SAFETY, State of Louisiana.
    No. 8170.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused April 20, 1977.

      R. Collins Vallee, New Orleans, Reed, Reed & D’Antonio, Bruce G. Reed, Metairie, for plaintiff-appellee.
    Robert L. Roshto, Baton Rouge, for defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

Following denial by the Commission on Alcoholic Beverage Control of his application for permits to sell beer and liquor on the premises at 5110 Danneel Street in the City of New Orleans, plaintiff appealed the Commission’s ruling to the District Court. The trial judge ordered the issuance of the permits. We reverse.

The matter is submitted before us on the following stipulations of fact:

1. That the location in question was duly licensed and operated as an alcoholic beverage outlet for a period of at least one year prior to May 1,1953;
2. That the said premises is located within 300' of the Isidore Newman School;
3. That the premises was closed from October 18,1975, to the date of trial; and,
4. That the date of the plaintiff’s application for alcohol beverage and liquor permits was April 29, 1976.

The applicable statute, LSA-R.S. 26:80(C), enables the governing authorities of parishes and municipalities to enact ordinances prohibiting the operation of an alcoholic beverage business within 300' or less of a “church, synagogue, library, school, or playground” (emphasis ours). Pursuant to this legislation, the City of New Orleans adopted Section 5-45 of its Municipal Code providing, in essence, the same 300-foot prohibition as set forth in the State act. Also contained in the ordinance are Sections 5-46 and 5-47 which, in pertinent part, provide:

Section 5 — 4=6. How distance measured.
* * * * * *
“That in the event a retail or wholesale business has an interruption of the continuity of business for a period in excess of six months, in order to re-open for business, the requirements set forth above must be complied with.
“The restrictions contained in this section do not apply to premises which were maintained continuously as a bona fide hotel, railway car or fraternal organization for a period of one year prior to the passage of Ordinance No. 18,537, C.C.S. (M.C.S., Ord. No. 582, § 1.)”

Section 5-47. Section 5-45 not applicable to hotels, etc.

“The restrictions contained in section 5-45 do not apply to premises which are maintained as a bona fide hotel, restaurant, fraternal organization, bus terminal or railroad station, nor to any premises licensed to deal in alcoholic beverages for a period of one year prior to May 1, 1953 (C.C.S., Ord. No. 18,537, § 5; M.C.S., Ord. No. 2193, § 1, 6-1-61.)”

Conceding the premises was licensed to do business more than one year prior to May 1, 1953, and is, therefore, entitled to the exemption (Section 5-47) from the 300-foot restriction, the Commission contends, nevertheless, that this exemption was lost with the interruption of the continuity of business for a period in excess of six months (Section 5-46).

On the other hand, it is plaintiff’s contention, based on Section 5-47, that the 300-foot restriction contained in Section 5-45 does not apply, under any circumstances, to any premises licensed to deal in alcoholic beverages for a period of one year prior to May 1, 1953. According to plaintiff, Section 5-47 contains no reference to Section 5-46 and, therefore, the 6-month rule cannot apply to the premises in question. The absence of any reference to Section 5-46 in Section 5-47, plaintiff argues, indicates the legislative intent to exclude the provisions of Section 5^46 from those premises listed in Section 5-47 as being exempt from the 300-foot restriction.

Plaintiff further contends that LSA-R.S. 26:494 provides that municipalities may pass ordinances for the regulation of outlets for alcoholic beverages, but that those regulations and ordinances are “limited” by the State statutes dealing with alcoholic beverage permits. He argues that Section 5^46 of the Municipal Code relating to the “interruption” of the continuity of business, as interpreted by defendant, is an additional restriction in contravention of the limited restrictions set forth in LSA-R.S. 26:80.

Considering plaintiff’s contentions in inverse order, we find no merit to plaintiff’s latter claim. The provisions of LSA-R.S. 26:494, relied on by plaintiff, state:

§ 494. Local regulatory ordinances
“Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate . . . the business of wholesaling, retailing, and dealing in alcoholic beverages. * * * ”

The “Chapter” referred to in LSA-R.S. 26:494 is Chapter 2, dealing with the Collector of Revenue. LSA-R.S. 26:80 is found in Chapter 1. Clearly, under the plain language of LSA-R.S. 26:494, that statute is not applicable to those statutes which are found in Chapter 1. Accordingly, we find no statutory provision prohibiting a municipality or subdivision of the State from enacting ordinances which may include additional restrictive provisions not inconsistent with the intent of the legislative act.

We reject also plaintiff’s first contention that the 6-month “interruption of the continuity of business” provision of Section 5-46 does not apply to the premises. This section states that premises “maintained continuously as a bona fide hotel, railway car or fraternal organization for a period of one year prior to the passage” of the ordinance are to be exempt from the restrictions. Significantly, however, restaurants and premises licensed to deal in alcoholic beverages for a period of one year prior to the passage of the ordinance are not mentioned in Section 5-46. The Council’s failure to include reference to alcoholic beverage outlets in Section 5-46 is persuasive that the Council did not intend to exempt these outlets from the 6-month rule. This omission (of restaurants and premises licensed as alcoholic beverage outlets) in Section 5 — 46 becomes more significant since Section 5-47 includes restaurants and premises licensed as alcoholic beverage outlets in addition to bona fide hotels, fraternal organizations, etc. Had it been the legislative intent to exempt restaurants and premises licensed to deal in alcoholic beverages for a period of one year prior to May 1, 1953, from the requirements of Section 5-46, those outlets would have been specifically included in Section 5-46.

In reaching this conclusion, we are further persuaded by a basic distinction which, perhaps, explains the omission of restaurants and alcoholic beverage outlets from Section 5-46. Hotels, railroads and fraternal organizations are primarily engaged in activities apart from the sale of alcoholic beverages. On the other hand, restaurants and premises used as alcoholic beverage outlets are principally engaged in the sale of food and drink and may require more stringent regulations, particularly when the outlet is operated in close proximity to a school, than businesses not relying principally on the sale of food and alcoholic beverages.

Also significant in Section 5-47 is the mention of the non-applicability of the restrictions contained in Section 5-45, but the failure to mention the non-applicability of the restrictions contained in Section 5-46 as they relate to premises licensed for more than one year prior to the date of the passage of the ordinance. The fact that no reference is made in Section 5-47 to Section 5-46 further persuades us to conclude that Section 5-46 and the 6-month continuity in operation provision apply to these premises. When we read Sections 5-45, 5-46 and 5-47 in pari materia, we conclude that a retail alcoholic beverage outlet which has an interruption of the continuity of business for a period in excess of six months is governed by the 300-foot prohibition, irrespective of the fact that the premises were licensed to deal in alcoholic beverages for a period of one year prior to the date of the passage of an ordinance. The provisions of LSA-R.S. 26:80 and the New Orleans Municipal Code, Sections 5-45, 5-46 and 5-47, are applicable to plaintiff’s premises.

We point out, at this juncture, a different result, arguably, might raise an equal protection question. Plaintiff argues that Section 5-46 applies only to alcoholic beverage outlets commencing business subsequent to May 1, 1953. Under plaintiff’s interpretation, if such a business were closed for a period in excess of six months (perhaps for 20 years) and thereafter sought to resume the operation of an alcoholic beverage outlet, the 300-foot restriction would apply. On the other hand, plaintiff argues that an alcoholic beverage outlet (in operation more than a year prior to 1953) closed in excess of six months (perhaps also for 20 years) is not subject to the 300-foot restriction. Such a disparity in treatment of the two businesses might raise a constitutional question. We are quick to say, however, that the equal protection issue is not before us. We pose the hypothetical situation only to point out the arguable inequity resulting from plaintiff’s interpretation of the applicability of Section 5-46.

Accordingly, the judgment of the trial court ordering the Commission on Alcoholic Beverage Control, Department of Public Safety, State of Louisiana, to issue the renewal alcoholic beverage permit for the premises at 5110 Danneel Street is reversed and set aside. It is further ordered that the order of the Commission denying the permit to plaintiff for the premises at 5110 Dan-neel Street is reinstated.

REVERSED AND RENDERED.

      . A period of time in excess of six months.

      . LSA-R.S. 26:80(C) provides, in pertinent part:
      § 80. Location of business limited * * # * * *
      “C. Governing authorities of parishes and municipalities may enact ordinances to prohibit the conduct of alcoholic beverage businesses within a certain distance of a parish or municipal playground or of a building used exclusively as a regular church or synagogue, public library, or school, except a school for business education conducted as a business college. No state or local permit shall be issued in contravention of any such ordinance.
      “In municipalities the prohibition may not extend more than three hundred feet from the church, synagogue, library, school, or playground. * * *
      * * * * * *
      “The prohibition in this Subsection does not apply to any premises which are maintained as a bona fide hotel, railway car, or fraternal organization, nor to any premises which have been licensed to deal in alcoholic beverages for a period of one year or longer prior to the adoption of the ordinance.”

      . See: LSA-C.C. art. 17; Thibaut v. Board of Com’rs of Lafourche Basin Levee Dist., 153 La. 501, 96 So. 47 (1923); Mix v. City of New Orleans, 126 So.2d 1 (La.App. 4th Cir. 1960).

      . U.S.C.A. Const., Amend. XIV, Sec. 1; La. Const., of 1974, Art. 1, Sec. 3.


author: HUMPHRIES, Judge.

text:
    Janet FAUCHEAUX, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5744.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Francis E. Mire, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame by Bret Bar-ham, Lake Charles, for defendants-appel-lees.
    Before hood, DOMENGEAUX and HUMPHRIES, JJ.
   ON MOTION TO DISMISS

HUMPHRIES, Judge.

The defendant-appellee, Commercial Union Insurance Company, moves to dismiss the appeal of the plaintiff-appellant Janet Faucheaux, on the grounds that the judgment appealed from is a non-appealable interlocutory judgment.

Plaintiff originally filed her suit in forma pauperis. The defendant filed a Rule to Traverse the plaintiffs affidavit of poverty, which rule was set for hearing on September 3, 1976. After the hearing on defendant’s Rule to Traverse on September 3, 1976, the trial court reversed its previous order permitting plaintiff to proceed in for-ma pauperis, and ordered the plaintiff to deposit advance court costs or to furnish a bond for such costs within ten days from the_day of September, 1976, or have her case dismissed without prejudice. Formal judgment was signed and rendered on September 9, 1976.

From this judgment, the plaintiff moved for and was granted an appeal in forma pauperis on September 9, 1976. The appeal was made returnable to this court on October 15,1976, and was lodged with this court on September 15, 1976.

In its motion to dismiss, the defendant argues that a judgment denying a plaintiff the right to proceed in forma pau-peris is a non-appealable interlocutory judgment. We disagree. Article 2083 of the Code of Civil Procedure specifically authorizes an appeal from an “interlocutory judgment which may cause irreparable injury”. The issue is whether the judgment results in “irreparable injury”. We opine that it does. This contention was squarely met in the case of Shaneville v. Toye Bros., 173 So. 464 (La.App. Orleans 1937), wherein that court held:

“It appears to us that a judgment denying to a plaintiff the right to prosecute a suit in forma pauperis is one which works irreparable injury to a party entitled to the benefits of Act No. 156 of 1912 (now LSA-C.C.P. art. 5181, et seq.) permitting impoverished persons to litigate without the payment of costs. It is evident that one who is unable to obtain the necessary amount of money to pay costs of court as they accrue is irreparably injured by a judgment which prohibits him from the prosecution of his claim without the payment of money which he is unable to obtain.”

In at least two cases before this court, we have permitted appeals from judgments denying plaintiffs the right to proceed in for-ma pauperis. The court never directly addressed the issue of whether an order denying the right to proceed in forma pauperis was an appealable interlocutory order. Nevertheless, the court in allowing the appeal necessarily must have concluded that such an order caused irreparable injury and was appealable. C.C.P. art. 2083. Crawford v. Government Employees Insurance Company, 219 So.2d 241 (La.App. 3 Cir. 1969) and Hollier v. Broussard, et als, 220 So.2d 175 (La.App. 3 Cir. 1969).

For the reason assigned, the defendant-appellee’s Motion to Dismiss the appeal of the plaintiff-appellant is hereby denied.

ON RULE TO TRAVERSE

We are of the opinion that the trial judge was in error in making the Rule to Traverse preemptory.

The plaintiff is a waitress at a fast food grill. Her rate of pay is $1.10 per hour and she usually works a 40 hour week. Her tips usually average $44.00 per week. This would equal the federal minimum standard for food handlers. After deductions, her take home pay is $325.00 per month. Her fixed obligations are:

Rent $ 65.00
Automobile notes 80.00
Life insurance 10.00
Hospitalization insurance 24.72
Car insurance 17.00
TOTAL $196.72

This does not include anything for clothing, cosmetics, occasional meals outside, gasoline and automobile upkeep, entertainment, uniforms and work shoes, and miscellaneous items and expenses. She has a savings account of $200.00 and an unpaid doctor bill of $290.

When plaintiffs income is balanced against her fixed and fluid expenses and the cost of a jury trial she is entitled to proceed in forma pauperis.

The judgment of the district court is reversed and the Rule to Traverse is denied. Defendants are cast for all costs pertaining to the Rule to Traverse and this appeal.

REVERSED.


author: DOMENGEAUX, Judge.

text:
    Kenneth BOAGNI, Jr., et al., Plaintiffs-Appellees, v. Robert F. DeJEAN, Sr., et al., Defendants-Appellants.
    No. 5763.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Writ Refused April 22, 1977.

      J. Minos Simon, Lafayette, for defendants-appellants.
    Stephen J. Ledet, Jr., Opelousas, for plaintiffs-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

Plaintiffs-appellees, Kenneth Boagni, Jr. and Anna S. Darbonne, Judge and Clerk, respectively, of the Opelousas City Court, instituted this action, for and on behalf of said court, to recover money allegedly owed to the court by defendants-appellants, Robert F. DeJean, Sr., and Ruby Folks, former Judge and Clerk, respectively, of the same court. Defendants-appellants filed exceptions of no cause or right of action which were overruled. After trial on the merits the district judge awarded plaintiffs-appellants the prayed for sum of $3,475.00 on behalf of the Opelousas City Court. Defendants have appealed.

This controversy centers around certain monies which were withdrawn from a bank account entitled “City Coúrt Criminal Docket Fund” Account No. 01-7211-1 formerly on deposit in the Planters Trust and Savings Bank of Opelousas, Louisiana.

In January of 1973, plaintiff, Boagni, after being duly elected, assumed the office of Judge of the Opelousas City Court, succeeding defendant, DeJean. On March 30, 1973, at the instruction of former Judge DeJean, defendant, Mrs. Ruby Folks, former City Court Clerk, withdrew the sum of $12,920.03 from the account in question, said withdrawal totally depleting the account. Mrs. Folks thereupon purchased three money orders made out in certain amounts to the following payees: (1) $3,475.00 to Robert F. DeJean, Sr., (2) $5,072.33 to the St. Landry Parish Police Jury, (3) $4,360.70 to the City of Opelousas.

Contending that defendant De Jean was not entitled to receive said funds, plaintiffs herein instituted suit on behalf of the court for recovery thereof. Plaintiffs’ petition alleges that the monies paid out of the City Court Criminal Docket Fund on March 30, 1973, to the St. Landry Parish Police Jury ($5,072.33) and the City of Opelousas ($4,360.70) have been returned to the City Court.

NO RIGHT OF ACTION

Defendants contend that the parties plaintiff lack the procedural capacity to litigate on behalf of the City Court of Opelou-sas. They suggest that the funds involved belong either to the City of Opelousas or the St. Landry Parish Police Jury and that only the representatives of those public entities are possessed with a right of action in this matter.

The funds in question represent an accumulation of certain additional fines of 50<p collected by the City Court pursuant to the provisions of LSA-R.S. 32:393 (C through F):

“C. Every court in this state shall keep a full report of every case in which a person is charged with violation of any provision of this Chapter, regulation of the department or director of public safety adopted pursuant thereto, or any law of this state or any local municipality or parish authority lawfully established for regulating the operation of motor vehicles on highways, and in the event that such person is convicted or that his bail is forfeited or other final disposition be made, an abstract of such report, all parking convictions only excepted, shall be sent by the court or the district attorney, as the case may be, to the director of public safety not later than thirty days from the date of such person’s conviction or forfeiture of his bail or the final disposition of his case. This report shall not be a court record.
D.Abstracts required by this Section shall be made upon forms prepared by the director of public safety and may include all necessary information as to the parties to the case, the nature of the offense, the date of hearing, the plea, the judgment, the amount of the fine or forfeiture, as the case may be, or the final disposition, and every such abstract shall be certified by the judge or clerk of such court, as a true abstract of the records of the court. In the event the abstract is sent by the district attorney it shall be certified by him as a true abstract of the final disposition of the case as contained or found in the files of his office.
E. Certified copies of the judgment shall also be forwarded to the director of public safety upon conviction of any person of any felony in the commission of which a vehicle was used. The director of public safety shall keep such records in his office, and they shall be open to public inspection during reasonable business hours.
F. For each conviction or forfeiture of bail as outlined above, a fee of fifty cents shall be added to the fine of the person convicted, which fifty cents shall be retained by the court to cover the cost of preparing and submitting the abstract of such report to the director of public safety. As amended Acts 1966, No. 278, § 1; Acts 1966, No. 443, § 1.”

Section (F) of the Act specifically provides for the City Court’s retention of 500 per abstract to assist in defraying the costs of preparing same. It is clear that these funds are exempt from the normal scheme of disposition of City Court monies contemplated by LSA-R.S. 13:1898, which provides:

“§ 1898. Collection and disposition of fines, forfeitures, costs
Except as otherwise provided by special laws, the clerk of the city court or the marshal, as designated by the judge, shall collect all fines, forfeitures, penalties, and costs, and all funds so collected by them, excluding costs, shall be paid into the city treasury when the prosecution is on behalf of the city, and into the parish treasury when the prosecution is on behalf of the state or parish. Added Acts 1960, No. 32, § 3.”

Thus, the funds in question are the property of the City Court alone, and we fail to see how any other governing body or agency could have proceeded to recover same. Additionally, plaintiffs introduced at trial an opinion letter received from the Attorney General’s Office to the effect that no specific authority could be found to require either the District Attorney or City Attorney to represent the City Court in this matter. While an Attorney General’s opinion is not conclusive, it does afford some persuasive authority.

Since neither the City of Opelousas nor the St. Landry Parish Police Jury owned the funds retained by the City Court pursuant to LSA-R.S. 32:393, we are of the opinion that the officers of the City Court of Opelousas were the only parties possessing procedural capacity to enforce claims pertaining to that money. Accordingly, we hold that the trial judge correctly overruled defendants’ exception of no right of action.

ON THE MERITS

Defendant DeJean maintains that he was entitled to the $3,475.00 in question as compensation for his services in preparing and submitting the abstracts required by LSA-R.S. 32:393. He claims that all funds retained by the Opelousas City Court since the enactment of that statute have been placed in the Criminal Court Docket Fund and that same had not been disbursed between 1967 and January of 1973.

Defendants introduced evidence to the effect that in the years in question some 7,950 abstracts had been prepared and forwarded to the Department of Public Safety. Since the additional 50$ fee was charged in each of these cases it logically follows that the sum of $3,475.00 was collected in accordance therewith.

The record also suggests that it was the general practice for City Judges in Louisiana to pay themselves the 50$ fee collected on each of these cases, usually on a monthly basis. Former Judge DeJean testified that he merely waited until he left office to collect the fees which he believed were due him for the period of approximately six years in which the abstracts were prepared by his office. While we do not question former Judge DeJean’s good faith in claiming these funds, we are of the opinion that his right thereto raises a purely legal question, the possible past or present practices of other City Judges notwithstanding. 32:393(F) provides specifically that:

“. . . fifty cents shall be retained by the court to cover the cost of preparing and submitting the abstract of such report to the director of public safety.” (Emphasis added)

Inasmuch as 13:1874, et seq. specifically provides for the methods of compensation of city judges, we do not feel that LSA-R.S. 32:393(F) referring to “court” is intended to provide additional compensation for the city judges. Additionally 13:1874, referring to city judges, provides in part:

“. . . They shall not receive any fees in criminal matters, including peace bond cases.” (Emphasis added)

Defendants’ interpretation of 32:393(F) places it in direct conflict with the above cited provision of 13:1874. This position is basically untenable. Since 32:393 specifically refers to “court” and not to “judge”, we cannot force a strained interpretation of that statute and hold that it overrules the prohibition against the judge’s receipt of fees in criminal matters as contained in 13:1874. We are of the opinion that in its enactment of 32:393(F) the legislature intended to compensate and reimburse the City Courts for stenographic and other such costs of preparing the abstracts required by that statute. We do not find that 32:393(F) contemplates additional compensation for city judges.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal are assessed against defendants-appellants.

AFFIRMED.

      . No explanation or enlightenment is contained in the record on the fact that the withdrawal was effected more than two months subsequent to Judge DeJean’s leaving office.


author: WATSON, Judge. DOMENGEAUX, Judge,

text:
    PUGH, BUATT, LANDRY & PUGH, Plaintiff-Appellee, v. Walter THEALL et al., Defendants-Appellants.
    No. 5766.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Writ Refused April 26, 1977.
    Broussard, Broussard and Moresi, by Marcus A. Broussard, Jr., Abbeville, for defendant-appellant.
    Pugh, Buatt, Landry & Pugh, by Lawrence G. Pugh, Jr., Crowley, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

The plaintiff law firm recorded its lien for legal services in a succession and a tutorship using the deceased’s name as “Lee Alice Harrington Pere”, “Pere” being the surname of her husband. As against the defendants’ objection that the lien should have been recorded in the name of “Lee Alice Harrington”, the trial court held that the recordation was sufficient to put third parties on notice and recognized the lien.

Defendants have appealed.

The plaintiff law firm of Pugh, Buatt, Landry & Pugh performed certain legal services in the Succession of Lee Alice Harrington Pere and the Tutorship of Shelly Elizabeth Pere. Mrs. Pere, the deceased, was the wife of Joseph B. Pere and her maiden name was Lee Alice Harrington.

Defendants, Joseph Maxie Pierce and Walter Theall, purchased property against which the lien was recorded and the plaintiff firm sued to enforce the lien. The defendants contend in their answer and on appeal that the lien was not properly filed under the “legal” name of decedent and was not sufficient to apprise defendants of its existence.

Defendants contend that the issue is the legal name of a married woman in Louisiana. We find the decisive issue to be whether the recorded lien was sufficient to place third parties on notice.

The law concerning recordation is as follows:

LSA-C.C. art. 3273:
“Art. 3273. Privileges are valid against third persons, from the date of the recording of the act or evidence of indebtedness as provided by law.”
LSA-C.C. art. 3274:
“Art. 3274. No privilege shall have effect against third persons, unless recorded in the manner required by law in the parish where the property to be affected is situated. It shall confer no preference on the creditor who holds it, over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded within seven days from the date of the act or obligation of indebtedness. When the registry is required to be made in the parish where the act was passed or the indebtedness originated and within fifteen days, if the registry is required to be made in any other parish of this State. It shall, however, have effect against all parties from date of registry.”
LSA-R.S. 9:5141:
“All acts or instruments of writing which import mortgage or privilege, when filed for record with the recorder of mortgages, shall be immediately indorsed by him with the date, hour, and minute of filing which indorsement shall be recorded with the registry of the instrument.
“All such instruments shall be effective against all persons from the time of their filing.”

No legislation or jurisprudence has been cited as to what name a lien must bear; no authority has been presented to support a contention that only one method of name identification of a married woman is permitted in recordation of a lien.

The leading cases concerning the name of a married woman in Louisiana are Succession of Kneipp, 172 La. 411, 134 So. 376 (1931) and Wilty v. Jefferson Parish Democratic Executive Com., 245 La. 145, 157 So.2d 718 (1963). Kneipp says that a woman’s legal name is her maiden name but that she may use her husband’s name as a matter of custom. Wilty indicates that the husband’s surname is the wife’s legal name, but the decision in Wilty does not turn on the legal name issue. (See concurring opinion by now Chief Justice Sanders which notes, as does Kneipp, that the use of the husband’s name is not a matter of law but of custom.)

Thus, the Kneipp or Wilty cases establish, at least, that it is a recognized custom in Louisiana for the wife to use the husband’s name. Therefore, the recordation of the lien in the maiden name or using the husband’s name would be permissible. Defendants’ contention that recordation under the husband’s surname invalidates the lien is without merit.

The recordation was sufficient clearly to place third parties on notice and the lien, we conclude as did the district court, is valid. Therefore, we affirm the judgment of the trial court.

All costs are taxed against defendants-appellants.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

The trial judge rendered written reasons for judgment and I feel that the following quotation from same further explains certain facts pertinent to our opinion and bolsters same.

It is the opinion of this court that, in view of the custom of a married woman using her husband’s name, the filing of the attorney’s lien and privilege under the name of Lee Alice Harrington Pere was sufficient to put third parties on notice. We do not feel that plaintiff’s rights under the lien and privilege should be prejudiced when a mortgage certificate ordered in the name of Lee Alice Harrington Pere would have revealed the encumbrance. This is especially true in view of the fact that the Act of Sale from Joseph Byrnes Pere to defendant, Joseph Maxie Pierce, showed that the vendor had been married to Lee Alice Harrington, deceased, and listed the probate docket number. The other defendant, Walter Theall, later purchased a section of this tract from Joseph Maxie Pierce.
I respectfully concur.


author: GUIDRY, Judge.

text:
    Irma Diane ROUSSEAU, Plaintiff-Appellant, v. Troy DERAMUS, Defendant-Appellee.
    No. 5775.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Stephen E. Everett, Alexandria, for plaintiff-appellant.
    Gold, Hall, Hammill & Little, by Edward E. Randell, Alexandria, for defendant-ap-pellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This suit was instituted by plaintiff, Irma Diane Rousseau, to recover damages for injuries she allegedly sustained when she fell while on the defendant’s premises. Plaintiff appeals from the trial court judgment dismissing her claim.

The facts show that on May 17,. 1975, at approximately 8:30 P.M. plaintiff, accompanied by a friend, Alton DeSoto, went to the “Famous Old Barn Dance”, a place of public entertainment in Rapides Parish owned by defendant. The “Famous Old Barn Dance”, which operates only on Saturday night, features live country music. No alcoholic beverages are served on the premises. Patrons enter and exit the defendant’s property by means of a 10 foot wide asphalt drive which leads directly up to the barn. Parking is .provided in the field on either side of the asphalt drive.

Plaintiff testified that on the night in question she and Alton DeSoto drove into defendant’s premises. They came about halfway down the 210 foot long asphalt drive then turned right and parked in the adjacent field. Plaintiff and her escort then walked up the drive and into the building. Plaintiff and Mr. DeSoto only remained at the barn dance about one-half hour. They left defendant’s building at about 9:00 P.M., proceeding down the asphalt drive to the automobile. Before they reached the car, while still on the asphalt drive, plaintiff fell. As a result of her fall plaintiff sustained a colles type fracture of the right wrist.

In describing her fall, plaintiff testified that her feet just came right straight out in front of her and she went down. Plaintiff testified that she did not know what caused her to fall. Alton DeSoto likewise testified that he did not know what caused Mrs. Rousseau to fall.

There is no evidence in the record which would indicate the presence of any defect in the defendant’s premises and specifically in the asphalt drive. The asphalt drive was admittedly dry. Plaintiff and her only witness to the accident, Alton DeSoto testified that neither detected any foreign substance or obstruction in the area where plaintiff fell. Mrs. Rousseau did state that she noticed traces of a dark stain around the cuffs of her pants, however, there is nothing in the record which would suggest that this cuff mark was picked up as the result of the presence of a foreign substance in the area of her fall. Rather, the fact that plaintiff’s shoes were clean and dry indicate that the mark on the cuffs of her pants were nothing more than those usually occurring when long pants are worn. In short, what caused plaintiff to fall is unexplained.

Although plaintiff raises some question as to the adequacy of the lighting in the parking area she admits that there was a light at the front door of the barn and a large vapor light out in the parking area. Plaintiff acknowledged that there could have been more lights but she simply didn’t remember. Defendant testified that the entire area around his building, asphalt drive and parking area was well lighted. He stated that there were seven lights in the area which illuminated the entire premises. In this connection, the trial judge along with counsel for both parties, made a physical inspection of the defendant’s premises at night. Although the trial judge did not render written reasons for judgment he presumably resolved this issue in favor of defendant. There is certainly sufficient evidence in the record which would support a finding that defendant’s premises were adequately lighted.

The law is clear that the owner of a business establishment is not the insurer of the safety of his patrons and need only keep the premises in reasonably safe condition for use in a manner consistent with the purposes of the premises. Gonzales v. Winn Dixie Louisiana, Inc. 326 So.2d 486 (La.1976); Kavlich v. Kramer 315 So.2d 282 (La.1975). It is also a well established principle that the mere fact that one is injured while on another’s premises does not create a presumption of negligence of the owner. In order to recover the injured party has the burden of proving a breach of duty of the owner to exercise reasonable care. Gonzales v. Winn Dixie Louisiana, Inc. supra; Kavlich v. Kramer, supra. Our review of the record shows that plaintiff has simply failed to carry this burden.

We agree with the trial court judgment dismissing plaintiff’s action.

For the reasons assigned, the judgment appealed from is affirmed. All costs of these proceedings to be borne by the plaintiff-appellant.

AFFIRMED.


text:
    Dornetta Devillier MARCANTEL, Plaintiff-Appellee, v. Shirley J. MARCANTEL, Defendant-Appellant.
    No. 5776.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Pucheu & Pucheu by Jacque B. Pucheu, Jr., Eunice, for defendant-appellant.
    Guillory, McGee & Mayeux by Donald L. Mayeux, Eunice, for plaintiff-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   GUIDRY, Judge.

The defendant father appeals that portion of a judgment on rule dismissing his demand for reduction of a previously granted child support award and ordering him to pay to plaintiff, his former wife, for the support of the minor children born of their marriage, Carol Delana Marcantel and Myra Denise Marcantel, the sum of $112.50 each or the total sum of $225.00 monthly.

The judgment appealed from specifically provides that the child support therein fixed is to “automatically terminate upon the eighteenth birthday of the child”. The record reflects that on the date the judgment was signed in the trial court the minor, Myra Denise Marcantel was 8 years old and the minor, Carol Delana Marcantel was 17 years of age. Carol Delana reached her eighteenth birthday on September 30, 1976 and pursuant to the terms of the judgment the child support award to her automatically terminated. Defendant’s appeal as to that part of the judgment awarding child support on behalf of Carol Delana has become moot and must be dismissed. It is the function of a reviewing court to render a judgment that can be made effective and not to give an opinion on a moot question or an abstract proposition. State ex rel. Jones v. Slater, 205 La. 1077, 18 So.2d 627 (La. 1944); City of Lake Charles v. Nope, 92 So.2d 144 (La.App. 1st Cir. 1957); In re Baer, 310 So.2d 537 (La.1975). Accordingly, we will consider correctness of the trial court judgment only insofar as it awards child support to Myra Denise Marcantel in the amount of $112.50 per month.

Appellant does not seriously contend or argue that the sum of $112.50 per month will adequately take care of Myra Denise’s expenses for food, clothing, shelter, medicine, schooling, etc. He does contend, however, the evidence establishes that since the child support award was last fixed, i.e., May 30, 1975, his income was drastically reduced; appellee’s financial condition has improved; and, therefore the trial court erred in refusing to grant a reduction of the previous award.

We do not agree with appellant’s appreciation of the evidence. When the award was last fixed appellant was earning the sum of $750.00 per month. He was ordered to pay the sum of $235.00 per month as alimony and child support. The alimony award to his wife terminated as a result of her remarriage and that portion of the award to his daughter Carol Delana automatically terminated on September 30, 1976. He is presently under obligation to pay only the sum of $112.50 monthly for support of Myra Denise. The record reflects that appellant is now self-employed and although he contends his business is losing money he does draw the sum of $500.00 monthly.

Both the father and mother have an obligation to support and educate their children. LSA-R.C.C. Article 227; Porter v. Cooley, 293 So.2d 258 (La.App. 3rd Cir. 1974). In the instant case the learned trial judge concluded that balancing the needs of Myra Denise against the ability of both parents to contribute to her support appellant should pay $112.50 per month for her support. We discern no error in this ruling.

For the reasons assigned this appeal as to that part of the trial court judgment awarding child support to Carol Delana Marcantel is dismissed. In all other respects the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant.

APPEAL DISMISSED IN PART AND AFFIRMED IN PART.


author: FORET, Judge.

text:
    Elrick J. CASTILLE, Plaintiff-Appellant, v. Donald SIBILLE et al., Defendants-Appellees.
    No. 5778.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.

      C. Kenneth Deshotel, Opelousas, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, by Paul J. Breaux, Lafayette, for defendants-appel-lees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   FORET, Judge.

This is a workmen’s compensation suit which was filed in the Twenty-Seventh Judicial District Court, St. Landry Parish, in which Elrick J. Castille sought compensation from Donald Sibille and Jerry Sibille for injuries he sustained as a result of a motor vehicular accident at the intersection of U.S. Highway 167 and the Sunset-Grand Couteau Highway on Friday, November 22, 1974. Judgment was rendered in favor of defendants. From such judgment, plaintiff perfected this devolutive appeal.

Plaintiff Castille was a carpenter employed by Sunset Fixture Works,' owned and operated by defendants, Donald Sibille and Jerry Sibille. In the morning of November 22, 1974, Castille had worked for defendants at Opelousas General Hospital. In the early part of the afternoon, he returned to defendants’ shop in Sunset. There he was told by defendant Donald Sibille and James Stelly, an employee of defendants, that there was no more work for him to do and Castille was paid for the hours that he had worked that week. Cas-tille stated that he would “just knock off for the day” and go home. Castille testified that after he left the shop and while on his way home he had decided to return to Opelousas General Hospital to continue working. While operating his motor vehicle upon the highway, Castille was involved in the accident about which this suit was brought.

Prerequisite to an award of workmen’s compensation are three factual findings: That a contract of employment existed as between plaintiff and defendant; that plaintiff was engaged in a hazardous occupation; and that plaintiff was injured while in the course and scope of his employment. LSA-R.S. 23:1031; R.S. 23:1035. In this case, defendants readily concede the first two elements of plaintiff’s workmen’s compensation cause of action. At issue is the third element necessary for an award of workmen’s compensation, that is, whether or not plaintiff, while operating his own motor vehicle, was in the course and scope of his employment.

Normally, an employee injured while in transit to and from the jobsite is not within the course and scope of his employment and is thus not entitled to workmen’s compensation from his employer for injuries sustained at such time. To such general rule, however, there are exceptions. The courts have held employees entitled to workmen’s compensation in those eases in which the employer had concerned himself with the transportation of his employees— he has furnished transportation (Griffin v. Catherine Sugar Co., 219 La. 846, 54 So.2d 121 (1951); Jackson v. Long, 289 So.2d 205 (La.App. 4 Cir. 1974); Gardner v. Industrial Indemnity Co., 212 So.2d 452 (La.App. 1 Cir. 1968); Callihan v. Firemen’s Fund Indemnity Co., 110 So.2d 758 (La.App.1959); and/or the employee is furnished travel expenses or is paid wages for time spent in traveling (Jackson v. Long, supra; Pierre v. Gulf Janitorial Service of Baton Rouge, 277 So.2d 509 (La.App. 1 Cir. 1973), writ denied 279 So.2d 689; Welch v. Travelers Ins. Co., 225 So.2d 623 (La.App. 1 Cir. 1969), writ refused 254 La. 852, 227 So.2d 594; Gardner v. Industrial Indemnity Co., supra) — and in those cases in which the operation of the motor vehicle was the performance of one of the duties of the employment of plaintiff (Stephens v. Justiss-Mears Oil Co., La., 312 So.2d 293 (1975); Jackson v. Long, supra; Fahre v. Travelers Ins. Co., 286 So.2d 459 (La.App. 1 Cir. 1973), writ denied, La., 288 So.2d 646; Pierre v. Gulf Janitorial Service of Baton Rouge, supra; Keller v. Wallace Industrial Constructors, 224 So.2d 31 (La. App. 1 Cir. 1969), writ refused 254 La. 782, 226 So.2d 771).

In the record of this case, it is conceded by plaintiff that defendants did not furnish him with a vehicle. However, therein lies inconsistent testimony as to the terms of employment of Castille: Castille states that he was hired to work a five-day, forty-hour week (P-1, pg. 15; Tr., pg. 20); defendants say that Castille was to report to the shop in Sunset five days a week, but was to be employed only on those jobs available, and plaintiff was to be paid by the hour (Tr., pg. 9, 58). Nowhere within the record is testimony to the effect that Castille used his vehicle in the performance of the duties of his contract of employment.

The trial court correctly relied on the ease of DeVille v. Employers Liability Assurance Company, La.App., 192 So.2d 661, by denying compensation benefits where the plaintiff could not show that he was performing any service for his employer at the time of the accident.

Thus, unless the trial court was of the opinion that plaintiff worked a five-day, forty-hour week, such that he was paid wages for times spent in travel, Castille would not be entitled to an award of workmen’s compensation. The trial court did not find such to be the case, and we find no error in its conclusion. Hue v. Blanchard, 337 So.2d 1218 (La.App. 1 Cir. 1976).

AFFIRMED.


text:
    SOUTHWEST SALES AND MANUFACTURING COMPANY, INC., Plaintiff-Appellant, v. DELTA EXPRESS, INC. and D. E. Lester, Jr., Defendants-Appellees.
    No. 5785.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Writ Refused April 26, 1977.

      Glenn E. Walker, Sutton, Burnett, Harrison & Walker, Shreveport, for plaintiff-appellant.
    Charles W. Seaman, Natchitoches, for defendants-appellees.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   GUIDRY, Judge.

Plaintiff appeals from a judgment which rejects its demand for nullity of a judgment of the Tenth Judicial District Court dated February 5, 1976 rendered in proceedings entitled Southwest Sales & Manufacturing Co., Inc., versus Delta Express, Inc., et al. Number 40660 of the docket of that court.

In order to fully understand the nature of this proceeding and the issues raised, a review of the history of this and related litigation between these same parties is essential.

On November 13, 1974, Southwest Sales and Manufacturing Company, Inc. (hereafter referred to as “Southwest”) filed suit against Delta Express, Inc., and D. E. Lester, Jr. (hereafter collectively referred to as “Lester”) on a promissory note executed by the latter in favor of the former. The suit referred to bears docket number 40660 of the Tenth Judicial District Court of Louisiana. On February 3, 1975 judgment was rendered in said suit condemning Lester to pay to Southwest the principal sum of $6000.00. Following rendition of this judgment Southwest caused a writ of fieri faci-as to issue which directed the Sheriff of Natchitoches Parish to seize and offer for sale certain property belonging to Lester. Before execution could be had under said writ Lester filed a petition under the same docket number, i. e., No. 40660, seeking a judgment declaring the judgment of February 3, 1975 to have been extinguished by payment and/or accord and satisfaction; a restraining order directed to Southwest and the Sheriff of Natchitoches Parish prohibiting further action under the writ of fi fa previously issued; a preliminary injunction in the form and substance of the temporary restraining order; and, a permanent injunction. Upon Lester furnishing bond in the amount of $1000.00 the restraining order was issued together with a rule ordering Southwest and the Sheriff to show cause on October 16, 1975 why the preliminary injunction should not issue. On the latter date a hearing was had which resulted in rendition of a judgment dissolving the previously issued restraining order and denial of the preliminary injunction. This judgment, which was signed October 30, 1975, also declared the judgment of February 3, 1975 good and valid, subject, however, to a credit of $1043.35 and ordered the Sheriff to proceed with execution of the writ. This latter judgment which forms the basis for plaintiff’s demand of nullity reads in pertinent part as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that:
I. The Temporary Restraining Order previously granted herein is vacated and set aside;
II. The Preliminary Injunction prayed for by the original defendant and plaintiff-in-rule, D. E. Lester, Jr., is hereby denied at his costs;
III. The Judgment in the above captioned cause of action of February 3, 1975, is hereby deemed and adjudged good, valid, and therefore enforceable, subject to a credit in favor of the defendant, Delta Express, Inc. and D. E. Lester Jr., in the sum of $1,043.35.
IV. The Sheriff of Natchitoches Parish is hereby ordered to re-advertise and subsequently set for sale that certain immovable property belonging to the defendant, D. E. Lester, Jr., originally set for sale on October 8, 1975.” (Emphasis ours)

No appeal from this judgment was taken by Lester. The record does not indicate what action the Sheriff of Natchitoches Parish took following rendition and signing of the October 30, 1975 judgment.

On December 2,1975 on motion of Lester a preliminary judgment of default was entered against Southwest in suit number 40660. Thereafter on January 13, 1976, no answer or other responsive pleadings having been filed by Southwest, Lester proceeded to confirm the preliminary default previously entered. As a result of this latter hearing the trial judge rendered and signed a judgment dated February 5, 1976 in favor of Lester and against Southwest and the Sheriff of Natchitoches Parish declaring the earlier judgment dated February 3, 1975 in favor of Southwest to have been legally extinguished. This judgment reads in pertinent part as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that the preliminary default herein entered on the 2nd day of December, 1976, be, and it is hereby confirmed, and made final and that there be judgment herein in favor of petitioners, D. E. Lester Jr. and Delta Express, Inc., and against the defendants, Southwest Sales & Manufacturing Co., Inc., and Sam H. James, Sheriff of Natchitoches Parish, Louisiana, decreeding defendants judgment of February 3, 1975, against petitioner in the amount of $6000.00, legally extinguished, and canceled.”

Southwest did not appeal from the judgment of February 5, 1976. It is this latter judgment which Southwest seeks to have declared a nullity. The trial court dismissed Southwest’s demand of nullity and this appeal followed.

Under LSA-C.C.P. Article 2001 the nullity of a final judgment may be demanded for vices of either form or substance as provided in Articles 2002 through 2006. Appellant contends that the judgment of February 5, 1976 is null because it is an invalid default judgment (LSA-C.C.P. Article 2002(2)).

In seeking reversal of the trial court judgment which dismissed its petition for nullity of judgment, Southwest contends as follows:

(a) The judgment of October 30, 1975 which rescinded the restraining order, denied the preliminary injunction, and recognized and declared the judgment of February 3, 1975 good and valid is a final judgment leaving no issue or claim extant on which a preliminary default judgment could be rendered;
(b) the judgment of October 30, 1975 is res judicata;
(c) the trial court having previously determined by its judgment of October 30, 1975 that the judgment of February 3, 1975, had not been extinguished by payment or otherwise but rather was only subject to a credit of $1043.35, was not at liberty to reverse its prior holding because of the “law of the case” doctrine enunciated in Keller v. Thompson, 132 So.2d 395 (La.App.3rd Cir. 1961) writ refused January 15, 1962; and,
(d) the preliminary default judgment entered January 13, 1976 is invalid because, although no formal answer or other responsive pleadings were filed to Lester’s petition for declaratory judgment etc., the transcript of proceedings conducted on rule for the preliminary injunction constituted a verbal denial of the allegations of the petition.

We first address ourselves to appellant’s contention that the judgment of October 30, 1975 was a final judgment and therefore res judicata.

LSA-C.C.P. Article 1841 provides as follows:

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.”

It is settled that a■ judgment granting or withholding a preliminary injunction is an interlocutory judgment. A judgment granting a preliminary injunction is rendered upon a prima facie showing that the mover is entitled to that relief and that he will suffer irreparable injury if same is not granted. The sole purpose of a preliminary injunction is to preserve the existing status pending a full trial on the merits. Palama v. Livaudais, 179 La. 201, 153 So. 691 (La.1934); Picard v. Choplin, 306 So.2d 918 (La.App.3rd Cir. 1975); Gulf Toy House, Inc. v. Bertrand, 306 So.2d 361 (La.App.3rd Cir. 1975); State Board of Education thru Southern University, etc. et als. v. Anthony, 289 So.2d 279 (La.App.1st Cir. 1973) writ denied 292 So.2d 246 (La.). It is also settled that a trial court, in the absence of a stipulation to the contrary, cannot, upon denial of a preliminary injunction, dismiss the suit prior to a full trial on the merits for a permanent injunction. Jefferson Parish v. Universal Fleeting Company, 234 So.2d 88 (La.App.4th Cir. 1970); Olsen v. City of Baton Rouge, 247 So.2d 889 (La.App.1st Cir. 1971), writ denied, 259 La. 755, 252 So.2d 454.

We acknowledge the force of the above legal principles however, we think it to be equally well settled that where a judgment denying a preliminary injunction after a hearing on the rule also passes on the merits of the case and effectively disposes of all issues presented by the pleadings such judgment is a final judgment. Baton Rouge Production Credit Ass’n v. Newson, 191 So. 154 (La.App.1st Cir. 1939); Starnes v. Hawthorn, 24 So.2d 680 (La.App.1st Cir. 1946); State ex rel. Roane v. Himel, 176 So. 413 (La.App.1st Cir. 1937); Calhoun v. State of Louisiana, through Department of Highways, 152 So.2d 868 (La.App.3rd Cir. 1963); Murry v. City of Oakdale, 276 So.2d 368 (La.App.3rd Cir. 1973).

In Calhoun, supra, we stated:
“In the instant suit the judgment appealed from is a final judgment, which disposes not only of plaintiff’s demand for a preliminary injunction, but also of his right to obtain a permanent injunction, his demand for judgment ordering defendant to relocate its servitude or right-of-way, and his demand that defendant be directed to complete its contract for the construction of a highway. It is not merely an interlocutory decree ‘relating to a preliminary injunction,’ but it is a final decree disposing of the case on its merits. . . . ”

In the suit which resulted in the judgment of October 30, 1975 the principal issue concerned whether or not the earlier judgment of February 3, 1975 had been extinguished by payment and/or accord and satisfaction. In addition to that relief Lester sought a preliminary injunction and a permanent injunction. The judgment rendered and signed following the hearing on October 16, 1975 not only rejected Lester’s demand for a preliminary injunction but also denied his right to a judgment declaring the earlier judgment to have been extinguished and specifically decreed that the judgment of February 3, 1975 was “good, valid, and therefore enforceable. Subject to a credit in favor of the defendant, Delta Express, Inc. and D. E. Lester Jr., in the sum of $1043.35.” This judgment effectively and finally disposed of all issues presented by the pleadings and is therefore a final judgment.

Able counsel for defendant refers us to the cases of Morris v. Transtates Petroleum, Inc., 258 La. 311, 246 So.2d 183 (1971), Springlake Homeowners Association Inc. v. Pecot, 321 So.2d 789 (La.App.4th Cir. 1975), and Olsen v. City of Baton Rouge, 247 So.2d 889 (La.App.1st Cir., 1971). The cited cases are inapposite. In those cases formal judgment was not rendered disposing of the matter on the merits but rather the judgments there involved simply rejected the demand for a preliminary injunction.

In light of the above we conclude that the judgment of October 30, 1975, is a final judgment which had the effect of concluding Lester’s suit. The said judgment being final and no appeal having been taken therefrom same is now res judicata. Considering these conclusions it necessarily follows that the default judgment of February 5, 1976 is null. C.C.P. Article 2002(2).

For the above and foregoing reasons the judgment appealed from is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of Southwest and against Lester annulling and setting aside the judgment rendered on January 30, 1976, and read and signed February 5, 1976 in cause number 40,440, Tenth Judicial District Court, entitled “Southwest Sales & Manufacturing Company, Inc. vs. Delta Express, Inc. and D. E. Lester Jr.”. Appellee, Lester is cast for all costs at the trial level and on appeal.

REVERSED AND RENDERED.

      . The proceedings, exhibits, etc. under docket number 40660 were not made part of this record however, Southwest concedes in brief to this court that no answer or other responsive pleadings were filed to the petition of Lester following rendition of the judgment of October 30, 1975.