author: ELLIS, Judge:

text:
    Gordon GOUDEAU v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE.
    No. 11368.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.
    Christopher J. Roy, Alexandria, for appellant Gordon Goudeau.
    Howard P. Elliott, Jr., Baton Rouge, for appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is an appeal by Gordon Goudeau from a ruling of the State Civil Service Commission affirming his dismissal from his position as Senior Trooper with the Louisiana State Police.

The letter of dismissal, dated August 25, 1975, contains seven separate charges of alleged misconduct. The first of these was found to be not proven by the Commission and is not before us for consideration. In view of our findings as to Charges 5, 6, and 7, which were admitted by Trooper Gou-deau and by the other parties involved, we do not find it necessary to discuss the merits of Charges 2, 3 and 4.

Charges 5, 6 and 7 are as follows:

“5. On or about April 4, 1974, you fixed or had fixed a traffic ticket issued to Johnny DeSoto on March 28, 1974, you did so at the request of Mr. Alonzo Lem-oine. Mr. Lemoine and Mr. Gus Lachney have stated that you requested and they delivered to your residence sixty (60) gallons of diesel oil for having fixed the ticket. You did not deny fixing the ticket and you confirmed the delivery of the diesel oil. You have also stated that in the past, you have asked Judge Lee for assistance in nolle prossing tickets and you were aware that such actions were in violation of Procedural Order No. 302.-5(a).
“6. Mr. John Gremillion of Bunkie has stated that he had in his possession a 39.5 radio, property of the City of Bunkie, sent to him for repairs by the Bunkie Chief of Police. He had had the radio about a year when you approached him and asked him if he wanted to get rid of it. You told him you had a buyer in Mansura, Louisiana, who wanted to purchase the radio.
“You then approached Mitchell Tassin of •Tassin’s Skelly’s Service in Mansura and offered him the radio, which he reluctantly agreed to accept out of fear of incurring your enmity. You instructed Mr. Tassin to make out a check in the amount of $225.00 to Marvin Redman, which check is dated April 4,1974. Mr. Redman has stated that you called him and had him meet you at the Bunkie Police Station. When he arrived, you instructed him to cash the check made out to him, and to return with the proceeds. He turned over the entire amount to you and you later gave $60.00 in cash to Mr. Gremillion for his part of the deal. This conduct was in violation of Procedural Order No. 302.5(a). Mr. Gremillion installed the radio in Mr. Tassin’s wrecker. The radio, property of the City of Bunkie, bore no serial plate when it was installed in Mr. Tassin’s wrecker. Mr. Gremillion has since been charged with theft and has pleaded guilty.
“7. On March 20, 1975, John Gremillion presented a bill for $1,130.25 to the Avo-yelles Parish Police Jury for the purchase and installation of three (3) CB radios. You had approached Gremillion regarding the purchase and resale of these radios to the Police Jury. He installed two of the radios in Police units and the third in your personal car. He purchased the radios for $200.00 each in Alexandria, but he billed the Police Jury for $1,055.25 for the radios and $75.00 for installation. “After charging the Avoyelles Police Jury $75.00 for installing the three CB radios, Mr. Gremillion presented a bill for $105.75 dated March 20, 1975, to the Ward 10 Marshal’s for installation of the same three radios. Mr. Gremillion has stated that you and he conspired in this double billing and that you told him the Ward 10 Marshal’s office was willing to pay a second installation charge. When he collected from both the Parish and the Ward 10 Marshal’s office, he wrote out a check to you in the amount of $238.18 dated May 2, 1975, in return for your having helped him make the sale. The cancelled check is made out to you personally and bears your endorsement. This is in violation of Procedural Order No. 302.5(a). Mr. Gremillion has also pleaded guilty to this offense.”

Procedural Order No. 302.5A, Sub-section B(4) governing Rules of Conduct, provides in part, as follows:

“No compensation, reward, or other consideration from private sources shall be solicited or accepted by members of the Division without special permission from the Superintendent.”

The Commission found, and we agree, that each of the above charges was fully proven. We also note that all of the essential allegations thereof were admitted by the defendant. With respect to Charge No. 6, Trooper Goudeau testified that he had the check for the price of the radio made out to a third party because he knew that what he was doing was a violation of the regulations.

It is defendant’s position that the foregoing actions, if proven, did not constitute legal cause for his discharge. In Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962), the court said:

“Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Of course there must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service; otherwise legal cause is not present, and any disciplinary action by the commission is arbitrary and capricious.”

In this ease, the Commission found defendant’s conduct to be “inimical to conduct becoming a police officer,” and that “his discharge was justified.” In our opinion, the conduct set forth in Charges 5, 6 and 7, which has been proven, and which is admitted by the defendant, constitutes legal cause for his discharge under the language of the Leggett case, supra.

Defendant has assigned as error a number of alleged technical errors made during and prior to the hearing held below.

First, he complains that he was not permitted to propound certain interrogatories to the appointing authority. The record shows that the interrogatories were filed with the Commission and served upon the Louisiana State Police. On February 19, 1976, the following letter was directed to defendant’s counsel:

“Receipt is acknowledged of your correspondence of February 11, 1976 with enclosed “Interrogatories to Louisiana State Police”.
“Rules of the Commission permit of no such discovery devices.
“Nevertheless, the pleading will be placed in the Commission’s file folder for such disposition as it deems apropos.”

No action was ever taken by the Commission relative thereto, and no objection was made by defendant until he appealed from the opinion of the Commission. There is, therefore, no ruling for us to review, and, in any event, we think defendant has waived his right to complain.

The hearing below was conducted before a referee, pursuant to the provisions of Article X, § 12 of the Constitution of 1974, which provides:

“Each commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.”

Civil Service Rule 13.20 provides:

“The Commission may refer the taking of testimony of any one or more witnesses to one or more of its members, or to the Director, or to any employee of the Department of Civil Service, who shall proceed in accordance with, and shall have the authority vested in referees by Part I of Article X of the Constitution of this State.”

We think it clear that a referee appointed by the Commission has only the authority to take testimony, and has no decisional power whatsoever.

At the hearing, defendant asked the referee to rule on a motion for summary disposition of his suspension, which occurred pri- or to his dismissal. The referee referred the matter to the merits, and defendant alleges that her refusal to rule was error. As pointed out above, a referee has no such authority, and defendant’s specification of error is without merit.

Defendant also assigns as error the manner in which the hearing was conducted by the referee, Donna W. Lee, alleging that she stepped outside of her constitutional role by addressing questions to the various witnesses. We find no error in her conduct of the hearing. We think the referee comported herself in a judicious and judicial manner, that her evidentiary rulings were fair and proper; and that the questions addressed by her to the witnesses were incisive and to the point, serving as a valúa-ble supplement to the testimony elicited from the witnesses by counsel. Such participation is permitted by Civil Service Rule 13.19(h). We find no evidence of any abuse of her authority, or of bias or prejudice on her part.

Defendant also alleges that the decision of the Commission was based on findings made by the referee, which form no part of the record. He further alleges that the testimony taken by the referee was not transcribed until after the opinion of the Commission was rendered. He assigns as error the refusal of the Commission to make available to him the report and opinion of the referee, and the alleged failure of the Commission to read the transcript before handing down its opinion.

The record does not reflect the date on which the testimony was transcribed and filed in the record. The hearing was held on June 21, 1976, and the opinion of the Commission was dated and filed on December 3, 1976. We further note that this appeal was perfected by the filing of the bond on January 3, 1977, and that the record was received in this Court on January 19, 1977.

The opinion of the Commission states that “A transcript of the hearing has been prepared and examined by all of the members of the Commission.” There is nothing in the record to indicate that any report or opinion was made by the referee. Despite defendant’s argument to the contrary, we find that the Commission members read the entire transcript, as required by law, before rendering the opinion. If any report, opinion or recommendations were made by the referee, it would properly form part of the record. However, it does not appear that is the case herein.

We find no reversible error, and the opinion of the State Civil Service Commission, affirming the dismissal of Gordon Goudeau, is therefore affirmed, at defendant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge: PONDER, Judge,

license: Public Domain

text:
    Thomas Kier MADDOX v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA et al.
    No. 11386.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 26, 1977.

      Allen B. Pierson, Jr., Ponchatoula, for Thomas Kier Maddox, plaintiff-appellee.
    Charles B. Wilson, Baton Rouge, for the Prudential Ins. Co. of America, defendant-appellant.
    Paul B. Deal, New Orleans, for Pan American Life Ins. Co., defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit by Thomas Kier Maddox for benefits under a group life insurance policy, written by Pan American Life Insurance Company, which allegedly covered the life of his deceased wife, Mary Maddox. After trial on the merits, judgment was rendered in favor of plaintiff, and Pan American has appealed.

Mrs. Maddox was a long-time faculty member at Southeastern Louisiana University. For many years prior to July 1, 1970, employees of Southeastern were eligible for group life insurance under a policy written by the Prudential Insurance Company of America, and Mrs. Maddox had enjoyed this coverage. On July 1, 1970, the State of Louisiana Employees’ Uniform Group Insurance Program went into effect, which included the group life insurance policy in question herein.

On May 7, 1970, Mrs. Maddox executed the following authorization:

“I hereby authorize and request you to deduct from my salary, until further notice, the fees necessary for my coverage under the State of Louisiana Uniform Insurance Program provided by Blue Cross and/or Pan American Life Insurance Company. Contract is to be effective 7-1-70.
Such deductions shall cease upon termination of my employment or upon written notice by me 30 days prior to the next due date for deduction.”

The record shows that premiums for the life insurance coverage were paid by Mrs. Maddox for the months of July, August, September and October, 1970, the payments having been deducted from her salary. On October 1, 1970, Mrs. Maddox received the following communication from the auditor of Southeastern:

“Your new insurance became effective July 1, 1970. Since you are employed on a nine months basis, your annual premiums will be deducted in nine installments. In order to bring your premiums up to date it was necessary to deduct from your October 1 check for the months of July, August, September, and October. Hereafter we will deduct % of your annual premium from your checks through May, 1971. At that time your premiums will be paid through September 30, 1971. If you have a credit, no deductions will be made until the credit is used up. . . ”

The above document shows that there was a credit in Mrs. Maddox’s account, sufficient to cover the payments, as of July 1, 1970.

In April, 1970, Mrs. Maddox became ill and was hospitalized. However, it does not appear from the record that she did not complete her work in the 1969-70 school year. She requested and received an 18 week leave, with pay, beginning on September 9, 1970. On October 11, 1970, she died.

Pan American has denied benefits under the policy on the basis that Mrs. Maddox was at no time eligible for coverage under its policy, which provides:

“The classes of employees eligible for insurance hereunder shall be as follows: “All active full time employees, except temporary, part time employees and employees of the Louisiana State University System. ‘Active full time employee’ means an employee working not less than 30 hours per week.
******
“Each present employee is eligible for insurance on the Policy date, . However, the date of eligibility of any employee who is not actively working on the date he would otherwise be or become eligible shall be the day of his return to active work.”

If the foregoing provisions are applied literally to Mrs. Maddox, we have no doubt that she was never covered by , the policy, because she was never an “active full time employee” as above defined, after July 1, 1970. However, we do not believe that the eligibility provisions of the policy should be so applied to those in Mrs. Maddox’s position.

It must be recalled that the master policy was written to cover all employees of the State of Louisiana, most of whom work a 12 month year. Mrs. Maddox and those similarly situated, work a nine month year when fully employed. The policy provides that coverage terminates on the date of termination of employment, which the policy says takes place “if the employee is absent from active work for any reason other than being pensioned or retired.”

Therefore, a nine month employee, who pays premiums for 12 months of the year, would have no coverage during the three month summer vacation, or even during the Christmas holidays and the spring recess. We think that neither the State nor Pan American contemplated such an absurd result, and that the eligibility and termination of employment provisions of the policy were not written with the teaching personnel of a university in mind.

We think that the fact that Mrs. Maddox was carried as a covered employee, that her premiums were accepted, and that she was advised that her coverage began on July 1, 1970, all tend to show that it was not contemplated that her coverage would not begin until the start of the fall semester.

Regardless of the state of her health, we are of the opinion that Mrs. Maddox, a fully tenured professor, was a full time, active employee of Southeastern on July 1, 1970, because she had performed the duties required of her as such until and after that date. We think that the definition of active full time employee in the policy was designed to exclude part time employees, and not those who, although not actually working a 12 month year, are bona fide full time employees of the State or one of its agencies.

The judgment appealed from is therefore affirmed, at the cost of Pan American.

AFFIRMED.

PONDER, Judge,

dissenting.

I dissent.

Because of some feared results of applying the policy as written, the majority has rewritten the policy. The answer to such fears is that we do not have those cases before us.

Mrs. Maddox admittedly did not, and was not able to, meet the requirement of 30 hours’ work per week. This is quite a different situation from a prolonged scheduled summer vacation earned by her.

The majority points to the forwarding of the premiums by her employer and the letter of October 1 as tending to show that it was intended that her coverage would begin on July 1. I cannot agree that Pan American intended coverage. It certainly was not informed of her disability and so could not waive the contractual condition. There is no proof of any detrimental reliance to satisfy the requirement of equitable estoppel.

My opinion is further buttressed by the fact that the only form ever filled out was a payroll deduction form for withholding premiums from her paycheck. She never filled out a supplemental coverage form for increased benefits or a designation of beneficiary form.

Mrs. Maddox was not covered under the clear provisions of the Pan American policy. She had a valid claim against Prudential; I do not believe anyone ever intended she be covered under both policies.

For the above reasons, I would reverse the judgment of the trial court.


author: ELLIS, Judge.

text:
    GEORGE ENGINE COMPANY, INC. v. SOUTHERN SHIPBUILDING CORPORATION.
    No. 11387.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.
    George V. Baus, New Orleans, for plaintiff-appellee.
    Michael J. Paduda, Jr., John N. Gallaspy, Bogalusa, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a suit for the price of certain equipment sold and delivered by plaintiff George Engine Company, Inc. to defendant Southern Shipbuilding Corporation, and installed on Southern Ship Hull No. 114, known as the M/V Alice St. Phillip. Defendant admitted the delivery, price, and installation of the equipment, but alleged a dispute as to the fitness thereof. In a subsequently filed reconventional demand, defendant alleged that the air starter units on two generators were defective, and asked for damages arising from plaintiff’s alleged breach of contract.

A pre-trial conference was held on April 19,1976, at which time the case was set for trial on its merits on September 28, 1976. The pre-trial order shows that the ordering, delivery, installation and price of the equipment and non-payment of the invoices are established facts.

On September 23, 1976, an amending and supplemental reconventional demand, particularizing various damages allegedly re-suiting from the defective equipment, was received by the Clerk of Court of the 22nd Judicial District. The order permitting the filing was not signed by the judge, however, and a note reading, “Nothing done on following due to Judge Crain’s orders” is attached thereto. On September 27, plaintiff filed an opposition to the filing of the supplemental reconventional demand, but the record does not reveal that the court ruled thereon.

The case went to trial on the merits on September 28, 1976, without any objection being raised by the defendant. After plaintiff’s witness testified that the defects in the equipment had been remedied by plaintiff in April, 1976, plaintiff rested. No witnesses were produced by defendant, and judgment was rendered for plaintiff from the bench. From this judgment, defendant has appealed suspensively. Plaintiff has answered asking damages for a frivolous appeal.

The only assignment of error made in this court is that the trial judge erred in not allowing defendant to file the amended reconventional demand. However, the record reflects that defendant went to trial without objection, offered no evidence to substantiate its defense or its original re-conventional demand, and argued only that plaintiff had failed to prove defendant’s indebtedness, a fact which was admitted in the pre-trial order. No motion for a continuance was made, and the record does not show that the trial judge ever formally refused to permit the amendment. Under those circumstances, we think it is now too late for defendant to complain, and that it has waived whatever right it may have had to file the amendment at such a late date.

Plaintiff has asked damages for a frivolous appeal. Such damages are awarded when it appears that “the appeal was taken solely for the purpose of delay or that the counsel does not seriously believe in the position taken by him on the appeal.” Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La.App. 1st Cir. 1973).

In this case, the defendant made no serious effort to defend this case on its merits, to present its reconventional demand or to preserve its rights with respect to the amended reconventional demand. Counsel did not appear for argument in this court. It is difficult to reach any conclusion other than that this appeal was filed for purposes of delay. Plaintiff is therefore entitled to damages.

Since the judgment appealed from awards interest and costs, the only apparent damage suffered by plaintiff is the attorney’s fee charged for defending this appeal, and an award of $500.00 will be made for that item.

The judgment appealed from is therefore affirmed; in addition there will be judgment in favor of plaintiff and against defendant for the additional sum of $500.00, together with legal interest from date hereof until paid. Defendant is to pay all costs.

AMENDED AND AFFIRMED.


author: CHIASSON, Judge.

text:
    CUDAHY FOODS COMPANY v. RICH PLAN OF BATON ROUGE, INC., et al.
    No. 11363.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Nov. 4, 1977.

      William S. Mannear and W. Frank Glad-ney, Baton Rouge, of counsel for plaintiff-appellant Cudahy Foods Co.
    James R. Coxe, III, Baton Rouge, of counsel for defendant-appellee Rich Plan of Baton Rouge, Inc., et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment in favor of Thomas Earl Denson and Evelyn Denson, defendants-appellees, and against Cudahy Foods Company, plaintiff-appellant, dismissing the plaintiff’s suit.

The Densons owned and operated a corporation, Rich Plan of Baton Rouge, Inc., from 1966 until its sale in 1972. On August 1, 1966, they entered into an agreement with the plaintiff whereby they agreed to guarantee purchases made by the corporation. This “Guaranty for a Running Account” was required by the plaintiff as a prerequisite for the granting of credit. Under the terms of the agreement this guaranty was to continue in effect until the plaintiff received written notice of revocation delivered by registered or certified mail.

In July, 1972, the Densons sold all of their stock in Rich Plan to Forrest Dean, a former employee. At about the time of the sale, the Densons informed Earl Baudin, a salesman and the representative of the plaintiff with whom they dealt, that they were selling the business to Forrest Dean. Thereafter, they informed the representative that they were not responsible for the debts of Rich Plan. Written notice of revocation of the guaranty was not given to the plaintiff.

Forrest Dean operated Rich Plan for another two years. Between July 9,1974, and July 23, 1974, inclusive, the plaintiff delivered approximately $4,600 worth of supplies to Rich Plan for which it was not paid.

The plaintiff then brought an action against Rich Plan and the Densons to recover the amount due. A default judgment in favor of the plaintiff and against Rich Plan on the open account was rendered and is now final. At issue in this appeal is the liability of the Densons as a result of the guaranty agreement. The trial court held that equitable estoppel barred recovery from the guarantors.

The doctrine of equitable estoppel is designed to prevent a miscarriage of justice by preventing one from taking a position contrary to his prior acts, admissions, representations or silences when another has changed his position in detrimental reliance thereon. It is to be used cautiously because it bars the normal assertion of rights otherwise present. There must be reliance that is justified. American Bank & Trust Co. v. Trinity Universal Ins. Co., 251 La. 445, 205 So.2d 35 (1967).

We are unable to find that the Den-sons have changed their position in justified reliance on any act, representation or silence on plaintiff’s part.

Admittedly, the Densons had entirely forgotten that there was a guaranty. Whatever* statements were made to plaintiff’s representative were made well after the sale to Dean. There is no evidence of any other change of position.

Instead, we find this case to be remarkably similar to the case of Texaco, Inc. v. State Hot Mix Corporation, 276 So.2d 383 (La.App. 2nd Cir. 1973). See also Magnolia Petroleum Co. v. Harley, 13 So.2d 84 (La. App. 2nd Cir. 1943); and Bonura v. Christi-ana Bros. Poultry Co. of Gretna, 336 So.2d 881 (La.App. 4th Cir. 1976) writ refused 339 So.2d 11 (La.1976).

By supplemental petition filed in the District Court plaintiff also seeks to recover costs and expenses, including a reasonable sum for attorney’s fees in accordance with the provisions of the guaranty signed by the Densons.

The principal obligation did not stipulate attorney’s fees and under Civil Code Article 3037 the suretyship can not exceed what may be due by the debtor, nor be contracted under more onerous conditions. Bonura v. Christiana Bros. Poultry Co. of Gretna, supra.

For these reasons the judgment of the Trial Court is reversed and there is now judgment herein in favor of the plaintiff, Cudahy Foods Co., and against defendants, Earl and Evelyn Denson, in the sum of $4,599.42 together with legal interest from July 30, 1974 and all costs.

REVERSED AND RENDERED.


text:
    Karleen York PARKS in her own behalf and as tutrix of Danny L. Gill v. Vincent PAOLA and XYZ Insurance Company.
    No. 11370.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 26, 1977.
    Richard L. Muller, Covington, of counsel for plaintiff-appellee, Karleen York Parks in her own behalf and as tutrix of Danny L. Gill.
    Robert J. Yandaworker, Baton Rouge, of counsel for defendant-appellant, Vincent Paola and XYZ Ins. Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of the plaintiff-ap-pellee, Karleen York Parks in her capacity as Tutrix of Danny L. Gill, and against the defendants-appellants, Vincent Paola and American Security Insurance Company, awarding the appellee $8,000.00 general damages for injuries resulting from a dog bite.

The issues on appeal are whether the court below properly held defendants liable for the plaintiff’s injuries, and whether the award was excessive.

We reverse and render.

Danny Gill, plaintiff’s nine year old son, was bitten by a German Sheperd dog owned by the defendant. At the time of the incident the dog was chained to a post in the defendant’s unfenced back yard. The Pao-las were not at home when the incident occurred, and the dog was not otherwise attended.

The evidence shows that the neighborhood children frequently played with defendant’s dog. Danny had played with the dog previously, without any indication of dangerous propensities on the part of the animal.

On the day in question, Danny entered the defendant’s yard just as two other children were leaving. As they passed, one of the other children warned him that the dog might bite him. Nevertheless, Danny approached the dog, and was bitten in the face.

The trial judge found that this case was controlled by Holland v. Buckley, La., 305 So.2d 113 (1974), and held that defendant had not rebutted the presumed fault established by that ruling.

We do not believe the holding in Holland v. Buckley, supra, dictates a finding of liability on the part of the defendant in this case. The issue in Holland, as summarized in the opening paragraph, was:

“When an innocent bystander is bitten by a dog, who shall bear the damages so caused? The bystander passing on the street, who did not provoke the attack? Or the owner of the dog, who created the risk by letting the dog go loose?”

There the plaintiff was walking his dog across the street from defendant’s residence. Defendant’s dog was running loose in the front yard. Without warning, defendant’s dog ran across the street and attacked plaintiff’s dog. In the process plaintiff was bitten on the arm.

There are several distinguishing facts in the present case. Danny, without invitation, was on defendant’s property against the express wishes of Mr. Paola. The dog in Holland was unrestrained; the defendant’s dog was restrained within defendant’s property. While the plaintiff in the Holland case had no reason to expect the dog to attack him, Danny had been warned by another child just before the incident that the dog might bite him.

This case is more nearly like Dotson v. Continental Insurance Co., La.App., 322 So.2d 284 (1st Cir. 1975) writ refused La., 325 So.2d 606 (1976). There the plaintiff’s nine year old son was bitten by the defendant’s dog, after he had proceeded into the defendant’s yard in contravention of direct instructions. The court held that where a dog is kept in an enclosed area, and where a young boy, uninvited, proceeds into the yard against the wishes of the owner and is bitten, the dog owner is not liable.

There is some broad language in Holland that could militate toward liability of the defendants here. However, the exact holding in Holland and the unanimous denial of writs in Dotson are indicative of an intention to limit the holding in Holland. The facts of the present case go well beyond those in Holland.

Because of our finding of no liability on the part of defendants, the issue of quantum is moot.

For the above reasons, the judgment of the trial court is reversed; judgmeht is rendered in favor of Vincent Paola and American Security Insurance Company dismissing plaintiffs suit at his cost.

REVERSED AND RENDERED.


text:
    Maurice L. BROWN v. R. T. SUTTON, Commissioner of Conservation, etc.
    No. 11374.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Granted Oct. 26, 1977.
    J. Clayton Johnson, Jr., Baton Rouge, of counsel for plaintiff-appellant, Maurice L. Brown.
    Veil David DeVillier, Eunice, Joseph L. Hargrove, Jr., David L. Smelley, Shreveport, of counsel for defendant-appellee, R. T. Sutton, Etc., et al., of counsel for inter-venor-appellee, Franks Petroleum Inc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court denying Maurice L. Brown, plaintiff-appellant, a preliminary injunction prohibiting R. T. Sutton, Commissioner of Conservation, Department of Conservation of the State of Louisiana, defendant-appel-lee, from putting into effect or continuing in effect Commissioner’s Order 457-EE.

On May 12,1976, Pranks Petroleum, Inc., intervenor-appellee, pursuant to L.R.S. 30:5(C) applied for a public hearing and order to establish and maintain a unitized operation and secondary recovery project for the Cotton Valley reservoir of the Min-den Field, Webster Parish, Louisiana. Included in the application was a list of the parties at interest and the represented owners. The name of the appellant was not on this list.

A public hearing on the application for unitization was set for July 13, 1976, in Baton Rouge, Louisiana. Legal notice of the hearing was published in the State-Times, a daily newspaper of general circulation and the Official Journal of the State of Louisiana. A copy of the notice was also sent to all listed interested parties.

The applicant on June 3, 1976, requested that the hearing be continued from July 13, 1976, to a later date because the engineer who was to present the engineering studies had been subpoenaed to appear in Federal Court on that date.

On June 15, 1976, counsel for the appellant sent a letter to Gene Griswold, attorney for the Alice-Sidney Oil Company, which took note of the application and stated that interests claimed by Alice-Sidney and perhaps others were adverse to those claimed by the appellant and that this matter should be resolved prior to unitization. Copies of the letter were sent to various interested parties including the Department of Conservation.

The date of the public hearing was changed from July 13, 1976, to September 15, 1976, and the location from Baton Rouge, Louisiana, to Shreveport, Louisiana. The record does not indicate when this change was made or that notice of the change was given.

The public hearing on the application for unitization was held on September 15, 1976. At the hearing Sam Caverlee, an attorney for the appellant, appeared and argued that the Department could not hear the case because proper notice had not been given and that, as a result, he had not had an opportunity to prepare a presentation. An offering of evidence was made by Mr. Cav-erlee at this time, which offering was not ever filed in the record of the hearing.

On September 23, 1976, Commissioner’s Order 457-EE was issued establishing the unit. The appellant on October 1, 1976, filed suit in Webster Parish, Louisiana, seeking a declaratory judgment determining the ownership of the disputed mineral interest. This suit is now pending.

In letters dated October 1, 1976, October 4, 1976, and October 8, 1976, the appellant requested a rehearing and stay order based on the above suit and on the ground that less than 75% of the mineral owners had executed the agreement.

After the request for a rehearing was denied the appellant brought this action for an injunction. Franks Petroleum, Inc. intervened in the suit asking that the District Court dismiss the appellant’s action.

The District Court after a hearing upheld the validity of the order and denied the preliminary injunction sought by the appellant. It is this decision which has been appealed.

R.S. 30:5(C) provides in part:

“. . . Any order for such a unit operation shall be issued only after notice and hearing and shall be based on findings that (1) the order is reasonably necessary for the prevention of waste and the drilling of unnecessary wells, and will appreciably increase the ultimate recovery of oil or gas from the affected pool or combination of two pools, (2) the proposed unit operation is economically feasible, (3) the order will provide for the allocation to each separate tract within the unit of a proportionate share of the unit production which shall insure the recovery by the owners of that tract of their just and equitable share of the recoverable oil or gas in the unitized pool or combination of two pools, and (4) at least three-fourths of the owners and three-fourths of the royalty owners, such three-fourths to be in interest as determined under (3) hereof, shall have approved the plan and terms of unit operation, such approval to be evidenced by a written contract or contracts covering the terms and operation of said unitization signed and executed by said three-fourths in interest of said owners and three-fourths in interest of the said royalty owners and filed with the commissioner on or before the day set for said hearing . . . ”

Notice that a public hearing on the inter-venor’s application for unitization would be held on September 15, 1976, in Shreveport was never given. In addition, Commissioner’s Order 457-EE does not contain findings that the proposed unit was economically feasible and that the allocation of unit production provided by the order would insure that each owner would recover his just and equitable share.

For the actions of an administrative agency to be valid they must conform to the legislative grant of authority. In exercising delegated powers an agency must comply with the statutory requirements. If the making of a finding is a condition precedent to an act, the act is void unless the fulfillment of the condition appears in the record of the act. Hunter v. Hussey, La.App., 90 So.2d 429 (1st Cir. 1956).

Because Commissioner’s Order 457-EE was issued without notice and because it does not contain mandatory findings of jurisdictional facts upon which its issuance is conditioned, it is void and must be annulled. Therefore, the case will be remanded so that the Commissioner may have an opportunity to comply with the legislative requirements.

For the above reasons, the judgment of the District Court upholding the validity of the order is reversed and the cause remanded to the Commissioner of Conservation for proceedings consistent with the views expressed herein. Costs to be paid by the intervenor.

REVERSED AND REMANDED.


text:
    Ronnie E. McADAMS, Individually, etc. v. Dr. Alfred M. HOLDEN et al.
    No. 11377.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Nov. 4, 1977.

      Arthur Cobb, Baton Rouge, of counsel for plaintiff-appellant, Ronnie E. McAdams.
    Robert L. Kleinpeter, Baton Rouge, of counsel for defendant-appellee, St. Paul Fire and Marine Ins. Co. and Dr. Alan J. Ostrowe.
    Roger M. Fritchie, Baton Rouge, of counsel for defendant-appellee, Our Lady of the Lake Hospital and Ins. Co. of North America.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This action was initiated by Ronnie E. McAdams, individually and on behalf of his minor son, James Richard (Ricky) Mc-Adams, and Linda McAdams, plaintiffs-appellants, to recover damages for injuries sustained by Ricky McAdams as the result of an operation on June 28, 1973, at Our Lady of the Lake Hospital, Baton Rouge, Louisiana. Named as defendants in this action were Dr. Alfred M. Holden, Dr. Jack D. Clayton, The Baton Rouge Clinic and Dufrocq Corporation, St. Paul Fire and Marine Insurance Company, Dr. Alan J. Os-trowe, Our Lady of the Lake Hospital, and Insurance Company of North America.

Prior to the trial on the merits suit was dismissed as to Dr. Holden, Dr. Clayton, The Baton Rouge Clinic and Dufrocq Corporation. Following a trial on the merits the jury, after due deliberation, returned a verdict in favor of the remaining defendants, dismissing plaintiffs’ suit.

The plaintiffs have appealed this decision insofar as it dismisses their suit against Dr. Alan J. Ostrowe and his insurer, St. Paul Fire and Marine Insurance Company.

The appellants contend that the jury erred:

1) In failing to find that medical malpractice on the part of Dr. Ostrowe was the cause of Rickey’s injuries;
2) In allowing sympathy for Dr. Ostrowe to enter into their deliberations and affect their decision; and
3) In not properly applying the doctrine of res ipsa loquitur.

On June 28,1973, Ricky McAdams underwent surgery at Our Lady of the Lake Hospital to correct a kidney disorder. The surgery was performed by Drs. Holden and Clayton. Dr. Ostrowe administered the anesthesia. Ricky was approximately five years old at the time and a normal healthy child. About forty-five minutes into the operation Ricky suffered a cardiac arrest. Resuscitation procedures were begun and a heart beat was restored within a minute of the report of cardiac arrest.

As a result of this cardiac arrest Ricky suffered a severe neurological deficit which rendered him practically helpless.

It is the appellants’ contention that Ricky suffered this neurological deficit because Dr. Ostrowe failed to constantly monitor Ricky’s vital systems and that, as a result, Ricky’s brain was deprived of oxygen for approximately three to five minutes.

The standard of care to which a physician, surgeon or dentist is held is that “degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case.” Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953).

The standard of care applicable to anesthesiologists practicing in the Baton Rouge area includes a constant monitoring of the patient’s vital signs by the anesthesiologist or a qualified nurse anesthetist. Dr. Ostrowe testified that he left the operating room for about five minutes to answer a telephone call. While Dr. Ostrowe was gone he was relieved by Ann Ashbaugh, a qualified nurse anesthetist. Both Dr. Ostrowe and Nurse Ashbaugh testified that Ricky’s vital signs were constantly monitored.

Dr. Ostrowe testified that he asked Catherine Baughman, the circulating nurse to get Nurse Ashbaugh to relieve him. Nurse Baughman testified that she did not remember being asked to get Nurse Ashbaugh. Except for Dr. Ostrowe and Nurse Ashbaugh, no one else remembers either Dr. Ostrowe being relieved by Nurse Ash-bough or Dr. Ostrowe ever leaving. There is no evidence that Ricky was ever left unattended or that his vital signs were not constantly monitored. The appellant has not shown that Dr. Ostrowe failed to exercise the degree of care required of an anesthesiologist in the Baton Rouge area.

After the rendition of judgment and within the delays allowed, the appellants filed a motion for a new trial. The appellants allege that the jury improperly allowed its sympathy for Dr. Ostrowe to influence its decision. This allegation was supported by the affidavit of a jury member.

Following a contradictory hearing the District Court properly denied the appellant’s motion for a new trial because a juror cannot be heard to impeach the jury’s verdict. Dieudonne v. Guidry, La.App., 336 So.2d 990 (3rd Cir. 1976).

The doctrine of res ipsa loquitur is properly applied when the accident is the kind that does not normally occur in the absence of negligence; the injury was caused by an agency or instrumentality within the control of the defendant; and evidence as to the cause of the accident is more readily available to the defendant. Comment, 25 La.Law Review 748, 750. The jury did not fail to properly apply the doctrine of res ipsa loquitur in this case because the accident which occurred, cardiac arrest with a resultant neurological deficit, is one which can occur in the absence of negligence. The testimony of the experts was that a statistically significant number of cardiac arrests occur on the operating table for unknown reasons unrelated to the negligence of any party. The testimony also established that while there is generally a three to five minute period in which successful resuscitation may be made without a detectable neurological deficit this is not a hard and fast rule and a neurological deficit may occur even where there is immediate resuscitation.

Even if it was admitted, for the sake of argument, that res ipsa loquitur applied in this case, there is evidence in the record which would support a finding by the jury that Dr. Ostrowe had proved that he was not negligent. Res ipsa loquitur is a rule of evidence whose applicability is normally determined at the conclusion of the trial. It is applied when the plaintiff has shown circumstances which create an inference of negligence on the part of the defendant. The defendant must then come forward with proof to offset this inference. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972). Dr. Ostrowe and Nurse Ashbaugh testified that Ricky was never left unattended and that the vital signs were constantly monitored. The jury could well believe that this testimony overcame whatever inference of neglect created by the application of the doctrine of res ipsa loquitur.

For the above reasons, the judgment appealed from is affirmed.. Costs to be paid by the appellants.

AFFIRMED.


text:
    Robert L. RABORN v. LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION, Louisiana Civil Service Commission, and Louisiana Department of Civil Service.
    No. 11384.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Granted Nov. 4, 1977.
    Robert L. Raborn, in pro. per.
    William J. Guste, Jr., Atty. Gen., Patrick J. Briney, Staff Atty., Baton Rouge, of counsel for defendant-appellee, La. Health & Human Resources Administration, et al.
    R. Gray Sexton, Baton Rouge, of counsel for defendant-appellee, Civil Service Commission of Dept, of Civil Service.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court sustaining the Declinatory Exception of Lack of Subject Matter Jurisdiction filed by the defendants-appellees, the Louisiana Health and Human Resources Administration, the Louisiana Civil Service Commission, and the Louisiana Department of Civil Service, and dismissing the suit for a Declaratory Judgment and Injunction filed by the plaintiff-appellant, Robert L. Raborn.

The appellant is employed as an Attorney III, a classified civil service position, by the Louisiana Health and Human Resources Administration. At issue is whether the appellant, as an Attorney III, can be required to perform notarial services for Earl K. Long Memorial Hospital.

The appellant contends:

“1. The trial court erred when it sustained the exception filed by the defendants herein entitled ‘Declinatory Exception of Lack of Subject Matter Jurisdiction’ and dismissed plaintiff’s petition, without allowing him a delay in which to amend his petition to correct the objections if any.
“2. The trial court erred when it sustained the declinatory exception filed herein by the defendants, and in finding any grounds in which to support the exception, or otherwise to dismiss plaintiff’s suit.” (Emphasis supplied).

Article 10 § 10(A)(1) of the Louisiana Constitution of 1974 grants unto the Civil Service Commission very broad powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, employment conditions and other personnel matters and transactions.

Article 10 § 10(B) provides:

“Each commission may investigate violations of this Part and the rules, statutes, or ordinances adopted pursuant hereto.”

Article 10 § 12 of the Louisiana Constitution of 1974 provides:

“Each commission shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony,- with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.”

The appellant is attempting to circumvent this exclusive jurisdiction by seeking a declaratory judgment and injunction which would prevent his being removed or disciplined for failing to provide the requested services.

Because the Constitution gives the Civil Service Commission exclusive jurisdiction in these cases the District Court was without jurisdiction and properly sustained the ap-pellees’ declinatory exception.

Article 932 of the Louisiana Code of Civil Procedure provides:

“When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.
“If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action shall be dismissed; except that if it has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.”

The grounds for the exception in this case are jurisdictional and, as a result, may not be removed by amending the petition of the appellant. In addition, there is no proper court to which this case may be transferred because jurisdiction in this matter lies exclusively with the Civil Service Commission. Therefore, the District Court did not err in dismissing appellant’s suit.

Because of the above holding we do not find it necessary at this time to determine whether or not the appellant’s petition presents a justiciable controversy.

For the above reasons, the judgment appealed is affirmed. Costs to be paid by appellant.

AFFIRMED.


text:
    David R. HICKMAN v. Mike STRAIN, d/b/a Uncle Sam Fireworks, and E. O. Hutchison, d/b/a U. S. Fireworks.
    No. 11388.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Eileen G. Shaver, Harry A. Rosenberg, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for plaintiff-appellant.
    Louis R. Koerner, Jr., New Orleans, for defendants-appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court dismissing the action brought by David R. Hickman, plaintiff-appellant, and the reconventional demand made by Mike Strain and E. 0. Hutchison, defendants-appellees and plaintiffs-in-reconvention-appellants.

On June 29, 1976, Hickman filed a Petition for Injunctive Relief and obtained a Temporary Restraining Order prohibiting Strain and Hutchison from advertising or displaying the designation “Uncle Sam Fireworks” in such a manner that it appears to read, “U. S. Fireworks” or the designation, “U. S. Fireworks”, in connection with the retail sale of fireworks. Strain and Hutchison answered Hickman’s petition and filed a reconventional demand denying Hickman’s allegations and asking for damages for wrongful issuance of the temporary restraining order.

A hearing was held on a rule to show cause why a preliminary injunction should not issue and judgment was rendered dismissing Hickman’s suit and the reconven-tional demand of Strain and Hutchison. Hickman appealed the judgment dismissing his suit and Strain and Hutchison answered, appealing the dismissal of their reconven-tional demand.

Hickman has, by his own motion, dismissed his appeal as to Hutchison only.

Hickman contends:

“1. The Trial Court erred in failing to distinguish between the two defendants, inasmuch as the plaintiff satisfied the requisite burden of proof with respect to the defendant, Strain.
“2. The Trial Court erred in excluding the testimony of Kevin Baragona.”

Strain and Hutchison contend:

“1. The judgment of this Court is erroneous in that it dismissed the recon-ventional demand without there having been notice of a hearing or the opportunity to present evidence at the trial on the preliminary injunction;
“2. The court was in error in failing to grant a new trial, upon the letter application of defendant.”

The evidence contained in the record supports the District Court’s finding that, as between the parties, Hickman was not the first to use the name “U. S. Fireworks” in St. Tammany Parish, this area in which the competing fireworks stands were located.

“. . .In order to entitle a party to an injunction restraining another from the use of a trade-name, he must make it appear, with at least reasonable certainty, that his adoption of the name was prior in time to that of his adversary, that he adopted and made use of it in such manner as reasonably to apprise the public that he intended it as a distinctive appellation for his trade, commodity, or place of business, and that it was not, at the time of his attempted appropriation of it, in common or general use in connection with like businesses, commodities, buildings, or localities.”
87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 30, Adoption and Use, p. 265.

At the time of Hickman’s attempted appropriation of the appellation “U. S. Fireworks” for his fireworks stand, the term had been in common use in connection with another fireworks stand. Therefore, even if Hickman did use the designation “U. S. Fireworks” prior to its use by Strain, Hickman could not obtain an injunction to prevent its use by Strain.

The testimony excluded by the District Court was Kevin Baragona’s statement that an unknown customer told him “The people down there that run Uncle Sam’s said they had put this out, the brochure.” The brochure in question was one advertising the fireworks sold by Hickman.

The District Court excluded this testimony as hearsay. Hickman contends that while the statement was hearsay it is admissible as a present sense impression. Pretermitting the question of whether a present sense impression is admissible in Louisiana as an exception to the hearsay rule, the statement alleged to have been made to Baragona is not a present sense impression because it was not made while the declarant observed the event. Therefore, the District Court did not err when it excluded this testimony.

The District Court dismissed Hickman’s suit and the reconventional demand of Strain and Hutchison following a hearing on a rule- to show cause why a preliminary injunction should not issue. Unless it is otherwise stipulated, a hearing on a rule to show cause is a summary proceeding and not a trial on the merits. Penn v. Burk, 244 La. 267, 152 So.2d 16 (1963). At the hearing the only matter before the Court was whether or not Hickman was entitled to a preliminary injunction. Therefore, the District Court erred when it rendered a final judgment dismissing the principal and re-conventional demands.

The record does not contain a motion for a new trial filed by Strain and Hutchison.

Based on the evidence adduced at the hearing Hickman was not entitled to a preliminary injunction prohibiting the use of the designation by other parties.

For the above reasons, the judgment appealed from is reversed. Judgment is hereby rendered denying the preliminary injunction sought by David R. Hickman. The case is remanded for further proceedings. Costs of this appeal is to be paid by David R. Hickman.

REVERSED, RENDERED AND REMANDED.


author: PONDER, Judge.

text:
    Bernard S. SMITH v. Leon D. DENDINGER.
    No. 11375.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.

      Bernard S. Smith, Marion B. Farmer, Covington, for plaintiff-appellee.
    Roger I. Dallam, Gretna, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for the balance due on an open account for attorney’s fees. The trial court-rendered judgment in favor of the plaintiff in an amount less than sued for. Defendant has appealed and plaintiff has answered the appeal asking for an increase.

The issues on appeal are:

1. The propriety of overruling defendant’s exception of improper venue;

2. Whether the judgment should have been rendered against the community of acquets and gains rather than against the defendant individually;

3. Whether the court erred in awarding interest; and

4. Quantum.

We affirm.

Defendant retained plaintiff to represent him in actions for separation from bed and board and for divorce. After defendant had retained other counsel, a dispute arose over the amount of fees.

The court found that the plaintiff had done considerable work for the defendant for which he had not been paid, and awarded $1,600.00 in quantum meruit.

VENUE

Defendant filed an exception of improper venue,’ claiming to be a domiciliary of Jefferson Parish where he should have been sued. Judgment was rendered by the trial court overruling the exception.

We find no merit in this assignment of error. LSA-C.C.P. Article 929 provides that the declinatory exception shall be tried and decided in advance of trial of the case. Defendant’s counsel, although given notice, did not attend and offered no reason for his failure.

COMMUNITY OBLIGATION

Defendant contends that the trial court erred in rendering a judgment against him individually rather than against him as head and master of the community of gains. He cites Malone v. Malone, 260 La. 759, 257 So.2d 397 (1972), and cases cited therein, as authority for the proposition that the attorney’s fees of both the husband and wife in a separation proceeding are payable only out of community assets.

Attorney’s fees for both husband and wife in separation proceedings are proper charges against the community. Uchello v. Uchello, 220 La. 1061, 58 So.2d 385 (1952). However, the husband is the proper defendant in a suit against the community. LSA-C.C.P. Article 735. The community is a contract between the parties thereto and can have a direct effect only between them. 32 La.L.R. 219 at 225. It is not a natural or juridical person and is without patrimony. Creech v. Capitol Mack, Inc., La., 287 So.2d 497 (1973).

Plaintiff obligated himself to pay attorney fees under these circumstances. He cannot escape liability or defer payment by saying the fee is an obligation of the community. What accounting the community might owe defendant under Malone v. Malone, supra, is not before us. This specification of error is therefore without merit.

INTEREST

Defendant claims that the trial court erred in granting interest on the award made. In the oral reasons for judgment at the conclusion of trial the court omitted any mention of interest; however the written judgment granted interest from the date of billing by the plaintiffs.

This claim is without merit. The reasons for judgment form no part of the judgment itself. A reading of the transcript shows that the court was informing the parties of the decision it had reached so that a judgment could be prepared accordingly. There was no intent to cover every aspect of the judgment in the oral reasons.

Plaintiff is entitled to legal interest from August 5, 1975, the date defendant was billed for services rendered. LSA-C. C.P. Article 1921 and Carey v. Sentell, 64 So.2d 451 (La.App. 2nd Cir. 1953).

QUANTUM

Plaintiff has answered the defendant’s appeal contending that the trial court erred in not awarding him $3,666.00, the amount sued for.

The court found that the amount of time spent by plaintiff on the case was excessive. The testimony of plaintiff and defendant conflicted as to whether all of the work was authorized or was necessary. Based on the record as a whole, we cannot say that the judgment for $1,600.00 was manifestly erroneous.

For the above reasons, the judgment of the trial court is affirmed; defendant is to pay all costs.

AFFIRMED.


text:
    Phyllis Ann Hollibaugh BENNETT v. Elmer F. BENNETT.
    No. 11378.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.

      Garic K. Barranger, Covington, for plaintiff-appellant.
    Guy L. Deano, Jr., Covington, Mark W. Malloy, New Orleans, for defendant-appel-lee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff sued defendant for divorce on the grounds of adultery. Defendant reconvened seeking a divorce based on living separate and apart for one year without reconciliation after a judgment of separation. The trial court dismissed the plaintiff’s demand and granted judgment in favor of the defendant on his reconventional demand. Plaintiff has appealed.

The issues on appeal are:

1. Whether the trial court erred in holding defendant was not guilty of adultery; and

2. If defendant be found guilty of adultery, does plaintiff have the right to alimony after divorce even though she was found at fault in the separation proceedings.

We reverse and render.

Defendant obtained a judgment of separation against plaintiff in 1974, on the ground of habitual intemperance. Subsequently, he began dating a Mrs. Joan Burton. The two admitted taking trips together, some with other members of their families and some without. Both admitted occupying one room overnight in hotels and motels. Defendant admitted that he had attempted to have sexual intercourse with Mrs. Burton, but that he had failed because of his impotence, resulting from a vasectomy. He admitted to being in good health otherwise, and his occupation as an airline pilot demands good health. It is also significant that defendant failed to mention his impotency in his deposition, although it was highly relevant to the line of questioning by plaintiff’s counsel. Mrs. Burton denied any sexual intercourse.

To prove adultery, the circumstantial evidence must be so strong that no other reasonable conclusion can be drawn. See Breaux v. Breaux, 323 So.2d 486 (1st Cir. 1975); Hermes v. Hermes, La., 287 So.2d 789 (1973).

Defendant has admitted every circumstance from which one might infer an adulterous relationship, including his desire and efforts to achieve it. He denied only his ability to commit adultery, but offers no medical evidence to support this, although it should be easily obtainable. We hold that the trial judge was manifestly erroneous in accepting the self-serving testimony of defendant and Mrs. Burton, rather than the overwhelming circumstantial evidence to the contrary.

This court is well aware of the great weight which must be given to the factual conclusions of the trial judge, especially when these conclusions are based on the credibility of witnesses. See Billiot v. Bourg, La., 338 So.2d 1148 (1976) and Dyson v. Gulf Modular Corporation, La., 338 So.2d 1385 (1976). However, we do not believe any reasonable conclusion can be drawn from the admitted conduct of defendant and Mrs. Burton other than that an adulterous relationship existed between them. We therefore conclude that the divorce should have been awarded to Mrs. Bennett on the grounds of adultery.

Mrs. Bennett further claims that she is entitled to post-divorce alimony. LSA-C.C. Article 160 provides:

“When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
1. The wife obtains a divorce;
2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
3. The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.”

We believe that the proper interpretation of this article precludes Mrs. Bennett from obtaining post-divorce alimony even though she is granted the divorce on grounds of adultery because she has been found at fault in the separation. In Fulmer v. Fulmer, La., 301 So.2d 622 (1974), the court, while not confronted with our exact issue, made the following statement:

“Thus, the determination of marital fault by the separation judgment should be conclusive as to the legal cause of the separation, no matter upon what ground the divorce is sought.”

The court also said:

“Thus, where a judicial separation is decreed as caused by the fault of one spouse or the other, such fault as judicially determined to be the cause of the separation is normally determinative of the issue of whether the husband or the wife is or is not at fault for purposes of deciding whether the wife is entitled to alimony under Article 160.”

It is true that the court added:

“Such a conclusion is, of course, not applicable if the divorce is sought for post-separative fault, such as adultery; for the sole effect of the separation judgment is a conclusive adjudication as to which spouse’s pre-separation fault primarily caused the separation.”

However, the initial words of Article 160 requires that the wife “has not been at fault,” without limitation to the divorce proceeding only, and we therefore hold that since plaintiff was found to be legally at fault in the separation, she may not now claim post-divorce alimony, despite the fault of her husband in the divorce.

The judgment of the trial court is therefore reversed, and judgment is rendered in favor of the plaintiff and against the defendant, granting to her an absolute divorce. Judgment is further rendered in favor of the defendant and against the plaintiff denying her post-divorce alimony. All costs are to be borne equally by the parties.

REVERSED AND RENDERED.


text:
    James V. KEMP v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 11389.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.
    Neil H. Mixon, Jr., Baton Rouge, for plaintiff-appellant James V. Kemp.
    Horace C. Lane, Baton Rouge, for defendant-appellee State Farm Mutual Automobile Ins. Co. et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff sued for damages as a result of being struck by an automobile. He has appealed from the judgment in favor of the defendant.

The only issue on appeal is whether the trial court committed manifest error in absolving defendant of liability.

We affirm.

Plaintiff left a night club shortly before closing time to return home. He sustained severe personal injuries, when an automobile struck him while he was crossing the street.

Plaintiff testified that he was already across the street and in a grassy area when the car struck him. He never saw the car and so could not give a description of it.

Mr. Ernest Slayton, a witness for the plaintiff, was driving along the street on which the accident occurred. He said that although he did not see the impact, he did see dust fly in the vicinity of a dark colored car travelling immediately in front of him. When he saw a man lying beside the road, he concluded the dark colored car had hit the man and so followed it to an apartment complex. Further investigation revealed that Mrs. Cathy Wallace was the driver of the car and State Farm Mutual Automobile Insurance Company was the insurer.

Certain fibers were found on the Wallace vehicle and they were compared with the plaintiff’s clothing. Although there were some similarities, the crime lab technician could not say with any certainty that the fibers on the car came from plaintiff’s clothing.

Mrs. Wallace testified that she was at the club with friends. She parked her car in a parking lot across the street. When leaving later that evening, she went around the horseshoe shaped driveway, turned right and proceeded west to return home. This would have prevented her from passing the spot where plaintiff was struck.

Rhonda Orgeron corroborated the testimony of Mrs. Wallace. She indicated that Mrs. Wallace had pulled out of the parking lot and was heading west when she heard a scream. She turned and saw plaintiff lying beside the road.

The only eye witness to the incident was Jo Ann Brisendine, who was standing in a parking lot about twenty feet from the plaintiff when he was hit. She testified that the car which struck plaintiff was white or light colored. Miss Brisendine had not been drinking and was not acquainted with any of the parties involved.

From this conflicting testimony, the trial court concluded that plaintiff had not proved the car driven by Mrs. Wallace was the one that struck the plaintiff. The appellate court should not disturb this determination of credibility in the absence of manifest error. Canter v. Koehring Company, La., 283 So.2d 716 (1973). We can not say manifest error has been shown.

For the above reasons, the judgment of the trial court is affirmed; plaintiff is cast with all costs.

AFFIRMED.


text:
    John Wimberlin KERR v. Cynthia Kendrick KERR.
    No. 11557.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Sept. 27, 1977.

      Hobart O. Pardue, Jr., Springfield, for plaintiff.
    James E. Kuhn, Denham Springs, for defendant.
    Before LANDRY, PONDER and COLE, JJ.
   PONDER, Judge.

We granted a writ and stay order on defendant’s allegations of irreparable injury and inadequacy of remedy by appeal. We ordered the completion of the record when it was sent to us without any transcript of testimony. The following is reconstructed from the record, which, however, does not contain an extract of minute entries,' which deficiency is unexplained.

On July 27, 1976, plaintiff filed suit for a divorce and the custody of three minor children, ages four, two and one, on grounds of adultery. After several continuances the trial was held on March 25, 1977. Divorce and custody of the children were granted to the plaintiff on April 22. Application for a partial new trial questioning only the custody of the children was filed on April 28, and a judge other than the trial judge signed the order on May 2, setting the motion for hearing on May 20. On May 3, the trial judge, on motion of plaintiff’s counsel, signed an order “that the Sheriff of Livingston Parish be authorized to pick up or have his deputies pick up the minor children_ and deliver them to Mover_”. On May 4, the order setting the motion for a partial new trial was “rescinded in its entirety,” by the signing judge. Also on May 4, at 1:45 p. m. we issued a writ of certiorari and a stay order. Despite this, however, on May 5, the sheriff made a return stating that he had picked up the minor children and delivered them to the plaintiff on May 4.

On May 10, because of a remote possibility of misunderstanding, we clarified our stay order to show that it was our intention that the mother retain custody of the children until further order of the court. Despite all this, it was necessary that defendant file and have set for trial a writ of habeas corpus before she regained custody.

We cannot condone what appears to be a disregard of proper procedure in this case. When a new trial is timely applied for, the judgment is not final. Cooper v. Cooper, 158 So.2d 248 (La.App. 1st Cir. 1963) writ ref. 245 La. 632, 160 So.2d 225 (1964); Billeaud v. Perry, 336 So.2d 539 (La.App. 3rd Cir. 1976). This is all the more valid when the motion has been set for trial by order of the court. The ex parte cancellation of the order setting the motion for trial, even if valid, would have no effect on the fact that the motion had been filed and was pending.

The order of the sheriff to effect change of custody of the children peremptorily was invalid for at least two reasons. As stated above, the judgment changing the custody was not final because suspended by the filing of the motion for a new trial. Of even greater concern, however, is the unorthodox, unjustified evasion of the available procedures. The proper method to effect the change of custody is the use of a writ of habeas corpus if a party does not obey a judgment of custody. We know of no authorization for the procedure employed herein.

This case has been subject to considerable delay because of the above circumstances, troublesome matter to rest and of conserving judicial time, we elect to consider the matter on its merits. See LSA-Const. Art. 5, Sec. 10; Art. 1, Sec. 22. See also Cooper v. Cooper, supra; First National Bank of Commerce, New Orleans v. Miller, 328 So.2d 383 (La.App. 4th Cir. 1976). In the interest of laying a

Since defendant complains only of the custody award, and since both parties evidently acquiesced in the divorce decree, we confine ourselves to the custody award.

The guidelines that appellant courts must follow in child custody cases were set out in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). The welfare of the children is the paramount consideration. These best interests will generally result in a grant of custody to the mother, especially when the children are young. The discretion of the trial court will be disturbed only on a clear showing of abuse.

Our courts have consistently held that custody of very young children will be granted to the mother in the absence of unfitness or other special circumstances. Nolte v. Nolte, 258 So.2d 118 (2nd Cir. 1972), writs refused 261 La. 538, 260 So.2d 321.

While we question that Mrs. Kerr has been proved unfit, we do not have to decide that point since there is no proof that the adulterous relationship, if any, had any deleterious effect upon the children. Johnson v. Johnson, 331 So.2d 854 (La.App. 1st Cir. 1976), writ refused La., 334 So.2d 436 (1976). There was no showing that Mrs. Kerr was other than a loving and attentive mother.

Mrs. Kerr admitted that she took an overdose of sleeping pills on one occasion in 1970. Plaintiff contends that this shows an instability sufficient to deprive her of custody. We note that this was an isolated incident and took place prior to the birth of the first child. Mrs. Kerr immediately went to the hospital after taking the overdose, negating a serious suicide attempt.

The lower court, evidently on joint motion of the parties, -requested a report from The report concluded that both were fit parents, but recommended that Mrs. Kerr be given custody because of the young ages of the children. The psychiatric evaluation of Mrs. Kerr indicated that she had no problems in this area. the Division of Family Services.

We believe the lower court abused its discretion in granting custody of these children to Mr. Kerr. The maternal preference rule is a rebuttable presumption, but plaintiff still has the burden of showing that the best interests of the children would be served by changing custody. Caraway v. Caraway, 321 So .2d 405 (La.App. 2nd Cir. 1975) writ refused La., 323 So.2d 479 (1975).

These children have lived with their mother continuously since the separation. Mr. Kerr’s failure to contribute to their support is not entirely consistent with his professed concern for their welfare.

For the above reasons the judgment of the lower court is reversed insofar as it awarded custody of the minor children to John Wimberlin Kerr. The permanent care, custody and control of the minor children, John W. Kerr, II, Benjamin Wade Kerr and Christopher M. Kerr, is hereby awarded to the mother, Cynthia Kendrick Kerr. Plaintiff is to pay all costs.

REVERSED AND RENDERED.


author: LANDRY, Judge.

text:
    Louis BLACHER v. MATLACK, INC.
    No. 11330.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.
    Charles R. Chesnutt, III, New Orleans, Marvin L. Jeffers, Joshua A. Tilton, Baton Rouge, of counsel, for plaintiff-appellant Louis Blacher.
    Robert D. Hoover, Baton Rouge, of counsel, for defendant-appellee Matlock, Inc.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant), a truck driver, appeals from judgment rejecting his claim for workmen’s compensation benefits for alleged total permanent disability which he attributes to a dislocated left shoulder allegedly sustained in an automobile accident which occurred during the course and within the scope of his employment by defendant (Appellee). The trial court rejected Appellant’s demand upon finding a lack of causal connection between the accident and the asserted disability. We affirm.

It is conceded that on August 28, 1973, Appellant was injured when a truck and trailer he was driving for Appellee overturned in North Carolina. Appellant was taken to a nearby hospital where his injuries were diagnosed as two fractured ribs, undisplaced fracture of the left shoulder-blade, and numerous lacerations of the arms and legs. After hospitalization for about two weeks, Appellant returned to his home in the Baton Rouge area, where he remained under the care of Dr. Frank Reiger, a general practitioner.

Appellant maintains he is disabled because of his left shoulder, which repeatedly comes out of joint, causing him considerable pain and discomfort, and renders dangerous his driving a truck.

Appellant remained under Dr. Reiger’s treatment and care from September 12, 1973 to February 24, 1974, on which latter date Appellant was discharged and declared fit to resume his former employment. Dr. Reiger saw Appellant on numerous occasions. From the first visit, Appellant complained of pain in the shoulder. Appellant did not, however, at any time mention a dislocated shoulder. In December, 1973, Appellant began complaining of low back pain, but continued to complain mostly about pain in the shoulder, chest and rib area. Dr. Reiger found no objective symptoms of back injury. Upon releasing Appellant, Dr. Reiger felt Appellant had no permanent disability.

Appellant was paid benefits from date of injury until February 11,1974, when Appel-lee discontinued payments on the strength of Dr. Reiger’s determination that Appellant was able to resume employment as a truck driver. It is conceded that Appellee paid medical expenses totalling $1,469.25 and compensation aggregating $1,690.00.

For purposes of medical evaluation, Appellant was examined by Dr. Herbert K. Plauche on June 24, 1974, July 11, 1974, September 4, 1975, January 20 and March 12, 1976. Plaintiff’s complaints were of pain in both shoulders and the low back. Examination disclosed evidence of what Dr. Plauche considered a congenital deformity of the fifth lumbar vertebra. Initially, Dr. Plauche found no evidence of a dislocated left shoulder. On September 4, 1975, Appellant stated to Dr. Plauche that his left shoulder had jumped out of place once or twice since Appellant’s former visit. Appellant also stated the shoulder had been reduced by Appellant with the aid of his mother. Dr. Plauche saw no evidence of shoulder dislocation until March 12, 1976, when Appellant voluntarily dislocated his shoulder in Dr. Plauche’s office after Dr. Plauche refused to perform such a procedure despite written request from Appellant’s counsel. In summary, Dr. Plauche testified he could find no probable causal connexity between the accident and the condition of Appellant’s left shoulder. He felt that while such connexity was within the realm of possibility, in his judgment it would be purely speculative and conjectural to conclude such causal connexity existed.

Relying upon Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App. 3rd Cir. 1975), Appellant urges that disability is presumed in compensation cases where an injured employee in good health exhibits continuing symptoms of injury following an accident. We note, however, that Roberson, above, requires a claimant to establish the reasonable possibility of causal connection between the accident and the disabling condition.

The rule of law governing burden of proof in workmen’s compensation cases was recently restated in Prim v. City of Shreveport, 297 So.2d 421 (La.1974). In the cited authority, the Supreme Court held that although procedural rules are to be liberally construed in favor of claimants, the rule that a plaintiff must establish his case by a preponderance of evidence is not relaxed. In such cases, the testimony as a whole must show that more probably than not that an accident occurred, and that it bears a causal relation to the claimed disability. If the testimony is equally balanced, plaintiff’s claim must be rejected for failure to carry the burden of proof. Also, plaintiff’s cause must fail if the evidence shows only a possibility of causal connection, or leaves the issue to speculation or conjecture.

We are also aware that an employee may establish his cause by his own testimony alone. In such instances, however, the employee’s testimony must be corroborated by attending facts and circumstances and the record must be free of evidence which impeaches his testimony. Aleman v. Lionel F. Favret Company, Inc., 338 So.2d 785 (La.App. 4th Cir. 1976).

In this case, the trial court found such corroboration lacking. We find the record fully supports this conclusion.

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

AFFIRMED.