author: DOMENGEAUX, Judge.

text:
    Frank LACHNEY, Plaintiff-Appellee, v. MOTOR PARTS AND BEARING SUPPLY, INC., et al., Defendants-Appellants.
    No. 6394.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.

      Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellants.
    Donald R. Wilson, Ben C. Bennett, Jr., Marksville, for plaintiff-appellee.
    Gist, Methvin & Trimble, DeWitt T. Methvin, Jr., Stafford, Randow, O’Neal & Smith by Hodge O’Neal, III, Alexandria, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a products liability suit brought against the manufacturer and vendor of an allegedly defective wire cable.

Plaintiff, Frank Lachney, was engaged in the cutting and hauling of pulpwood for the River Timber Company. He operated his own rig, which consisted of a double bed truck and a winch mechanism of the type customarily used in this trade.

The winch mechanism, which was located at approximately the center of the bed of the truck, consisted of a spool, mast, and adjustable boom. A 5/16th inch wire cable was stored on the spool. It travelled up the mast to the boom, where it went around a pulley; it then travelled along to the end of the boom, where it went through another pulley; and finally was free. Attached to its free end was a grabbing mechanism or set of tongs, which was used to pick up the pulpwood logs. The boom was manually adjusted by using a metal chain attached to its end. It was capable of being rotated a full 360 degrees and elevated to an angle of from 90 degrees to 180 degrees.

The cable itself was raised and lowered by means of a hydraulic brake system attached to the spool and operated by a lever in the rear of the truck. When the brake was applied, the spool rotated in such a fashion as to pull the cable, and the tongs and their load were raised. When the brake was not applied, the spool was free to rotate in the opposite direction, and the tongs and their load fell to the ground due to gravitational forces. By varying the amount of pressure applied to the brake, the tongs and their load could be kept in an approximately stable state in mid air.

The facts giving rise to the instant controversy arose when, on January 24,1976, a cable manufactured by Bridon-American Corporation and sold to plaintiff by Motor Parts and Bearing Supply, Inc. on January 10,1976, broke while being used by plaintiff to load pulpwood logs onto his truck.

At the time of the accident the front section of plaintiff’s truck had been completely loaded with pulpwood logs. The rear section was nearing capacity. The tongs were already,attached to a log, and plaintiff was standing on the truck, guiding the log. Plaintiff’s minor son, Dale, was operating the brake lever at the rear of the truck. When the log was almost finished being lifted, the entire boom mechanism, tongs, and log swung from the passenger side of the truck to the driver’s side. This apparently was caused by the fact that the truck was leaning to the driver’s side because of the logs already loaded. Plaintiff jerked on the adjusting chain attached to the boom in order to bring it and the log back into place on the passenger’s side. At this point the wire cable holding the log broke. Although plaintiff was not struck by any object the repercussion of the force caused plaintiff to fall. His shoulders hit the tailgate of a nearby pickup truck, and he was knocked unconscious.

As a result of the ensuing injuries, plaintiff was unable to work and collected workmen’s compensation benefits from American Mutual Insurance Company, the compensation insurer of River Timber Company.

Lachney filed this action on September 16, 1976, against the manufacturer of the wire cable, Bridon-American Corporation; its insurer, Travelers Insurance Company; the vendor of the wire cable, Motor Parts and Bearing Supply, Inc.; and its insurer, United States Fidelity and Guaranty Insurance Company. The workmen’s compensation insurer, American Mutual, intervened on September 20, 1976, for reimbursement of compensation benefits being paid.

Trial was held before a jury. After a lengthy presentation of evidence, which took several days, the jury made the following special findings of fact:

“1 — Do you find there was any fault or negligence on the part of Motor Parts and Bearing Supply, Inc., (the retail dealer) in its sale of the cable that is the subject of this lawsuit? (Answer yes or no) No
2 — Do you find there was a defect in the cable that is the subject of this lawsuit in its make up or manufacture, when it left the factory that made it? (Answer yes or no) Yes
3 — Do you find there was fault or negligence on the part of Bridon-Ameri-can Corporation (the manufacturer) in the making or manufacture of the cable that is the subject of this lawsuit? (Answer yes or no) Yes
4 — Do you find that Frank Lachney was guilty of fault or negligence which caused or contributed to the accident which forms the basis of this suit? (Answer yes or no) No”

Accordingly, the jury held in favor of plaintiff and against Bridon-American, and assessed damages in the sum of $100,436.60, and also held in favor of the intervenor, American Mutual, for the sum of $9,463.60, to be paid by preference and priority out of the sum awarded to plaintiff. The interve-nor was also relieved from paying further compensation benefits to the extent of the excess amount awarded to plaintiff above that amount to which the intervenor was entitled to reimbursement by preference and priority, the sum to be discounted at the rate of six percent per annum, in accordance with La.R.S. 23:1103. The demands of plaintiff against Motor Parts and Bearings Supply were dismissed.

Bridon-American and its insurer filed a suspensive appeal; plaintiff filed a devolu-tive appeal. Additionally, answers were filed by plaintiff, American Mutual, Motor Parts and Bearing Supply, Inc., and its insurer, United States Fidelity & Guaranty Company. Bridon-American contends on appeal that the jury was in error by finding the cable defective at the time it left the manufacturer and in finding fault or negligence on its part. Plaintiff contends on appeal that the jury award is insufficient and should be increased, that the reimbursement awarded to American Mutual should not be deducted from the amount of plaintiff’s award, and that workmen’s compensation benefits should be continued without regard to his judgment against Bri-don-American. American Mutual, the in-tervenor, contends in its answer and brief that its award of reimbursement was erroneous because it did not bear legal interest from the date of judicial demand and because it did not protect American Mutual’s rights to go against the third party tort-feasor, Bridon-American, for the full amount of compensation benefits it may become obligated to pay in the future, above and beyond the total amount awarded to plaintiff. Motor Parts and Bearing Supply, Inc. filed its answer and brief simply to protect its interests on appeal.

I. THE CONTENTIONS OF DEFENDANT, BRIDON-AMERICAN CORPORATION.

At the outset we feel it necessary to reiterate the basis for Bridon-American’s liability. The fountainhead case in Louisiana governing products liability is Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971). The oft-quoted pronouncement dealing with a manufacturer’s liability is stated at 250 So.2d at page 755 of the opinion:

“A manufacturer of a product which involves a risk of injury to the user is . liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.”

The burden of proof necessary for an injured party to prevail was explained at 250 So.2d at page 756:

“If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.”

And further, 250 So.2d at page 757:

“[T]he plaintiffs’ burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, . by circumstantial evidence. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).
As we stated in the latter decision, 153 So.2d 397: ‘Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to the causally active, would break the chain of causation.’ ”

The defendant manufacturer does not dispute the above principles of law. It also does not raise an issue concerning causation or injury. Bridon-American specifies error only in the jury’s finding of fact that the cable was defective at the time it left the manufacturer and that the manufacturer was thereby negligent. It claims that the evidence does not support this conclusion.

Before examining the evidence in this case, we note that under the rule of Canter v. Koehring Company, 283 So.2d 716 (La.1973), a reviewing court must give great weight to factual conclusions drawn by the trier of fact. As we stated in Dieu- donne v. Guidry, 336 So.2d 990 (La.App. 3rd Cir. 1976), writ denied 339 So.2d 853 (La.1976):

“A jury’s findings of fact should be affirmed unless characterized by manifest error, and should not be upset except in the most compelling and clearest case of error. Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3rd Cir. 1971); Iverson v. Jahncke Services, Inc., 301 So.2d 886 (La.App. 4th Cir. 1974); Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1st Cir. 1975), writ refused. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Canter v. Koehring, 283 So.2d 716 (La. 1973); Bertrand v. Aetna Casualty and Surety Co., 306 So.2d 343 (La.App. 3rd Cir. 1975), writ refused.”

Looking to the record in this case, it was established at trial that the cable in question was a Vwth inch fiber core, steel cable, with a breaking strength of 4.26 tons. The recommended working load of the rope was approximately 1700 lbs. Plaintiff established that the cable had only been recently installed on his rig and that it had shown no signs of wear, that would have indicated replacement was necessary. Although the specific log being lifted at the time of the accident was not' offered into evidence, it was established that it was from a hackber-ry tree, and it was estimated to weigh about 800 lbs., having dimensions of approximately 20 to 23 inches in diameter by 5 to 5V2 feet long.

Plaintiff’s expert metallurgist, Mr. Steven Teleshak, who examined the broken section of the cable, testified that the wires in the rope were simply pulled apart. He stated that the majority of wires examined exhibited what is known as “tensile” or “cup and cone” fractures, which is indicative of breakage due to overload. This testimony, in combination with other facts offered into evidence, could have given rise to the inference that if the rope in question was supposed to have a breaking strength of over 8,000 lbs. and a working strength of over 1,700 lbs., and, if the rope broke with a load of only 800 lbs., the rope must have been defective. When this is coupled with Teleshak’s testimony that there was no evidence of abuse or damage by the vendor and no evidence of excessive wear by the plaintiff, it seems apparent that the cable must have been defective when it left the manufacturer.

In order to rebut the inference that the rope was defective, Bridon-American offered the testimony of three experts: Charles Layton, Courtney Busch, and Harold Meyers.

Layton was accepted as an expert in wire ropes. He was employed by Bridon-Ameri-can and was in charge of quality control at its plants at the time of the trial. He testified that each and every spool of rope manufactured by the company is tested and that a quality control test was run on the master reel from which this rope was derived. The test indicated that it was free from defects: However, the probative value of this evidence was decreased when it was discovered on cross-examination that the test was run on only a five foot section of the 10,000 foot master reel. As explanation for the rope breaking with such a light load, Layton stated that Lachney must have jammed the tongs into the pulley at the time of breakage while continuing to apply force to the cable. He explained that the tension applied to the rope from continuing to apply force after the tongs were jammed, apparently would have reached such a magnitude that the rope’s breaking strength was exceeded.

This hypothesis, attempting to explain breakage with such a light load, was the same as that offered by the manufacturer’s other two experts, Busch and Meyers. Both of these agreed with Layton that the rope broke because it was overloaded. Busch and Meyers stated that the tongs and the knot securing the cable to the tongs were jammed into the pulley with enough force to exceed the rope’s capacity and that this was the reason for breakage.

The hypothesis of the defense, however, was directly refuted by the testimony of Lachney, who candidly admitted that on occasion he had jammed the tongs into the pulley, but who also was emphatic that this had not occurred at the time of the accident. His testimony was supported by the testimony of his son, Dale, which was to the same effect. Both Lachney and his son were the only eye witnesses to the accident.

We feel that there is a reasonable evidentiary basis for the jury’s conclusion that the cable manufactured by Bridon-American was defective, and we will not disturb this conclusion on appeal. The jury simply chose to believe plaintiff’s version of the accident rather than that of the defendant, and this it was entitled to do. Thus, we affirm the jury’s verdict finding Bridon-American liable for plaintiff’s injuries.

II. THE CONTENTIONS OF PLAINTIFF, FRANK LACHNEY.

Plaintiff raises three contentions on appeal, viz.: (1) the jury’s award of $100,-436.60 was inadequate to cover plaintiff’s injuries; (2) the amount of the workmen’s compensation insurer’s reimbursal should not come out of plaintiff’s tort award; and (3)workmen’s compensation benefits should be continued without regard to plaintiff’s recovery against the third party tort-feasor.

With regard to quantum, the medical evidence presented at trial revealed that plaintiff suffered both physical and mental injuries as a result of the accident. Plaintiff’s somatic injuries consisted of compression fractures of the T-5 and T-12 vertebrae of approximately fifty percent magnitude. This means that these vertebrae are about half of their former length. As a result, plaintiff may suffer increased curvature of the spine. He may also become hunchbacked, have a slightly forward stoop, and could lose some height. Furthermore, since other areas of the back may have to make overcompensatory movements, more stress will be placed on adjacent vertebrae, and this will result in earlier degenerative changes, including degenerative arthritis. It was also clear from the evidence that a compression fracture can be very painful and that plaintiff cannot return to doing the type of work he did before the accident. However, medical testimony indicated that plaintiff may be able to return to some form of gainful activity with the passage of time.

Doctor Charles Laurent, a psychiatrist, testified as to plaintiff’s mental problems. He stated that plaintiff sustained a marked psychoneurotic reaction, taking the form of a mixture of anxiety and depression. This condition was precipitated by the trauma of the accident and was aggravated by the fact that Lachney could no longer adequately support his family because of his physical impairment. As a result, he experiences nervous symptomology and has a markedly decreased tolerance for stress. In Doctor Laurent’s opinion plaintiff should be considered 100% disabled for gainful employment, at least for the foreseeable future.

Considering the pain and suffering, loss of income, loss of wage earning potential, and the possibility that Lachney may be able to engage in gainful employment at some time in the future, we cannot say that the jury abused its “much discretion” in assessing the damages at $100,436.60. Accordingly, the amount of the award will not be upset on appeal. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Plaintiff’s other two, contentions, concerning whether the reimbursement and pro tanto release from paying further compensation benefits awarded to American Mutual, the compensation insurer, are clearly answered by La.R.S. 23:1101 through 1103 of the Workmen’s Compensation Law. Under these statutes, the workmen’s compensation insurer had the right to intervene in the employee’s suit against the third party tort-feasor in order to receive reimbursement for the amount of compensation benefits already paid. La.R.S. 23:1103 clearly states that the reimbursement shall come out of the damages recovered by the injured employee and that, if the damages recovered are in excess of the reimbursement, liability for compensation benefits ceases “for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment.” Plaintiff’s contentions in this regard are without merit. Billeaud v. United States Fidelity & Guaranty Company, 349 So.2d 1379 (La.App. 3rd Cir. 1977).

III. THE CONTENTIONS OF INTER-VENOR, AMERICAN MUTUAL INSURANCE COMPANY.

The first and most serious contention raised by American Mutual in its answer and brief deals with its entitlement to judgment against the tort-feasor, Bridon-Ameri-can, for the amount of workmen’s compensation benefits it may become obligatéd to pay in the future, when the amount of the excess award to the injured employee is theoretically consumed.

According to American Mutual, La.R.S. 23:1101 gives it the right to recover from the third party tort-feasor any compensation benefits which it may become obligated to pay to the injured employee, and such recovery is not limited to the value of the tort -damage by the statute. La.R.S. 23:1103, even though requiring apportionment of the amount of tort damages recovered in the judgment against the tort-fea-sor between the employee and the insurer, likewise is silent as to restricting the insurer’s right to collect from the tort-feasor that portion of the compensation debt exceeding the total tort damage. Thus, American Mutual asks that it be given judgment against the tort-feasor for the amount by which its workmen’s compensation debt may exceed the amount of tort damage at some time in the future, if Lach-ney remains totally disabled.

We do not feel that the intervenor, American Mutual, is correct in its analysis of the law. When Sections 1101 through 1103 of the compensation act are read in conjunction with one another, the legislative scheme governing the rights and liabilities of the injured employee, the employer’s compensation insurer, and the third party tort-feasor is clear. Under Section 1101, either the injured employee or the compensation insurer may bring an action against a third party tort-feasor causing the employee’s injury. Under Section 1102, if either brings the action, the other must be notified in order that their corresponding rights against the third party tort-feasor may be protected. Once judgment has been obtained against the third party for the tort damages caused, Section 1103 comes into play to direct how the tort award is to be apportioned. If the damages recovered exceed the amount of reimbursement due to the compensation insurer, the insurer gets full reimbursement for the amount already paid, the injured employee gets the excess, and the insurer’s obligation to continue benefits ceases for such part of the compensation due, computed at six percent per an-num. If the amount of the tort award is either insufficient or only sufficient to reimburse the compensation insurer, the insurer gets the total amount of the tort judgment and the employee gets nothing in tort. Of course, the employee can still receive compensation benefits.

We do not feel that the legislature’s silence in not restricting the right of recovery of the compensation insurer to the total amount of the tort judgment can be construed so as to have expressed a legislative intent to allow the insurer to go beyond the total amount of tort damages for reimbursement of all compensation benefits which the insurer may have to pay, if the tort award is insufficient. If the legislature intended to subject the third party tort-feasor to increased liability beyond the amount of damages caused by his tort, simply because the victim happened to be an employee covered by workmen’s compensation at the time the tort was committed, there would have to be a clear and unequivocal legislative expression to that effect. We find none here.

We also note that as a basic rule of statutory interpretation, a court must construe an expression in a statute so as to give it effect, rather than to render it meaningless. If American Mutual’s argument is correct, the phrase “if the damages are not sufficient ... to reimburse the employer for the compensation which he has actually paid,” found in La.R.S. 23:1103, would have no meaning because the damages would always be sufficient to at least reimburse the insurer for the amount of compensation paid. We feel that the legislature only intended to allow the compensation insurer relief from the tort-feasor up to the amount of tort damage awarded. Accordingly, Américan Mutual’s claim in this regard is rejected.

American Mutual’s second contention deals with the award of legal interest in its judgment. It has pointed out that the judgment awarding it $9,463.60 for reimbursement for benefits paid failed to include a provision for legal interest. We also note that American Mutual has continued to pay benefits during the appeal, pending a final judgment. American Mutual is entitled to reimbursement for all sums paid as workmen’s compensation benefits pending a final judgment and is entitled to legal interest on that amount. Willis v. Stauffer Chemical Company, 349 So.2d 1390 (La.App. 3rd Cir. 1977), writ denied, 352 So.2d 1047 (La.1977). The judgment will be amended accordingly.

For the above reasons, the judgment of the District Court is amended to decree that American Mutual Insurance Company, in-tervenor, shall be paid by Bridon-American Corporation and Travelers Insurance Company, by preference and priority out of the sums awarded to plaintiff, Frank Lachney: (1) the full amount which American Mutual actually paid, up to and including September 20, 1976, the date of the petition of intervention, to or in behalf of Frank Lach-ney, as weekly workmen’s compensation benefits and medical expenses, plus legal interest thereon from date of judicial demand, September 20, 1976, until paid; and (2) the full amount which American Mutual actually has paid or will have paid to or in behalf of Frank Lachney, as compensation benefits and medical expenses, from September 20, 1976, until this judgment becomes final, plus legal interest on the amount of each such payment from the date the payment was or will have been made, until paid. In all other respects the judgment of the District Court is affirmed. Costs on appeal are assessed one-half to plaintiff and the other half to Bridon-American Corporation and Travelers Insurance Company.

AFFIRMED AS AMENDED.

      . The employment relationship is not an issue.

      . Prior to a 1976 amendment, which is not significant for purposes of the instant controversy, La.R.S. 23:1101 provided as follows:
      “When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury.
      Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.”
      La.R.S. 23:1102 provides as follows:
      “If either the employee or his dependent, or the employer, brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.”
      La.R.S. 23:1103 provides as follows:
      “In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per cent per annum, and shall be satisfied by such payment.
      No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him.”


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Austin J. PATIN, Plaintiff-Appellee, v. Dennis RICHARD, Defendant-Appellant.
    No. 6407.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.

      Jules E. Guglielmo, Jr., Lake Charles, for defendant-appellant.
    Jones, Jones & Alexander by Glenn W. Alexander, Cameron, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Defendant appeals from an order which grants a preliminary injunction restraining him from interfering with plaintiff’s exercise of a servitude of passage over his property as recognized by a previous judgment of this Court.

The facts giving rise to this dispute may be summarized as follows:

Plaintiff and defendant are owners of adjoining campsites in Cameron Parish, Louisiana, both properties being located on a strip of land situated between La. Hwy. 82 (Johnson’s Bayou Road) and the Gulf of Mexico. This strip of land is divided into three lots. Plaintiff’s camp occupies the southernmost- lot, being bounded on the south by the Gulf of Mexico and on the north by defendant’s property. Defendant’s camp, which occupies the middle lot, is bounded on the south by plaintiff’s property and on the north by the property of Mr. Harold Savoie. Mr. Savoie, the owner of the northernmost lot (situated adjacent to La. Hwy. 82), was not made a party to these proceedings. Plaintiff in the past, has gained access to his camp from La. Hwy. 82 by traveling over the westernmost portions of the properties owned by Mr. Savoie and defendant. Defendant has enjoyed similar privileges, gaining access to his camp by traversing the westernmost portion of Mr. Savoie’s property.

Following a dispute between these parties, plaintiff, in June of 1972 filed suit asking that he be granted a right of passage across defendant’s property. After an appeal from the trial court, judgment was rendered by this Court “recognizing a servitude of passage along the west twelve feet of defendant’s property as hereinabove described”. See Patin v. Richard, 291 So.2d 879 (La.App. 3rd Cir. 1974).

The instant suit was filed by plaintiff on June 2, 1977 by way of a pleading styled “CONTEMPT RULE”. Plaintiff sets forth the judgment previously rendered between these parties, supra, and alleges that defendant has willfully and intentionally violated the prior judgment by performing certain excavations on the property over which the servitude of passage exists, which have the effect of prohibiting the exercise of said servitude by plaintiff. Plaintiff’s main complaint concerns a drainage ditch which was dug across the servitude right-of-way around July of 1976 which allegedly at one time measured 18 inches wide and 16 inches deep. Plaintiff requested the following relief:

(1) An adjudication that defendant is guilty of contempt of court.

(2) $5,000.00 damages for deprivation of the use of his property since July of 1976.

(3) Reasonable attorney’s fees incurred in the prosecution of this rule.

(4) A preliminary writ of injunction “enjoining, restraining, and prohibiting the said Dennis S. Richard from excavating, digging up, destroying or in any manner whatsoever interfering with plaintiff in rule’s, (sic) Austin J. Patin, (sic) exercise of the servitude of passage along the West 12 feet of defendant’s property”.

Defendant was ordered to show cause on June 9,1977 why he should not be adjudged guilty of contempt and why a preliminary writ of injunction should not issue.

An answer and reconventional demand was filed by defendant on June 9, 1977. A hearing was held that same day, which was restricted by the trial judge to consideration of the rule for contempt and the rule for issuance of a preliminary injunction. The following decree was rendered by the trial court:

“IT IS ORDERED that the Rule for Contempt filed herein by Austin J. Patín be, and it is hereby dismissed.
IT IS FURTHER ORDERED that the Rule for a Preliminary Writ of Injunction filed herein by Austin J. Patín be, and it is hereby made absolute and, accordingly,
IT IS ORDERED that a preliminary writ of injunction issue herein enjoining, restraining and prohibiting Dennis S. Richard from digging up, excavating or in any manner whatsoever interfering with whatever rights plaintiff, Austin J. Patín, may be entitled under the Judgment in this proceeding previously rendered herein on March 3, 1975; the said preliminary writ of injunction to issue herein upon plaintiff furnishing bond in the amount of FIVE HUNDRED DOLLARS ($500) in accordance with law."

The above judgment was read and signed on July 15, 1977 and was filed on July 22, 1977.

Plaintiff, on July 22,1977 filed a pleading styled “SUPPLEMENTAL AND AMENDING PETITION FOR INJUNCTIVE RELIEF AND CONTEMPT RULE” in which hé reiterated his previous demands and requested the issuance of a permanent writ of injunction in the same form and containing the same terms and conditions as the preliminary writ of injunction. A prayer, which had been omitted from the earlier pleading, was contained in plaintiff’s petition.

Defendant, on July 29,1977 filed a pleading styled “DILATORY EXCEPTIONS” in which the following exceptions were plead:

(1)Improper cumulation of actions,

(2) Nonconformity of plaintiff’s pleadings to the requirements of LSA-C.C.P. art. 891 in that the original pleading does not contain a prayer, and

(3) Unauthorized use of summary proceedings.

In brief, plaintiff-appellant alleges that the trial court erred:

(1) In granting a preliminary injunction while refusing to allow evidence of irreparable injury;

(2) In refusing to separate the actions;

(3) In allowing the improper use of summary proceedings;

(4) In refusing to specify the contents of the injunction in reasonable detail and referring to other documents for its prohibitions; and,

(5) In refusing to set bond for the injunction at more than $500.00.

Appellant’s contentions with regard to the improper use of summary proceedings and the trial court’s refusal to separate the actions are without merit in that these dilatory exceptions have been waived as they were not pleaded prior to the rendition of the judgment appealed from. In any event, we fail to see how defendant was prejudiced with regard to the cumulation of actions as we note that the trial judge, at the hearing on June 9, 1977, heard only matters concerning the rule for contempt and the injunction.

Appellant’s contention that the trial court erred in refusing to allow evidence of irreparable injury must be rejected. An injunction under the provisions of LSA-C. C.P. art. 3663(2) is available to plaintiff under these circumstances without a showing of irreparable injury. Elliott v. Louisiana Intrastate Gas Corporation, 336 So.2d 925 (La.App. 3rd Cir. 1976).

We likewise reject appellant’s contention that the injunction fails to specify the acts sought to be prohibited, contrary to the requirements of LSA-C.C.P. art. 3605. This article provides as follows:

“An order granting either a preliminary or a final injunction or a temporary re straining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise. ”

We cannot say that the order granting the injunction, supra, fails to apprise defendant of the acts sought to be restrained. The order plainly enjoins defendant from engaging in any activity or erecting any work which will in any manner interfere with or prevent plaintiff from exercising his servitude of passage.

Defendant also complains that an injunction should not have issued against defendant when it was actually defendant’s wife who performed the act which interfered with plaintiffs servitude of passage. This contention is without merit as the record indicates that Mrs. Richard’s actions were done with defendant’s implied consent.

Finally, appellant contends that the trial court erred in setting bond for the issuance of the injunction at $500.00, suggesting that a figure of $1,500.00 would be more appropriate under the circumstances. This contention is also without merit. The sufficiency of the bond addresses itself to the discretion of the court. Glidden v. Loe, 192 So.2d 633 (La.App. 2nd Cir. 1966); Robinson v. Morris, 272 So.2d 444 (La.App. 2nd Cir. 1973). The record discloses no abuse of discretion.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by defendant-appellant.

AFFIRMED.


text:
    Sharon Janell Francis WEBB, Plaintiff-Appellant, v. Billy Lee WEBB, Defendant-Appellee.
    No. 6409.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.

      J. P. Mauffray, Jr., Jena, for plaintiff-appellant.
    Elodie K. Parker, Jena, Gaharan & Wilson (Joseph Wilson, Jena), for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX, and CUTRER, JJ.
   DOMENGEAUX, Judge.

Appellant, Sharon Jan ell Francis Webb, filed a petition for a separation from bed and board from her husband, Billy Lee Webb, on February 5, 1975, in the District Court of LaSalle Parish. Mr. Webb filed an answer in the proceedings and was represented by counsel of his choice, Elodie K. Parker. On May 27, 1975, judgment granting the separation was rendered. Custody of the two minor children of the marriage, Richard Todd and Shelia Delynn, was awarded to the mother, and the father was ordered to pay $100.00 per month as child support.

On January 19, 1977, the wife filed for a final divorce, child custody, and child support of $100.00 per month, alleging that there was no reconciliation since the judgment of separation, and further alleging that the spouses had lived separate and apart since July 31, 1974, a period in excess of two years. Service was made upon the husband’s counsel of record, Mrs. Parker.

Mrs. Parker filed the exceptions of lack of personal jurisdiction, claiming that the husband had moved to Texas, and insufficiency of the service of process, claiming that she was no longer the husband’s attorney. The trial court sustained these exceptions, whereupon plaintiff moved to have an attorney appointed to represent the defendant for the limited purposes of litigating issues dealing with marital status and custody and not to issues dealing with child support arrearages or continuing support.

Judgment granting the wife’s divorce and child custody was rendered on September 30, 1977. The wife has perfected this appeal contending that the trial court erroneously sustained the exceptions dealing with personal jurisdiction over the defendant and insufficiency of service of process upon his counsel of record.

The issues presented on appeal are: (1) Whether defendant could be served through his counsel of record, Mrs. Parker; and (2) Whether the court had continuing jurisdiction over the husband in order to continue child support and award arrearages.

I.

The bulk of the argument on appeal centers around the question of whether Mrs. Parker, defendant’s counsel of record in the separation proceeding, was the proper party to serve in the subsequent divorce proceeding. We find the case of Imperial v. Hardy, 302 So.2d 5 (La.1974) controlling on this point.

In Imperial, a husband and wife obtained a divorce in Michigan. Custody of the children of the marriage and child support were granted to the wife by the Michigan court. Subsequently, the former husband filed a petition in the Michigan court to reduce alimony payments. The Michigan court found the husband in arrears in the child support payments and awarded the arrearages, in addition to increasing the child support payments. The former wife, in the meantime, established a Louisiana domicile with the children. After the domicile was established, the former husband filed suit in Louisiana for enforcement of his visitation rights. The wife reconvened for arrearages and continuation of child support. The Louisiana Court rendered judgment granting the wife custody, ordering child support payments, and making the Michigan award for arrearages executory. The husband complied with the Louisiana decree. On two occasions thereafter the former husband filed rules to enforce his visitation rights. No action was taken on these proceedings for several years until, on the wife’s motion, the court ordered the husband to show cause why past due child support payments should not be made exec-utory. At the same time, the wife filed another motion in order to obtain an increase in child support payments. These last two motions were served upon the husband’s counsel of record, who thereupon moved to withdraw as attorney. The former husband, through new counsel, excepted to the jurisdiction over his person and to the validity of the service of process on his former counsel.

With regard to service of process, the Supreme Court stated:

“Sufficiency of the service of process on the husband’s counsel of record depends on whether the court has jurisdiction over the person of the husband. If the court does have jurisdiction, the service here was proper under Articles 1312, 1313 and 1314 of the Code of Civil Procedure which permits the service of every pleading subsequent to the original petition by delivering a copy thereof to the adverse party, or to his counsel of record.” [Citations omitted]

We feel, as did the Supreme Court in Imperial, that if the court had jurisdiction over the defendant, service upon his counsel of record was proper. We therefore move to the jurisdictional question.

II.

In general, jurisdiction is defined as “the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” La.C.C.P. Art. 1. It has long been established that in order for a court to render a judgment of separation, divorce, or custody, it is necessary that there be jurisdiction over the status. La.C.C.P. Art. 10. It is equally established that in order for a court to render an award of alimony for a wife or a child, it is necessary that there be jurisdiction over the person from whom alimony is due, usually the father and former husband, because this involves a monetary judgment. Imperial v. Hardy, supra; de Lavergne v. de Lavergne, 244 So.2d 698 (La.App. 4th Cir. 1971), writ refused, 258 La. 357, 246 So.2d 680 (1971).

In the present controversy no issue is raised concerning jurisdiction over the status and, therefore, the validity of the divorce and the award of custody to the mother is not questioned. The argument centers around the personal jurisdiction of the court over the husband. We find that the court has personal jurisdiction.

It is basic law that once the jurisdiction of a court attaches in a controversy, jurisdiction is maintained throughout the proceedings and cannot be defeated by removal of the person beyond the jurisdiction of the court. As the Supreme Court stated in Imperial v. Hardy, supra:

“When a judicial proceeding is begun with jurisdiction over the person of the party concerned it is within the power of the State to bind him by every subsequent order in the cause. Mr. Justice Holmes called this rule ‘one of the decencies of civilization that no one would dispute.’ Michigan Trust v. Ferry, 228 U.S. 346, 33 S.Ct. 550, 57 L.Ed. 867 (1912). It would be intolerable if an action once properly begun could not proceed without the continued existence of the original basis for jurisdiction. Under such a rule a litigant who had availed himself of the court’s jurisdiction at the inception of the case could avoid the entry of judgment against him by the simple expedient of withdrawing from the State.” [Citation omitted]

It is on this basis that Louisiana courts have recognized the concept of continuing jurisdiction in child support and alimony matters where an increase or modification of the’ award is desired against the nonresident defendant. Under this theory, a court having jurisdiction to grant such an award retains jurisdiction over the nonresident defendant to modify the award or to enter an award for arrearages. E. g., Imperial v. Hardy, supra; Heaton v. Garvin, 314 So.2d 363 (La.App. 3rd Cir. 1975); Anthony v. Anthony, 288 So.2d 694 (La.App. 4th Cir. 1974); Dupre v. Guillory, 216 So.2d 327 (La.App. 3rd Cir. 1968).

In the instant case, there is no question that the defendant was subject to the jurisdiction of the court at the time the separation and child support awards were granted. The husband was apparently a Louisiana domiciliary at the time, and, in any event, he filed an answer in the proceedings through counsel of his choice. There is no doubt, therefore, that the District Court has the power to award arrearages from the original child support decree. The difficulty arises with regard to the power of the District Court to award a continuation of child support.

It can be argued that since child support payments and alimony pendente lite ceases upon the rendering of the final divorce decree, the court, even though having jurisdiction for arrearages, does not have jurisdiction for an award of continuing child support. E. g., George v. George, 347 So.2d 927 (La.App. 3rd Cir. 1977); Mertens v. Mertens, 308 So.2d 506 (La.App. 3rd Cir. 1975), writ denied 313 So.2d 240 (La.1975); Kennedy v. Kennedy, 261 So.2d 657 (La.App. 4th Cir. 1972); White v. Morris, 236 La. 767, 109 So.2d 87 (1959); Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956). In other words, separation and divorce are separate and distinct actions, thus a court having in personam jurisdiction to render child support in a separation suit may not have jurisdiction for such an award in a divorce proceeding.

We do not feel, however, that this argument is valid. It seems theoretically inconsistent to say that a court with the power to render an award for arrearages under a theory of continuing jurisdiction, does not have the power to award continuing child support in the same suit. Our research has revealed the recent case of DeFatta v. DeFatta, 352 So.2d 287 (La.App. 2nd Cir. 1977) which is almost indistinguishable from the present action. Although the case is only persuasive authority to us, we agree with the rationale used by our brothers in the Second Circuit.

In DeFatta, a suit for separation was filed in January of 1976. Both parties were in the jurisdiction of the court, and the separation was granted. There were two sons and a daughter of the marriage. Although there was no formal custody decree, the sons lived with the father and the daughter lived with the mother. A formal determination of custody was deferred until the judgment of divorce. The separation judgment provided for child support of $150.00 per month for the daughter as long as she resided with the mother. Subsequently, the husband was transferred to Houston, Texas, and the sons returned to live with their mother. In February of 1977, a rule was brought by the wife in order to receive child support for the sons and to increase child support for the daughter. An attorney was appointed to represent the defendant, his original counsel of record having withdrawn. Child support for the sons was denied, there having been no judgment awarding custody to the mother; child support for the daughter was increased to $200.00 per month.

Later in February of 1977, another rule was brought by the wife in order to obtain legal custody of the three minor children, child support, and alimony for the wife. The court appointed attorney excepted to the personal jurisdiction of the defendant. Custody was awarded, but child support was denied, the court sustaining the exception of lack of personal jurisdiction.

In March of 1977 suit for final divorce, custody, alimony for the wife, and child support was filed and served upon defendant’s appointed counsel. The attorney again excepted to the personal jurisdiction of the court. The court granted the judgment awarding divorce and custody, but the exception to personal jurisdiction was sustained. Consequently, alimony and child support were not granted. The wife appealed.

The Second Circuit found that once the court had personal jurisdiction over the defendant during the separation proceedings, it continued to have jurisdiction over him for every subsequent order in the cause. It then pointed out that although separation and divorce are distinct causes of action, a proceeding for separation under C.C. Art. 138 and a divorce based on the separation under C.C. Art. 139 and La.R.S. 9:302, is essentially one continuous cause or proceeding. Furthermore, under the Civil Code and the cases, alimony pendente lite is alimony pending litigation until a judgment of divorce is obtained, which illustrates the continuing nature of the action. Further illustration is found in the fact that a judgment of separation is abated and merged into the judgment of divorce. If separation and divorce were distinct actions, judgment in one would not necessarily affect judgment in the other.

With regard to child support specifically, the obligation of a parent to support the child under C.C. Arts. 227 and 229 is the same obligation, regardless of whether it is enforced in the separation suit or in the divorce action. The issues and causes of action are the same. We feel, as does the Second Circuit, that the state’s interest in continuing jurisdiction in child support matters is strong. Therefore, if the obligation of parental support is enforced by a court having personal jurisdiction over the parent, that court has jurisdiction to continue to enforce that obligation. We thus hold that when a judgment of separation and child support is awarded by a court with personal jurisdiction over the defendant, jurisdiction continues in a subsequent divorce proceeding to reinstate or modify the award for child support.

For the above reasons the judgment of the District Court awarding a final divorce and custody of the three minor children of the marriage to the mother is affirmed. The judgment sustaining defendant’s exception of lack of personal jurisdiction and insufficiency of service of process is reversed and the case is remanded for the purposes of determining the amount of child support and arrearages due.

All costs at trial and on appeal are assessed against defendant-appellee. Costs on remand are to await the outcome of the litigation.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . We note that the legislature has responded to this public policy consideration by amending the Louisiana “Long-Arm” Statute, La.R.S. 13:3201 by Act 734 of the 1977 Regular Session. The statute now provides that a court may exercise personal jurisdiction over a nonresident, as to a cause of action arising from the nonresident’s “non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.”


text:
    Ronald McDONALD, Sr., Plaintiff-Appellee, v. Pat McDONALD, Defendant-Appellant.
    No. 6415.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Joe D.- Guerriero, Monroe, for defendant-appellant.
    Patrick A. McDonough, III, Vidalia, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Defendant appeals from a judgment of the trial court refusing to modify an earlier judgment of the same court which allowed the plaintiff, father, visitation rights with his three minor children as follows:

“. . plaintiff, Ronnie McDonald, Sr., is to have the custody of the minor children the first and third week-end of each month from 7:30 Friday afternoon until 5:00 P.M. on Sunday afternoon with it being his obligation to pick the children up at their mother’s home and to return the children to their mother’s home. He is further to have the custody of the children in addition to his other visitation privileges four (4) weeks during the summer months with said four (4) weeks to be divided between the months of June, July and August rather than to be consecutive and that he is additionally to have the custody of the minor children with him for five (5) days during the Christmas holidays in addition to his other rights of custody with Christmas day being excluded with said children to be remaining with their mother on Christmas Day.”

Appellant seeks amendment of the trial court judgment so as to reduce appellee’s visitation rights contending that the quoted decree amounts to “split or divided” custody and is thus improper.

The appeal record does not contain the testimony of the witnesses, however, it does contain a document entitled “STATEMENT OF FACTS” which was prepared and signed by the trial judge at appellant’s request pursuant to the provisions of LSA-C.C.P. Article 2131. This written narrative sets forth no specific findings of fact but rather only the conclusion that the testimony adduced reflects that . . the present visitation arrangement has not had an adverse effect on the children and has been working reasonably well . . Appellant does not complain on appeal that the trial court’s written narrative is inadequate. This being considered we determine that the trial court’s conclusion that the children’s welfare has not been injuriously affected must be affirmed. This is so because it is presumed that the trial court judgment was rendered upon sufficient evidence and in accordance with law, in the absence of a showing in the record to the contrary. Clark v. Richardson, 157 So.2d 325 (La.App. 3rd Cir. 1963).

In light of the above the sole issue presented is whether, under all circumstances, an award of visitation rights totaling eighty-one (81) days annually is excessive and amounts to “split or divided” custody. We think not.

Although the visitation privileges granted in the instant case are liberal we do not believe that the rights granted are so extensive or so liberal as to constitute a divided authority or shared control of the children. There is absolutely no showing in the record that the frequency of visits is burdensome to the children or has caused them emotional upset, as was the case in Ogden v. Ogden, 220 So.2d 241 (La.App. 1st Cir. 1969). Nor has there been any showing that the liberal visitation rights allowed are of such duration and frequency as to cause confusion among the children as to parental authority, as was the case in Poole v. Poole, 270 So.2d 215 (La.App. 1st Cir. 1972, writ refused). The only showing in the appellate record is to the contrary, that the present arrangement has had no adverse effect on the children and is working reasonably well.

In the recent case of Pate v. Pate, 348 So.2d 1338 (La.App. 3rd Cir. 1977) we affirmed a somewhat similar grant of specific visitation privileges stating:

“When the parents of the minor child are separated or divorced and the custody of the child has been awarded to one parent, the other has the right to see and visit with the child at reasonable times, unless that right has been forfeited by the parent who claims it, or unless the exercise of that privilege would injuriously affect the child. The paramount consideration in determining the specific visitation privileges which should be granted in any case is the welfare of the child. Generally, the best interest of the child is served by placing him in the custody of one parent and not alternatively in the custody of each. The award of visitation privileges, therefore, should not be extended to the point where it becomes divided custody of or a division of authority over the child. Much discretion is vested in the trial court in determining the times when and the conditions under which a parent may have access to his child, and the decision of the trial judge as to the visitation privileges will not be disturbed unless there has been an abuse of discretion. Johnson v. Johnson, 214 La. 912, 39 So.2d 340 (1949); Newson v. Newson, 176 La. 694, 146 So. 472 (1933); Vinet v. Vinet, 184 So.2d 33 (La.App. 4 Cir. 1966); Bowlin v. Bowlin, 222 So.2d 637 (La.App. 2 Cir. 1969); Spencer v. Spencer, 273 So.2d 605 (La.App. 4 Cir. 1973); Holley v. Holley, 158 So.2d 620 (La.App. 3 Cir. 1963); Ogden v. Ogden, 220 So.2d 241 (La.App. 1 Cir. 1969).”

Our ultimate conclusion is that there has been no showing of error or abuse of discretion on the part of the trial court. Accordingly, the judgment should be affirmed at appellant’s cost.

AFFIRMED.


author: FORET, Judge. WATSON, Judge,

text:
    In the Matter of VERMILION PARISH SCHOOL BOARD to Perpetuate the Testimony of Dr. James P. Morgan.
    No. 6420.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Dan A. Spencer and James M. Dunnam, Houston, Tex., Joseph R. Oelkers, III, Baton Rouge, for defendant-appellant.
    Roger C. Edwards, Abbeville, Broussard, Broussard & Moresi by Marcus A. Brous-sard, Jr., Abbeville, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

On May 24, 1977, the Vermilion Parish School Board filed a petition to take the deposition of Dr. James P. Morgan. The petition alleges that the Vermilion Parish School Board, believing itself to be the owner of various lands situated within a body of water known as Whitelake in Vermilion Parish, Louisiana, intends to bring an action against all persons producing minerals from its land. Named as expected adverse parties are Superior Oil Company, Union Oil Company of California, the State of Louisiana, and Southdown Land Company. The Vermilion Parish School Board desires to take the deposition of Dr. James P. Morgan upon the belief that he made a study of Whitelake to determine whether or not it was navigable in 1812.

On June 23, 1977, the Superior Oil Company filed a Motion to Deny the Petition to Take the Testimony of Dr. James P. Morgan. A hearing was held on June 27, 1977, and on August 31, 1977, the court rendered judgment in favor of plaintiff authorizing the taking of Dr. Morgan’s deposition.

On September 13, 1977, Superior Oil Company (hereafter Superior) was granted a suspensive appeal from the judgment rendered on August 31,1977. In an abundance of caution, Superior sought supervisory writ in order to avoid the possibility of losing all right to appellate review of the district court judgment. Writ was denied on December 5, 1977 because the realtor had a remedy by appeal.

DENIAL OF WRIT AND APPEALABILITY OF JUDGMENT GRANTING PETITION TO PERPETUATE TESTIMONY

Superior’s application for writs of certiorari, # 6428, was denied on December 5, 1977 because the Court was of the opinion the realtor had a remedy by appeal. There are no reported Louisiana cases presenting the issue of whether or not an appeal lies from a judgment granting a Petition to Perpetuate Testimony. Therefore, we deem it worthwhile to discuss this issue, although the appellee makes no mention of it in its brief; the appellant does, however, discuss the appealability of such a judgment. The issue, of course, that must be resolved is whether such a judgment is final so as to bring it within the scope of L.C.C.P. § 2083.

The source of C.C.P. Art. 1429 is Federal Rule 27(a)(1); the provisions are almost verbatim. In Mosseller v. United States, 2 Cir., 158 F.2d 380, plaintiff petitioned for an order authorizing her to take the deposition of her son for the purpose of perpetuating his testimony in accordance with Federal Rule 27(a)(1). The United States appealed the granting of the petition. As to the finality and appealability of the order authorizing the taking of the deposition, the court stated:

“Nor do we see grounds to reconsider our earlier decision denying petitioner’s motion to dismiss the appeal. The order authorizing the taking of the deposition is a final order for the purpose of appeala-bility, because it grants all the relief sought in the petition and disposes of the proceeding. ... If such orders were not held final and appealable, a plaintiff who had taken a deposition could wait several years before deciding to bring suit and the putative defendant could not during this time question the propriety of the order by an appeal. .
We see no conflict between this conclusion and the emphasis, noted above, upon the ancillary nature of the proceeding. Necessarily a proceeding for ancillary relief may often result in a final order which is reviewed on appeal.” (all case citations omitted.)

In Ash v. Cort, 3 Cir., 512 F.2d 909, the court was faced with the question of whether or not a district court order denying a motion to perpetuate testimony pending appeal under Federal Rule 27(b) was a final, appealable order. In concluding that the order was final and appealable, the court analogized Rule 27(b) dealing with perpetuation of testimony pending appeal, with Rule 27(a). The court stated:

Unlike the usual discovery motion, the denial or grant of which has been considered interlocutory and non-appealable,8 motions to perpetuate testimony must be judged by different standards.9 In Mosseller v. United States, 158 F.2d 380 (2nd Cir., 1946), the Second Circuit held ap-pealable the granting of a Rule 27(a) motion to perpetuate testimony in advance of trial. The court reasoned that the district court order authorizing depositions was a final order under 28 U.S.C. § 1291 “because it grant[ed] all the relief sought in the petition and dispose[d] of the proceeding.” 158 F.2d at 383.10 Accord Martin v. Reynolds Metals Corporation, 297 F.2d 49, 52 (9th Cir., 1961). '
The denial of a motion to perpetuate testimony would also seem to require immediate review. “An action refusing relief under Rule 27 would appear to be even more final [than the granting of such a motion], for it may have the effect of making it impossible for the petitioner to maintain an action or defense.” Moore 9 Federal Practice ¶ 110.13[3] at 159 (1970).
Although there are no cases specifically addressing the question of appealability of Rule 27(b) orders,11 we perceive no reason for treating these differently than Rule 27(a) motions. The same narrow purpose of perpetuating testimony for later use obtains under both 27(a) and 27(b). The Rule 27(a) order is deemed final because it is the only matter pending in the district court at a time when no complaint has yet been filed. Similarly, when an appeal has been lodged in a higher court, a Rule 27(b) motion is the only matter pending before the district court. Since it, is the only matter in the district court, a denial or grant of a Rule 27(b) motion is final in just the way the Second Circuit characterized as final, the grant of a 27(a) motion in Mosseller.12

There are several Louisiana cases which suggest that no order granting or denying discovery is appealable. Those cases, however, involve discovery during a pending suit; none of those examined involved a presuit Petition to Perpetuate Testimony.

Among the purposes of requiring a final judgment is the desire to avoid piecemeal litigation and prevent dilatory misuse of the right to appeal. Vernor v. Drexel Homes, Inc., 311 So.2d 493 (La.App. 4 Cir. 1975). As mentioned by the Federal courts, supra, there is no danger of delaying the litigation in cases like this. The Federal court’s determination is the correct approach to be taken by the state’s courts in considering L.C.C.P. § 1429. Although the Federal decisions are only persuasive authority, where the L.C.C.P. article which is being interpreted is essentially based upon one of the Federal rules, as L.C.C.P. § 1429, the Louisiana courts rely upon prior interpretation by the Federal courts as a persuasive guide to the intended meaning of a similar Louisiana Code of Civil Procedure article. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Simon v. Castille, 174 So.2d 660 (La.App. 3 Cir. 1965).

ON THE MERITS

Superior argues that (1) petitioner has not complied with the requirements of C.C.P. Art. 1429, and (2) petitioner is not entitled to depose Dr. Morgan because he is an expert, employed by the General Counsel of Superior, who has conducted confidential research in anticipation of litigation.

C.C.P. Art. 1429 provides as follows:

Art. 1429. Perpetuation of testimony; petition
A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in a court in which the anticipated action might be brought. The petition shall be entitled in the name of the petitioner and shall show:
(1) That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought.
(2) The subject matter of the expected action and his interest therein.
(3) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it.
(4) The names or a description of the persons he expects will be adverse parties and their addresses so far as known.
(5) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

Acts 1976, No. 574, § 1.

There are no Louisiana cases treating our present C.C.P. Art. 1429 nor its predecessor, C.C.P. Art. 1432. However, the source of our present Art. 1429 is Federal Rule 27(a)(1). Its provisions are almost verbatim with ours. The Federal courts have generally agreed that Rule 27 is not to be used for the purpose of fishing for some ground for bringing suit. Its primary purpose is to preserve testimony that might otherwise be lost to a prospective litigant.

The first essential element is that the petition show that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought. Plaintiff states that they are unable to bring suit at the present time because they do “not have sufficient information to cause the said action to be filed”.

In the Federal cases, there is usually some impediment to either bringing suit or causing it to be brought. For example, in one case, an alien, not presently entitled to sue the Attorney General for return of property vested under the Trading with the Enemy Act, was held entitled to take the deposition of an elderly witness in support of the alien’s claim when other persons were making claims to the property and there was a likelihood of future litigation.

In the present case, petitioner alleges that they are unable to bring the action only for lack of sufficient information. Petitioner has alleged no other reason why the suit cannot now be brought.

The third essential element is that the petition show the facts which petitioner desires to establish by the proposed testimony and his reasons for desiring to perpetuate it. Before the adoption of the rules, the Supreme Court held that to sustain a bill in equity to perpetuate testimony, it must appear that the facts expected to be proved would be material and competent evidence in the matter in controversy, and that the taking of the testimony was made necessary by the danger that it might be lost by delay. While it is doubtful whether the first requirement stated by the court is still applicable, it is clear that the second limitation is still applicable. Normally, the danger of loss of testimony is sufficiently shown from the fact that petitioner is presently unable to bring the action, since it is common knowledge that the lapse of time is replete with hazards and unexpected events, and such evidence is available from no other source. The evidence sought to be elicited from Dr. Morgan, however, is not something that will be lost for all time unless his deposition is taken immediately. Petitioner is perfectly capable of hiring its own expert to make a similar study to determine whether or not Whitelake was navigable in 1812.

In our opinion, requirements (1) and (3) of C.C.P. Art. 1429 have not been complied with. Thus, the trial court has erred in granting the petition to perpetuate the testimony of Dr. Morgan.

The judgment of the trial court is reversed, and plaintiff’s suit is dismissed. Costs of this appeal and costs at the trial court level are assessed against the Vermilion Parish School Board, insofar as that body can be liable for court costs.

REVERSED AND RENDERED.

WATSON, J., concurs and assigns reasons.

WATSON, Judge,

concurring:

I respectfully concur, although I have grave doubts about the correctness of the majority opinion. Petitioner has met the requirements of LSA-C.C.P. art. 1429(1) by showing that the school board is unable to bring the suit due to the lack of knowledge as to the expert’s opinion. Likewise, the requirements of sub-paragraph (3) have been satisfied by a showing that the school board desires to perpetuate Dr. Morgan's testimony. Apparently he has done extensive work on the basic question of navigability and if something happened to him, some of his research and opinions resulting therefrom might be lost.

The object of discovery is to facilitate the fair and impartial administration of justice. There is nothing unfair, immoral or unjust in the proposed perpetuation of the testimony of Dr. James P. Morgan. To obtain his testimony, the school board must now file a lawsuit which may turn out to be frivolous. I see nothing wrong with their taking the deposition of the expert in order to determine whether the suit should be filed.

Despite my misgivings, I reluctantly concur in the result.

      . See Wright & Miller, Federal Practice & Procedure: Civil §§ 2071-2072. In Ash v. Cort, C.A. 3d, 1975, 512 F.2d 909, 912, the court stated: “We reiterate that Rule 27 is not a substitute for discovery. It is available in special circumstances to preserve testimony which could otherwise be lost.”

      . De Wagenknecht v. Stinnes, C.A.1957, 102 U.S.App.D.C. 89, 250 F.2d 414.

      . Arizona v. California, 1934, 292 U.S. 341, 54 S.Ct. 735, 78 L.Ed. 1298.

      . See Martin v. Reynolds Metals Corp., C.A. 9th, 1961, 297 F.2d 49, 55.

      . See Petition of Ernst, D.C.Cal.1942, 2 F.R.D. 447-51.


author: WATSON, Judge.

text:
    TRUSTEES UNDER the WILL of Annie Burges POMEROY, Plaintiffs-Appellants, v. TOWN OF WESTLAKE et al., Defendants-Appellees.
    No. 6425.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.

      Anderson, Leithead, Scott, Boudreau & Savoy, by Everett R. Scott, Jr., Lake Charles, for plaintiffs-appellants.
    John S. Hood, Lake Charles, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

Plaintiffs, trustees under the will of Annie Burges Pomeroy, deceased, are asking a writ of mandamus directing defendants, the Town of Westlake, its Mayor and Board of Aldermen, to reclassify a six-acre tract of land from R-2, single family residential, to I — 1, light industrial. The property lies just north of the I — 10 Calcasieu River bridge and is approximately 500 feet square. It is bounded on the north by the Kansas City Southern railroad tracks; on the south by the Southern Pacific tracks; and on the east by the Calcasieu River. Plaintiffs alleged in their petition and defendants admitted in their answer that the Calcasieu River is a navigable stream.

The trial court denied the application for the writ of mandamus. The trial court concluded that the trustees had not carried the burden of proving the town acted unreasonably in denying the zoning change. The trial court stated that the Pomeroy property . . has some desirability for residential purposes.” (TR. 81). The trustees have appealed. Exhibit PD-2 graphically illustrates the location of the Pomeroy tract and other zoning in the area as established by the comprehensive zoning ordinance of the Town of Westlake of 1968. PD-2 uses various colors to indicate zoning differences and is therefore unsuitable for reproduction here. The attached plat (Figure 1) was prepared by the court to approximate PD-2.

FIGURE I

The testimony in the trial court may be summarized as follows:

James A. Leithead, one of the trustees, testified that Mrs. Pomeroy died October 24, 1954 and a dwelling which was on the property at that time was moved in 1960. The trustees rented the house periodically between 1954 and 1960 but the tenants were bothered by transients. The lot is now vacant and unimproved. Immediately adjacent to the property on the south are seven menhaden fish oil storage tanks which are located on the railroad right of way. Leithead testified that the only firm offer to purchase the property since 1954 has been a recent one conditioned on the property being rezoned. Leithead testified that no residences have been constructed near the Pomeroy property in fifteen years. The Westlake building inspector advised him residences could not be constructed in an area zoned for light industry. A Mr. Kilpatrick from Monroe now has an option to purchase the property for light industrial use at a price of $204,000. Kilpatrick leased the property and used it for a shell pile in May of 1976. According to Leithead, the trustees were not aware the then vacant property had been zoned residential when the zoning plan was adopted in 1968.

Charles Jones testified as an expert appraiser of Westlake property that residential development of the Pomeroy property is . not feasible; no residences have been built in the area for many years. Jones said the smell is very bad when the menhaden tanks are being loaded or unloaded. Although there are frame residences north of the property in what is termed the Riverside Subdivision, the area where these are located is zoned for light industry.

William B. Coleman, a licensed real estate appraiser, testified that the area west of the property along Westlake Avenue is zoned for multi-family dwellings. There are three structures used for commercial purposes in violation of that zoning and several vacant lots. Miller Avenue, which is further west of the property and zoned commercial, has a mixture of residential, light industrial and commercial uses. According to Coleman, the only zoning that would permit the Pomeroy property to be put to its highest and best use would be light industrial. All other waterfront property in the Town of Westlake is zoned for light or heavy industry.

Francis Rodrigue, a member of the West-lake Zoning Commission for six years testified that he had no personal knowledge of why the Pomeroy tract was not initially zoned for light industry like the property on the north and south sides. Rodrigue identified D-2, a letter he wrote to the Mayor and Board of Aldermen advising them that the zoning commission voted unanimously against rezoning the Pomeroy property from residential to light industrial use. D-2 states among other reasons that the request was denied because 17 residents of the adjacent area opposed it and:

il * * *
3. The Zoning Commission realizes that the riverfront property may eventually become industrial, but, for now, it was felt that present residents in the nearby areas must be protected by not rezoning any more property industrial than is already in this classification.” (TR. 76).

The Westlake zoning district regulations allow all uses in a light industrial classification:

“. . . except Junk Yards & all uses which may be obnoxious or offensive by reason of emission of dust, smoke, odor, gas, excessive glare, light noise, or vibration plus all similar heavy industrial uses.” (TR. 34).

A certificate of zoning compliance must be secured before a building permit can be obtained. (TR. 25).

Marilyn Johnson, owner of a residence on Westlake Avenue directly across the street from the Pomeroy property, testified that Westlake did not need any further sources of fumes, odors, dust or smoke. Frankie Mitchell, also a resident of Westlake Avenue, testified that the occupants of the area are retired people on fixed incomes; he is opposed to the rezoning because he would like to keep the area residential. Mrs. O. J. Fall, a resident of Westlake Avenue in an area zoned for light industry, testified that she is against rezoning the Pomeroy property although she believes it impossible to build a new residence where she lives because of its industrial zoning. James Floyd Kelly, Dean Fuller and Barry C. Naff also testified in opposition to the rezoning. These six area residents testified .that the shell pile on the property in May of 1976 was a terrible nuisance because of traffic noise, dust and odor.

Junius Joseph Champeaux, II, an architect and city planner, said that the residences in the area of the Pomeroy property are deteriorating and the Pomeroy tract is unsuited for residential development. Champeaux described the zoning here as spot zoning in reverse.

Plaintiffs allege in their petition that the refusal of the Board of Aldermen to reclassify the subject property “. . . constitutes such discrimination as to constitute an unlawful deprivation of the right to use the property and denies equal protection under the law.”

The issue is whether the Town of West-lake was arbitrary, unreasonable and discriminatory in rejecting the application to rezone the Pomeroy property.

The test of whether governmental action in a zoning case is arbitrary is “whether the action taken is reasonable”. Jemison v. City of Kenner, 277 So.2d 728 at 729 (La.App. 4 Cir. 1973); writ denied, 281 So.2d 753 (La., 1973). The action is arbitrary when it is “without reasonable cause” or involves an “abuse of . authority and power.” Id.

The burden is on one seeking to overturn the action of a zoning authority to establish an unreasonable and arbitrary exercise of police power without any substantial relationship to the general welfare. Hardy v. Mayor and Bd. of Aldermen, etc., 348 So.2d 143 (La.App. 3 Cir. 1977) writ denied, 350 So.2d 1212 (La., 1977). However, an island of land cannot be zoned in one classification in the midst of a large area of property with a different classification when no rational basis exists for the distinction. Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659 (La., 1975).

Spot zoning is the practice of giving a small parcel of land a different classification from the surrounding area for the benefit of the owners of the small parcel. Cook v. Metropolitan Shreveport Bd. of App., 339 So.2d 1225 (La.App. 2 Cir. 1976); writ denied, 341 So.2d 1123 (La., 1977). Here, a small parcel of land is classified differently from neighboring property for the benefit of the neighbors to the detriment of the owners of the parcel. The opposition of the nearby residents to further development is understandable. Carlo Ditta, Inc. v. Parish of Jefferson, 315 So.2d 361 (La.App. 4 Cir. 1975) writs denied, 320 So.2d 559 and 560 (La., 1975). However, none of the neighboring property owners reside in a single family residential zone. The area across Westlake Avenue zoned for multiple family use has nonconforming commercial businesses. While the Pomeroy property serves as a buffer zone of peace and quiet for its neighbors, it does so at the expense of the owners.

The trial court concluded that the Pomeroy property has residential possibilities but this was erroneous. The evidence shows that the Pomeroy property is completely unsuited for residential development. While there are residences nearby, none have been built within the past 15 years. There is some evidence that building permits for new residences in the adjoining area could not be obtained. While the highest and best use of a tract of land is not decisive in a zoning case, it is a relevant factor to be considered. Here, the highest and best use, in fact, the only feasible use of the Pomeroy property, is for industrial purposes. This is the only section of the river bank in the Town of Westlake with a residential zoning. This fact alone indicates that the failure to rezone is arbitrary. The residential classification of the Pomer-oy property is a discriminatory one which renders it virtually useless to its owners.

In Parish of Jefferson v. Universal Fleeting Company, 234 So.2d 88 (La.App. 4 Cir. 1970) restricting waterfront property to single family residential use was found to be contrary to articles 455 and 457 of the Louisiana Civil Code. That case involved bat-ture property subject to flooding rather than a river bank. However, in both instances, the action of the zoning authority prevented any actual use of the property. The Pomeroy property was vacant at the time the Westlake zoning ordinance was passed and the ordinance deprived the owners of any reasonable opportunity for its development.

The evidence shows that there must have been a mistake in the original zoning, since nothing distinguishes the Pomeroy property from the light industrial property on the north and south. Dufau v. Parish of Jefferson, 200 So.2d 335 (La.App. 4 Cir. 1967).

An unconstitutional taking of private property does not result merely because the owner is unable to develop it to its maximum economic potential. However, the effect of an ordinance may be so oppressive to a property owner in a given instance that it constitutes a confiscation. Maher v. City of New Orleans, 516 F.2d 1051 (U.S. 5 Cir. 1975) cert. den., 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830. Zoning action which deprives an owner of all practical use of his property without expropriation and compensation is unconstitutional. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 255 N.E.2d 347 (1970).

The zoning here is patently discriminatory since it does not conform to that in the surrounding area. Compare William Murray Bldrs., Inc. v. City of Jacksonville, 254 So.2d 364 (Fla.App. 1 Dist. 1971). The zoning of the Pomeroy tract is apparently based solely on the aesthetic benefit to the neighbors of having it remain vacant. This purpose cannot be served without depriving the owners of the use of the property. The owners cannot be effectively deprived of its usefulness without just compensation under the Constitution of the United States and art. 1, § 4 of the Louisiana Constitution of 1974

Decree

For the foregoing reasons, it is ordered that the judgment of the trial court denying the mandatory injunction is reversed. It is now ordered that a mandatory injunction issue directed to the Town of Westlake, through its Mayor and Aldermen, to reclassify the Pomeroy tract from R-2, single family residential, to I — 1, light industrial, said property being more fully described as follows;

Part of Lot 4 of Section 3, Township 9 South, Range 9 West, Calcasieu Parish, Louisiana, bounded on the North by Kansas City Southern Railroad, on the East by Calcasieu River, on the South by Louisiana Western Railroad (now known as Southern Pacific Railroad) and on the West by Westlake Avenue; all being located in the Town of Westlake, Louisiana.

All costs insofar as allowed by law are assessed against defendant, the Town of Westlake.

REVERSED AND RENDERED.

      . Louisiana Constitution of 1974, art. 1, § 4:
      “§ 4. Right to Property
      Section 4. Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
      Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is pub-lie and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise. However, a municipality may expropriate a utility within its jurisdiction. Personal effects, other than contraband, shall never be taken.
      This Section shall not apply to appropriation of property necessary for levee and levee drainage purposes.”

      . Decree in accord with Jemison v. City of Kenner, supra.