author: McCORD, Chief Judge.

text:
    James A. SHREVE, Appellant, v. STATE of Florida, Appellee.
    No. HH-438.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   McCORD, Chief Judge.

Appellant seeks review of his conviction for unlawfully operating a motor vehicle while intoxicated and thereby causing the death of Gerald J. May, contrary to Section 860.01(2), Florida Statutes (1975). Appellant urges that the trial court erred by admitting into evidence the deposition testimony of Dr. Klein, the County Medical Examiner who had performed the autopsy upon the decedent, Mr. May, since the State failed to utilize the “Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings” (Uniform Law), Chapter 942, Florida Statutes (1975), in order to procure the attendance of Dr. Klein at trial. We find no prejudicial error and thus affirm.

Prior to trial, the State moved for an order to perpetuate the testimony of Dr. Klein on the basis that Dr. Klein would shortly be leaving the State of Florida for Louisiana. Fla.R.Crim.P. 3.190(j). The court granted the motion, and after notice to appellant and his attorney and in their presence, with adequate opportunity for cross-examination, the deposition of Dr. Klein was taken. At trial, over appellant’s objection, the court allowed the deposition testimony of Dr. Klein to be read in evidence. Dr. Klein’s testimony, through deposition, established that Gerald J. May was dead and that the cause of his death was severe trauma associated with a vehicular accident.

Fla.R.Crim.P. 3.190(j)(6) provides that “[n]o deposition shall be used or read in the evidence when the attendance of the witness can be procured. . . .” Although, technically, it was error to allow the introduction of the deposition testimony at trial when the State had not attempted to procure the attendance of Dr. Klein through the Uniform Law, we find that such was harmless error in view of the limited nature of such testimony.

From our research, we found and have considered State v. Ratzlaff, 27 Ariz.App. 174, 552 P.2d 461 (1st C.A. 1976), where the Arizona court held that the failure of the State to at least attempt to enforce the attendance of an absent witness through the Uniform Act [Law] precluded the introduction of such witness’ deposition at trial and, further, that the erroneous introduction of such deposition testimony constituted reversible error. There, the deposition testimony was that of two accomplices of the defendant and was of such a nature that the defendant should have been allowed wide latitude in cross-examination before the jury. In the case, sub judice, the testimony of Dr. Klein only established the proof and causation of death of the decedent following his injury in the automobile accident. There was no conflicting evidence or inference as to the death or cause thereof. Further, there has been no showing by appellant that he was not afforded at the deposition all cross-examination necessary. in relation to Dr. Klein’s testimony, or that he was prejudiced by introduction of the deposition in lieu of the doctor’s live testimony.

Appellant also contends that the trial court imposed an excessive and illegal sentence. The sentence was within the maximum provided by the Legislature. Sections 860.01(2), 782.07, and 775.082(3)(c), Florida Statutes (1975). Accordingly, the judgment and sentence are AFFIRMED.

MILLS and ERVIN, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM. MILLS, Judge,

license: Public Domain

text:
    Janice A. SMOLDER, Appellant, v. FORD LIFE INSURANCE COMPANY, Appellee.
    No. II-317.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.
    Rehearing Denied Aug. 29, 1978.

      Neal D. Evans, Jr., Jacksonville, for appellant.
    Harry B. Mahon of Mahon, Mahon & Farley, Jacksonville, for appellee.
   PER CURIAM.

The sole issue before us is whether appellant is entitled to recover attorney’s fees and costs in an action she brought against appellee for payment of an automobile loan under a credit life insurance policy. The trial court found that she was not, and in fact ordered her to pay appellee’s costs.

The record reveals that the creditor-beneficiary made a claim on the policy shortly following the death of appellant’s husband. Appellant instituted the suit after receiving a letter from appellee denying coverage under the policy. After certain discussions between the agent who had written the policy and appellee, appellee decided to pay the claim. There is no dispute that appellee issued its “claim draft” to the creditor before it received notice of appellant’s suit. It is also clear, however, that appellant did not receive word of the company’s decision to pay the claim before she brought her suit. Appellee’s agent testified that he called appellant’s home and left word of the company’s decision with her son or her babysitter but appellant denied receiving the message. The trial court made a specific finding of fact, not appealed, that appellant never actually received the message.

In view of this finding, we find no basis for the court’s denial of appellant’s costs and fees. It is clear that she was entitled to bring the suit in her individual capacity although she was not the primary beneficiary of the policy. Cincinnati Insurance Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974). It is also settled that appellant was not required to wait 60 days after the proof of loss claim to bring the suit when the company denied coverage before that period expired. Shuster v. New York Life Insurance Co., 351 So.2d 62 (Fla. 3d DCA 1977).

Appellee invited appellant’s suit when it denied coverage under the policy. Although this decision was later changed, ap-pellee failed to effectively notify appellant that the claim would be paid before the institution of her suit. While the sequence of events may be unfortunate for appellee, we find no basis for requiring appellant to pay her own costs and fees resulting from appellee’s wrongful denial of coverage. The judgment is reversed and the case remanded with instructions that judgment be entered in favor of appellant for her attorney’s fees and costs, including attorney’s fees for this appeal.

McCORD, C. J., and ERVIN, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. I would affirm the trial court’s final judgment which I would adopt as the court’s opinion.


author: SMITH, Acting Chief Judge.

text:
    Marshall O. OWENS, Appellant, v. STATE of Florida, Appellee.
    No. II-17.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1978.
    Michael J. Minerva, Public Defender and Janice G. Scott, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Acting Chief Judge.

Appeal from a conviction for lewd and lascivious fondling of a child under the age of fourteen. Appellant Owens urges that the trial court erred in allowing the victim, his stepdaughter, to testify about a separate, similar incident of fondling which allegedly occurred six days before the offense charged, and in allowing his wife, the stepdaughter’s natural mother, to give corroborating testimony. We find that under the facts of this case the stepdaughter’s testimony and her mother’s corroborating testimony were admissible.

On the evening of May 14, 1977, as her mother was leaving home on an errand, the child showed fear and anxiety over being left alone with appellant. When pressed by her mother for an explanation, the child, according to her testimony and that of her mother, told her mother that earlier in the week, while her mother was away, appellant forced her to remove her blouse and licked her breasts. Mrs. Owens immediately confronted her husband, who angrily denied the accusation, and said, “You can believe her, or you can believe me.” Appellant remained angry and abusive for the rest of the evening, forcing his wife and children to drink gin and beating his wife. As Mrs. Owens lay on the bed, for all appearances passed out but in fact watching, appellant angrily said to the child, “You told on me, didn’t you?,” which the child acknowledged, and he then required her to lower her pants and he rubbed the child’s “personal place.” Appellant was charged and convicted for that lewd and lascivious fondling.

Testimony of a collateral offense relevant only to show bad character or propensity is inadmissible. Williams v. State, 110 So.2d 654 (Fla.1959); Waddy v. State, 355 So.2d 477 (Fla. 1st DCA 1975). But in this case the child’s and mother’s testimony concerning their conversation on the night of the offense was relevant to show the reason for the confrontation which produced appellant’s furious conduct, including the fondling which was in part retribution against the child. It would have been impossible to fully reveal the events precipitating the offense charged without reference to the conversation between child and mother referring to an earlier incident. We have carefully read the transcript, and it appears that the collateral offense was referred to by the prosecutor only as necessary to establish the conversation which precipitated and explained the confrontation and assault. The testimony objected to tended to prove motive, “which inquires into the accused’s reason for acting as charged and suggests that because he had a specific reason to commit the offense, he did so.” Dodson v. State, 334 So.2d 305, 307 (Fla. 1st DCA 1976). The trial judge acted within sound discretion in deciding that the legitimate purpose of the evidence outweighed its inherent prejudice. Contrast Knox v. State, 361 So.2d 799 (Fla. 1st DCA 1978).

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


author: PER CURIAM.

text:
    STATE of Louisiana v. Leonard J. FAGOT.
    No. 62045.
    Supreme Court of Louisiana.
    May 5, 1978.
    Judgment Made Absolute May 24, 1978.
   On Motion To Abate Proceedings

PER CURIAM.

Considering the application by counsel of record for the late appellant and the proof that the latter died subsequent to the appeal taken herein, the prosecution in these proceedings is abated, the appeal dismissed, the judgment of conviction is vacated, and the case is remanded to the district court with instruction to dismiss the indictment; unless the district attorney shows cause to the contrary by opposition or other appropriate pleadings on or before 10:00 a. m., Monday, May 22, 1978.

Judgment Made Absolute

Considering the opposition by the district attorney, the judgment of this court dated May 5, 1978 is nevertheless made absolute. Accordingly, the prosecution in these proceedings is abated, the appeal is dismissed, the judgment of conviction is vacated, and this case is remanded to the district court with instruction to dismiss the indictment.

      . State v. Ferina, 351 So.2d 1200 (La.1977), State v. Morris, 328 So.2d 65 (La.1976).


text:
    Jeffrey COFFEY and Vernon Higgins v. Harvey KIMBLE.
    No. 62047.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Jeffrey Coffey and Vernon Higgins applying for writs of certiorari, prohibition or mandamus (St. Charles Parish).

Rehearing granted, 357 So.2d 1159; the application is denied; the motion to dismiss is granted because the application was not timely. Rule 10, Sec. 4 B.

TATE, J., dissents.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Wilbert PARKER.
    No. 60581.
    Supreme Court of Louisiana.
    June 19, 1978.
    Order On Motion For Withdrawal of Appeal July 7, 1978.

      Anthony R. Frey, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, ' Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant Wilbert Parker was charged with the second-degree murder of Jeffery Ellis. After trial by jury on December 4, 1974 the jury returned a nine-to-three verdict of guilty as charged. He was sentenced to life imprisonment. A previous trial on this same charge resulted in a mistrial because the jury was unable to reach a verdict.

On appeal from the verdict and sentence, the defense assigns four errors. Assignment 2 asserts that a denial of due process and a fair trial resulted when the prosecutor withheld evidence favorable to defendant’s plea of self-defense.

To support this contention defendant refers to his motion for a new trial based upon an alleged violation of the principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The motion set forth that the State withheld information that the victim had previously been arrested two times, once on a charge of aggravated battery. Evidence that the victim had been charged with aggravated battery would have supported the self-defense plea of defendant, he claims, by tending to prove that the victim was the aggressor in the encounter which resulted in his death.

Therefore, the defense asserts that when the prosecutor implied or stated in his closing and rebuttal argument to the jury that the victim had never been arrested for violent activities, undue prejudice resulted to the defendant.

Because the record did not contain a transcription of the closing argument of the prosecutor, this Court ordered the record supplemented with a transcript of all closing arguments. The trial court was unable to furnish the transcriptions ordered because the notes of the court reporter were destroyed. The court reporter was also incapable of preparing a transcript from the recorder because the tape was barely audible.

When there is no record of the facts relied upon to support a defense assignment of error, this Court cannot afford a meaningful appeal. It is necessary under these circumstances to retry the case and preserve a record which will permit a meaningful appeal.

For the reasons assigned, the conviction and sentence are set aside and the case is remanded to the trial court for a new trial.

SANDERS, C. J., dissents.

ORDER ON MOTION FOR WITHDRAWAL OF APPEAL

MOTION

Now into Court through undersigned counsel comes defendant, Wilbert Parker. The defendant prays that his appeal taken in the matter of the State of Louisiana v. Wilbert Parker be withdrawn for the following reason.

I.

Defendant has determined that it would be contrary to his best interest to proceed with the appeal.

ORDER

Considering the foregoing motion, it is ordered that the appeal of defendant Wilbert Parker be and the same is withdrawn and dismissed.


text:
    Myrtle F. PHILLIPS, Individually and as Administratrix of the Succession of Griffin Phillips v. Louis NEREAUX, Jr., Irene Phillips Nereaux, and Carolyn June Phillips Hayes.
    No. 11739.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Samuel C. Cashio, Charles R. Browning, Maringouin, for appellants-defendants, Louis Nereaux, Jr., Irene Phillips Nereaux and Carolyn June Phillips Hayes.
    Patrick W. Pendley, of Freeman & Pend-ley, Plaquemine, for appellee-plaintiff, Myrtle F. Phillips, Individually and as Adminis-tratrix of the Succession of Griffin Phillips.
   PER CURIAM.

In plaintiff-appellee’s application for a rehearing, she contends this court erred in reversing the trial judge’s finding of fact that the February 9,1973 sales was simulations.

A simulated sale is that in which there is no intention to transfer title. The trial judge found an intention to transfer title inasmuch as he found these acts to be donations and subsequently awarded the defendant daughters an undivided interest in the property. Since he found an intent to transfer title, he was in error in finding a simulation.

The intention to pay the promissory notes is evidenced by payment of $4,600.00 by Irene Phillips Nereaux to her father and by Carolyn June Phillips Hayes allowing her father to collect and keep rental payments after the transfer of the property. If there was no intention to pay the notes as found by the trial judge, there was no necessity for the above payments. Thus, the trial judge was in error in not recognizing an intent to pay.

Appellee additionally argues we erred in failing to mention she is entitled to “legal interest” on her claim, and from what date this interest runs.

The original opinion is amended to award “legal interest” from date of judicial demand on the surviving wife’s claim and in all other respects our original opinion is affirmed and a rehearing is denied.

REHEARING DENIED.

PONDER, J., dissents from denial of rehearing.


author: EDWARDS, Judge.

text:
    Michael DORÉ v. LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION, DIVISION OF FAMILY SERVICES.
    No. 11964.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 1978.
    Donald C. Theriot, Baton Rouge, for appellant Michael Doré.

      Charles F. Castille, Baton Rouge, for ap-pellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is an appeal by Michael Doré from a decision of the State Civil Service Commission, upholding his discharge from his position as a Family Eligibility Worker.

Doré was discharged, effective July 3, 1975, by letter dated July 1, 1975. The letter contained three specific reasons for the dismissal, namely: (1) that he had entered false information in case records, by indicating that he had made home visits when, in fact, he had not done so; (2) that he had failed to make narrative entries in each of his records, and that he had made false entries in 27 case records indicating that narratives were filed when, in fact, no narratives were filed; and (3) that he had failed to complete reconsideration of the cases assigned him in June, 1975.

This matter was previously before this Court, Doré v. L H H R A, Division of Family Services, 344 So.2d 418 (La.App. 1st Cir. 1977), and was remanded to the Commission for further consideration. This Court there stated at page 420:

“* * * The Commission failed to make any findings of fact as to Mr. Doré’s defense of discrimination relative to the size of his work load; his allegation that other workers had failed to make home visits and, with the knowledge of their supervisors, had made false entries relative thereto; and that the reasons listed for his dismissal were not the true reasons for same.
“Finally, the Commission totally failed to mention the third charge made against Mr. Doré in the letter of dismissal, relative to his June cases, and the defense made thereto by Mr. Doré.
“We do not know whether the Commission would have affirmed the dismissal of Mr. Doré if their findings of fact had been in accordance with the findings of fact made herein. Neither can we be sure what the Commission would have decided had it considered all of charges levelled against Mr. Doré, and the defenses offered thereto . . . ”

On remand, the Commission made the following additional findings of fact:

“1. The workload of Doré, asserted to be approximately 40 per month, was larger than the workloads of some of his fellow employees, smaller than at least one of them, Sylvia Douglas (R. 298), and, by his own estimate, of the time required to work each case, 2V2 to 3 hours, not an undue burden or beyond what could be expected of him.
“2. The assertion that other case workers had made false entries as to home visits with the knowledge and approval of their supervisors was not established by the evidence.
“3. The assertion that appellant was prevented from working his June scroll by extraordinary work assignments was not established by the evidence.”

The Commission again denied the appeal, concluding that the discharge was justified.

Doré contends that the Commission’s findings are erroneous, assigning eight (8) specifications of error. .

We will not address the first three specifications, inasmuch as they were thoroughly examined on the previous appeal and were determined adversely to appellant.

On the issue of discrimination, the evidence in the record establishes that cases were assigned to workers on the basis of the Zip Code in the address of the client. Although this scheme may have accounted for an unequal distribution in the work load, Doré has failed to meet his burden of proving that these assignments were made discriminatorily, or that he was otherwise discriminated against. La.Const. art. X sec. 8(B).

Next, Doré contends that it was the “universal practice” of the employees in his department to falsely indicate that home visits were made when, in fact, no visits were made.

The evidence in the record quite simply does not support this contention. While other workers testified that they may have occasionally omitted to make home visits, they did not substantiate Doré’s alleged “universal practice” of deceit in falsifying records. Only one witness, Ronald Borskey, stated that he would note a home visit on case records when, in fact, no home visit was made. The Commission indicated in its Written Opinion that it did not find Borskey’s testimony persuasive in view of the conflicting evidence. We do not view this as error. Michel v. Department of Public Safety, 341 So.2d 1161 (La.App. 1st Cir. 1976), writ denied 343 So.2d 1078 (La.1977).

Next, Doré contends that the letter of dismissal did not state the “true reasons” for his discharge.

We note that there is no evidence in the record to indicate that Doré was discharged for reasons other than those stated in the letter of dismissal, or that the stated reasons were not the true reasons for the discharge.

Finally, Doré contends that the Commission erred in finding that he was not prevented from working his cases in June, 1975. Doré maintains that he did not receive an accurate scroll of cases for that month.

Although there is an obvious scarcity of evidence in the record on this issue, it does appear that Doré, by his own admission, did not work on any of the June cases, whether from a complete or incomplete scroll. The only evidence indicating that Doré did not receive an accurate scroll for June, 1975, was his own unsubstantiated testimony. As such, we find that the Commission’s finding regarding the third charge against Doré is not manifestly erroneous. Michel, supra.

We find no merit in any of Doré’s contentions of error.

For the above reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

EDWARDS, Judge.

Appellant, Michael Doré, filed a motion to remand this appeal to the Civil Service Commission, contending that the Supreme Court’s decision in Theard v. LHHRD, 356 So.2d 433 (La.1978), reversing the Court of Appeal in Theard v. LHHRA, 354 So.2d 663 (La.App. 1st Cir. 1977), would allow the introduction of evidence in support of the ground for appeal raised in his amended notice of appeal. The Civil Service Commission dismissed Doré’s amended notice of appeal on a motion for summary disposition, since the notice was filed untimely under Civil Service Rule 13.12.

We have examined the decisions in Theard and the companion case, Roussell v. LHHRA, 354 So.2d 661 (La.App. 1st Cir. 1977), reserved and remanded, 356 So.2d 1014 (La.1978), and find these decisions in-apposite.

The ruling in Theard did not hold the Civil Service Rules regarding the timeliness of appeal unconstitutional.

Accordingly, the motion to remand is denied, at appellant’s cost.

MOTION DENIED.

      . 13.12 Delay for making appeal.
      (a)No appeal shall be effective unless a written notice complying with the requirements of Rule 13.11 is either (i) received in the office of the Director of the State Department of Civil Service at Baton Rouge, Louisiana, or (ii) is addressed to the Director of the State Department of Civil Service at Baton Rouge, Louisiana, with proper postage affixed, and is dated by the United States Post Office.
      1. Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based when written notice before or after the action is required by these Rules: or
      2. Within thirty (30) calendar days after the date when appellant learned or was aware that the action complained of had occurred when no written notice is required by these Rules or,“if required, was given tardily or not at all.
      (b) Legal holidays and days on which the office of the Department of State Civil Service is closed shall not serve to extend the delay period specified in Sub-section (a) hereof.
      (c) No appeal shall lie against any action following the expiration of three hundred sixty-five (365) calendar days from the date on which it occurred.
      (d) No appeal shall be supplemented or amended following the expiration of the delay period stipulated by Sub-section (a) hereof.


author: LOTTINGER, Judge.

text:
    Joseph V. FOSTER, Jr. v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTION, et al.
    No. 12139.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 1978.
    Joseph V. Foster, Jr., pro se.
    Edselle K. Cunningham, Dept, of Justice, Baton Rouge, of counsel for defendant-ap-pellee State of Louisiana, through the Department of Corrections, et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

ON MOTION TO DISMISS

This Court ex proprio motu issued a show cause order on April 5, 1978, as to why this appeal should not be dismissed for the untimely filing of a motion to appeal in a forma pauperis proceeding.

The record reveals the following chronology of events, to wit:

April 20, 1977 minute entry:
“Whereupon, for oral reasons assigned, judgment was rendered in favor of defendants and against the plaintiff dismissing plaintiff’s suit. Plaintiff at this time informed the Court of his intention to appeal this case and permission was granted by the Court to continue in for-ma pauperis as filed herein”;
May 3, 1977: Judgment was signed and filed dismissing plaintiff’s suit;
May 3, 1977: Motion for a new trial was filed by the plaintiff and the minute entry for the same date provides:
“Assigned for hearing on motion for new trial filed on behalf of plaintiff for Friday, May 20, 1977 at 11:00 A.M.”;
May 3,1977: An instrument was filed by the plaintiff entitled “Notice of appeal and request to proceed in forma pauperis and motion for leave to proceed on appeal on type written forms”, [There is no order in the record, either signed or oral, granting an appeal or fixing a return date];
May 27, 1977: Motion for new trial was heard and denied. [No request for notice of the denial of the motion for new trial is found in the record pursuant to LSA-C.C.P. arts. 1913 and 1974];
November 7, 1977: Judgment was signed denying a new trial; and
January 23, 1978: Motion filed by plaintiff for a belated appeal with a minuté entry granting the appeal and fixing the return date.

Since judgment was rendered on May 27, 1977, denying a new trial and no request for notification of this judgment was made pursuant to LSA-C.C.P. arts. 1913 and 1974, the time within which to perfect an appeal commenced to run on May 28, 1977, and ended on July 26, 1977. LSA-C.C.P. art. 2087. Therefore, unless the appeal was perfected on or before July 26, 1977, the motion filed on January 23,1978 requesting a belated appeal must be denied and the appeal dismissed.

The record is unclear, but apparently the plaintiff expressed his intentions to file a motion to appeal following the trial judge’s oral reasons for judgment, and at that time plaintiff was granted the right to proceed in forma pauperis. As we pointed out above, there was no order from the court at that time granting an appeal or fixing a return date.

Appeals are favored and will be maintained unless legal grounds for dismissal are clearly shown. Davidge v. Magliola, 346 So.2d 177 (La.1977).

An appeal is taken by obtaining an order, within the delay allowed, from the court which rendered the judgment. This order of appeal may be granted on oral motion in open court, on written motion, or on petition, and it shall show the return day and provide the amount of security to be furnished. LSA-C.C.P. art. 2121.

In Malbrough v. Kiff, 312 So.2d 915 (La.App. 1st Cir. 1975), this Court held that an appeal is taken from a final judgment, and thus, it must be requested subsequent to the signing of that judgment. Therefore, conceding arguendo that the notice of intention to appeal expressed by the plaintiff in open court on April 20, 1977, after the trial judge had rendered his decision dismissing plaintiff’s suit, could be construed to be a motion of appeal, though we find no order granting the appeal or fixing the return date, under Malbrough v. Kiff, supra, we would dismiss the appeal inasmuch as the order of appeal would have been granted prior to the signing of the judgment.

Additionally, we do not find in conjunction with the instrument filed on May 3, 1977, entitled “notice of appeal” any order granting the appeal or fixing the return date. Thus, under LSA-C.C.P. art. 2121, we do not find that any order of appeal was granted prior to July 26, 1977.

Lastly, the only motion to appeal in the record wherein an order of appeal was granted and the return date fixed, was filed on January 23, 1978, long after the appeal period had expired.

We dismiss any argument that an order by the court granting the plaintiff the right to appeal in forma pauperis is an order granting the motion to appeal. Davis v. Funderburk, 274 So.2d 781 (La.App. 3rd Cir. 1973).

Though we realize that the plaintiff-appellant is an inmate at Angola State Penitentiary proceeding in proper person and in forma pauperis, we do not find this any justification to disregard the application of the rules peculiar to the perfection of appeals as established by the legislature and the jurisprudence. To recognize an exception merely invites the opening of the proverbial floodgate and subverts the orderly process that has been established.

Therefore, for the above and foregoing reasons this appeal is dismissed.

APPEAL DISMISSED.


author: LANDRY, Judge.

text:
    ECONOMY CARPETS MANUFACTURERS & DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE AREA, INC., and St. Paul Fire and Marine Insurance Company.
    No. 11748.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      D. Bert Garraway, Bart Eaton, Baton Rouge, of counsel for plaintiff-appellant Economy Carpets Manufacturers and Distributors, Inc.
    Donald T. W. Phelps, Baton Rouge, of counsel for defendant-appellant Better Business Bureau of Baton Rouge, Inc., et al.
    Anthony J. Clesi, Jr., Baton Rouge, of counsel for defendant-appellant St. Paul Fire and Marine Ins. Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendants, Better Business Bureau of Baton Rouge Area, Inc. (BBB) and its insurer, St. Paul Fire and Marine Insurance Company (St. Paul), (Appellants), appeal from judgment dismissing their exceptions of no cause of action to the defamation suit, filed against them by Economy Carpets Manufacturers & Distributors, Inc. (Economy), (Appellee), and from judgment in favor of Economy for damages awarded pursuant to jury verdict finding BBB guilty of defamation. Economy has appealed, seeking an increase in the award for defamation and also for damages for alleged conspiracy by BBB to restrain trade, which latter claim was rejected by the jury. We affirm the judgment denying Economy damages for alleged restraint of trade. We reverse the judgment in favor of Economy for damages for defamation and dismiss Economy’s claim in toto.

By original petition filed May 9,1975, and five supplemental and amending petitions, Economy sued BBB, St. Paul and numerous other defendants, including the State of Louisiana, Through the Governor’s Office of Consumer Protection, seeking damages for defamation resulting from a BBB Special Bulletin published in October, 1974, and alleged conspiracy by defendants to restrain trade in violation of La. R.S. 51:122. After numerous legal maneuvers, Economy dismissed its action as to all defendants except BBB and St. Paul, which parties filed peremptory exceptions of no cause of action. The exceptions are based on the contention that the bulletin in question contained no language capable of having a defamatory meaning and that the bulletin was privileged under the First Amendment to the United States Constitution. The trial judge dismissed the exceptions of no cause of action, and the matter went to trial on the merits against BBB and St. Paul on the issues of defamation and restraint of trade. The jury rendered a verdict in favor of Economy for $1,000,000.00 on the defamation charge, but rejected Economy’s claims for damages for alleged restraint of trade. Economy appealed. BBB and St. Paul timely applied for a new trial. Following applications by BBB and St. Paul for writs, this court instructed the trial judge that he could entertain the applications for new trial despite the prior appeal by Economy. A new trial was granted BBB and St. Paul restricted to the issue of damages for defamation. The trial judge reduced damages to $30,000.00 from which judgment Appellants appealed.

BBB and St. Paul allege error as follows: (1) the jury was manifestly wrong in finding that the Special Bulletin was defamatory; that the statements therein were not true; and, that the publication was not privileged; (2) the trial judge was wrong in refusing to admit in evidence the record of a suit brought against Economy by the Attorney General, State of Louisiana, which record includes, inter alia, an injunction prohibiting Economy from engaging in certain specific advertising practices, despite the trial judge having allowed Economy to introduce in evidence an Assurance of Voluntary Compliance (AVC) signed by Economy as a result of the Attorney General’s suit; and (3) the trial judge erred in instructing the jury on negligence and fault and refusing to instruct that malice, actual or implied, is an essential element of defamation.

Economy urges as error: (1) the trial judge’s reduction of the jury award from $1,000,000.00 to $30,000.00; (2) the trial judge erred in instructing the jury that for BBB to be guilty of conspiracy, conspiracy must be shown between BBB and other parties and refusing to instruct the jury that a corporation and its own officers may be guilty of conspiracy without the participation of others; (3) the trial judge erred in giving instructions which in effect limited jury consideration of the issue of defamation to the October, 1974 Special Bulletin; and, (4) the trial judge’s refusal to instruct the jury that improper motive or evil intent is not necessary to constitute a violation of La. R.S. 51:122.

BACKGROUND INFORMATION

BBB is a voluntary non-profit corporation with a membership of merchants, business men, professionals, tradesmen, industries and individuals and concerns furnishing personal services to the public. It is essentially a consumer information service. Although there are such bureaus in cities throughout the nation, each such bureau is a separate entity chartered by local business interests. BBB has a membership of approximately 1300 individuals and concerns. It operates on an annual budget of approximately $160,000.00 provided by fees ranging from an annual minimum of $100.00 for individuals and small concerns to a graduated maximum of several times that amount for corporations, depending upon the number of corporate employees. It has a President, Vice President and an office staff of five employees consisting of secretaries, stenographers and file clerks. The objectives of BBB are to: (1) promote and assist in maintaining truth, honesty and accuracy in business selling practices and increase and justify public confidence in the printed and spoken word of business; (2) advocate and assist in maintaining fair competition in business; (3) inform and educate the public to the difference between honest and legitimate advertising and selling and that which is dishonest and improper, and by all proper means prevent the public from being misled and taken advantage of by unfair advertising practices; (4) cooperate with other such organizations having the same objectives; (5) cooperate with and assist duly constituted authorities in matters involved in accomplishing the above objectives; and (6) do all necessary to carry out the purposes of the organization.

To accomplish these objectives, BBB maintains a file on each of its members and such non-member businesses in the community as it can with the staff and funds available. Because of its financial limitation, it is to some degree selective in keeping files on non-member businesses. It endeavors, however, to keep as many files as possible, but addresses itself to those situations which in its judgment are most important. It is especially interested in and gathers information about new businesses. It addresses inquiries and makes suggestions and recommendations concerning advertising and business practices to members and non-membér concerns alike when its attention is directed to some alleged improper advertising or business practice, whether by consumer complaint or its own continuous monitoring of newspaper, television commercials, radio and other media forms of advertising.

BBB receives requests for information from similar organizations in other communities throughout the nation. It also receives from members and non-members alike, hundreds of requests for information concerning businesses in the Baton Rouge trade area. In addition, it receives innumerable complaints, written and oral, from members and non-members, of alleged misleading advertising and questionable business practices by member and non-member businesses in Baton Rouge. An attempt is made to investigate each complaint by contacting the alleged offender and requesting an explanation of the alleged misconduct. Such requests are often made in writing and sometimes by telephone or personal contact. A precise record is kept of each complaint, the action taken thereon, and the response thereto. In most instances, a single letter or contact pointing out the nature of the complaint and suggesting which corrective measures should be taken results in cessation of the conduct or practice involved. BBB has no regulatory or enforcement authority. When persuasion and suggestion fail to terminate a practice deemed detrimental to the consumer public, BBB refers the matter to such regulatory agency as it deems best suited to handle the particular problem. The alleged offender is notified of the referral, which is usually to some agency such as the Federal Trade Commission, the Governor’s Office of Consumer Protection or the Attorney General of Louisiana. The referral agency is given a report of the problem and requested to investigate and invoke its regulatory and enforcement authority, if warranted.

As a further service, BBB issues approximately eight bulletins each year. These publications inform that a particularly troublesome problem exists with a given business, agency or industry which has failed to correct the subject matter of complaints or practices which the BBB has found questionable. The bulletins alert members and consumers to the problem, the efforts of BBB to halt the impropriety, and the response or lack thereof on the part of the business involved. In addition to these regular bulletins, BBB issues two or three Special Bulletins each year, dealing with matters it considers of grave concern and regarding which it has been unable to obtain satisfactory explanation or solution.

In January, 1969, Jesse Jarreau began operation of a retail carpet establishment under the name of Economy Carpets, Inc., which concern became a BBB member. Jarreau ran the business until 1973, when his establishment was destroyed by fire and he lost his entire stock. Jarreau’s sister, Mrs. Joyce Langlois, was an employee of Economy Carpets, Inc. After the fire, the business went into bankruptcy. Thereafter, Jarreau and his sister renewed retail carpet selling as Carpet Distributors, Inc. (Distributors). In late 1973, or early 1974, Jarreau purchased a carpet making loom and had it installed in Distributors’ warehouse. Subsequently, Distributors became Economy Carpets Manufacturers and Distributors, Inc., a corporation wholly owned by Mrs. Langlois. Although Jarreau stoutly disclaims any interest or ownership in Economy (claiming to be only an employee), Jar-reau has run and has had complete control of both Distributors and Economy, the same as he had with the predecessor firm, Economy Carpets, Inc. Neither Distributors nor Economy have ever been BBB members.

With the advent of Distributors, disputes arose between Jarreau and BBB concerning information given by BBB to inquiries concerning Distributors. BBB responded to such inquiries by advising that Distributors was owned by Mrs. Langlois, who had previously worked for Economy Carpets, Inc., which concern had gone bankrupt. Through its attorneys, Distributors requested BBB to cease informing inquirers that Distributors was the successor to Economy Carpets, Inc., and that Economy Carpets, Inc. had gone into bankruptcy.

On January 7, 1974, Charles Dale Ramirez, Vice President of BBB, wrote Mrs. Langlois an inquisitorial letter concerning comparison price advertising by Distributors, in which advertisement articles were offered for reportedly reduced prices, using a former price comparison. Such an ad would be improper unless the basic comparison price quoted was the actual price for which the article sold formerly. Ramirez wrote the letter on his own initiative after reading an ad in a Sunday newspaper. On March 6, 1974, Ramirez wrote concerning an ad by Distributors offering to carpet any room — regardless of size — for $149.00 and customer complaints that Distributors could not or would not make good on the offer. The letter contained the names and addresses of the complainants. On April 9, 1974, Ramirez wrote in reference to a customer complaint received April 8, from a prospective purchaser who attempted to buy a remnant offered in an ad published April 7. The customer reported inability to buy the remnant advertised despite having gone to the store early on the morning of the 8th. This letter also noted that Economy was now claiming to be a carpet manufacturer from whom carpet could be purchased directly as from a mill, with no intervening middleman. By letter dated May 9, 1974, Ramirez expressed concern over an Economy ad of May 5 indicating a sale of remnants of carpeting made by Economy in its own mill. On August 29, 1974, Ramirez took issue with a television commercial in which Jarreau appeared and indicated that Economy was making thousands and thousands of yards of carpet in its Baton Rouge warehouse, and which ad showed a carpet loom operating in the background. This letter also questioned a newspaper ad im which Economy offered $7.50 per yard carpet for $1.88 per yard; $5.00 per yard carpet for $1.00 per yard; and, $6.00 per yard carpet for $1.50 per yard. Ramirez expressed doubt that Economy was making thousands and thousands of yards of carpet as claimed, and requested verification in the form of the names of the companies which applied secondary backing to the raw carpet made by Economy, invoices for materials purchased to make carpeting, and sales slips showing the sale of carpeting made by Economy. In addition to the television commercial and newspaper ad, Ramirez’ last inquiry was prompted by visits which he and other BBB employees made to Economy’s premises where a single carpet loom was observed in the warehouse, but was never found to be in operation. BBB received no response to any of its five letters of inquiry.

Based on the unanswered correspondencé, verbal and written complaints from customers, and shopping episodes by decoy shoppers sent out by himself, Ramirez became convinced that Jarreau would not cease what Ramirez considered to be deceptive and misleading advertisement, bait and switch business practices and false claims of being a carpet manufacturer. Ramirez published a BBB Special Bulletin dated November, 1974, and entitled: “BBB Questions Economy Carpets Ads”, which bulletin is reproduced in full and attached hereto.

Approximately 13,500 copies of the bulletin were distributed by BBB through its regular channels, namely, to BBB members and other interested persons and organizations, including the Governor’s Office of Consumer Protection and the Attorney General, State of Louisiana. No copies of the bulletin were released by BBB to any news media. The bulletin gained widespread circulation in the Baton Rouge area. There is some evidence of the bulletin being found in Georgia, which the record shows to be the carpet making center of the nation.

On November 5, 1974, Ramirez wrote a letter to Charles W. Tapp, Director, Governor’s Office of Consumer Protection, requesting an investigation of suspected bait and switch advertising by Economy, based on consumer complaints and Mrs. Langlois’ failure to respond to any of Ramirez’ .written inquiries. In turn, Tapp referred the matter to the Attorney General. Negotiations between Tapp, the Attorney General’s Office and Jarreau resulted in an Assurance of Voluntary Compliance being signed by Jarreau on February 11, 1975, as the solution of an action brought by the Attorney General’s Office against Economy. In the AVC, Jarreau, on behalf of Economy, agreed to changes in the advertisement concerning comparative prices and claims of never being undersold. On February 12, 1975, Tapp received a letter from Ramirez questioning Economy’s claim of manufacturing “thousands and thousands of yards of carpeting” in Economy’s Baton Rouge mill. Ramirez also suggested that Tapp obtain another AVC from Jarreau concerning the claim that Economy was a manufacturer of carpeting. The manufacturing claim was negotiated for some time between Tapp and Jarreau with little or no cooperation from Jarreau insofar as concerned the supply of information requested by Tapp to substantiate the claim that Economy manufactured a large part of the carpeting it sold. Ultimately, the issue was resolved by Tapp agreeing to an AVC signed by Jarreau on January 7, 1976, which stated in effect that Economy could advertise production of 15% of the carpet it sold, and that said figure was subject to change. Tapp testified he was never shown production figures requested of Jarreau but that he agreed to the second AVC merely to settle the issue. Subsequently, an injunction was sought and issued against Economy in the suit brought by the Attorney General. The injunction prohibited Economy from advertising that it was making a substantial amount of the carpet it sold. The trial court prohibited Appellants from introducing in evidence the proceedings against Economy and the action taken therein despite having allowed Economy to introduce the AVC in evidence. Appellants proffered the record. . We find that the trial judge erred in refusing to admit the record and that the record should be considered.

THE EXCEPTIONS OF NO CAUSE OF ACTION

BBB’s exception asserts that the petition herein fails to allege facts sufficient to support a finding of conspiracy pursuant to La. R.S. 51:122. The basis of St. Paul’s exception is that the language in the Special Bulletin of October, 1974 is neither defamatory nor capable of defamatory interpretation.

Although the facts alleged as constituting conspiracy in restraint of trade are vague, the exception of BBB must be denied because an interpretation of the allegations most favorable to Economy does support a cause of action pursuant to La. R.S. 51:122.

St. Paul’s exception presents a more complex issue. When this matter was tried, our Supreme Court had not rendered its decision in Mashburn v. Collin, 355 So.2d 879 (La.1977). Mashburn held that a defendant in a defamation suit, who is expressing an opinion as opposed to making a statement of fact, is entitled to a “fair comment privilege”. Interpreting the United States Supreme Court decisions in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), our Supreme Court stated in Mashburn: “In the Gertz decision it is strongly indicated that the Court, in relaxing the stringent test of the New York Times rule in cases brought by private individuals, was speaking in terms only of libelous misstatements of fact, and that mere comment or opinion on public matters, even though defamatory, enjoys the unqualified protection of the First Amendment.” See also Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). Mashburn also noted: “We conclude, therefore, that the First Amendment freedoms as defined by the New York Times-Gertz series of decisions afford[s], at the very least, a defense against defamation actions for expressions of opinion about matters of public concern made without knowing or reckless falsity”. 355 So.2d 879, 885. Mashburn requires the following inquiries: (1) Does the Special Bulletin constitute opinion; (2) Does it contain any misstatement of fact; (3) Was any expression of opinion in the bulletin made with knowing falsity or reckless disregard of the truth or falsity thereof; and, (4) Is the subject matter of the bulletin a matter of public concern. Pretermitting consideration of all other inquiries, it is evident that whether the bulletin contained misstatements of fact and whether such misstatements were made with knowing falsity or with reckless disregard as to the truth or falsity thereof, are issues which cannot be decided on the face of the pleadings. For this reason alone, St. Paul’s exception must be denied.

THE MERITS OF THE DEFAMATION ' ISSUE

Economy contends it was defamed by numerous telephone messages by BBB in response to consumer complaints; by the letters Ramirez wrote to Economy; by correspondence by Ramirez to the Governor’s Office of Consumer Protection; and by communications to the Attorney General, State of Louisiana. We find that only the Special Bulletin of October, 1974 warrants consideration in this regard.

Mashburn establishes the following test to determine the difference between statement of fact and opinion: “the crucial difference . . . depends upon whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker or writer’s opinion, or as a statement of fact. The opinion may be ostensibly in the form of a factual statement if it is clear from the context that the maker did not intend to assert another objective fact, but only his personal comment on the facts which he had stated. An expression of opinion occurs when the maker of the comment states the facts on which his opinion of the plaintiff is based and then expresses a comment as to the plaintiff’s conduct, qualification or character; or when both parties to the communication know the facts or assume their existence, and the comment is clearly based on the known or assumed facts in order to justify the comment.” 355 So.2d 879, 885.

Employing the foregoing guidelines, we find that much of the text of the Special Bulletin, as well as the impressions and implications which may be drawn therefrom, constitutes opinion. After stating objective facts, including the use of BBB shoppers, reproducing the questioned newspaper ad, and mentioning results of findings based on visits to Economy’s establishment, the publication states: “These facts combined raise serious questions concerning not only the accuracy of the company’s advertising, but also the overall impression it creates . . . that is locally made, mass-produced, low-priced carpets.” The language is labeled as opinion in that it is said to be the subject of some “question” or doubt by the BBB. We also find that the summary of the publication makes clear the nature of the comments by stating that the questions posed have been referred to the Governor’s Office of Consumer Protection with the request that an investigation be made to “obtain proof of accuracy” or “demand corrective changes” in the questioned conduct. The purpose of the circular affords further support for the finding that the bulletin expresses opinion. Having no enforcement authority, BBB can only provide information, express an opinion on the information developed, advise the public as to protective measures when dealing with a particular establishment, then let the public make its own decision and draw its own conclusions.

Does the Special Bulletin contain misstatement of fact? Dale Ramirez, Vice President of BBB and James Kolter, President of BBB, substantiated the veracity or each factual statement in the bulletin. Both witnesses considered each sentence of the article individually and on the basis of their own knowledge and actions, and the testimony of other witnesses proved the truth of each separate statement standing alone. The more difficult question is whether the factual statements imply or insinuate illegal or immoral conduct on the part of Economy, which insinuations or implications were not true. We do not find this to be the case.

Economy produced innumerable witnesses who testified in effect that the bulletin was incorrect in its assessment of the amount of carpet produced by the single loom in Economy’s warehouse. The bulletin does not attempt to assess or estimate the amount of carpet the loom could make. The bulletin merely points out the observations of BBB personnel who visited the warehouse and requested verification of the capacity of the loom. The bulletin does not imply that the loom cannot produce carpet as claimed by Economy, but that Economy failed to respond to BBB’s numerous requests for verification of loom capacity or capability to manufacture “thousands and thousands of yards of carpet”, and that in BBB’s opinion, Economy should prove its claim. The title of the bulletin and remarks contained therein indicate clearly that BBB is addressing questions to Economy and that the questions should be answered in the interest of fair advertising and honest business practices. We find that the impression the article is fairly calculated to produce, and the impression it would naturally engender in the mind of an average person is that BBB has raised questions concerning the accuracy of Economy’s advertising that Economy manufactures a considerable amount of the carpet it sells, and that the claim should be investigated.

Were the expressions in the bulletin malicious, meaning were they knowingly false or made with reckless disregard as to their truth or falsity? The burden of proof rests upon Economy in this regard. Admittedly, the burden is onerous. Essentially, Economy attempted to establish that the bulletin was not published to question or challenge Economy’s business practices, but was intended to drive Economy out of business because Economy was not a BBB member. We find the record totally devoid of evidence to substantiate this contention. On the contrary, the proof preponderates overwhelmingly in favor of the conclusion that the bulletin was issued solely to make available to BBB members and consumers the information which BBB had developed concerning Economy in order to promote knowledgeable dealing with Economy by prospective’ purchases of carpeting. This finding of fact does not require our finding manifest jury error herein. In instructing the jury, the trial judge did not have the benefit of Mashburn, and the jury was not instructed in the light of Mashburn’s interpretation of the “fair comment” privilege afforded by the First Amendment of the United States Constitution. On the contrary, the interrogatories presented the jury included one that requested a finding of whether or not BBB was at “fault”.

Is the subject matter of the bulletin a matter of public concern? The information was provided with regard to a merchant who engaged in extensive advertising in the news media with the object of attracting prospective purchasers and customers to his establishment and thereby increasing his sales and profit. We find a business enterprise so conducted is a matter of public concern and interest. Applying the principles of Mashburn to the case at hand, we find the Special Bulletin in question was privileged as “fair comment” and that Economy’s claim for damages for defamation must be rejected.

RESTRAINT OF TRADE

In essence, Economy maintains that the action of BBB in publishing the Special Bulletin, giving alleged adverse, critical and defamatory information in response to consumer inquiries, referral of the matter to the Attorney General’s Office for investigation, and sending BBB shoppers to Economy’s establishment, taken as a whole, constitute a calculated intent, scheme and effort to run Economy out of business and therefore amounts to a violation of La. R.S. 51:122.

The alleged conspirators are the subject of some confusion inasmuch as defendants alleged to have been co-conspirators have been voluntarily dismissed from this action, leaving BBB as the sole alleged conspirator. This confusion was somewhat enhanced by the trial judge’s refusal to grant Economy’s requested charge that a conspiracy could result from the action of BBB employees conspiring among themselves, and that to prove conspiracy, it was not necessary that Economy establish that BBB employees had conspired with corporations or persons other than BBB employees. The jury found that BBB did not “conspire with anyone, named or unnamed ... to restrain trade and/or commerce as it might affect the plaintiff.” Economy contends that the instruction given improperly limited recovery. on the restraint of trade issue because BBB could have conspired with its own employees and the instruction given did not allow such a finding. Appellants argue that the instruction was proper because Economy’s contention necessitates a finding that BBB as a corporate entity can conspire with individuals. Realistically, a corporation acts through, not with, its officers and employees.

La. R.S. 51:122 provides that:

“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.”

Economy argues that the statute does not require proof of evil motive or specific intent to restrain trade if such restraint is a necessary consequence of the questioned acts. The statute and jurisprudence, however, indicate clearly that the purpose of the acts must have been to restrain trade. See Tooke & Reynolds v. Bastrop Ice & Storage Co., Inc., 172 La. 781, 135 So. 239 (1931).

We find it was error for the trial judge to refuse Economy’s requested instruction concerning conspiracy. We also find, however, that the error was harmless in view of the proof offered by Economy to establish the conspiracy charge. We find as a fact that Economy has failed utterly to establish conspiracy on the part of BBB employees, either among themselves or in consort with others. Had the requested instruction been given, there is no credible evidence of record on which the jury could have found conspiracy in this instance.

To establish the alleged conspiracy, Economy relies upon testimony regarding: (1) alleged solicitation of complaints by Ramirez; (2) alleged attempts by BBB Board member Richard Lipsey to compel an advertising agency to drop Economy’s account; (3) complaints to BBB from a BBB member concerning Economy’s advertising practices; (4) alleged erroneous information imparted to consumer inquiries when such information was based on only one consumer telephone complaint; and (5) publication of the October, 1974 bulletin.

Economy claims complaints were solicited from Joe Alcocer and Mrs. Jo Ann Monte. Mr. Alcocer’s testimony is disputed by Ramirez. Mr. Alcocer, a tailor, was a former tenant of Ramirez. Alcocer testified that Ramirez requested him to pretend to shop at Economy and then file a complaint with BBB regardless of the results of the visit. Ramirez testified that on an occasion when he spoke with Alcocer concerning rent money that Alcocer owed him, Alcocer solicited information from Ramirez about carpet firms because Alcocer intended to purchase some carpeting.

By coincidence, Mrs. Monte was shopping at Economy on one of Ramirez’ visits to that concern. Ramirez overheard Mrs. Monte’s verbal complaint to a clerk to the effect that she was unable to purchase an advertised article. Ramirez suggested that Mrs. Monte write a complaint to BBB. Although Ramirez approached Mrs. Monte and inquired what the clerk had told Mrs. Monte about the advertised article, there is no evidence that Ramirez solicited or importuned Mrs. Monte to make a complaint.

Richard Lipsey, a BBB Board member, criticized one of the partners of an advertising firm for handling Economy’s advertising. Mr. Lipsey is not a competitor of Economy; he is engaged in an entirely different line of endeavor. As an individual, or even a member of the BBB Board, Mr. Lipsey was free to make such criticism, if he chose. No ulterior motive on the part of Mr. Lipsey was shown. More importantly, the record is barren of proof that any other officer or any employee of BBB was aware of Lipsey’s action, or conspired with Lipsey in any fashion whatsoever.

As additional evidence of alleged conspiracy, Economy showed that Sam Lacour, a BBB member and one of Economy’s major competitors, complained to BBB about Economy’s advertising. Economy also established that BBB reported to inquirers that Economy required payment in full for carpeting before installation, which information was based on one consumer telephone call. Such incidents provide no substantiation for the charge that they were intended or had as their purpose the restraint of trade.

The testimony of Dale Ramirez and James H. Kolter (President of BBB from January 1, 1966 to September 15, 1975), is that the letter inquiries to Economy, the BBB shopping at Economy’s store, and publication of the Special Bulletin were merely additional efforts to discharge BBB’s function of informing the public. They explained that the referral to the Governor’s Office of Consumer Protection and the State Attorney General were warranted because of Economy’s persistent refusal to respond to the written inquiries and furnish satisfactory proof of the claim that Economy was a large manufacturer of carpeting and could therefore undersell its competitors. They also testified that had Economy answered the questions posed and furnished the information desired, the Special Bulletin would not have been published and that the Attorney General would not have been requested to investigate Economy. We conclude that the record fails to establish the alleged conspiracy.

The judgment awarding Economy $30,-000.00 in damages for defamation is reversed and set aside and judgment is rendered herein in favor of BBB and St. Paul dismissing said claim, with prejudice. The judgment rejecting Economy’s claim for alleged restraint of trade is affirmed and judgment is rendered herein rejecting Economy’s claim in toto, all costs of these proceedings to be paid by Economy.

Affirmed in part, reversed in part and rendered.

[See following illustration]


text:
    Amelia BECK v. William LOVELL, M.D., et al.
    No. 12063.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Roy Maughan, Baton Rouge, of counsel for plaintiff-appellant Amelia Beck.
    Frank Fertitta, Baton Rouge, of counsel for defendant-appellee Woman’s Hospital and St. Paul Fire & Marine Ins. Co.
    Kenneth E. Barnette, Baton Rouge, of counsel for defendant-appellee William Lo-vell, M.D., and St. Paul Fire & Marine Ins. Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment rejecting her claim against Dr. William Lovell and The Woman’s Hospital (Defendants) and Defendants’ insurer, St. Paul Fire and Marine Insurance Company, for alleged medical malpractice consisting of ligation of Appellant’s fallopian tubes without Appellant’s consent, which judgment was rendered pursuant to a jury verdict in favor of Defendants. We reverse and render judgment in favor of Appellant against Dr. Lovell and his insurer. We affirm the judgment rejecting Appellant’s claim against The Woman’s Hospital.

Three basic issues are presented on appeal: namely, alleged lack of patient consent to the surgical procedure; alleged erroneous jury instructions; and alleged improper introduction of impeachment evidence.

LACK OF PATIENT CONSENT

On February 21, 1975, Appellant, attended by Dr. Lovell, entered The Woman’s Hospital in premature labor for the birth of her third child. With Appellant’s consent, she had been scheduled for “Delivery-Possible C-Section”. Although there was a known blood incompatibility between Appellant and her husband (Appellant being O-Rh negative and her husband being O-Rh positive), which condition poses a greater threat to each conceived child in succession, Appellant’s first two children were born normal. It is conceded that the mentioned incompatibility poses absolutely no threat to the health or welfare of the mother.

Appellant was fully aware of the problem, having been so informed by Dr. Lovell who attended Appellant during her first two pregnancies. Pre-natal tests disclosed that the third child would be affected. During either the first or second pregnancy, Dr. Lovell suggested a hysterectomy which Appellant rejected as “too final”. It is conceded that on numerous occasions, Appellant and Dr. Lovell discussed tubal ligation. Appellant maintains, however, that she never consented expressly or impliedly to ligation, but in every instance told Dr. Lovell she would think about it and let him know. Conversely, Dr. Lovell contends that his discussions led him to believe that Appellant desired to have her tubes tied following delivery of the third child. Based on his belief that Appellant had consented during a visit early in the third pregnancy, he wrote “C-Seetion, T L” in large letters on the face of his office record to indicate that Appellant desired her tubes tied after the birth of the third child.

Upon admission to the hospital, some two or three hours prior to the delivery in question, Appellant was requested by the admitting nurse to sign a “Consent to Operation, Anesthetics and other Medical Services” form provided by the hospital. The form contained, among others, the following provision: “I am aware that sterility may result from this operation. I know that a sterile person is incapable of becoming a parent”. This provision, at Appellant’s insistence, was stricken from the form. The record does not show conclusively whether Appellant or the admitting nurse marked out the provision. As thus altered, the form accompanied Appellant’s chart into the operating room and was present there during the surgical procedure.

Dr. Lovell was assisted in the delivery by Dr. Clinton Aubert, Obstetrician-Gynecologist. After delivery, Dr. Aubert asked Dr. Lovell whether the patient’s tubes would be tied. The question of consent arose and was discussed by the physicians. Because the patient was under anesthesia and no hospital tubal ligation consent form was found on the patient’s chart, Dr. Lovell sent one of the attending nurses into the hall where the form was presented to and signed by Appellant’s husband. The nurse presented the signed form to Dr. Lovell who then performed the ligation.

In substance, Dr. Lovell testified that he was certain that Appellant desired tubal ligation. He understood that that was her wish prior to the delivery, and at the time in question, the patient was incapable of saying “yea or nay”, as he expressed it. In effect, he testified that he had Appellant’s express verbal consent, which he entered on his personal record by way of the above mentioned notation. He was firm in the statement that he would not have ligated the patient’s tubes without her consent. It is to be noted that on appeal, defendants maintain that they do not rely upon the husband’s written consent, but contend that Appellant gave her express or implied consent.

Appellant contradicted Dr. Lovell in that she was adamant in the position that she gave neither express nor implied consent to tubal ligation. She admitted that ligation had been discussed on several occasions, and that each time she told Dr. Lovell she would let him know. She added that during the discussion in the operating room she was aware of the conversation concerning ligation and she wished to voice objection, but was unable to speak out.

Mr. Beck’s testimony is that he was of the opinion that his wife was opposed to ligation. He testified that Dr. Lovell spoke with him during the operation; that he told Dr. Lovell that he thought his wife was opposed; and that if the doctor would go back into the operating room and obtain his wife’s consent, that he would sign the consent form. Shortly after the doctor returned to the operating room, according to Mr. Beck, a nurse returned with a consent form and reported that Mrs. Beck had consented and then he signed the form.

Gladys Crowley, nurse, testified that when no consent form was found on the patient’s chart, Dr. Lovell requested she take a form to Mr. Beck for signature. She witnessed Mr. Beck’s signature, brought the form into the operating room, and the ligation ensued.

A surgeon who performs an operation without the consent of a patient, or some authorized person, commits a trespass on the body of the patient, in the nature of a battery, and subjects himself to liability for damages. Coppage v. Gamble, 324 So.2d 21 (La.App. 2d Cir. 1975); Carrol v. Chapman, 139 So.2d 61 (La.App. 2d Cir. 1962); Rogers v. Lumbermens Mutual Casualty Company, 119 So.2d 649 (La.App. 2d Cir. 1960).

Consent of a patient, express or implied, is required prior to a surgical operation and a surgeon who operates without such consent is liable in damages, except in case of an emergency requiring immediate surgery for preservation of life or health, under circumstances in which it is impractical to obtain the consent of the patient or someone authorized to assume such responsibility. Coppage v. Gamble, above; Rogers v. Lumbermens Mutual Casualty Company, above.

Although our own jurisprudence has never considered the issue, other jurisdictions hold that absent an emergency, the relationship of husband and wife does not confer authority for one spouse to grant permission for surgery on another. Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974). We consider the rule reasonable and well founded. We adopt it as our own and apply it herein.

Our own jurisprudence is also silent on the specific issue of whether a surgeon may be held liable for the skillful performance of unauthorized surgery. It is the rule in other jurisdictions, however, that when the consent of a patient is necessary, a surgeon is liable in damages for the skillful performance of unauthorized surgery. Pedesky v. Bleiberg, 251 Cal.App.2d 119, 59 Cal.Rptr. 294 (2d Dist. 1967). We find this rule patently sound. We adopt the rule as our own, and apply it to the case at hand.

JURY INSTRUCTIONS

In a jury trial, the judge is not required to give the precise instructions submitted by either party, but he must give instructions which properly reflect the law applicable in the light of the pleadings and facts in each particular case. If instructions concerning negligence and liability are confusing or misleading, or omit an applicable essential legal principle, such instructions constitute reversible error. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

Appellant complains that the trial judge declined to give requested instructions 4, 6 and 8. Instruction 4 was that in the absence of an emergency, the relationship between husband and wife does not itself create authority for a husband to consent to an operation on his wife. Instruction 6 was to the effect that performance of an unauthorized operation does not relieve a surgeon of liability even though the surgery is skillfully performed. Instruction 8 was that a hospital is liable for the acts of its employees in an operating room, which acts cause injury to a patient even though the mistake or error involves an area not requiring special skill or judgment.

The trial court gave the following instructions:

“I have told you that the general standard to which the physician must conform is that degree of skill ordinarily employed under similar circumstances by the members of his profession in good standing in this or similar communities. In some instances that duty may extend to the responsibility to inform the patient of the dangers present in proposed treatment and the disclosure of material facts reasonably necessary to permit the patient to decide whether to consent to an operation or not.
The consent of a patient is a prerequisite to a surgical operation, and the surgeon who performs an operation without his patient’s consent, express or implied, is liable in damages for a battery. This rule extends to the performance of operations different in nature from that for which a consent was given. This rule is subject to exceptions in the event of an emergency requiring immediate action for the preservation of the life or health of the patient under circumstances in which it is impossible or impracticable to obtain the patient’s consent or the consent of anyone authorized to assume such responsibility.
The hospital, like all other employers in our society, may be held liable for the acts of negligence committed by its employees during the exercise of the functions for which they are employed. A patient is admitted to a hospital under an obligation owed to him by the hospital and its employees to provide such reasonable care and attention for his safety as his mental and physical condition, as known to the defendants or its nurses or other employees, may require.
A hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen. The hospital is obligated to use reasonable care in light of the requirements of the patient’s known condition.
A hospital is further bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities, as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached a duty of care it owes to a particular patient depends on the circumstances and facts of that particular case.
Consent to the performance of an operation is not valid if it is obtained by misrepresentations which are false to the knowledge of the surgeon who gave them.”

The issues raised before the jury by the evidence presented at trial impels the conclusion that the trial judge erred in refusing to give requested instruction 4. In this regard, Defendants introduced the consent form signed by Appellant’s husband, despite the fact that the record shows that there was no emergency and, consequently, that the consent of the patient herself was indispensable. It is clear beyond doubt that the ligation could have been performed at any future time without risk or danger to the patient. Not having the benefit of requested instruction 4, the jury may well have concluded that the consent of the husband relieved the surgeon of liability.

We also consider as error the trial judge’s refusal to give requested instruction 6 to the effect that skillful performance of unauthorized surgery does not relieve the surgeon of liability. The record shows that the ligation was skillfully performed and that plaintiff recovered without incident. Under such circumstances, the jury easily could have concluded that Appellant was not entitled to recover for unauthorized surgery because she suffered no harmful physical effects.

We find no error, however, in the trial judge’s refusal to give requested instruction 8 concerning liability of a hospital for the actions of its employees. The instructions given made it clear to the jury that a hospital is not the insurer of the safety of its patients but, nevertheless, is liable for the acts of its employees in the exercise of any duty which the employee is engaged to perform. This would include, of course, duties performed in the operating room or elsewhere in a hospital.

ALLEGED IMPROPER ADMISSION OF IMPEACHMENT EVIDENCE

Appellant maintains that the trial judge prejudiced her case by allowing admission of evidence which cast doubt upon her character by tending to establish that Appellant’s husband was not the father of Appellant’s third child. Defendants contend the evidence was admissible to impeach Appellant’s credibility inasmuch as the issue of consent is the crux of this case and must be determined in the light of the contradiction between the testimony of Appellant and Dr. Lovell.

Dr. Curtis Steele, Psychiatrist, was consulted by Appellant for depression following the tubal ligation. Dr. Steele testified that Appellant related a history of separation from her husband, a subsequent awareness of pregnancy and reconciliation because of the pregnancy, in that order. Defendants also produced expert testimony that the blood type of the third child was incompatible with that of Mr. and Mrs. Beck. Dr. Jack Holden, Pathologist, given the blood types of the parents and child, testified that it is genetically impossible for parents with such blood types to produce a child with the blood type of the deceased infant.

Our jurisprudence is well established to the effect that general credibility of a witness may be impeached by showing that his general reputation for truth and veracity is not good. State v. Muse, 319 So.2d 920 (La.1975).

A witness’s credibility may not be attacked by a showing of particular acts of immorality. State v. Bird, 302 So.2d 589 (La.1974).

While the foregoing rules were enunciated in criminal cases, the principles underlying the rules are equally applicable in civil cases. See Conner v. Pozo, 114 La. 562, 38 So. 454 (1905); Frazier v. Strauss & Sons, Inc., 173 So. 343 (La.App. 2d Cir. 1937).

In admitting the evidence as to blood types, the trial judge erred. The sole issue before us is whether Mrs. Beck impliedly or expressly consented to a tubal ligation. Parentage of the child is totally foreign to resolution of the question of consent. Defendants were entitled to impeach Appellant’s general credibility by showing her lack of good general reputation for truthfulness and veracity, but not by showing an alleged isolated act of moral impropriety. We find the erroneous admission of such evidence easily could have prompted the jury to improperly reject Appellant’s testimony for lack of veracity.

We conclude that the mentioned errors by the trial judge prejudiced Appellant’s cause to the extent that the jury verdict herein must be set aside. Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975).

Under the circumstances, the manifest error rule announced in Canter v. Koehring Company, 283 So.2d 716 (La.1973) is inapplicable and this court must determine the issues as a matter of first impression. Gonzales v. Xerox Corporation, above.

Inasmuch as this matter has been tried in full and is before us on a complete record, a remand is not in order and we must render judgment on the record. Gonzales v. Xerox Corporation, above.

HOSPITAL LIABILITY

Appellant contends that the hospital is liable, under the doctrine of respondeat superior, for the actions of its employees (nurses) in failing to obtain a signed tubal ligation consent form provided for just such an operation. It is also contended that the nurses were negligent in not advising the surgeon that no such form was signed by the patient. Finally, it is argued that the hospital is liable for Dr. Lovell’s action in proceeding without proper authorization.

It is clear that attention of Dr. Lovell was directed to the fact that no tubal ligation consent form had been signed by the patient. When this was done, Dr. Lovell, who was in undisputed charge of the operating room, directed an attending nurse to seek consent of Appellant’s husband. The nurse, acting on the doctor’s orders, did as requested. Under the circumstances, we find no negligence on the part of the operating room nurse. Neither do we find any negligence on the part of the admitting nurse; she attached the form signed by Appellant to Appellant’s chart which chart and form accompanied Appellant into the operating room. In so doing, she followed hospital regulations, and discharged her duty toward the patient.

The record is totally devoid of evidence to support the claim that the hospital is responsible for Dr. Lovell’s actions under the doctrine of respondeat superior. It is not shown that the hospital had any control whatsoever of Dr. Lovell or the manner in which he conducted surgery.

SURGEON’S LIABILITY

Viewing the record in the light of the applicable rules of law, we find that Dr. Lovell did not have express or implied permission or consent from Appellant to ligate Appellant’s tubes. Granted, there is a conflict of testimony on the pivotal issue of consent. Appellant consistently maintained she never gave such consent either expressly or by implication. She conceded knowledge and full awareness of her problems, but nevertheless rejected Dr. Lovell’s sug-gestión of a hysterectomy because she did not wish to become sterile. She also conceded discussion of ligation with Dr. Lovell, but never consented thereto, her position being that in each instance she advised Dr. Lovell she would think about it. She also states that had she been able to speak while lying on the operating table, she would have voiced her objection to tubal ligation.

Dr. Lovell’s testimony is that he would not have marked his file indicating a C-section followed by tubal ligation unless he had Appellant’s consent. He also stated in effect that while he did not recall Appellant specifically agreeing to ligation, he understood that that is what she wished and since Appellant was unable to consent while lying on the table, he felt he was doing her a favor by eliminating the need for subsequent surgery to ligate Appellant’s tubes and the inconvenience and expense attending another operation. We cannot escape the conclusion that Dr. Lovell entertained some doubt as to whether Appellant had consented. Although there is no evidence that Dr. Lovell was aware of the deletion made on the form signed by Appellant on admission, said form was in the operating room and available to Dr. Lovell. Had he consulted the chart and noted the deletion, this should have caused him to question whether Appellant desired ligation, and should have alerted him to the possibility that even if Appellant had previously given such consent, she had changed her mind. Additionally, if Dr. Lovell was so certain that Appellant had given express verbal consent, as he contends, there would have been no need to require the husband’s consent. In this connection, we note that in oral argument before this court, Defendants concede they are not relying upon the written consent of Appellant’s husband.

We conclude that Dr. Lovell and his insurer are liable in damages for a tubal ligation performed upon Appellant without her express or implied consent, notwithstanding said operation was skillfully performed.

DAMAGES

We are unaware of any award for similar damages in our own jurisprudence. Appellant suggests an award of $75,000.00 based on the analagous case of Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 327 P.2d 131 (1st Div. 1958).

In this case, the record shows that Appellant became depressed following the ligation. She also became hostile toward her husband and Dr. Lovell. She experienced emotional problems for which she consulted psychiatrists. She even explored the possibility of re-construction in the hope of restoring fertility. The record shows that re-construction may or may not restore fertility.

All the circumstances of this case considered, we find that an award of $25,000.00 will do substantial justice between the parties.

It is ordered, adjudged and decreed that the judgment of the trial court rejecting Appellant’s demands against Dr. Lovell and his insurer be and the same is hereby reversed and set aside and judgment rendered herein against said Defendants in the sum of $25,000.00 with legal interest thereon from date of judicial demand, until paid, and all costs of these proceedings. It is also ordered, adjudged and decreed that in all other respects the judgment is affirmed.

Affirmed in part, reversed in part and rendered.


author: SARTAIN, Judge.

text:
    Succession of James Edward MOSES. Cynthia Workman MOSES, Plaintiff-Appellant, v. Joseph S. MOSES, Defendant-Appellee.
    No. 12070.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Thomas A. Lussen, Jr., Slidell, for Cynthia Workman Moses.
    Jacqueline Carr, Slidell, for Joseph S. Moses.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Cynthia Workman Moses brings this appeal from a judgment of the trial court removing her as administratrix of her husband’s succession and appointing the deceased’s brother as administrator. At the time of the action of the trial court appellant was under indictment for the first degree murder of her husband and was incarcerated in the St. Tammany Parish Jail. The issue for our determination is whether the trial judge manifestly erred in his factual finding that Mrs. Moses was incapable of discharging her duties as administratrix. C.C.P. Art. 3182. We find no error and therefore affirm.

C.C.P. Art. 3182 provides in pertinent part that the court “may remove any succession representative who has become incapable of discharging the duties of his office. . . ” In the exercise of the discretion accorded the court under the article, incarceration of a succession representative is just one of the factors that may be considered by the court. It may have been recently imposed so as not to have yet affected the representative’s ability to perform his duties. It may be of short duration. Or, it may be for an indefinite period of time as in the case at bar. The test is, considering all of the circumstances, whether such incarceration has in fact adversely affected the representative’s ability to serve to the detriment of the succession. The record shows that the property of the succession has not been well-maintained during Mrs. Moses’ administration.

The case relied upon by Mrs. Moses, Succ. of Jones, 310 So.2d 700 (La.App. 1st Cir. 1975), is factually distinguishable. There the administrator, although under indictment for murder, was out on bond. He was found to be capable of performing his duties.

The appointment of deceased’s brother as successor administrator was also clearly correct. After Mrs. Moses’ removal, he became the only qualified applicant. He is the legal representative of the minor heirs. C.C.P. Arts. 3097, 3098(1). Although he is a non-resident he has appointed an agent for service of process. C.C.P. Art. 3097(4).

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

AFFIRMED.


text:
    Alvin Sidney GRIFFIN, Plaintiff-Appellant, v. STUYVESANT INSURANCE COMPANY, Defendant-Appellee.
    No. 12133.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Wilson C. Krebs, Patterson, for plaintiff-appellant.
    J. Louis Gibbens, New Iberia, for Stuyvesant Ins. Co.
    L. Milton Cancienne, Jr., Houma, for Commercial Credit Corp.
    Dale H. Hayes, Morgan City, for Mobile Home Brokers, Inc.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This controversy is over the proceeds of a fire insurance policy. The plaintiff-insured now appeals from an adverse judgment of the district court. We are not favored with either written or oral reasons of the trial judge and the record itself does not contain many of the documents relied upon by the parties. However, we have determined the undisputed facts presented below from pretrial memoranda contained in the record, briefs filed in and oral argument of both counsel in this court. The issues presented are solely questions of law. We affirm.

Suit was originally brought by plaintiff, Alvin Sidney Griffin, against Stuyvesant Insurance Company (Stuyvesant) for benefits under a fire insurance policy. The policy in question covered a 1971 Rebel mobile home owned by plaintiff. The policy was required by Mobile Home Brokers, Inc. (Mobile) which held a mortgage on the mobile home. Mobile was originally named as “loss payee” under the policy. Subsequently Mobile transferred the note and mortgage to Commercial Credit Corporation (Commercial). Upon request Stuyvesant substituted Commercial as loss payee on the fire policy.

The home was severely damaged by fire on January 25, 1974. After early settlement attempts were unsuccessful Griffin brought this suit against Stuyvesant. Eventually a settlement figure of $2179.28 was reached and a check in this amount was issued by Stuyvesant to Griffin and Commercial in accordance with the face sheet of the policy. After a dispute developed as to the disposition of this sum Stuyvesant was permitted to deposit its check into the registry of the court as full settlement of its obligation under the policy.

When this suit was pending Commercial brought suit on October 1, 1974, against Griffin for nonpayment of the promissory note. Judgment was rendered therein in favor of Commercial and against Griffin on February 5, 1975, for $5358.24 plus costs and fees. The home was sold at sheriff’s sale on April 9, 1975, to Commercial for $666.68. Subsequently Mobile purchased the home from Commercial and took an assignment of Commercial’s interest in the proceeds of the insurance policy and in the judgment.

After trial on the merits of this action judgment was rendered by the trial court awarding the funds in the registry of the court to Mobile Home Brokers, Inc. Griffin thereupon brought this appeal. He asserts four errors by the trial judge which we will address in turn.

Griffin asserts that there was no assignment of interest to Mobile sufficient to vest it with the right to make claim to the funds in the registry of the court. Griffin likewise asserts that Mobile has no right or cause of action to claim these funds. These assertions are based upon the same facts and will be treated together. Stuyvesant was not notified of the assignment to Mobile after the sheriff’s sale. Therefore, urges Griffin, the assignment was invalid under the policy and under R.S. 22:691. However, even assuming that it was necessary to notify Stuyvesant under the policy and the law, Stuyvesant has made no objection to this fact. Appellant has cited us to no authority for allowing him to assert this defense of Stuyvesant. We can conceive of no reason for allowing him to do so and therefore reject this argument.

Appellant then urges that whatever rights held by either Commercial or Mobile prescribed when no action was brought by either within twelve months of the loss. R.S. 22:691. However, this provision is clearly for the benefit of the insurance company. We do not believe that Griffin may rely on it. In any event suit was commenced, by Griffin, within twelve months of the loss. This is all that the statute requires.

Griffin also asserts that his attorney is entitled to a portion of the fund as compensation for “services rendered, quantum meruit, quasi-contract, and/or creation of a fund from which defendant, Mobile, ultimately benefited.” However, this issue is simply not before us. Appellant’s attorney was never a party to these proceedings and, in any event, has not appealed. If appellant’s demand is read as asking for attorney’s fees in his favor, it cannot be sustained. There is no authority for allowing attorney’s fees to an unsuccessful litigant.

At oral argument for the first time appellant made a final assertion. He urged that the chattel mortgage was extinguished by the sheriff’s sale. This is correct. However, the property did not bring a sufficient sum at the sheriff’s sale to satisfy Commercial’s judgment. Therefore the debt was not extinguished. Under Louisiana law the fact that a judgment is obtained on a debt does not extinguish the underlying debt. C.C.Arts. 2130, 2285-2286; Dixon, Booksh, & Zimmering, Res Judicata in Louisiana Since Hope v. Madison, 51 Tul.L.Rev. 611, 614 n. 17 (1977).

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: ELLIS, Judge.

text:
    Eugene HAMPTON v. STATE of Louisiana, Through DEPARTMENT OF CORRECTIONS.
    No. 12056.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Gregory M. Eaton, Baton Rouge, of counsel, for plaintiff-appellant Eugene Hampton.
    Walter L. Comeaux, Baton Rouge, of counsel, for plaintiff-appellant Eugene Hampton.
    Annette R. Seng, Baton Rouge, Pat J. Briney, Baton Rouge, of counsel for defendant-appellee State of Louisiana, through Dept, of Corrections.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

This is a suit for damages for personal injuries brought by Eugene Hampton, an inmate at Louisiana State Penitentiary at Angola, against the State of Louisiana and the State of Louisiana, through the Department of Corrections. After trial on the merits, judgment was signed dismissing plaintiff’s suit, and he has appealed.

On March 13,1975, plaintiff was incarcerated in Cell Block A Lockdown at Angola. Cell Block A Lockdown is a maximum security area, in which the inmates remain in their cells at all times, except for one hour each day when they are let out for showers and exercise. There are normally two inmates in each cell. The shower and exercise hours are so arranged that only one cell is let out at any one time in each Block.

At about 12:15 a. m., plaintiff was alone in his cell, asleep. His previous cellmate, Joe Ferrell, was in the hospital. Bertrand Brown, an inmate on Cell Block A, who was out for his shower, threw acid or some other foreign substance on plaintiff, causing the injuries complained of herein. It is apparent that Brown thought he was throwing the mixture on Ferrell, since he was surprised that Ferrell was not in the cell, and apologized to plaintiff for burning him. There was no evidence of there having been any trouble between plaintiff and Bertrand Brown.

Plaintiff testified that he had received two “death threat” notes, and that he had twice written to the Director of the Department of Corrections relative thereto. One of the “death threat” notes appears to be written by plaintiff’s own hand, and he could not produce the other. Neither was he able to name any person whom he feared.

In an amendment to the pre-trial order, the following stipulation appears:

“The plumber’s acid in question in this case was distributed to inmates by Angola Officials for the purpose of cleaning commodes. Only a quarter of a cup of cleaner was distributed at any one time and inspections were made to determine if the commodes had been cleaned.”

At the opening of the trial, counsel for the State advised the Court that further investigation had revealed that the facts in the stipulation were not true, arid that the State wished to withdraw therefrom. Counsel for plaintiff objected on the ground that it was too late to withdraw, and that he was not prepared to prove the facts set forth in the stipulation, since they had been admitted by the State. Subsequently, over plaintiff’s objection, the State put on evidence which contradicted the stipulation by showing that no acid had, in fact, been distributed to the inmates incarcerated in Cell Block A Lockdown.

The testimony in the record reveals that none of the guard personnel believed plaintiff to be in danger, and that no special precautions were taken to protect him. We further note that plaintiff was in constant disciplinary difficulties.

The trial judge found no negligence on the part of the State, and also expressed the opinion that if the State were negligent in the way in which it handled the acid, that negligence was not a proximate cause of the injury to plaintiff.

We agree that there was no negligence in the manner in which the State protected plaintiff. We do not find any substantial evidence to support plaintiff’s claim that his life was in danger, and concur with the trial judge’s finding that plaintiff was not the intended target of the acid.

However, we are of the opinion that if the State, in fact, distributed acid to the inmates without supervising them closely in the use thereof, that it was guilty of negligence. The stipulation hereinabove referred to, coupled with the fact that this incident occurred, necessarily lead to that conclusion.

The State entered into the stipulation in good faith after interviewing a number of guards who were on duty at night. Subsequent investigation, by interviewing the daytime guards who actually handled the acid, disclosed information contrary to the stipulation. At the trial, testimony which contradicted the stipulation, was introduced over plaintiff’s objection.

Article 2291 of the Civil Code provides that a judicial confession, such as this stipulation can not be revoked “unless it be proved to have been made through an error in fact.”

Since it appears from the record that the stipulation may have been made by the State as the result of an error in fact, and since plaintiff, relying on the stipulation, made no attempt to prove the manner in which the acid was distributed, we are of the opinion that justice will best be served by remanding the case to the trial court so that evidence on the subject can be tendered by both parties. After hearing the evidence, the trial judge can then determine if the stipulation was made by the State through an error in fact, and, if so, can permit the State to withdraw therefrom, and make a finding as to whether the State was negligent in its handling of acid.

The judgment appealed from is therefore reversed, and the case remanded to the trial court for further proceedings in accordance with the expressions contained in this opinion, and in accordance with law. The parties shall share equally the costs of this appeal, with all other costs to await final determination on the merits.

REVERSED AND REMANDED.