text:
    Geneva KELLY v. TICKFAW RETREAT, INC., et al.
    No. 10752.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Murphy W. Bell, Baton Rouge, for appellant.
    Paul H. Due’, Baton Rouge, for appel-lees.
    Before SARTAIN, ELLIS and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This suit was filed by plaintiff, Geneva Kelly, against Tickfaw Retreat, Inc. and Tom Kent Stewart, for workmen’s compensation benefits resulting from the alleged wrongful deaths of her two natural children, Vincent Diggs, aged twelve years, and Bobby Charles Diggs, aged eleven years, as well as for damages in tort. Subsequent to the filing of the suit, the claim founded on tort and that on workmen’s compensation were severed. We are now concerned with an appeal from a judgment in the workmen’s compensation claim dismissing the plaintiff’s suit.

The evidence shows that on the day of the death of these twelve and eleven year old boys, they had asked Plas Harris, who was employed by Tickfaw Retreat, Inc. as well as for Tom Stewart’s dairy, if they could go with him to his place of work at Tickfaw Retreat, Inc. This was on the morning of February 18, 1972. Plas Harris advised the boys to talk to their mother to determine if their accompanying him would be all right with her, which they did. Before leaving Plas Harris sent one of the boys back in to get his shoes and shirt before departing.

Harris testified that he had at no time asked the boys to do any work for Tick-faw, Inc. or for Tom Kent Stewart on the morning in question. He further stated that the boys had never in fact done any work for Tickfaw Retreat, Inc. and that all he did was simply permit the boys to ride with him in his pick-up truck to the place where they were going to be working on the Tickfaw Retreat, Inc. property as the boys wanted to play there. This testimony was corroborated by Daisy Mae Jones. Also the testimony of Willie Harris, Lavoe Matthews, Fred Albin and T. C. Albin were all to the effect that they were present at the Tickfaw Retreat, Inc. property on the day in question and that at no time did they observe either one of the late minor children of plaintiff doing any work whatsoever but, on the contrary, observed them merely at play. Tom Stewart testified that the boys had never been employed to work for him either at Tickfaw Retreat, Inc. or his dairy.

During the course of the day, Plas Harris and others noticed that the children were missing and after searching for them found clothing in the bushes next to the river, which runs alongside the retreat property, and subsequently, found the bodies of the lads drowned.

Plaintiff testified that she heard Harris ask the boys if they wanted to go to work with him, and she assumed they were going to Tom Stewart’s dairy. Plaintiff testified that this conversation was witnessed by her mother, Rebecca Kelly, but her mother testified that she did not hear Plas Harris say anything to the boys.

After hearing the witnesses and considering the evidence the Trial Court declared that it “ . . . has no alternative but to conclude that plaintiff fails completely to prove as a matter of fact that either one of her late minor sons was requested to do any work or in fact did any work whatsoever on the date in question, and on the contrary the Court finds that the evidence preponderates clearly in favor of the defendants that the two late minor children of plaintiff merely accompanied Plas Harris to the Tickfaw Retreat, Inc. property so they could play there.” We agree with the decision of the Trial Court.

Plaintiff cites LSA-R.S. 23:233 which provides:

“The presence of any minor under sixteen years of age in any place of employment prohibited to him under the provisions of this Chapter, except during the dinner hour, shall constitute prima facie evidence of his employment therein.”

LSA-R.S. 23:161 prohibits any minor under the age of 18 from being employed in any occupation that is a hazardous or injurious situation to life, health, safety or welfare of such minor. We feel that plaintiff’s prima facie evidence as provided by LSA-R.S. 23:233 has been effectively offset by the bulk of the testimony.

The Trial Judge is in a much better position to view the evidence and judge the credibility of the witnesses. Findings of fact by the Trial Judge are to be given great weight by the appellate courts, unless shown to be manifestly erroneous. We find no error on the part of the Trial Judge.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed; all costs of this appeal to be paid for by plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Joseph James JOHNSON.
    No. 10746.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      Ernest E. Hartenstine, Denham Springs, for appellant.
    Calvin C. Fayard, Jr., Denham Springs, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

Joseph James Johnson was charged as a delinquent child by committing the offenses of theft, simple burglary, and criminal trespass. On November 6, 1975, he was tried on the counts of theft and burglary, found guilty and committed to the Louisiana Department of Corrections as a ward of the Juvenile Court for an indefinite period of time. He has appealed.

The defendant sets out three specifications of error of the Trial Court:

“1. In concluding that Joseph Johnson was the person who committed theft of the bicycle when the only witness to the theft, repudiated her identification of the defendant at the trial.
“2. In allowing into evidence the keys taken from the person of the defendant through an unlawful search and seizure, while ruling that the confession was not freely and voluntarily given and thus inadmissible.
“3. In failing to find the search of the defendant’s person to be a violation of his constitutional rights since the juvenile was being detained by the police officer for purposes of interrogation and was not under arrest at the time of the search according to the testimony of the arresting officer.”

The defendant was charged with theft of a bicycle, and he was also charged with theft and simple burglary in connection with his entry into the offices of Day’s Bookkeeping & Tax Service and the adjoining office of Mr. D. R. Williams.

On the evening of October 12, 1975, the defendant was picked up by the Denham Springs police for questioning relative to the theft of a bicycle which occurred earlier that same evening. The defendant was taken to the police station and advised of his legal and constitutional rights. The defendant consented to questioning by the police. During the course of being questioned by the police the defendant’s person was searched, which search yielded two sets of keys which were later introduced into evidence by the state as having been taken from the two aforementioned offices. Upon finding the keys, the police placed defendant under arrest. Thereafter defendant signed a confession to certain charges. We find that the Trial Court did not rule that the confession was not freely and voluntarily given. The Court merely said, “For the record the Court will now [not] have the introduction of the confession as evidence.” The Court gave no reason for its decision in this regard.

Counsel for defendant argues that the Trial Court was in error in concluding that defendant committed theft of the bicycle when, in his words, “the only witness to the theft, repudiated her identification of the defendant at the trial.” In oral reasons for judgment, the Trial Judge said:

“Miss Fredricks, who knows the defendant, saw someone drive away on her bicycle that appeared to be the size, shape and form of the defendant. And, knowing the defendant and knowing that he had worked around her home and for her boyfriend, believed it to be the defendant, Joseph James Johnson.”

Considering the above summary of testimony with the fact that the bicycle was found near a bank bag stolen from offices burglarized the night the bicycle was taken, the keys to which were found on the person of defendant, we find there was sufficient evidence before the Trial Judge on which he could reach the conclusion that the defendant did in fact steal the bicycle.

Defendant argues that the keys were taken from his person as the result of an unlawful search and seizure and thus were inadmissible as evidence.

The first set of keys were introduced by the State without objection from the defendant.

“MR. FAYARD: Your Honor, I would like to also introduce the following evidence as Exhibit #2, this set of keys.
COURT: Any obj ections ?
MR. HARTENSTINE: No objections.”

The second set of keys were also introduced into evidence by the State without an objection by the defendant that they had been seized as the result of an unlawful search and seizure.

It was not until long after the State’s introduction of the keys into evidence that defendant raised an objection to their admissibility.

We find it unnecessary to consider the arrest or legality of the search and seizure. LSA-C.Cr.P. art. 703 provides as a remedy for the defendant aggrieved by an unconstitutional search or seizure the motion to suppress evidence so seized. The defendant, in order to exercise this remedy, must file a written motion to suppress within a specified time period unless “opportunity therefor did hot exist or the defendant was not aware of the grounds for the motion.”

In the case at hand, opportunity for the filing of such a motion did exist in that the Court and counsel for both parties were available for the hearing of such a motion prior to trial. The defendant was of course, aware that the evidence had been seized since it had been taken from his person on the night of his arrest and any grounds for such a motion were as apparent to the defendant then as they were on the day of the trial.

LSA-C.Cr.P. art. 703 further provides that the motion to suppress may, within the discretion of the Court, be filed at any time before or during the trial. However, the defendant did not file such a motion nor did he object until after the keys had been admitted into evidence by the Court subject to no objections.

The Louisiana Supreme Court in the case of State v. Womack, 283 So.2d 708 (La.1973), held that when a tangible object is sought to be excluded from evidence because of an unconstitutional search and seizure, the defendant must timely file a motion to suppress the evidence. The Court held that otherwise defendant is deemed to have waived objection to admissibility based on an infirmity of the search or seizure.

The Supreme Court has more recently considered this issue in State v. Anderson, 315 So.2d 266 (La.1975), where it held that since the defendant failed to file a motion to suppress evidence found as the result of an alleged illegal search and failed to object to the introduction of the items at the trial, the defendant could not complain on appeal that the objects were seized during an unconstitutional search.

In light of the above, we find that the Trial Court was proper in considering the two sets of keys found on the person of the defendant, the keys being identified as having been taken in a burglary of the offices in question. In light of this evidence and the other evidence of the trial of this matter, we find no error in the finding of the Trial Court that the defendant committed' theft and simple burglary.

For the reasons assigned, we affirm the Trial Court.

AFFIRMED.

      . LSA-C.Cr.P. art. 703 provides:
      “A. A defendant aggrieved by an unconstitutional search or seizure may move to suppress, for use as evidence at the trial on the merits, any tangible objects or other property, or documents, books, papers or other writings, on the ground that they were so obtained. A motion filed under the provisions of this Paragraph must be filed no later than three judicial days before trial on the merits begins, except where the defendant receives notice of trial thirty days before trial on the merits, then such motion must be filed no later than fourteen calendar days before the trial on the merits begins, unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. The court in its discretion may permit the filing of such a motion to suppress at any time before or during the trial.
      “B. A defendant may move to suppress for use as evidence at the trial on the merits a written confession or written inculpatory statement, on any ground that would make it inadmissible as evidence. Such a motion to suppress must be filed no later than three judicial days before trial on the merits begins, except where the defendant receives notice of trial thirty days before trial on the merits then such motion must be filed no later than fourteen calendar days before the trial on the merits begins, and shall be heard and decided by the court prior to trial.
      “A ruling prior to trial on the merits, upon a motion to suppress a written confession or written inculpatory statement, is binding at the trial on the merits. However, a failure to file prior to the trial on the merits a motion to suppress a written confession or written inculpatory statement does not prevent the defendant from objecting to the admissibility thereof at the trial on the merits, and a ruling made adversely to the defendant prior to the trial on the merits upon a motion to suppress a written confession or written inculpatory statement does not prevent the defendant from introducing evidence during the trial concerning the circumstances surrounding the making of a written confession or written inculpa-tory statement for the purpose of enabling the jury to determine the weight to be given to it.
      “When a ruling on a motion to suppress is adverse to the defendant, the state shall be required prior to presenting the written confession or written inculpatory statement to the jury, to introduce evidence concerning the circumstances surrounding the making of the written confession or written inculpatory statement for the purpose of enabling the jury to determine the weight to be given to it.
      “C. On the trial of a motion to suppress filed under the provisions of this article the burden of proof is on the defendant to prove the grounds of his motion, except that the state shall have the burden of proving that a purported written confession or written inculpatory statement was made freely and voluntarily and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”


text:
    RECREATION AND PARK COMMISSION FOR the PARISH OF EAST BATON ROUGE v. Clifford COBB.
    No. 10739.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Stanford O. Bardwell, Jr., Baton Rouge, for defendant-appellant.
    Ashton L. Stewart, Baton Rouge, for plaintiff-appellee.
    John L. Avant, Baton Rouge, for Pearl Strain Broussard.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is an expropriation suit filed by petitioner seeking to acquire a total of six acres of land to be used as a neighborhood park. 3.82 acres of the expropriated tract belong to Mrs. Pearl Strain Brous-sard. A 2.18 acre tract belongs to Clifford Cobb. The two suits were consolidated for trial, however, Broussard has not filed an appeal, and we are now concerned only with the expropriation of the tract belonging to Mr. Cobb.

The record discloses that prior to the filing of the two lawsuits, the petitioner’s appraisers appraised the six acres as one tract and valued it at $8,250.00 per acre. A letter was written to each defendant offering that amount per acre for their respective tracts. The two tracts were later separately appraised on the day before the trial. The testimony establishes that the petitioner’s appraisers considered the Broussard tract to have a higher per acre value than the Cobb tract, and both tracts were slightly more valuable than the original offer of $8,250.00 per acre made prior to this suit.

The Trial Court rendered judgment granting Cobb the sum of $18,530.00, with interest at the rate of 7% from January 20, 1975, until paid for his 2.18 acre tract. This amounts to the sum of $8,500.-00 per acre. No severance damages were allowed. The defendant has taken an appeal contending that the Trial Judge erred (1) in failing to base its award of just compensation on the subdivision residual method and (2) in failing to include in its award damage to the remaining portion of the defendant, Cobb’s, land.

The properties sought to be acquired are adjacent and both front on the east side of North Sherwood Forest Drive, between Florida Boulevard and South Choctaw Drive, Baton Rouge, Louisiana. Only the rear or easternmost six acres of the properties are being expropriated. There are no improvements on the expropriated portions of either property. There is a brick veneer residence on the remainder of the Cobb property used as a residence by Mr. Cobb and his family. Mr. Cobb’s house faces north or away from Sherwood Forest Drive because at the time of its construction, he was under the erroneous impression that Tams Drive was a part of a major street plan of Baton Rouge and would be extended through the Broussard-Cobb properties in front of his house. The extention of Tams Drive was a part of the plan prior to 1969 but it was eliminated in 1969, prior to the time that Mr. Cobb purchased the subject property. Mr. Cobb testified that his ultimate intention was to develop and sell lots when his daughter reached the age that she would no longer be interested in horseback riding, which is the use he is presently making of the rear of his property. Mr. Cobb had a subdivision plat prepared by an engineer under date of June, 1973, showing eight lots.

Both parties seem to have contemplated the sale of lots if and when Tams Drive was extended by the City-Parish. However, after 1969, there was never any plan to extend Tams Drive, but apparently neither of the defendants knew this. The defendant relies heavily on the decision of State of Louisiana, Through the Department of Highways v. Terrace Land Company, Inc., 298 So.2d 859 (La.Sup.Ct.1974), rehearing den. (1974), where the Supreme Court set the procedure for fixing the price of property where the owner-developer was actually in the process of developing and selling land as subdivision lots. In that case, the Court said:

“In our opinion, * * * an owner-developer is entitled to recover on the basis of the individual retail value of each lot (less development costs, but not less the developer’s profit) if sold in the ordinary and usual course of business. Of course, as to be noted more fully, this rule applies only where the sale of lots for subdivision purposes is reasonably prospective, and only where the evidence shows that the owner-developer is actually in the process of developing- and selling the land as subdivision lots, as compared with merely holding an undeveloped tract for its potential subdivision development.” (Emphasis by Sup.Ct.) 298 So.2d 862.

The present case is easily distinguishable from the Terrace case. In that case, the developers had laid utility lines of such size as to develop the whole property, they had subdivided a ninety acre tract into 182 lots and had sold seventy of these prior to the expropriation proceeding. True, there were certain areas where they were not then selling, however, they were selling the property in portions as they went along.

In the instant case we have no similar factual situation whatsoever. Here the plat was prepared subsequent to the knowledge by defendant that the subject tract would be expropriated. The existing Tams Drive deadends on the western-most line of the two tracts of land, about half the width of the street resting against the Cobb property and the other half of the street resting against the Broussard property. There is no way that the defendant could extend Tams Drive across his property without his neighbor contributing surface area for the street.

Although the defendant has shown that this raw land is highly desirable for development into a subdivision with the cooperation of his neighbor, what he has not shown as required by the holding of Terrace is that the owner-developer is actually in the process of developing and selling the land as subdivision lots or that the tract forms a part of a subdivision actually developed and in the process of being sold as individual lots, and the part sought to be expropriated is a portion of a tract actually being developed.

Neither of the defendant’s appraisers, Messrs. Lejeune or Williams, testified as to the value of the land as raw acreage. Mr. George Platt, called by defendant, though never qualified as an expert, testified that the property had a value of $11,-000.00 per acre, based on an “investment” potential of the property at some future time and that for some interim period, probably two years, the highest and best use was single family residential. The record contains no evidence to support a value higher than that given by Mr. William F. Cobb, one of plaintiff’s appraisers, and tendered during the trial by plaintiff’s counsel which showed that the value per acre of the Broussard tract was $8,-500.00.

In its written reasons for judgment, the Trial Court made no mention of severance damages. We do not feel, however, that the defendant has proven severance damages. Though it is true that the experts who testified upon trial all stated that the highest and best use of the property was for subdivision purposes, the portion remaining can only be used for subdivision purposes in conjunction with neighboring property. We feel that it is too speculative that the remaining portion can be used for such and that it has been damaged by the taking of the easternmost approximate one-half of the defendant’s property for the award of severance damages. We reason that the Trial Judge failed to mention severance damages because he was not convinced that same were justified. We can find no error in his reasoning.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by defendant-appellant.

AFFIRMED.


author: EDWARDS, Judge.

text:
    COMMERCIAL CAPITAL SYSTEMS, INC. v. Jerry PAILLE, d/b/a Pioneer Janitorial Maintenance and Supply, and General Accident Fire and Life Assurance Corp., Ltd.
    No. 10762.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      Monte J. Ducote, New Orleans, for appellant.
    Harvey E. Finch, Slidell, and Jack A. Blossman, Covington, for plaintiffs-appel-lees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Presented for determination in this appeal is the applicability of an exclusionary clause contained in a comprehensive general liability insurance policy issued by the defendant, General Accident Fire and Life Assurance Corp., Ltd. General appeals a judgment of the trial court in favor of the plaintiff in the amount of $7,177.00 plus legal interest and costs.

General’s insured, Jerry Paille, d/b/a Pioneer Janitorial Maintenance and Supply, contracted to perform janitorial services at the offices of plaintiff, Commercial Capital Systems Inc.

Part of Commercial’s business consists of performing computer type services to clients, one of whom is the St. Tammany Parish Assessor’s Office. A substantial number of real estate transfer sheets used in making the tax rolls were at Commercial’s installation being processed. On the night of July 21, 1973, the employees of Paille, without authority and by accident, removed and destroyed by fire approximately 16,000 of these transfer slips.

The evidence preponderates in favor of the conclusion that these slips were located mainly on the top of a large table in the processing room and were clearly not trash, or garbage, such as the janitors were to discard. Mr. Eugene Robichaux, vice-president of Commercial, testified that Paille had been specifically instructed not to use his own judgment or discretion on items about which he had doubt.

In fact, during oral argument before this court, counsel for General conceded the negligence of the employees of his insured in destroying the transfer slips.

The policy provided property damage liability coverage under which the company contracted to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of property damage to which the insurance applies caused by an occurrence.

The exclusion relied on by the defendant provides

“This insurance does no apply.
“(i) to property damage to
“(3) property in the care, custody or control of the insured, or as to which the insured is for any purpose exercising physical control; ”

It is General’s contention that the language of the exclusion is to be given an absolutely literal interpretation, and applies simply because the employees of Paille were exercising physical control of these transfer slips when they negligently removed them from the table and burned them in an incinerator. We cannot agree that this interpretation is intended by the policy and we therefore affirm the trial court’s decision in favor of coverage.

There was nothing in Paille’s contract to provide janitorial services to Commercial that reasonably contemplated that Paille was to exercise any physical control over documents used by Commercial in its computer operations. The removal and destruction of these transfer slips was the result of the negligent performance of their contract duties (i. e., janitorial services) rather than an authorized and reasonably contemplated use of the transfer slips.

In the leading case of Thomas W. Hooley & Sons v. Zurich General Accident & Life Insurance Co., 235 La. 289, 103 So.2d 449 (1958), Justice Tate said in interpre-tating the care, custody or control exclusion that “damaged property or premises merely incidental or adjacent to the contracted object upon which work is being performed by the insured is not within the ‘care, custody or control’ of the insured for purposes of the exclusion clause in question, even though he might be permitted access thereto during the performance of his contract.”

In interpreting the second clause of the exclusion excluding “property . as to which the insured is for any purpose exercising physical control,” respect must be accorded to the well established principle that the primary object of all insurance is to insure, and exclusion clauses are strictly construed against the insurer, especially if they are of uncertain import. Hendrix Electric Company, Inc. v. Castialty Reciprocal Exchange, 297 So.2d 470, (La.App.2d Cir. 1974).

In Hendrix, this same clause was before the court and was held subject to a qualified interpretation rather than an absolutely literal one. Thus, where the physical control is not authorized, or where the insured has no interest in nor relation to the property in the performance of its contracted duties, (the property is not an implement of or used by the insured in the performance of its duties, nor is it the object of a contract of deposit), such unwarranted and unauthorized use or control will not exclude coverage.

The trial court awarded two (2) items of damages: (1) $4,034.00 incurred by the assessor in extra and over-time expenses, to redo the destroyed transfer slips, including $550.00 incurred by the assessor himself, who had to interrupt a vacation in California and return to St. Tammany Parish, and (2) $3,143.00 incurred by Commercial in rescheduling computer time and in working personnel overtime to complete the processing on time.

Appellant does not challenge the award to the assessor except for the above $550.00 item. Mr. Wayne Wascom, the assessor, testified that he had driven to California, had to fly home to supervise the reconstruction of the records, and then return to California to resume his trip and also pick up his automobile. He is the elected official who has the overall duty of preparing the assessment rolls timely, failing which he may incur personal liability. The record amply supports the trial court’s award of this amount.

We also find that the record amply supports the trial judge’s award to Commercial, in the amount of $3,143.00, for the expenses incurred by it.

We note however, that the defendant Jerry Paille was never served and in fact was never actually joined in the suit. Without jurisdiction over Paille, the Court was powerless to render a judgment against him. Therefore, the judgment must be amended to delete the insured Jerry Paille, d/b/a Pioneer Janitorial Maintenance and Supply.

Therefore, for the reasons here expressed the judgment of the trial court, as amended, is affirmed at appellant’s costs.

AMENDED AND AFFIRMED.


author: LANDRY, Judge.

text:
    Arthur CARPENTER v. HARTFORD ACCIDENT AND INDEMNITY CO.
    No. 10709.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      J. Glenn Dupree, Baton Rouge, for appellant.
    Edward W. Gray, Baton Rouge, for ap-pellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiff Arthur Carpenter (Appellant) appeals from judgment rejecting his demand for damages for personal injuries, related medical expense, property damage, loss of wages and loss of business profits sustained and incurred as the result of an intersectional collision between an automobile owned and operated by Appellant and a police car on an emergency mission. Hartford Accident & Indemnity Company (Appellee), insurer of the police vehicle involved, is the sole defendant herein. The trial court found the driver of the police car negligent but dismissed Appellant’s suit upon finding Appellant contributorily negligent. We reverse and render judgment in favor of Appellant.

The accident occurred at approximately 11:30 P.M. on January 4, 1975, at the intersection of Eden Street and Labauve Avenue in Plaquemine, Louisiana. Just before the accident happened, Jessel M. Our-so, Jr., Deputy Sheriff, Iberville Parish, accompanied by Deputies Orian Goliath and Keith Hanks, was driving a Sheriff’s Department vehicle on routine patrol. While proceeding southerly on Highway 1, just outside the municipal limits of Pla-quemine, Ourso received a radio call to check on a fire reportedly in progress at the Plaquemine Elementary School. Ourso immediately reversed his direction, activated all emergency equipment on his vehicle and proceeded northerly on Highway 1 toward the city at an admitted speed of approximately 60 miles per hour. Upon reaching Fort Street in the city limits, which street runs east and west, and at which point Highway 1 becomes Eden Street, Ourso continued northerly on Eden Street, notwithstanding that Eden Street is a two lane major thoroughfare and is one-way south. The described intersection of Eden Street, Fort Street and Highway 1 is controlled by a semaphore traffic signal. At Fort Street a motorist traveling northerly on Highway 1 is required to either turn right and follow Highway 1 a block east to Church Street and then turn left in a northerly direction, or turn left at Fort and proceed one block west to Railroad Avenue and turn right to continue north. However, Ourso, in his haste to reach the fire, continued north on Eden Street and traveled the wrong way on this major thoroughfare of the city. Ourso concedes that he knew he was traveling against traffic on a one way street and that other routes were available, but he felt the route chosen was the most direct to the school.

The police unit was equipped with a small dashboard-mounted bubble top rotating red light, two flashing red lights approximately five inches in diameter mounted behind the radiator grill, and a siren which made a loud continuous noise audible for a distance of approximately one-quarter mile. Ourso and Hanks testified that all the mentioned equipment was in operation from the moment Ourso started toward the fire continuously to the instant of impact.

Labauve Avenue, which runs east and west, is situated one or two blocks north of Fort Street. It is conceded that the intersection of Eden and Labauve is well lighted. Appellant’s residence is located at the northeast corner of the intersection. A drug store is situated at the northwest corner. On the southwest corner is a service station and on the southeast corner is a large residence on the grounds of which are some rather large shrubs which obstruct the view to the left (south) of a driver proceeding westerly on Labauve. Eden is the favored thoroughfare. A stop sign on Labauve requires drivers on that street to yield to traffic on Eden.

Ourso and Hanks testified that when their police car was approximately one block south of Labauve, appellant’s car was seen stopped at the intersection with its lights off. Appellant then pulled slowly into the intersection, whereupon Ourso applied his brakes forcefully. The police vehicle slid sideways and struck Appellant’s vehicle on its left side.

Appellant testified that he heard the fire signal, which indicated a fire at the school, and that he was en route to check on his washateria situated one block from the school. His car had been parked on La-bauve Avenue where it was customarily left. He drove up to the stop sign with his lights on. He looked to his right (north) to check for southbound traffic on Eden and, observing no vehicles approaching from that direction, proceeded to cross the intersection. He stated that he did not hear a siren and did not see the patrol car with its lights flashing until it was approximately one-half block away, at which time he was already in the intersection.

La.R.S. 32:24 prescribes the privileges and duties of the driver of an emergency vehicle as follows:

"§ 24. Emergency vehicles; exceptions
A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible and visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

The degree of care required of the driver of other vehicles, upon the approach of an emergency vehicle, is provided for by La.R.S. 32:125 which states:

"§ 125. Procedure on approach of an authorised emergency vehicle
A. Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
B. This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.”

Although La.R.S. 32:24(B)(3) and (4) authorize the driver of an emergency vehicle to exceed speed limits and to disregard regulations governing direction of traffic flow, the statute also expressly provides that such a driver is not relieved of the duty to drive with due regard for the safety of others and further stipulates that he is responsible for any injury or damage resulting from his breach of this duty. Bergeron v. Port Allen Mortuary, Inc., La.App., 178 So.2d 442; Fant v. Zurich Insurance Company, La.App., 160 So.2d 443; Sullivan v. Hartford Accident & Indemnity Company, La.App., 155 So.2d 432; Calvert Fire Ins. Co. v. Hall Funeral Home, La.App., 68 So.2d 626.

The trial court found Deputy Our-so negligent in operating his vehicle in a careless manner. In this finding we concur. Driving a vehicle 60 miles per hour the wrong way on a major two lane city street constitutes reckless disregard for the safety of others. We think it clear that Deputy Ourso breached his duty of care in this instance and that said breach renders him liable for the consequences of such action, unless Appellant is barred from recovery because of Appellant’s own contributory negligence.

We find that Appellant obeyed all ordinary traffic regulations pertinent under the circumstances. He stopped at the intersection in obedience to the stop sign. After stopping he looked to his right (north), the only direction from which traffic could lawfully approach the crossing. When he observed no traffic coming from that direction he proceeded into the intersection. While the question of whether Appellant’s vehicle had its lights on is a matter of dispute, we think it immaterial under the circumstances whether Appellant’s lights were off or on. The intersection was well lighted; both Ourso and Hanks stated that they saw Appellant’s vehicle stopped without lights before Appellant proceeded into the intersection.

We know of no authority setting forth the duty of a motorist crossing a favored one-way thoroughfare to look for traffic approaching illegally from the wrong direction. We are of the view that a motorist has no duty to observe for illegally approaching vehicles in such a situation. We deem the position of such a motorist analogous to that of a driver entering an intersection on a favorable traffic signal. He has the right to assume that other motorists will obey the law and not travel the wrong way on a one-way street. See Bourgeois v. Francois, 245 La. 875, 161 So.2d 750; Youngblood v. Robison, 239 La. 338, 118 So.2d 431; Powell v. Allstate Insurance Company, La.App., 233 So.2d 38; Moore v. Traders & General Insurance Company, La.App., 227 So.2d 174.

Appellant’s alleged contributory negligence is predicated upon his duty to yield the right of way to emergency vehicles as prescribed by La.R.S. 32:125. However, such duty arises only when the motorist observes or hears, or under the circumstances should have observed or heard the audible and/or visible warnings of the emergency vehicle. The burden of proving Appellant’s alleged contributory negligence rests upon Appellee. Fant v. Zurich Insurance Company, above. To bar Appellant’s recovery, Appellee must establish that Appellant was aware or should have been aware of Ourso’s approach.

Granting Ourso’s and Hanks’s testimony that the siren on their vehicle could be heard at a distance of four or five blocks, nevertheless, Appellant testified that he did not hear the warning. Also conceding the siren was sufficient warning in most instances, there are other circumstances to be considered in determining whether it should have been heard by Appellant. The police car was approaching at a very rapid rate of speed thus affording a short period of time for a motorist to hear and react to the signal. It is not shown whether the fire signal was still sounding at the time of the accident. The accident occurred in January and at night. It is reasonable to assume that Appellant may have had his windows up and the heater on his vehicle operating if the car was so equipped. It is also possible that Appellant had a radio in his car and that the instrument was playing. The record is silent as to all these factors. As we noted above, the burden or proving contributory negligence rests upon defendant. We find defendant has not met this burden and that the trial court manifestly erred in deciding otherwise.

In urging affirmation, Appellee relies heavily upon Calvert Fire Ins. Company v. Hall Funeral Home, above. We find the cited authority readily distinguishable on its facts. In the quoted case the motorist involved was shown to have been driving with his windows down and his radio turned off. It was also shown there were no noises or other disturbances which impaired the motorist’s hearing and that disinterested witnesses in the vicinity of the intersection heard the siren. No such showing was made in this instance.

Appellant’s vehicle, valued at $750.-00 was totally demolished in the accident. The car had a salvage value of $125.00. Appellant incurred expenses of $25.00 for towing his vehicle and medical expense in the aggregate of $131.80 in treatment of injuries sustained in the accident. Deducting the salvage value of Appellant’s vehicle, we find Appellant entitled to $781.80 for these losses and expenses.

Following the accident, Appellant was taken to the hospital where his injuries were diagnosed as traumatic myositis of the left lateral thigh (translation, inflammation of the left lateral thigh muscle). Appellant was released that night and went home. Because of chest pains which occurred two or three days after the accident, Appellant returned to the hospital for x-rays of his ribs, which proved negative. Appellant was never hospitalized. Upon medical advice, Appellant missed one week’s work, resulting in a net wage loss of $139.00, which Appellant is entitled to recover.

Appellant claims $1,500.00 for loss of profits from his washateria business over a three month period during which Appellant was without a car and was therefore unable to travel to Baton Rouge to obtain spare part for washers and dryers which needed repair following the accident. Appellant testified that he used commercial machines in his business and repair parts were not locally obtainable. In support of this claim, Appellant produced records showing an average reduction of $500.00 monthly in the income from his business for the three months following the accident. However, Appellant was informed nine days after the accident that his vehicle could not be repaired. Despite this knowledge he made no effort to obtain another car until three months later; neither did he rent a vehicle.

It is well settled that an injured party must make reasonable efforts to mitigate and minimize his damages. Carimi v. Saia, La.App., 301 So.2d 895; Interiors, Inc. v. Ryder Truck Lines, Inc., La.App., 269 So.2d 496; Perniciaro v. Travelers Insurance Company, La.App., 227 So.2d 778. Since Appellant made no effort to minimize his business loss, he may not recover for that portion thereof which he may have prevented by reasonable diligence.

However, we find the record establishes that Appellant did suffer some business loss, the precise amount of which cannot be measured in dollars and cents. Under the circumstances, we invoke the well established rule that in such cases courts may award recovery which is reasonable upon the record. Melancon v. I.M.C. Drilling Mud, La.App., 282 So.2d 532; Henry Waters Truck & Tractor Co., Inc. v. Relan, La.App., 277 So.2d 463. In this instance we find that' an award of $150.00 for loss of business profits will do substantial justice between the parties.

Appellant testified that he suffered pain in his left thigh for three to four weeks following the accident. Dr. John A. Freeman, who treated Appellant on the night of the accident, testified that the pain attested by Appellant would be consistent with Appellant’s thigh injury. Dr. Freeman also stated that Appellant did not complain of chest pains. The record is clear, however, that Appellant did return to the hospital for chest x-rays. We are of the view that an award of $1,000.00 will adequately compensate Appellant for his personal injuries, pain and suffering.

It is ordered, adjudged and decreed that the judgment of the trial court rejecting plaintiff’s demands against defendant herein be and the same is hereby reversed and set aside, and judgment rendered herein in favor of plaintiff, Arthur Carpenter, and against defendant Hartford Accident & Indemnity Company, in the sum of $2,070.80, with legal interest thereon from date of judicial demand, until paid, and all costs of these proceedings.

Reversed and rendered.


author: PONDER, Judge.

text:
    PLANTERS SECURITIES CO., INC. v. STATE of Louisiana Through the DEPARTMENT OF HEALTH AND HUMAN RESOURCES ADMINISTRATION.
    No. 10707.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    James A. Watson, Eunice, for appellant.
    Lucas S. Conner, Jr., Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Planters Securities Co., Inc. (Planters), plaintiff-appellant, instituted this suit for recognition and specific performance of an alleged lease with the State of Louisiana, through the Department of Health and Human Resources Administration, (State), defendant-appellee. The court below granted a motion for summary judgment in favor of State and dismissed the suit. Planters has timely filed this appeal. We affirm.

Plaintiff alleges in its petition that negotiations were begun in May, 1975, between its representatives and T. E. Bergeron, Rental Lease Administration, Division of Administration, State of Louisiana and William S. McCutcheon, representative of Department of Public Welfare, State of Louisiana, for the lease of Planters’ property in Opelousas, Louisiana. In affidavit opposing State’s motion for summary judgment, Planters’ representative, Veil David DeVillier, stated that on June 9, 1975, he engaged in a telephone conversation with H. Benny Turcan, Assistant Commissioner of the Division of Administration; that Mr. Turcan agreed to approve a lease if the term was changed; and that a new term was negotiated; that on June 16, 1975, he met with Mr. Bergeron and Mr. McCutcheon; that a rental price was finally agreed upon; and that on June 20, 1975, Mr. McCutcheon assured him that the lease was already operable. Finally, Mr. DeVillier stated that at a meeting on July I, 1975, attended by himself, Governor Edwin Edwards, McCutcheon, Bergeron and Turcan, everyone agreed that the lease had been taken care of.

State’s motion for summary judgment was based on its assertion that LSA-R.S. 39:193 A and F require that all lease agreements for the housing of state agencies be in writing; that the alleged lease sought to be enforced herein was not in writing; and that, in any event, the statute further mandates such leases be entered into only with the approval of the Commissioner of Administration; and no such approval was ever given.

Planters contends that the trial court erred in granting summary judgment in favor of the State because:

1) The law does not require that all leases with State be written; and,

2) A number of genuine material issues of fact exist as to whether there was a valid completed verbal agreement.

LSA-R.S. 39:193 A and F and LSA-R.S. 38:2192 respectively read, in pertinent part, as follows:

LSA-R.S. 39:193 A
“All contracts and agreements for the lease or rental of space for the housing of state agencies, their personnel, operations, equipment, or activities, shall be made in the name of and by the authorized representative or representative body of the state agency but shall be made and entered into only with the approval of the commissioner of administration.”
LSA-R.S. 39:193 F
A copy of the public notice with proof of its publication and a copy of the required affidavit by the lessor shall be attached to the lease agreement or contract.”
R.S. 38:2192
“In addition to all other provisions of law regulating the leasing of immovable property thereon when the state . is the lessee, public notice shall be required twenty-one days prior to the execution of the lease.”
“A copy of the public notice with proof of its publication and a copy of the required affidavit by the lessor shall be attached to the lease agreement or contract.” (Emphasis ours)

Plaintiff-appellant argues that La.C.C. Art. 2683 allows either verbal or written leases in the leasing of immovable property. We do not disagree. However, obviously the legislature by the enactment of the above quoted statutes has altered the general rule when a state agency is the lessee.

A fair reading of the statutes supports this conclusion. How else could the lease be “made in the name of the authorized representative” of the agency, or be approved by the Commissioner of Administration? How else could the lease be executed? How else could the required copies be attached to the lease ?

Plaintiff-appellant argues the case of City of New Orleans v. Hautot, 185 So.2d 24 (La.App. 4th Cir. 1966), and cases cited therein, recognize the validity of completed verbal lease agreements when the parties impliedly or expressly plan to reduce the agreement to writing at a later date; that in the instant case an analogous fact situation is presented to the court, so that, in spite of R.S. 39:193 A and F and 38:2192, the alleged verbal lease agreement is enforceable.

We agree with the legal principle stated in City of New Orleans, supra. However, we find that it is inapplicable since it applies only where there exists a valid and enforceable verbal lease, and the reduction of the lease to writing is a mere formality.

There is no valid verbal lease in the instant case because the mandatory requirement that the lease be in writing affects the validity vel non of the agreement. Until the required public notice is given, the agreement is in writing, is signed and is approved pursuant to law, no lease obligation exists.

We do not have two individuals bargaining solely within the ambit of the general rule set forth by La.C.C. 2683. Instead, we have a situation controlled by statutes that were obviously enacted in furtherance of the best interests of the public.

R.S. 38:2192 is quite clear, the lease cannot be “executed” until twenty-one days after public notice is given. The notice is not a mere formality; it provides the public with its only opportunity to investigate proposed leases prior to their execution. The approval by the Commissioner of Administration is also not a mere formality; it is an effective means to protect the public fisc. There are numerous public agencies expending large amounts of money for rent. The legislature in recognizing the need for monetary coordination has appointed the Commissioner of Administration to control these expenditures.

To adopt plaintiff-appellant’s contention that a verbal lease suffices we would have to disregard the wording and purpose of R.S. 39:193 A and F and R.S. 38:2192. This we will not do. Defendant-appellee is entitled to judgment as a matter of law.

Because of our conclusion that the lease had to be in writing, any dispute as to whether there was a completed verbal agreement becomes immaterial. To avoid summary judgment the dispute has to be as to material fact.

Accordingly, the judgment of the court below is affirmed; appellant to pay all costs of this appeal.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Benny VAUGHN v. Randy HEBERT and the Travelers Insurance Company.
    No. 10710.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Joseph B. Dupont, Sr., Plaquemine, for appellant.
    John I. Moore, Baton Rouge, for appel-lees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This action was instituted by Benny Vaughn to recover damages sustained by him in an automobile accident. It occurred at about 6:10 P.M., October 30, 1973, on Louisiana Highway 75 near Bayou Pigeon, in Iberville Parish. Vaughn was a guest passenger in the car owned and being operated by Hebert and insured by Travelers.

After trial on the merits, the judge concluded that Hebert was confronted with a sudden emergency not of his own making and to which he did not contribute and, therefore, that the defendants were not liable. From that decision, plaintiff took a devolutive appeal. We affirm.

Hebert was traveling in a southerly direction on the two-lane, hard-surfaced highway. An unidentified vehicle was seen approaching them, coming out of a curve and at least partially on Hebert’s side of the road. After observing the car for a few moments, and it not having returned to its proper lane of traffic, Hebert went off the blacktop on the west side. Upon attempting to pull back onto the road he lost control, went down the levee into a canal and hit a tree, resulting in the plaintiff’s injuries.

The appellant did not set forth an assignment of alleged errors, but prosecuted this appeal to urge that the doctrine of sudden emergency is inapplicable in this case.

However, the testimony elicited at the trial amply supports the finding of the trial court.

Taking the testimony most favorable to the appellant, the approaching vehicle was about a thousand feet away and at least partially on Hebert’s side of the road when it was first seen. Hebert continued in his lane of traffic until the vehicles were about 300 feet apart, when it became apparent to him that “ I had to get out of his way.”

On direct examination, Vaughn testified, N.T. 39:

“Q. Would you tell me in your own words how this accident happened, to the best o-f your knowledge ?
A. Well, we were heading south on La. 75 when we noticed this car coming partly in our way, on our side of the road. Well, as we kept getting closer, he stayed on that side. So as we got closer, we had to get over on the shoulder to avoid hitting him.”
Then, on cross-examination, N.T. 49-50:
“Q. While he [the unidentified motorist] was coming to you, did you- — before Randy started to turn off the road — did you feel that an accident was going to happen ?
[Colloquy between counsel and the Court]
THE WITNESS: Yes, I thought we -were.”
“Q. And not much time happened in between the time you felt that the car was going to hit you and the time Randy pulled off the side of the road, did it?
A. Not that much, no.
Q. Everything was happening pretty fast, wasn’t it ?
A. Yes.”
Also, Hebert testified, N.T. 27:
“Q. All right. Tell me, Randy, what happened after you got out of the curve and you went into the straightaway ? Tell me what happened the best you can remember.
A. Let’s see. I seen — had a car coming around the curve and he had his bright lights on.
Q. Coming around the curve going north ?
A. Coming towards me.
Q. Right. You were going south?
A. Right. And when I seen he was on my side of the road and by the time I seen him, I didn’t have nothing to do but get out of his way.”
And, N.T. 30:
“Q. Randy, after you pulled off the road, you stated you tried to pull back on the road. Why did you try to- pull back on the road ?
A'. Why?
Q. Yes.
A. I had a canal there, and I didn’t want to go in it.”

Admittedly, after Hebert pulled off the blacktop, he then tried to pull back onto it, lost control of the car and the plaintiff-appellant sustained injuries.

In his admirably diligent effort to ascertain all of the facts, during the course of the trial the Judge, with counsel, the court reporter, and Messrs. Vaughn and Hebert, went to the scene of the mishap and testimony was taken there from the latter two gentlemen.

We conclude that Randy Hebert was faced with a sudden emergency created entirely by the gross negligence of the approaching motorist. Under these circumstances, it is the settled jurisprudence of this state that a person is not obligated to exercise the same degree of care or judgment as is required under ordinary circumstances. In the emergency thus faced by Hebert his actions were reasonable and justified. A mistake of judgment or failure to adopt the best or wisest course for avoiding injury does not necessarily result in a finding of negligence. To contend otherwise is to attempt to exact hindsight instead of foresight from a motorist faced with a sudden emergency ; Fouche v. St. Paul Fire & Marine Insurance Co., 153 So.2d 180 (La.App. 2 Cir. 1963).

Appellant cites several cases to support his position, including Stonewall Insurance Company v. Cross, 244 So.2d 327 (La.App. 3 Cir. 1971); Robert v. Travelers Indemnity Company, 196 So.2d 657 (La.App. 1 Cir. 1967); and Noland v. Liberty Mutual Insurance Company, 232 La. 569, 94 So.2d 671 (1957). However, these cases are factually inapposite to the instant one.

Rather, more analogous is Whitehead v. Cruse, 279 So.2d 802 (La.App. 2 Cir. 1973), at page 803:

“The driver of a motor vehicle who is confronted with a sudden emergency or danger not of his own making and to which he did not contribute, will not be held liable for error of judgment committed by him in the emergency providing he exercises ordinary prudence and reasonable care under the circumstances. Odom v. Texas Farm Products Co., 229 So.2d 118 (La.App. 2d Cir. 1970) and cases cited therein.”

The judgment is affirmed at appellant’s cost.

AFFIRMED.


text:
    Terry Nelson ARCENEAUX v. Barry Joseph ARCENEAUX.
    No. 10719.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      J. P. Mauffray, Jr., and A. L. Carbonette, Baton Rouge, for defendant-appellant.
    L. J. Hymel, Baton Rouge, for plaintiff-appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a nullity action by Barry Joseph Arceneaux, appellant, to have judgments of separation and divorce set aside and erased in certain respects. Appellant’s wife, Terry Nelson Arceneaux, filed a peremptory exception asserting objections of no cause of action and no right of action which the Trial Court sustained. Barry Joseph Arceneaux has appealed from the judgment in favor of Terry Nelson Ar-ceneaux, sustaining her peremptory exception and dismissing the nullity action filed by him.

The parties to this proceeding were legally separated by judgment dated May 19, 1972, which also ordered the appellant to pay $180.00 per month as child support. In his petition for nullity of the judgment, appellant alleges that the May 19, 1972 judgment fails to include any mention of an agreement between the parties and/or stipulation of counsel respecting the award and dedication of $80.00 per month, out of the total of $180.00 monthly child support award, for a period of one year, to the payment of a house note, at which time the award of child support would be reduced to $100.00 per month. The petition further alleges that the appellant only first discovered this inaccuracy on April 18, 1975. The appellant thusly argues that said judgment is null because it was procured by fraud and/or ill practices.

The parties were divorced by judgment by confirmation of default dated September 26, 1973, which continued the $180.00 per month child support as well as making ex-ecutory child support in arrears in the amount of $830.00. The petition for nullity alleges that this judgment also fails to make mention of the agreement of the parties and/or stipulation of counsel respecting child support and that the judgment was not signed in open court as required by LSA-C.C.P. arts. 194(6) and 1911. The petition for nullity further alleges that the petition for divorce does not contain any allegations of fact in support of the prayer for continuing $180.00 per month as child support and that no evidence respecting child support was introduced upon confirmation of the default in the divorce action. In his petition for nullity the appellant alleges that he has never acquiesced in that part of the September 26, 1973 judgment which ordered him to pay and made executory the amount of $830.00 as child support in arrears, nor has such part of said judgment ever been executed. He further alleges that he has never acquiesced in the part of that judgment which ordered him to pay the amount of $180.00 per month as child support.

It is well settled in this state, that an exception of no cause of action concedes for purpose of trial the correctness of well pleaded facts in a petition, and evidence is not admissible to determine whether the petition states a cause of action. Stated another way, the purpose of the exception of no cause of action is to determine whether, as a matter of law, the plaintiff has stated a justiciable cause against the defendant. The Trial Judge sustained the exception of no cause of action, but we know not why for there are no reasons for judgment either oral or written. After carefully reading the petition we are, however, of the opinion that the Trial Judge was in error in his sustaining of the exception of no cause of action. From the brief recitation of the allegations of the petition as above found, we feel the appellant has stated a cause of action. His success or failure on a trial on the merits is not now before this Court and can have no bearing on whether a cause of action is stated.

The exception of no right of action was also sustained by the Trial Judge. Appellee seems to argue that as to the May 19, 1972 judgment, the appellant had one year from the date of the judgment within which to file his petition for nullity. LSA-C.C.P. art. 2004. Appellee argues that in the petition for divorce filed June 28, 1973, mention was made of the $180.00 per month child support payment as found in the May 19, 1972 judgment, and thus appellant knew as of June 28, 1973, of this fact, and thus is precluded from bringing this action.

As to the September 26, 1973 judgment appellee argues that since appellant attacks this judgment for a vice of form, that he is further precluded from bringing the attack on this judgment because he has voluntarily acquiesced in the judgment. LSA-C.C.P. art. 2003.

As to the argument of appellee that the action must be brought within one year of discovery by the plaintiff in a nullity action of the fraud or ill practices, he may have an argument for a valid peremptory exception of prescription, but not an exception of no right of action. The purpose of the exception of no right of action is to question the interest of plaintiff to institute the law suit. Unquestionably, appellant has an interest in the law suit to nullify these judgments.

As to the appellee’s argument that appellant acquiesced in the judgment, we merely point out that Black’s Law Dictionary, fourth edition, defines acquiescence as a species of estoppel. Estoppel is an affirmative defense, LSA-C.C.P. art. 1005, but it has nothing to do with an exception of no right of action. For these reasons, we believe that the Trial Judge was also in error when he sustained the exception of no right of action.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed, and this matter is remanded to the Trial Court for further proceedings in accordance with the views expressed herein. All costs of this appeal are to be paid by the appellee,

REVERSED AND REMANDED.


text:
    Jerry DOMANGUE, Jr., et al. v. Sherman PHILLIPS et al.
    No. 10729.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Ronald L. Ronzello and Louis M. Kiefer, Jr., New Orleans, for appellants.
    Danny J. Lirette, Houma, for appellees.
    Before SARTAIN, EDWARDS and CHIASSON, JJ.
   EDWARDS, Judge.

This is a suit for damages allegedly sustained in an automobile accident which occurred on August 14, 1973. Prior to trial, two of the plaintiffs, Jerry Doman-gue, Jr. and Kathy Neil Domangue, entered into a compromise settlement with the defendants, and their claims were dismissed. At trial, the only issue was the amount of damages of the third and remaining plaintiff, Florence Domangue.

Inasmuch as defendants stipulated to their liability, the only question presented in this appeal is whether the trial court erred in awarding damages. Determinative of that issue is whether the plaintiff proved by a preponderance of the evidence her damages and that these damages resulted from the accident in question.

At the time of the accident, Mrs. Domangue was recovering from a right nephrectomy (removal of the right kidney) that she had undergone in April 1973. She testified that, although there had been some soreness in the area of the incision prior to the accident, subsequent thereto the pain increased markedly, causing her to double the frequency of her regularly scheduled visits to Dr. Dugas, who performed the operation. She further testified that the pain, though intermittent in intensity — some days being worse than others' — > had continued to the date of trial, over a year from the date of the accident. When the pain is severe, she cannot do housework and has trouble sleeping at night.

Jerry Domangue, Sr., plaintiff’s husband, stated that his wife has complained almost daily of pain in the incision since the accident. He testified that he has had to do most of the housework since the accident, that Mrs. Domangue’s difficulty in sleeping keeps him awake at night, and that she has much trouble in mounting and descending the stairs to their second-story apartment.

Dr. Roy Dugas, qualified as an expert in urology, stated through deposition that prior to the accident Mrs. Domangue was recovering normally and without problem from the operation. Mrs. Domangue first complained of the increased pain in the incisional area to Dr. Dugas on September 6, 1973, her second visit to him following the accident and some three weeks later. Despite the fact of this delay in the reported onset of the pain, Dr. Dugas stated that it was highly probable that her pain and symptoms (the objective symptoms being a bulging of the skin around the incision) were caused by the accident.

The factual findings of the trial court are entitled to great weight. Canter v. Koehring, 283 So.2d 716 (La. 1973). The testimony of Mrs. Domangue, corroborated by her husband, together with the deposition of Dr. Dugas, amply allow the reasonable inference that the trauma of the automobile accident precipitated the closely-following and exacerbated condition in the area of the healing incision. Moreover, this condition persisted until the time of trial, over a year after the accident, with no immediate prospect of relief. We find the $8,286.00 award to the plaintiff to be within the discretion of the trial court.

For the foregoing reasons, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


text:
    Amos TURNER v. STATE of Louisiana Through the LOUISIANA STATE PENITENTIARY et al.
    No. 10706.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.

      Lawrence D. Sledge, Baton Rouge, for plaintiff-appellant.
    Wm. J. Guste, Jr., Atty. Gen., Willie D. Maynor, Asst. Atty. Gen., Baton Rouge, Henry D. Salassi, Jr., Baton Rouge, for defendants-appellants.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This is a tort action brought by Amos Turner, an inmate of the Louisiana State Penitentiary, against the State of Louisiana, through the Louisiana State Penitentiary and the Department of Corrections and Fireman’s Fund Insurance Company, for personal injuries sustained in a tractor accident at the penitentiary on or about October 9, 1973. The injury caused severe and disabling results to the left knee and leg of the plaintiff.

By judgment on September 30, 1975, amended on October 3, 1975, plaintiff was given a judgment against the State of Louisiana, through the Department of Corrections, and The Associated Indemnity Company [stipulated to be the proper insurer], jointly and in solido, in the amount of $25,000.00, subject to a limitation on the liability of the insurer of $20,000.00, the limits of its coverage, plus legal interest computed thereon until paid. The plaintiff and the defendants have appealed. We amend and affirm.

The fact that Turner was thrown off his tractor and the degree of his disability is not seriously contested. The defendants-appellants who were cast in judgment contend that the trial court erred in finding that the negligence of a fellow inmate tractor driver [Nicholas] was the sole cause of the accident, in finding the Department of Corrections liable, and in failing to find that the plaintiff was guilty of contributory negligence. The plaintiff-appellant contends that the trial court erred in denying him his claim for loss of future earnings.

The evidence indicates that, on the date of the accident, Turner, a tractor driver and repairman, was operating a tractor to which was attached a small, two-wheeled trailer that contained tools for use in the event that any field repair work was made necessary. That vehicle, together with three other tractors, all operated by fellow inmates, proceeded to a location on the penitentiary grounds where plowing operations were conducted. The vehicles were of the standard farm tractor design, with large rear wheels and small front wheels more closely spaced than the rear ones.

At the end of the working day, the four tractors were proceeding single file back toward the' tractor shed. In order to reach it, it was necessary to travel a road which was located on the top of the levee adjacent to the Mississippi River. Plaintiff was in the third position, with inmate Nicholas following him. One Arthur Smith was on the Turner tractor, standing to the rear of the driver. Nicholas testified that he was momentarily detained and then he caught up and attempted to pass Turner when, to quote Nicholas, Tr. 103 :

“ . . . [A]nd I tried to go around Amos and the levee started to running out, like, . . .

Nicholas was grossly negligent in attempting to pass. He testified, Tr. 104:

“A. Like I told you, I put my hand up in the air and said that I was coming around and he looked back and shook his head.
Q. He shook his head ‘no’ ?
A. He just, you know, just nodded, like, you know.”

And, at Tr. 105 :

“Q. Is there any kind of rule up there at Angola about passing anybody on the levee.
A. Yes, sir, they had told us for to don’t pass, you know, for to don’t pass, but by that day like we were running late, you know, and I wanted to try to hurry up and get in, and I tried to go around him.”

Both Nicholas and Smith testified that Turner turned a bit to the right as Nicholas attempted to pass. Likewise, Turner testified, Tr. 128:

“Q. And then did the front of his tractor come up alongside of yours?
A. Come up alongside of mine like that and he got like that and when he looked and saw the road coming in like that, well, he put it down and that throwed them tires over together like that and that pulled the front end over like that.
Q. In the meantime had you pulled over as far as you could go ?
A. As far as I could pull. If I had pulled over any further I would have went off in the blow hole. I couldn’t get no further.
Q. The blow hole, what is that, a big borrow pit over there ?
A. Yes, sir, see, the blow hole is sitting on this side of the levee and there is one sitting on the other side.
Q. Oh, a borrow pit on both sides of the levee?
A. Yes, sir.”

Turner’s left rear wheel went over the right front wheel of Nicholas, causing Turner’s tractor to tilt and throw him off. Tennart, another inmate driver, testified in substantially the same manner. The Department, under the doctrine of re-spondeat superior, is liable; see Darville v. Louisiana Department of Corrections, 323 So.2d 441 (La. 1975).

Relative to his claim for loss of future earnings, the trial court denied it as being speculative. We disagree.

It is not disputed that the injury resulted in the plaintiff suffering an 83% disability of his leg. He is 52 years of age. At the time of trial, he had one and one-half years remaining to be served on a seven and one-half year sentence for manslaughter. The record shows that, absent the injury, when he was released he would have been employable. Further, it reflects that he probably would have been employed by a political subdivision in Caddo Parish, earning the minimum wage then applicable. We do not feel that an award for this loss is proscribed as being conjectural or speculative.

Expert testimony was elicited as to the present value of future earnings lost; the figures varied from approximately $47,-000.00 upward. In the exercise of our discretion in cases where the claimants cannot establish the exact loss suffered, we feel that $25,000.00 for loss of future earnings would be just to the litigants.

Accordingly, the judgment of the trial court is amended to increase the award to Turner to $50,000.00 and is affirmed in all other respects.

Costs are assessed against the insurer.

AMENDED AND, AS AMENDED, AFFIRMED.


text:
    McINNIS-PETERSON CHEVROLET, INC. v. R. A. RILES.
    No. 10703.
    Court of Appeal of Louisiana. First Circuit.
    May 24, 1976.
    Guy A. Módica, Baton Rouge, La., for appellant.
    Lawrence R. Dodd, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Mclnnis-Peterson Chevrolet, Inc. (Lessor), plaintiff-appellee, entered into four vehicle leases with R & M Corporation (Lessee). The leases, one dated April 7, 1971, two dated October 9, 1972, and the fourth dated January 12, 1973, were signed on R & M’s behalf by R. A. Riles (Guarantor), defendant-appellant. Riles individually entered into guaranty agreements, guaranteeing “the full and faithful performance by the said Lessee of its obligation under the terms of the said lease(s).”

R & M became insolvent and went into bankruptcy. Mclnnis filed this suit for $11,068.88 on August 12, 1974, alleging that the lease agreements provided that the leases could be terminated at the Lessor’s option if the Lessee should fail to pay rental due within a period of thirty days from due date; that payments on each lease were in fact overdue; and that Riles, as guarantor, was liable for the past due rent, attorney’s fees and legal interest.

The court below held for plaintiff, awarding $7,412.66 for past due rent, $1,000.00 for attorney’s fees, and legal interest.

Defendant-appellant has timely perfected this appeal, contending that the trial judge erred in assessing attorney’s fees and legal interest, primarily because no demand was ever made upon Riles, as guarantor, prior to the institution of this suit, so that the procurement of the services of an attorney was unnecessary and unjustified.

Plaintiff-appellee has answered the appeal praying that the award for attorney’s fees should be increased to $1,111.83, because the leases require attorney’s fees “to be fixed at no less than fifteen per cent (15%) of the amound due or so (sic) in suit.”

Since neither of the parties disagrees with the trial court’s determination of the amount of past due rent, the only issue presented to the court is whether Riles, as guarantor, is liable for attorney’s fees and legal interest.

The four leases contain the following identical pertinent parts.

“(9) TERMINATION
(b) This lease shall terminate at Lessor’s option of (sic) Lessee should fail to pay all rental hereinafter above specified within a period of Thirty (30) days after any payment thereof is due; or if Lessee should fail to perform or permit to be broken any of the covenants or agreements herein contained; or if Lessee should become bankrupt or insolvent;
“(11) CONTROL
. Lessee further agrees to return the leased vehicle to Lessor at Lessor’s principal place of business in Baton Rouge, Louisiana, upon the termination of this lease for any reason, in good and equal condition . . . ”
“(10) EXPENSES AND ATTORNEY’S FEES
Lessee agrees and binds and obligates itself to pay all reasonable charges, expenses and fees, including particularly attorney’s fees, which Lessor may incur or pay in connection with the enforcement of any of Lessor’s rights and remedies under the terms of this lease including particularly but without limitation, collection of the rental herein agreed upon, said attorney’s fees to be fixed at no less that fifteen per cent (15%) of the amount due or so (sic) in suit.”

It was stipulated in the lower court that: 1) “No demand, by letter or otherwise, was made upon defendant as guarantor of the leases ... at any time by plaintiff or plaintiff’s attorney, or any agent of plaintiff.” 2) “At the request of defendant’s attorney, the sales price of two of the vehicles (Lease 1 and Lease 2) were related to defendant’s attorney by plaintiff’s attorney on February 15, 1975.” 3) “On May 13, 1975, plaintiff’s attorney informed defendant’s attorney of the sale and the sales price of the vehicles in Lease 4.” and; 4) “On May 13, 1975, plaintiff’s attorney and defendant’s attorney agreed on a net sales price of the vehicle in Lease 3 as being $2,500.00, since the said vehicle has not yet been sold.”

Plaintiff-appellee, in opposition to defendant-appellant’s argument that the hiring of an attorney was unnecessary, argues that such necessity is not required because Paragraph 10 of the leases obligates the Lessee to pay attorney’s fees irrespective of the need to hire an attorney. It is plaintiff-appellee’s contention that the absence of the word “necessary” supports this conclusion.

Lessor relies primarily on Maurin v. Adam Lumber Co., 140 So.2d 804 (La.App. 4th Cir. 1962), in which the payee sought to hold the maker and endorser of a note liable for attorney’s fees. The court stated at pages 806, 807:

“Our attention is directed to St. Charles Dairy, Inc. v. Hayes, Jr., 233 La. 217, 96 So.2d 494, in which the Supreme Court, referring to Succession of Foster, 51 La.Ann. 1670, 26 So. 568, said that, where the holder of a note attempts to enforce such a provision for an attorney’s fee, ‘the burden rests upon the plaintiff, seeking to recover, * * * to show that there was a necessity for so doing * * *.’ However, a reading of the decision in Succession of Foster, supra, indicates that that was so held only because the note itself provided that the attorney’s fee would he due only if it appeared that there was ‘necessity’ for employing the attorneys. The Court discussed the wording of such clauses and said :
“ ‘The contracting parties were at liberty to agree that attorney’s fees should be paid in the particular case for which, as a matter of fact, provision has been made, or they might have agreed that they should be paid where the contingency was more imminent or more remote. Thus, instead of agreeing that the maker of the notes should pay such fees “in case it becomes necessary to resort to legal proceedings for the recovery of the amount of said notes, or any part thereof, which fees are hereby fixed at ten per cent, on the amount sued for,” as their contract reads, they might have imposed such liability on the maker of the notes in the event of their nonpayment at maturity, with or without previous demand and refusal or neglect to pay * * * f
“[1] In other words, what the Supreme Court said in Succession of Foster and approved in St. Charles Dairy, Inc. v. Hayes, Jr., was that if a note requires a showing of necessity for the employment of attorneys, before the fees may be claimed, the plaintiff must show that amicable demand had produced no results and that, therefore, there was necessity, but that if such a note merely provides that the fees would be due ‘in event of * * * nonpayment at maturity,’ then all that would be necessary would be to show nonpayment. The note in the case before us does not require that necessity be shown, but provides only that the attorney’s fees will be due ‘in the event this note is not paid at its maturity and is placed in the hands of any attorney at law for collection * * * > ”

Under paragraph 10 of the leases, R & M bound itself to pay “all reasonable charges . . . including particularly attorney’s fees which Lessor may incur or pay . . .”. We do not have to decide whether unreasonably incurred charges would nevertheless be properly charged to R & M since we find that the attorney’s fees were reasonably incurred under the circumstances. When R & M Corporation went into bankruptcy, Lessor through attorneys was able to procure the release of the vehicles from the proceedings. The fees for this were incurred in the enforcement of lessor’s rights to the return of the automobiles and were therefore properly chargeable to R & M under the terms of the lease. Ordinarily, a formal demand upon R & M for the return of the vehicles may have been necessary, but, under the circumstances, demand would have been a vain and useless thing.

Defendant-appellant, Riles, is liable because of his status as guarantor. “A guaranty is a collateral undertaking by one person to answer for the payment of a debt or the performance of some contract or duty in case of the default of another person who is liable for such payment or performance in the first instance.” 38 C.J.S. Guaranty § 1. “A guaranty in its technical sense is collateral to, and made independently of, the principal contract which is guaranteed; and the guarantor’s liability is secondary rather than primary or original” 38 C.J.S. Guaranty § 2.

Here we are concerned with the liability of Riles for the obligation of R & M. He is responsible for all that R & M was responsible for. When R & M became liable for the attorney’s fees incurred in the bankruptcy proceeding, the liability of Riles became fixed under the guaranty contract. Defendant-appellant’s argument that he, as guarantor, was entitled to notice and demand before the incurring of attorney’s fees against him is beside the point. The attorney’s fees are not a penalty against him individually as a guarantor, because of a failure on his part, but merely a part of the obligation of R & M for which he bound himself.

R & M bound itself for attorneys fees “to be fixed at no less than fifteen per cent . . .”. The indebtedness of R & M was found to be $7,412.66. The attorney’s fees are therefore found to be $1,111.83, instead of $1,000.00 as assessed by the trial court.

Defendant-appellant, Riles, argues that he cannot be held accountable for legal interest. This suit was filed on August 12, 1974. The court below allowed legal interest on each lease from the date the amount due under each of them was ascertained. Each of the dates is considerably later than the filing date and certainly subsequent to the time of notice to defendant-appellant of R & M’s default. Accordingly, we cannot say that the trial judge erred in his assessment of legal interest.

Accordingly for these reasons we amend the judgment of the trial court to increase the attorney’s fees from $1,000.00 to $1,111.83, and affirm as amended.

All costs are to be paid by the defendant-appellant.

AMENDED, AND AS AMENDED,' AFFIRMED.


text:
    Joseph H. MAJOR and James P. Rupp v. LOUISIANA DEPARTMENT OF HIGHWAYS.
    No. 10681.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Anthony J. Bonfanti, Baton Rouge, for appellant.

      James A. Wood, Baton Rouge, for James Rupp.
    Sam J. D’Amico, Baton Rouge, for Joseph Major.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

The Louisiana Department of Highways (Department) appeals the decision of the Louisiana Civil Service Commission (Commission) sustaining motions for summary disposition in favor of the Department’s dismissed employees, Joseph H. Major and James P. Rupp, because notices of dismissal sent said employees by Department failed to adequately specify reasons for dismissal. The decision appealed also ordered reinstatement of said employees with full pay and all other emoluments to which they were entitled. We affirm.

The Major and Rupp cases were consolidated for hearing before the Commission. Both employees were dismissed from the position of Scale Operator II, effective January 24, 1975. Both said employees protested their dismissal and moved for summary disposition which was granted by the Commission upon finding the charges so vague and indefinite as to preclude said employees from preparing an adequate defense thereto. The Department appealed and 'both said employees moved to dismiss the appeal on the ground that the Department acquiesced in the judgment. On January 12, 1976, we rendered judgment denying Major’s motion to dismiss the Department’s appeal but sustaining Rupp’s motion to dismiss the appeal upon our finding that the matter had become moot as to Rupp who had been allowed to resign his position with the Department’s approval. 327 So.2d 515. The Department has not requested a rehearing of the dismissal of its appeal as to Rupp, which matter has become final. Major has applied for rehearing of our judgment denying his motion to dismiss the Department’s appeal, which application we deny. Consequently, the Major matter is before us on its merits.

On January 24, 1975, Major was personally handed the following written notice of dismissal:

“Re: Removal from Employment for Cause
Dear Mr. Major:
You are hereby notified that effective upon receipt of this letter, your employment with the Louisiana Department of Highways is herewith terminated. An investigation into certain alleged misconduct on your part has been conducted and completed. The results of said investigation have been evaluated and a definitive determination has been reached that your actions merit dismissal.
The reasons for your removal from the employ of the Louisiana Highway Department are as follows:
(1) Failure to perform your duties as Scale Operator II by deliberately allowing the passage of overweight vehicles through your scales without issuing a violation ticket for said violation upon receipt by you of directly solicited money, goods or other objects of value, including gasoline and cases of beer; said money, goods or objects of value being kept by you for your own personal use; the same occurring systematically over at least a fourteen (14) month period on a weekly basis from approximately February of 1973 through March of 1974.
(2) The use of your position and employment with the Louisiana Department of Highways to force the payment of money, goods or other objects of value to you from private sources for your own personal use, gain and profit, the same occurring systematically during at least the fourteen (14) month period alleged in paragraph 1 above.
(3) Direct solicitation and acceptance by you of gifts, gratuities or objects of economic value, including money, cases of beer and gasoline from private sources in exchange for favors rendered by you whereby overweight vehicles were permitted to use the Highways of the State in violation of the laws of this State and the rules of this Department, the same occurring systematically over at least a fourteen (14) month period on a weekly basis from approximately February of 1973 through March of 1974.
Very truly yours,”

Major contends the letter of dismissal is fatally defective in that it fails to recite the grounds for his dismissal with that degree of specificity required to permit preparation of adequate defense, as set forth in Civil Service Rule 12.3 and also as mandated by the due process clauses of the federal and state constitutions. Civil Service Rule 12.3 provides as follows:

“12.3 Procedure in Adverse Actions for Cause, Except Suspensions
In every case of removal, demotion or reduction in pay for cause of a permanent employee the appointing authority or his authorized agent shall furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action. The appointing authority shall furnish the Director a copy of such statement within 15 calendar days of the date the employee is notified.”

The Department concedes that a letter of dismissal of a classified state civil service employee must state specific and detailed reasons and causes for the disciplinary action taken. The Department argues, however, that the recent change of the burden of proof of facts, from employee to appointing authority, on appeal, as provided by La.Const. 1974, Article X, Section 8, has abrogated and removed the need for extreme specificity required by La.Const.1921, Article XIV, Section 15 (N) (1) (a) and jurisprudence interpretative thereof, which placed said burden of proof on the employee.

So contending, the Department maintains that the letter in question is sufficiently specific and detailed in that the nature of the alleged misconduct makes specification of exact dates impossible. The Department further contends that the letter alleges a systematic course of misconduct over a specific time span and therefore fully apprises Major of the precise nature and extent of the charges against him.

Lastly, the Department suggests that any lack of detail may be adequately remedied by the use of depositions and interrogatories available to an employee pursuant to Civil Service Rule 13:19(d) which states that where appropriate, and not inconsistent with Civil Service Rules, rules of evidence applicable in civil district court trials shall apply in all hearings before the Commission.

The Department’s first contention is based on the premise that whereas La.Const. 1921, Article XIV, Section l5(N)(l)(a) imposed on the employee the burden of proving himself not guilty of the charges against him, La.Const. 1974, Article X, Section 8 shifted this burden to the appointing authority. Consequently, the Department argues, there is no longer a need for the extreme specificity and detail formerly required. It is conceded that the jurisprudence has consistently held the appointing authority to the duty of specific allegations because of the burden heretofore resting upon the employee. See Biggio v. Department of Safety and Permits, La.App., 299 So.2d 504; Hoover v. Department of Finance, La.App., 283 So.2d 298; Robbins v. New Orleans Public Library, La.App., 208 So.2d 25; Parrino v. Louisiana State University School of Medicine, La.App., 207 So.2d 800; Bonnette v. Louisiana State Penitentiary, Department of Institutions, La.App., 148 So.2d 92. In this connection, we note the following language appearing in Hays v. Louisiana Wild Life and Fisheries Commission, 243 La. 278, 143 So. 2d 71:

“The requirement of this rule that detailed reasons be stated for the action taken plainly comprehends a fair and clear statement of the misconduct of the employee including, whenever pertinent, time, dates, places and amounts, if, as in this case, monies are alleged to have been unjustly secured and misappropriated. This is necessarily so, since, under Section 15(N)(l)(a) of Article 14 of the Constitution, the employee appealing from the disciplinary action has the burden of disproving the facts stated in the letter of dismissal as grounds for the employing authorities action. Unless, then, the facts are detailed, as required by Rule 12.3, the employee would have little chance on appeal to carry the burden, even though he might have a valid defense to the action.”

The Department argues that Hays, above, requires detail and specificity only “where pertinent,” and that in this instance specification of dates, names and times are not essential because the allegations charge a systematic scheme of improper conduct over a definite time period.

Despite the constitutional shift in burden of proof, we believe the fundamental right of due process requires the detailing and specification of charges sufficient to apprise the disciplined employee of the nature of the charges against him. We deem it obvious that to prepare his defense, the charged employee must know with reasonable particularity the facts and circumstances he may be called upon to rebut in the event his employer makes out a prima facie case against him.

We find no merit in the Department’s contention that the degree of specificity required by the Commission’s ruling is unreasonable and unrealistic in that it exceeds the rules of particularization governing criminal prosecutions. Civil Service Rule 12.3 remains unchanged and we believe rightfully so. While a bill of information in a criminal proceeding may validily omit some details of the alleged offense, the accused may always demand a bill of particulars and, even after providing a bill of particulars, an information or indictment may be set aside for an omission of details prejudicial to the accused’s ability to adequately prepare his defense. State v. Mason, La., 305 So.2d 523; State v. Clark, La., 288 So.2d 612. We do not concede that the Commission has required particularization beyond that required in criminal cases; neither do we concede the degree of specificity thus required is unreasonable. The Commission’s application of Rule 12.3 must necessarily depend upon the circumstances of each individual case, taking into account the fact that a letter of dismissal produces a concurrent penalty which makes it imperative that the employee be in a position to rebut at the earliest possible opportunity.

We also find no merit in the Department’s argument that names and dates are not pertinent in this instance because such information is not essential to the acts of misconduct relied upon as cause for dismissal. The Department urges that, because of the nature of the conduct charged, the self-supervision involved in Major’s position, and the difficulty of each truck driver recalling the date of each alleged incident of misconduct, the Department cannot truthfully and accurately detail dates of such incidents.

Granting that recitation of exact dates may be difficult, if not impossible, nevertheless, the employee is entitled to notice which plainly comprehends a fair and clear statement of his misconduct. The notice must be such that the employee may commence preparation of his defense predicated upon the information contained therein. In this instance the notice should at least have contained the names of the truck drivers who allegedly paid bribes to Major, some approximation of the dates of the alleged payments and some specification of the items allegedly given as bribes.

There remains the Department’s argument that lack of specificity of charges should not result in automatic reinstatement of a discharged employee because inadequacy of notice may be remedied by use of the discovery devices available in civil cases. Notwithstanding availability of such devices, employees are entitled to notice containing allegations of specific instances of misconduct, pursuant to Civil Service Rule 12.3 and the above cited jurisprudence. This fundamental right continues regardless of other rights available to them. See Jarrell v. Criminal Sheriff Department, La.App., 297 So.2d 549.

The ruling of the Commission is affirmed, the Department to pay all costs of this appeal for which the Department may be legally cast.

Affirmed.