text:
    Mildred R. WILLIS, Appellant, v. GULF BUILDING SERVICES OF BATON ROUGE, INC. d/b/a Gulf Janitorial Services.
    No. 12642.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Raymond L. Simmons, Baton Rouge, for plaintiff-appellant.
    Charles W. Lamar, III, Breazeale, Sachse & Wilson, Baton Rouge, for defendant-ap-pellee.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   EDWARDS, Judge.

Plaintiff, Mildred R. Willis, brought this suit to recover from the defendant, Gulf Building Services of Baton Rouge, Inc., d/b/a Gulf Janitorial Services, the sum of $41.40 as unpaid wages plus penalties of $621 and attorney’s fees of $500 under LSA—R.S. 23:631 and 632. The trial court rendered judgment in favor of plaintiff in the sum of $34.50 for wages due, but declined to award penalties or attorney’s fees. From this judgment plaintiff appealed, seeking penalties and attorney’s fees. Defendant answered the appeal, requesting that plaintiff be ordered to complete an employment application as well as state and federal tax withholding statements prior to receiving her wages.

Initially, plaintiff contends that the trial court erred in making the appeal returnable to this court. Plaintiff asserts that her appeal is to the district court, citing LSA-C.C.P. arts. 4891 and 4899.

We do not agree. LSA-C.C.P. art. 4833 states that the appeal from “a city court when the amount in contest exceeds one thousand dollars, exclusive of interest, shall be returnable to the court of appeal of the circuit in which the city is located”. Plaintiff’s petition reveals that the amount in contest (wages of $41.40, penalties of $621 and attorney’s fees of $500) exceeds $1,000. Additionally, LSA-C.C.P. arts. 4891 and 4899, cited by plaintiff, which govern suits where the amount involved is $300 or less, exclusive of interest and attorney’s fees, are not applicable inasmuch as plaintiff’s demand (wages of $41.40 and penalties of $621) exceeds that sum. Therefore, the trial court was correct in making the appeal returnable to this court.

Next, plaintiff urges that we remand this case for a new trial since the tapes of the testimony adduced at trial were destroyed before they were transcribed and there is no transcript to review on appeal.

Defendant agrees that the tapes were destroyed, but opposes the remand since, it argues, plaintiff failed to comply with LSA-C.C.P. arts. 2130 and 2131 to procure a narrative of the facts.

LSA-C.C.P. arts. 2130 and 2131 are not applicable where the testimony of the witnesses has been recorded or taken down during the trial, but due to mechanical failure or some other cause beyond the control of the parties, all or part of the testimony cannot be transcribed. Kay v. Home Indemnity Company, 301 So.2d 705 (La.App. 3rd Cir. 1974).

Pertinent to this issue are LSA-C.C.P. arts. 2132 and 2161, which provide:

Article 2132:

“A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.”

Article 2161:

“An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant.

We believe that this case should be remanded for the purpose of taking the testimony of those witnesses who testified at the trial. Shively v. Pickens, 336 So.2d 1071 (La.App. 3rd Cir. 1976); Kay v. Home Indemnity Company, supra; LSA-C.C.P. art. 2161. See Harper v. Harper, 236 La. 458, 107 So.2d 704 (1958).

Additionally, on remand, the trial court should reconsider its ruling concerning attorney’s fees in light of Carriere v. Pee Wee’s Equipment Company, 364 So.2d 555 (La.1978).

For the above reasons, the case is remanded to the trial court for further proceedings consistent with the views herein expressed. Costs to await a final determination.

APPEAL REMANDED.


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    Ephie PORCHE, husband, Plaintiff and Appellant, v. Pearl Guidry PORCHE, wife, Defendant and Appellee.
    No. 12587.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    A. Deutsche O’Neal, Houma, for plaintiff and appellant.
    Gordon J. Hamner, Houma, for defendant and appellee.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

Ephie J. Porche appeals the alimony award of $275.00 a month granted to his former wife, Pearl Guidry Porche, assigning error in the trial court’s refusal to consider Mrs. Porehe’s earning capacity and in its alleged failure to take into account the value of property she received in the community property settlement. We reverse and remand.

The parties were judicially separated on December 30, 1975, at which time Mrs. Porche was awarded alimony pendente lite of $350.00 per month, an amount set by consent. Shortly thereafter, the parties entered into a community property settlement whereby Mrs. Porche received the family home and its furnishings, a 1970 model automobile, a retirement account worth approximately $7,000.00, five shares of stock with little or no value, the proceeds of a bank account amounting to approximately $511.00, two four-year certificates of deposit with the combined face amount of $10,-000.00, and $4554.17 in cash.

Mrs. Porche’s claim for permanent alimony was raised by reconventional demand in her answer to her husband’s petition for divorce. At the conclusion of the hearing on the merits, the trial judge rendered judgment on the divorce as prayed for and took Mrs. Porche’s claim for alimony under advisement. Several days later, for written reasons assigned, judgment was rendered fixing permanent alimony as noted above. Separate judgments were signed and only the alimony judgment is at issue.

At the trial on the merits when Mrs. Porche was questioned about the value of her home her counsel objected, which objection was sustained by the trial court. Counsel then stated, “Let the record show that I tender the witness and propose to prove that the house is worth around $60,-000.00 to $70,000.00.” A similar colloquy followed as to her furnishings. However, no further evidence was offered under proffer as to the value of the house or its furnishings. Mrs. Porche testified that her monthly expenses amounted to $633.97 and that she received $100.00 per month from her brother who resides with her. She still possessed all of the property she received in the community property settlement except the $7,000.00 in the retirement fund which she expended to replace her automobile. The only other change in her circumstances since the property settlement is that she is no longer employed due to health reasons.

Mr. Porche’s ability to pay is not an issue because no evidence was offered as to his property or earnings.

The trial judge, in his written reasons, stated:

“In a community settlement, the wife received the community home. It is unquestioned that the home is valued at approximately $65,000.00. The defendant does not deny that she has approximately $5,000.00 in a savings account. Her only income is the sum of $100.00 that she receives from her brother, who lives with her.
Her demands for alimony far exceed what the law entitles her to receive. The court, after carefully considering her needs for food, clothing, utilities and other necessary expenses concludes she is entitled to receive the. sum of $275.00 per month as alimony. The court did not consider the value of her home in fixing the alimony. Further, the law does not require the defendant to deplete her savings account to be entitled to alimony.”

We hold that the trial judge erred in not considering the two time certificates with a combined value of $10,000.00 and in not receiving evidence as to the value of the residence and considering the same in his determination of whether Mrs. Porche was without sufficient means for her support.

Alimony after divorce is governed by C.C. art. 160 which authorizes the court, under circumstances set forth in the article, to allow the wife alimony out of the property and earnings of the husband.

Many factors should be taken into consideration in determining whether the wife is without sufficient means for her support. In the instant cause the issue relates to the circumstances under which a wife can be expected to liquidate and/or deplete a certain portion of her assets for her own support. Before the questions of liquidation, i. e., the sale of the residence and depletion of cash resources can be satisfactorily addressed, the totality of the wife’s assets must be shown. For it is only then that the consequences of liquidation and depletion can be fully considered. To totally ignore any asset of the wife’s, albeit her residence, is not to fully consider her means.

In the recent cases that considered whether the sale of the family home should be required, the issue was resolved in each instance on a determination that the consequences of the sale would not materially affect either the ability of the wife to support herself out of the proceeds nor relieve the husband of his liability of support. Such factors as the value of the home, existence of an outstanding mortgage, shelter for children, and lack of other resources were considered. Because of the present record before us we are unable to accurately determine the value of the residence and to consider these and other pertinent factors.

Similarly, the record does not disclose the availability of the two time deposits with a combined value of $10,000.00. Whether these assets are available is another item that should be considered on remand.

For the above reasons, the judgment of the district court awarding Mrs. Porche the sum of $275.00 per month as permanent alimony is reversed and set aside and this cause is remanded to that court for further proceedings consistent with the views here-inabove expressed. The assessment of costs is to await a final determination on the merits.

REVERSED AND REMANDED.

      .Art. 160. 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 [her] 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.
      This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.

      . Ibid.

      . Phillpott v. Phillpott, 321 So.2d 797 (La.App. 4th Cir. 1975); Bryant v. Bryant, 310 So.2d 648 (La.App. 1st Cir. 1975); Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975); Hardy v. Hardy, 214 So.2d 231 (La.App. 4th Cir. 1968).


text:
    Mildred N. WATSON, Plaintiff and Appellant, v. Willie Leroy WATSON, Defendant and Appellee.
    No. 12635.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.

      L. B. Ponder, Jr., Amite, for plaintiff and appellant.
    W. Hugh Sibley, Greensburg, for defendant and appellee.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

Mildred N. Watson brought suit against her husband, Willie Leroy Watson, seeking a separation from bed and board based on abandonment and cruelty. Mr. Watson answered with a general denial and reconvened for a judicial separation on the ground of cruel treatment. Following the hearing on the merits, the matter was taken under advisement and subsequently the trial court entered judgment for Mrs. Watson and against Mr. Watson, but he expressly based the separation suit on a finding of mutual fault. Alimony pendente lite was fixed at $250.00 per month. Mrs. Watson appeals seeking an increase in the alimony award and a reversal of the finding of fault on her part. We are not favored with either oral or written reasons for judgment. Mr. Watson has neither appealed nor answered the appeal of Mrs. Watson. Therefore the issue as to his fault and' Mrs. Watson’s right to a separation is now final.

In the recent case of Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir. 1979), we discussed the 1976 reenactment of Civil Code article 141 and therein determined that a separation based on mutual fault was authorized only when both parties were guilty of fault constituting independent grounds for separation under Civil Code article 138. Saucier v. Saucier, 357 So.2d 1378 (La.App. 4th Cir. 1978); Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir. 1978). Accordingly, the question is whether the evidence presented by Mr. Watson relative to the averred fault of his wife is sufficient to constitute independent grounds for a separation. The trial judge obviously found that it did.

The issue as to Mrs. Watson’s fault involves Mr. Watson’s allegations that she denied him the companionship of his adult children by a previous marriage and his accusations during the trial on the merits that she ordered him from the matrimonial domicile.

On the question of Mrs. Watson’s relationship with her husband’s adult children, it is apparent that their association is less than cordial. There has been very little contact between Mrs. Watson and the Watson children since the occurrence of an argument approximately six years ago. Each side blames the other for instigating the argument and continuing the hostility.

However, more pertinent to the instant controversy is Mr. Watson’s testimony that shortly before the separation his daughter was seriously ill in a hospital in New Orleans and it was necessary that he visit her daily and often remain until late at night. He claims that on one occasion when he returned home late his wife said that if he was going to go every day he might as well get his clothes and move to New Orleans. Mrs. Watson denied having made any such statement. Both parties offered the testimony of other witnesses in support of their respective claims.

The differences between the parties came to a head on May 2,1978, when according to Mrs. Watson she confronted her husband with a telephone bill that purported to show a call to an unlisted number, which she claimed belonged to a lady companion with whom he had been seen. According to her version of the incident, he admitted the affair and moved from the home. Mr. Watson’s version of the matter was that his wife frequently accused him of seeing other women and that he was so angered by the accusation on this particular occasion that he decided to go to their camp for a few days rather than listen to her. He stated that he returned home on May 5th “to talk the thing over” but before he could say anything she ordered him to leave, which he did and he has not returned. He denied any improper conduct with another woman. In explanation of the phone bill which prompted his wife’s accusation, he stated that in the course of his trailer sales business he made many phone calls to women as he had eight or ten women in various locations who helped him contact potential customers. He testified that the calls that had upset his wife were legitimate business calls to one of these salespersons. Mrs. Watson’s evidence relating to her husband’s alleged association with another woman consisted solely of her uncorroborated accusations. The remainder of her evidence was hearsay and properly excluded by the trial judge on objection.

The issues thus framed presented a credibility question to the trial judge which he resolved adversely to Mrs. Watson. This determination on the part of the trier of fact is entitled to great weight and cannot be reversed by us on appeal unless we are satisfied that it is manifestly wrong. We find that it is not.

The second issue for review is the adequacy of the alimony award. Mr. Watson asserts that the appeal on this issue was untimely since the judgment fixing alimony was signed on June 30, 1978, following a hearing on a rule and the appeal was not taken until November 13, 1978. The timeliness of the appeal of the separation judgment, which was signed on October 27, 1978, is not disputed.

We hold that the appeal of the alimony award was timely since it was perfected within the prescribed thirty-day period from the signing of the final judgment in the separation suit. C.C.P. art. 3943. We note that at the trial on the merits the testimony taken earlier at the hearing on the rule to fix alimony pendente lite was offered into evidence without opposition. The judgment rendered following the trial included an award of alimony pendente lite in the amount of $250.00 per month. The appeal from this judgment was timely and since it included an alimony award the issue of the sufficiency of that award is properly before us.

By way of explanation, we should point out that the earlier judgment on the rule to fix alimony was an appealable judgment. Lodatto v. Lodatto, 238 La. 305, 115 So.2d 359 (1959); Traylor v. Traylor, 337 So.2d 922 (La.App. 3d Cir. 1976); Fuori v. Fuori, 316 So.2d 802 (La.App. 1st Cir. 1974); Brown v. Brown, 245 So.2d 501 (La.App. 3d Cir. 1971). Since it was not appealed, it became final and continued in effect up until that point when it was abated and replaced by the October judgment which contained a new award of alimony.

On the issue of the adequacy of the $250.00 alimony award, we affirm the trial court’s ruling, finding it to be well within the broad range of discretion a trial court has in such cases. Staser v. Staser, 347 So.2d 514 (La.App. 2d Cir. 1977).

Mrs. Watson testified that her only income was the $394.00 payment she received monthly from teachers’ retirement together with the interest earned on a $2000.00 to $3000.00 savings account. She maintained that she needed an additional $750.00 per month to meet her expenses and continue to live in the manner she had lived during her marriage.

However, she failed to prove that Mr. Watson had sufficient means to justify such an award. Mrs. Watson testified that her husband was involved in several business enterprises. For some of the businesses, she was able to estimate the gross receipts, but she could not testify as to net profits. In regard to the other business ventures, she had no information at all. Mr. Watson maintained that his business expenses were such that in the month preceding the hearing his income was only $450.00. His income tax returns for the years 1975 and 1976 show a net loss each year. The paucity of evidence on Mr. Watson’s means convinces us that the lower court’s award was adequate.

For the above reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    William THOMPSON (Lee Ethel Wilson), Plaintiff-Appellee, v. IBERVILLE PARISH SCHOOL BOARD and Griffon J. Bourgeois, Defendants-Appellants.
    No. 12641.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.

      Steve H. Benton, Martin A. Schott, Baton Rouge, for plaintiff-appellee William Thompson (Lee Ethel Wilson).
    Samuel C. Cashio, Dist. Atty., Marin-gouin, for defendant-appellant Iberville Parish School Board.
    Robert L. Kleinpeter of Kleinpeter & Kleinpeter, Baton Rouge, for defendant-appellant Griffon J. Bourgeois.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

Griffon J. Bourgeois appeals the judgment against him awarding Lee Ethel Wilson in her capacity as tutrix of her minor child, Bryan K. Wilson, $500.00 for the pain and embarrassment Bryan suffered as a result of an alleged battery committed by Bourgeois.

The incident which is the subject matter of this suit occurred on Friday afternoon, September 30, 1977, at St. Gabriel Elementary School in Iberville Parish. Appellant-defendant Bourgeois was teaching a class in instrumental music and Bryan Wilson, a twelve-year-old sixth grade student, was one of approximately ten students in Bourgeois’ class. Bryan was sitting in a front-row chair while Bourgeois was lecturing and writing on the blackboard a few feet away. When Bourgeois turned from the board to face the class, he saw that Bryan had turned around in his chair so that he was facing the students behind him, with whom he was talking and laughing. Bourgeois then extended his leg and pushed Bryan with his foot in the right buttock and said, “You are lucky I didn’t raise you off that chair. I want you to turn around and pay attention to the class.” The other children laughed and Bryan began to cry.

At trial, Bourgeois explained that he used his foot because it was “the quickest and most expedient way to get [Bryan’s] attention.” According to Bourgeois, he already had reprimanded Bryan three times during the class. Some four seconds prior to the incident sued on, he had told Bryan to turn around and face the board. When he saw that Bryan was again misbehaving, he reached out with his foot and touched Bryan, a movement which did not require him to move from his position at the board. He explained that he did not use his hands because he was holding chalk in one hand and an eraser in the other. He maintained that he used so little force that his action could not properly be characterized as a kick and that his intent was not to discipline Bryan, but to get his attention. Bourgeois stated he had never used physical punishment to discipline his students.

Bryan testified that he was kicked “hard,” that he cried because of the pain, and that the pain was so severe it kept him from returning to school for several days. Two of Bryan’s classmates testified that they saw Bourgeois kick Bryan. Neither testified as to the apparent force of the kick; but one did state that it did not cause Bryan to fall from the chair, it just made him turn back around. Both acknowledged that Bryan often required correction and one remembered that Bryan had been corrected earlier in the class period.

The assistant principal, Ronald E. Egros, testified that he examined Bryan shortly after the incident and found no visible sign of injury. Bryan’s mother, Mrs. Wilson, took him that same afternoon to see Dr. A. B. Cronan, who also failed to discern any objective symptoms. Dr. Cronan testified that Bryan complained of pain in the entire buttocks area but his examination revealed no skin changes and the x-ray showed no abnormalities. Mrs. Wilson did not testify to finding any marks indicating that Bryan had received a hard blow. She did state that Bryan missed some school the following week because he told her he was still in pain. Both Dr. Cronan and Mrs. Wilson described Bryan as a normal, healthy child.

The testimony of the principal, Gerald Trent, and an additional teacher at the school, Melvin J. Craige, was in accord with Bourgeois’ statement that Bryan frequently required correction.

According to the school principal, the usual procedure for administering corporal punishment was to send the delinquent child to the principal or assistant principal to receive a paddling with a wooden paddle, or the teacher himself could paddle the pupil if a witness was present. The text of the local school board’s rule on the subject was not put into evidence.

Roy v. Continental Insurance Co., 313 So.2d 349 (La.App. 3d Cir. 1975), was the first Louisiana appellate court decision to address directly the question of whether a teacher could use reasonable corporal punishment to enforce discipline. It was decided therein that corporal punishment, reasonable in degree, was permitted in Louisiana and that a teacher using this method of discipline had limited immunity from civil liability.

Subsequent to that decision, La.R.S. 17 ¡416.1(A) was enacted. It states in pertinent part that “teachers, principals, and administrators of the public schools may, subject to any rules as may be adopted by the parish or city school board, employ other reasonable disciplinary and corrective measures to maintain order in the school . • . ..” Quite clearly the legislature chose to leave available to teachers and school officials the option of using corporal punishment. Comments, Corporal Punishment of Students — The State’s Authority and Constitutional Considerations, 36 La.L. Rev. 984 (1976).

In the^instant case, we are unable to say that the parish school board restricted teachers and principals to administering corporal punishment with a paddle. Although the school principal and the other teacher who testified spoke generally of the rules concerning corporal punishment, the local school board’s policy was not set forth in sufficient detail for us to determine if it prohibited the incident with which we are presently concerned.

Therefore, the issue in this case is whether under the particular facts and circumstances the physical punishment imposed was excessive or reasonable. Roy v. Continental Insurance Co., supra. Factors to be considered in making the determination of reasonableness include the age and physical condition of the pupil, the seriousness of the misconduct eliciting the punishment, the nature and severity of the punishment, the teacher’s motive in the discipline, the attitude and past behavior of the child and the availability of less severe but equally effective means of discipline. Roy v. Continental Insurance Co., supra; 68 Am. Jur.2d § 258, Schools; 79 C.J.S. Schools and School Districts § 502.

In his oral reasons for judgment, the trial court stated that he found for the plaintiff, even though a paddling would have been proper under the circumstances, because he believed the use of the foot was unreasonable regardless of the amount of force involved. We disagree and accordingly reverse.

Bryan Wilson was an active, healthy twelve-year-old, who had repeatedly misbehaved and failed to obey verbal admonitions. Resort to corporal punishment was proper under the circumstances, as the trial court recognized.

There was no enunciated factual finding in the trial court on the degree of force employed by Bourgeois. We must determine from the record the amount of force involved. The lack of objective symptoms of injury convinces us that the contact with Bryan was not excessively severe.

The only remaining question is whether the manner of administering the punishment was unreasonable. We do not believe that a teacher’s use of his foot to make contact with a student automatically places him outside the scope of his limited immunity. Significantly, we can conceive of very few situations in which a kick, no matter how gentle, would meet the test of reasonableness. However, the situation present in the instant case is one such incident. The blow was directed to the buttocks; it was of little force, bringing more embarrassment than pain; it was a quick and effective means of getting the attention of a child who had twice turned his back to the instructor and had ignored verbal reprimands. We emphasize that we are not hereby condoning the substitution of a foot for a paddle in all cases in which use of the latter would be appropriate. We simply hold that Bourgeois acted reasonably under the particular circumstances of this case.

The Iberville Parish School Board, also named as a defendant in this action, was cast in judgment with Bourgeois. However, the school board did not appeal and therefore the judgment against it is final and cannot be disturbed on appeal. Bertucci v. Bertucci, 224 La. 346, 69 So.2d 502 (1953); Williams v. Buckelew, 246 So.2d 58 (La.App. 2d Cir. 1970).

For the above reasons, the judgment of the district court insofar as the same pertained to Griffon J. Bourgeois is reversed and set aside and judgment is rendered herein in favor of Griffon J. Bourgeois and against Lee Ethel Wilson in her capacity as tutrix of her minor child, Bryan K. Wilson, rejecting her claim. The costs of this appeal are to be borne by plaintiff-appellee.

REVERSED IN PART AND RENDERED.

      . Earlier decisions involving corporal punishment were able to avoid the issue since in those cases the punishment inflicted was found to be unreasonable and excessive and thus outside of any privilege that might exist. Houeye v. St. Helena Parish School Bd., 223 La. 966, 67 So.2d 553 (1953); Johnson v. Horace Mann Mutual Ins. Co., 241 So.2d 588 (La.App.2d Cir. 1970); Frank v. Orleans Parish School Bd., 195 So.2d 451 (La.App. 4th Cir. 1967), writ denied 250 La. 635, 197 So.2d 653.

      . The U.S. Supreme Court case of Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), held that disciplinary corporal punishment by school officials without a due process hearing was not violative of students’ constitutional rights.


text:
    Mayer MITCHELL, Abraham A. Mitchell, W. A. Lubel, Sidney W. Lassen, C. B. Arendall, Jr., and V. G. Johnston, Jr., Plaintiffs and Appellants, v. V-6 COMPANY, INC., Defendant and Appellee.
    No. 12644.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Rehearing Denied July 16, 1979.

      Sidney C. Sundbery, Houma, for plaintiffs and appellants.
    Grady C. Weeks, Houma, for defendant and appellee.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   SARTAIN, Judge.

This is an appeal from a summary proceeding for eviction based on untimely payment of rent. The trial court rendered judgment in favor of the lessee, V-6 Company, Inc. Petitioners-lessors appeal.

V-6 Company, Inc. operates a restaurant in premises it leases from petitioners. The written lease, entered into on July 20, 1973, fixes the monthly rent for the ten year term at $1,083.33, due on or before the first day of each month. The lease also provides for an additional sum based on a percentage of the restaurant’s gross sales for the year which becomes due each year on May 31.

Both parties admit that from the beginning payments under the lease have not been timely. However, there is no evidence that petitioners ever protested the late payments until September, 1977. In that month, because none of the percentage rent due for the first three years of the lease had been paid, Sizeler Realty Company, lessors’ managing agent, agreed to accept a promissory note for the amount ($8287.80), which note would be paid in monthly installments of $259.75, due on the first of each month. During the negotiations preceding the execution of the note, Sizeler Realty Company wrote two letters to V-6 Company in which it stated that monthly rental payments would henceforth have to be remitted timely. The note also included a provision accelerating the installments upon a default by V-6 Company under the lease.

Despite such warnings, rental payments and note payments continued to be made and accepted without protest from one to two months beyond their due dates. A letter written by Sizeler Realty on May 31, 1978, stated that as of June 1, V-6 Company would be six months behind in its note payments and three months behind in its monthly rent. On July 27, 1978, Sizeler Realty informed V-6 Company by letter that it owed $3563.61 in annual percentage rent and that as of August 1 it would owe three months’ rent and two note payments. In this letter, lessee was reminded of the necessity of paying timely to avoid the acceleration of the note.

Cancellation of the lease and suit for delinquent payments was threatened for the first time in a letter from Sizeler Realty dated August 31,1978, and received by V-6 Company on September 1. This letter demanded payment in full by September 5 of the annual percentage rent and the rent for August and September. It also informed lessee that it was accelerating the balance due on the promissory note and made demand for that sum ($6397.46 plus accrued interest of $85.30).

Two checks covering the August rent and note payments were mailed on September 5, but were returned on September 7 with the explanation that the amount was insufficient to comply with the August 31 demand to make the account current. On September 12, five checks, covering the full amount owed except the accelerated balance on the note, were sent to Sizeler Realty. For reasons which are disputed by the parties, the five checks were not deposited for collection. Instead they were returned to V-6 Company on September 18.

On September 19, 1978, V-6 Company received three letters from the attorney representing Sizeler Realty and the lessors. Two of these letters demanded payment by September 25 of all amounts owed, including attorney’s fees as provided for in the note and the lease, and stated that suit would be filed if the money was not forthcoming. The sum demanded included the rent due for the month of September. The third letter informed lessee that the lease was being cancelled for failure to timely pay the rent and gave notice that lessee had five days to vacate the premises.

The following day, September 20, V-6 Company delivered to lessors’ attorney a cashiers check covering all amounts owed, including the rent for the month of September. This payment was accepted and lessors acknowledge that the account was made current through September 30. A check covering the rent for October was sent on September 26. However, this check was returned October 4 with the explanation that due to previous defaults the lease was terminated as of September 30. Suit for eviction was filed October 5.

Lessee defended the suit with two principal arguments. First, it maintained that the repeated acquiescence and indulgence on the part of lessors in accepting late payments without protest waived lessors’ right to strictly enforce the lease provision for timely payment. Second, lessee argued that lessors’ acceptance of rent payments after giving notice to vacate vitiated the eviction notice and had the effect of forgiving all previous defaults.

The trial court addressed lessee’s first argument and agreed that because of the pattern of accepting late payment without opposition, the lease could not be cancelled for failure to pay timely. The judge a quo determined that under the circumstances lessors had not given lessee sufficient notice of their intention to depart from past custom and begin strictly enforcing prompt payment. The jurisprudence reviewed in Himbola Manor Apartments v. Allen, 315 So.2d 790 (La.App. 3d Cir. 1975), was cited in support of this decision.

We affirm the trial court’s judgment but do so for different reasons. We prefer to base our decision on lessee’s second argument. For purposes of this discussion, we will assume arguendo that lessors had the right on September 18 to cancel the lease for non-payment of rent. We hold that lessors’ acceptance on September 20 of the rent covering the period through September 30 had the effect of vitiating the September 19 notice to vacate and waived lessee’s default. We thus conclude that the lease agreement between the parties is still in full force and effect and that the petition for eviction was properly dismissed.

Notice to a lessee appraising him of the cancellation of the lease and giving him five days to vacate the premises is a statutory prerequisite to a suit for eviction. C.C.P. art. 4701; Lichtentag v. Burns, 258 So.2d 211 (La.App. 4th Cir. 1972). The letter lessee received on September 19 giving it to September 26 to vacate fully complied with this requirement. However, the effect of the notice and the default were cancelled by lessors’ subsequent action.

It is well established in Louisiana jurisprudence that a lessors’ acceptance of rental payments after the notice to vacate is issued vitiates the notice and forgives the default. In Canal Realty & Improvement Co. v. Pailet, 217 La. 376, 46 So.2d 303 (1950), the Supreme Court held that a May 19 notice ordering lessee to vacate by May 31 was waived and the default was forgiven when lessor accepted the June rent. This rule has more recently been discussed in Arms v. Rodriguez, 232 La. 951, 95 So.2d 616 (1957); Murphy Oil Corp. v. Gonzales, 316 So.2d 175 (La.App. 4th Cir. 1975); West End Landing, Inc. v. Board of Levee Com’rs, 299 So.2d 418 (La.App. 4th Cir. 1974); Major v. Hall, 251 So.2d 444 (La. App. 1st Cir. 1971), partially reversed on other grounds 262 La. 243, 263 So.2d 22 (1972); Landis v. Smith, 22.1 So.2d 190 (La. App. 2d Cir. 1969); Four Seasons, Inc. v. New Orleans Silversmiths, Inc., 223 So.2d 686 (La.App. 4th Cir. 1969). Cf. Lieux v. Dillard, 273 So.2d 880 (La.App. 1st Cir. 1973).

Clearly, lessors by accepting rent for the period through September 30 vitiated the earlier notice to vacate by September 26 and waived lessee’s default. At the time of lessors’ October 4 letter, which returned the promptly tendered October rent and informed lessee that the lease was cancelled as of September 30, there was no breach which could be the basis for cancellation.

For the foregoing reasons, we affirm at appellants’ cost.

AFFIRMED.


author: ELLIS, Judge:

text:
    Joseph CUTRER, Plaintiff and Appellee, v. Alton BRUMFIELD, Realus Brumfield and State Farm, Defendants and Appellants.
    No. 12649.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Paul H. Due, Baton Rouge, Joseph H. Simpson, Amite, for plaintiff and appellee.
    Alton Brumfield, in pro per.
    Realus Brumfield, in pro per.
    Iddo Pittman and Charles G. Walker, Hammond, for State Farm.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge:

Plaintiff, Joseph Cutrer, was injured on January 14, 1977, when his 1973 Chevrolet station wagon collided with an automobile owned and operated by Alton Brumfield. The Brumfield vehicle was uninsured.

At the time of the accident, Mr. Cutrer owned two automobiles, the 1973 Chevrolet and a 1972 Pontiac. Both vehicles were insured with State Farm Mutual Automobile Insurance Company, with applicable uninsured motorist coverage limited to $10,-000.00 on the Chevrolet and $25,000.00 on the Pontiac.

This suit was filed on January 9, 1978, by Mr. Cutrer, naming Alton Brumfield, Rea-lus Brumfield and State Farm as parties defendant.

After trial on the merits, judgment was rendered in favor of plaintiff and against Alton Brumfield and State Farm, in solido, for $35,000.00, and in favor of Mr. Cutrer and against Alton Brumfield for the additional sum of $3,400.00. From this judgment, State Farm has appealed.

The only questions presented by the appeal are those of “stacking” the uninsured motorist coverage available, and the alleged excessiveness of the award made by the trial judge.

On January 14, 1977, when the accident happened, the state of the law was such that plaintiff was entitled to “stack”, or add together, the uninsured motorist coverages provided by his two policies, regardless of the vehicle involved in the action. See R.S. 22:1406(D), prior to its amendment by Act 623 of 1977; Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972).

Act 623 of 1977, which became effective on September 9, 1977, amended R.S. 22:1406(D)(1) to read in part as follows:

“(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
“With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
(i) the uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.”

State Farm claims that since this suit was filed after the effective date of the above act, its provisions are applicable hereto, and plaintiff is no longer permitted to stack coverages under its terms. State Farm takes the position that the above amendment is either interpretive or remedial legislation and that it may therefore be applied retrospectively. We cannot agree.

We find the above legislation to be substantive in nature, rather than interpretive or remedial. It cannot, therefore, be applied retrospectively, and cannot change the legal effect of the contract which was in effect between plaintiff and State Farm. See O’Banion v. Allstate Ins. Co., 347 So.2d 878 (La.App. 3rd Cir. 1977); Manuel v. American Indemnity Co., 368 So.2d 1200 (La.App. 3rd Cir. 1979).

The trial judge rendered detailed and lengthy reasons to support the award made by him in this case. On the facts as found by him, which are reasonably supported by the record, we find that the award, although high, is within the broad range of discretion accorded him in fixing quantum.

The judgment appealed from is therefore affirmed, at State Farm’s cost.

AFFIRMED.


text:
    Prince LEWIS v. EAST FELICIANA PARISH SCHOOL BOARD.
    No. 12652.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Rehearing Denied July 16, 1979.

      George R. Covert, Baton Rouge, for plaintiff-appellant.
    John F. Ward, Jr., Baton Rouge, for defendant-appellee.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge:

Plaintiff, Prince Lewis, was dismissed from his position as a tenured teacher by the East Feliciana Parish School Board on September 20, 1976, following a full hearing. He appealed his dismissal to the 20th Judicial District Court, alleging that he was refused the right to investigate the charges against him; that he was prevented from presenting evidence at the hearing; and that the findings of the School Board were clearly erroneous. Mr. Lewis prayed that a full hearing be held in the district court, and that he be reinstated.

In its answer, the School Board suggested that the trial court decide the matter on the record of the hearing held before it. Mr. Lewis then moved for a trial de novo before the district court.

The trial judge found that plaintiff was not entitled to a trial de novo, and based his judgment on his review of the record of the hearing before the School Board. He further found that all constitutional safeguards had been observed, and that the action of the School Board was neither arbitrary nor an abuse of its discretion.

Plaintiff has appealed, alleging that the trial court abused its discretion in not permitting him to present additional evidence at the hearing before it, and that he was denied his right to due process of law in the hearing before the School Board.

The alleged denial of due process has three bases. First, plaintiff contends that he was not given proper notice of the charges against him. Second, he complains that he was not permitted to take the depositions of the complaining witnesses against him. Third, he alleges that he was refused a continuance during the hearing.

R.S. 17:443 provides as follows:

“A. A permanent teacher shall not be removed from office except upon written and signed charges of wilful neglect of duty, or incompetency or dishonesty, or of being a member of or of contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the State of Louisiana, and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least fifteen days in advance of the date of the hearing, the school board shall furnish the teacher with a copy of the written charges. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at the said hearing. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.
“B. If a permanent teacher is found guilty by a school board, after due and legal hearing as provided herein, on charges of wilful neglect of duty, or of incompetency, or dishonesty, or of being a member of or of contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the State of Louisiana, and ordered removed from office, or disciplined by the board, the teacher may, not more than one year from the date of the said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board.”

In disposing of the above contentions relative to due process, the trial judge said:

“It is apparent from the record that the procedural safeguards contained in the statute were observed. Mr. Lewis was notified, in writing, of the charges against him and of the names of the complainants on August 12, 1976. The hearing, originally scheduled for August 31, 1976, was continued at the request of Mr. Lewis’ counsel, until September 28. Teachers who were requested as witnesses were made available. Therefore, the fifteen (15) day notice requirement contained. in the statute was certainly met, and Mr. Lewis’ witnesses were able to be present at approximately 10 hour hearing. Furthermore, Mr. Lewis was represented at the hearing by counsel and was allowed to cross examine the witnesses in his behalf. Furthermore, as previously mentioned, the board granted Mr. Lewis a continuance of thirty (30) days, so that he could better prepare his defense. In fact, Mr. Lewis had been represented by an excellent retained counsel since March 19, 1976 (T-399).
“One of the allegations of the petition to this court is that Mr. Lewis was not allowed to present evidence in his behalf. The basis of this allegation, apparently, is the refusal of the board to grant a second continuance so that Mr. Lewis’ counsel could obtain, by deposition, the expert testimony of a child psychologist. The record reveals that the motion for continuance was made during the course of the hearing. It was within the discretion of the board to grant the motion and their refusal to do so was not an abuse of that discretion.
“Also, a formal objection was raised by Mr. Lewis at the beginning of the hearing, citing his inability to obtain depositions of the complainant witnesses. The record reveals that prior to the hearing, a writ of mandamus was sought, by which Mr. Lewis sought to have the board compel the attendance of the young girls at a deposition, and that the request was denied by the Twentieth Judicial District Court, Honorable Fred A. Blanche, Jr., Judge ad hoc, presiding, who ruled that there was no statutory authority by which the girls could be compelled to appear at the deposition. See Prince Lewis v. James V. Soileau and Walter Davis, Number A-13,172. Based on this previous decision, the board overruled the objection.”

We find no error in the above rulings. We further note that the judgment in the mandamus suit by Judge (now Justice) Blanche, was not appealed, and is now the law of this case.

However, we think the trial judge fell into error in not permitting the plaintiff to present evidence in addition to that revealed by the transcript of the hearing before the School Board. In Howell v. Winn Parish School Board, 332 So.2d 822 (La.1976) the court said:

“La.R.S. 17:443A provides, in relevant part, that ‘[a] permanent teacher shall not be removed from office except upon written and signed charges of wilful neglect of duty . . . and then only if found guilty after a hearing by the school board of the parish . . . As previously noted, an aggrieved employee may ‘petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the courts shall have jurisdiction to affirm or reverse the action of the school board in the matter’ (emphasis added) La.R.S. 17:443B. While this clause by its terms provides for review by the courts and not a trial de novo, see Campo v. East Baton Rouge School Board, 231 So.2d 67, 71 (La.App. 1st Cir. 1970) and Granderson v. Orleans Parish School Board, 216 So.2d 643, 646 (La.App. 4th Cir. 1969), the requirement of a full hearing indicates that the legislature intended the courts to exercise a broad scope of judicial review, particularly at the district court level. See Work of the Louisiana Appellate Courts for the 1972-73 Term, 34 La.L.Rev. 197, 306 (1974). Thus in Lewing v. De Soto Parish School Board, 238 La. 43, 113 So.2d 462 (1959), this Court noted that under the provisions requiring a full hearing at the district court level, a discharged employee of a school board could present additional evidence to that court.”

Although the trial judge in this case correctly refused to give plaintiff a trial‘de novo, he should have permitted the presentation of additional evidence. This would have allowed plaintiff to put before the court the evidence which he alleges he was not allowed to present to the School Board.

We therefore find that the judgment appealed from should be set aside, and the case remanded to the trial court so that plaintiff might introduce such additional evidence as he may desire.

The School Board is entitled to the opportunity to negate such evidence as may be offered. However, we do not believe that plaintiff’s right to offer additional evidence is unrestricted, and he should not be permitted to duplicate the testimony which has already been heard by the School Board. After hearing the additional evidence, the appeal should be decided by the trial judge using the standards of review set forth in the Howell case, supra. See also Lewing v. De Soto Parish School Board, 238 La. 43, 113 So.2d 462 (1959).

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings consistent with this opinion and according to law. All costs of this appeal shall be paid by the School Board to the extent provided by law. All other costs shall await final disposition hereof on its merits.

REVERSED AND REMANDED.


author: LOTTINGER, Judge.

text:
    James M. McKEAN et al., Plaintiffs and Appellants, v. William T. CAMPBELL et al., Defendants and Appellees.
    No. 12582.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.

      Richard A. Thompson, New Orleans, for James M. McKean.
    William T. Campbell, in pro. per.
    John V. Parker, Baton Rouge, for William T. Campbell, and Carmae Corp.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   LOTTINGER, Judge.

This case is on appeal from the trial court’s maintaining of defendant’s exception of res judicata. Plaintiffs, James and Glenda McKean, brought this action against the defendants, William T. Campbell, Robert and Charles Palmer, a law partnership d/b/a Palmer and Palmer, Thomas Sanders, former Sheriff of Tangipahoa Parish, Frank Edwards, Sheriff of Tangipahoa, and Car-mae Corporation, in connection with the sale of property located in Tangipahoa Parish. The trial judge sustained the defendant’s, William T. Campbell, exception of res judicata and plaintiffs have appealed.

On March 15, 1965 plaintiffs purchased a dairy farm from the defendant. The deed was recorded on April 13, 1965; however, prior to the recordation of the deed a notice of lis pendens was filed in Industrial Molasses Corp. d/b/a Manard Molasses Co. v. Bruce White, Mildred Fortenberry Smith and William T. Campbell. Plaintiffs knew nothing of the notice until sometime in 1967 when they attempted to refinance the conventional mortgage on the property. The plaintiffs requested that the defendant remove the cloud on their title, which he failed to do. The property was seized and sold in executory process. Plaintiffs attempted to annul the sheriff’s sale in James and Glenda McKean v. Carmae Corp., et al, but were unsuccessful.

In federal court plaintiffs filed two suits, of which only one is relevant to the present exception, number 69-14, James M. McKe-an and Glenda McKean v. William T. Campbell filed in the Eastern District of Louisiana, Baton Rouge Division. In that action plaintiffs pleaded fraud on the part of Mr. Campbell in an attempt to gain retribution for the losses suffered from the sale of their property.

Plaintiffs’ action in federal court was dismissed as a result of “the failure of plaintiffs or their counsel to appear for the pretrial conference.” There is no dispute that the action in federal court is final, and that the dismissal acts as a bar to any subsequent identical action in state court. Fed.R. of Civ.Proc. rule 41(B), Bankston v. Aetna Casualty & Surety Co. of Hartford, Conn., 213 So.2d 51 (La.App. 1st Cir. 1968) writ refused 252 La. 954, 215 So.2d 126 (1968).

On April 17,1973 the plaintiffs filed their present action, and in January of 1977 amended and supplemented their petition. In response to this suit, defendant William T. Campbell filed his res judicata exception based on plaintiffs’ action in federal court, and the trial judge sustained the exception.

Plaintiffs’ appeal asserts that the trial court erred in (1) sustaining appellee’s peremptory exception of res judicata and (2) dismissing the plaintiffs’ entire suit, since certain causes of action were not barred by the prior judgment.

ERRORS NOS. 1 AND 2

In order for an exception of res judi-cata to be maintained the subsequent action must (1) contain the same parties, (2) be based on the same “cause” and (3) the thing demanded must be the same. La.C.C. art. 2286, Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978), Mitchell v. Bertolla, 340 So.2d 287 (La.1976). In Sliman v. McBee, 311 So.2d 248 (La.1975) the Supreme Court concluded the civilian definition of “cause” in the area of res judicata to be “the legal obligation upon which the action is founded.”

Louisiana jurisprudence is very clear that res judicata is stricti juris. Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974), New Orleans Mortgage Company, Inc. v. City of Kenner, 362 So.2d 1217 (La.App. 4th Cir. 1978). A final judgment has the authority of res judicata only to those issues presented in the pleadings and conclusively adjudicated by the court, and where any doubt exists the second suit will be maintained. McNeal v. State Farm Mutual Automobile Ins. Co., 278 So.2d 108 (La.1973), Olsen Engineering Corp. v. Hudson Engineering Corp., 289 So.2d 346 (La. App. 1st Cir. 1973) writ denied 293 So.2d 170 (La.1974).

The question before the Court is whether the causes presented in this action are identical to those presented in the federal proceeding. For a detailed discussion of “identity of cause,” see Mitchell v. Bertolla, supra. In Mitchell, plaintiff in an earlier suit sought to nullify a lease for nonpayment of rent and for lesion beyond moiety. It was those juridical facts upon which she based her claim, and with which she defended a suit by defendant for specific performance. The Supreme Court held that each was a “cause” of the earlier suit; however, the “cause” of the suit then before the court was fraud, lack of consideration, and others. Thus, the Supreme Court held that res judi-cata did not apply as there was no identity of cause.

We have thoroughly examined the various petitions in the record. The suit, filed in federal court was based on fraud, whereas the action in state court contains various causes including breach of warranty and unjust enrichment.

Appellee argues that by implication both breach of warranty and unjust enrichment were presented in the federal suit and are thus barred by its dismissal. Although the .factual situation is identical in both cases, this court has serious doubts as to whether by implication the causes of breach of warranty and unjust enrichment were presented in the federal action. Therefore, where any doubt exists, the controlling jurisprudence is clear that plaintiffs are favored, and therefore the exception of res judicata is overruled as to those causes which have not been adjudicated.

Therefore, for the above and foregoing reasons the judgment of the trial court is reversed and remanded for further proceedings; appellee to pay all costs of this appeal.

REVERSED AND REMANDED.

      . This suit appears as Docket Number 29324 in the Twenty-First Judicial District Court in and for the Parish of Tangipahoa.

      . This suit appears as Docket Number 34016 in the Twenty-First Judicial District Court in and for the Parish of Tangipahoa.


text:
    Clyde S. HOLLAND v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY.
    No. 12651.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.

      W. Hugh Sibley, Greensburg, for plaintiff-appellee Clyde S. Holland.
    Thomas B. Waterman, Hammond, for defendant-appellant Louisiana Health Service Indemnity Company.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   LOTTINGER, Judge.

This is an action ex contractu by plaintiff, Clyde S. Holland, against Louisiana Health Service & Indemnity Company (Blue Cross) under a hospitalization insurance policy issued by defendant to plaintiff, for certain doctor and hospital bills. From a judgment in favor of plaintiff awarding the medical expenses as well as penalties and attorney’s fees, defendant has appealed.

Plaintiff applied for hospitalization insurance on May 15, 1976, with defendant, which policy was issued effective that date. Plaintiff was hospitalized during January 1977 and incurred hospital and doctor bills totaling $2,061.00.

Relying on La.R.S. 22:619(B), defendant denied coverage because of false statements made by plaintiff on the application concerning plaintiff’s medical history. The application question whether plaintiff had been hospitalized within the last 10 years was answered “appendectomy in 1948.” All other questions as to whether plaintiff had any of a variety of listed diseases or illnesses were answered in the negative.

Plaintiff’s family physician testified that plaintiff’s prior medical history indicated he underwent a craniotomy in 1961. This doctor testified that plaintiff suffered from multiple myeloma and in 1968 was diagnosed to have diabetes and hypertension. The doctor further testified to hospitalization in January of 1967 and April of 1968.

Defendant’s agent solicited the purchase of this policy at plaintiff’s home in April of 1976, and testified that he filled out the application for plaintiff after asking all the questions contained on the form.

Plaintiff testified that he answered all the questions asked of him truthfully.

Defendant contends that the application contained false information with the intent to deceive, and that if defendant would have known the true condition of plaintiff, it would not have issued the policy.

The trial judge has not favored us with written reasons for judgment.

In Watson v. Life Insurance Company of La., 335 So.2d 518, 521 (La.App. 1st Cir. 1976), then Judge Blanche, now Mr. Justice Blanche, said:

“In order for the insurer to successfully urge LSA-R.S. 22:619(B) as a defense to recovery of the proceeds by the plaintiff-appellant, it must be proved that material misrepresentations were made fraudulently or with intent to deceive the insurer and that the misrepresentations materially affected the risk assumed by the insurer. Gay v. United Benefit Life Insurance Company, 233 La. 226, 96 So.2d 497 (1957); Reed v. American Casualty Company of Reading, Pennsylvania, 317 So.2d 648 (La.App. 1st Cir. 1975), writ refused, 320 So.2d 914 (1975); Parfait v. Minnesota Mutual Life Insurance Company, 311 So.2d 558 (La.App. 4th Cir. 1975), writ refused 313 So.2d 847 (1975); Knight v. Jefferson Standard Life Insurance Company, 205 So.2d 485 (La.App. 1st Cir. 1967). Thus, the burden of proof is on the insurer to prove, in addition to the falsity of the statement made, the following two elements: (1) materiality and (2) intent to deceive. Stoma v. Prudential Insurance Company of America, 281 So.2d 871 (La.App. 3rd Cir. 1973).
"Intent to Deceive
“Strict proof of fraud is not required to show the applicant’s intent to deceive, because of the inherent difficulties of proving one’s intent. The intent to deceive must be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that the insured recognized the materiality of the misrepresentations. Reed v. American Casualty Company of Reading, Pennsylvania, supra; Parfait v. Minnesota Mutual Life Insurance Company, supra; Murphy v. Continental Casualty Company, 269 So.2d 507 (La.App. 1st Cir. 1972).”

The issue before the trial court was one of credibility: which side was the trial judge to believe. He apparently believed the plaintiff when plaintiff said that he answered each question truthfully, thus there was no intent to deceive. We find no manifest error on the part of the trial judge. Defendant’s failure to prove the intent to deceive denies to it the defense found in La.R.S. 22:619(B).

However, in order for plaintiff to be awarded penalties and attorney’s fees under La.R.S. 22:657, the defendant must have unreasonably refused to pay the medical expenses of the plaintiff. La.R.S. 22:657(A) provides that if the insurer fails to pay plaintiff’s claim after 30 days, the plaintiff-insured is entitled to twice the amount claimed plus attorney’s fees “unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist.”

We find the trial judge erred in awarding penalties and attorney’s fees. Defendant had reasonable grounds to withhold the payment of plaintiff’s claim. The plaintiff’s prior medical history is directly contradictory to the application upon which the determination to issue the policy was made.

We find the actions of appellant to be reasonable in light of the medical history of the plaintiff and the failure of the application to reveal said history.

Therefore, for the above and foregoing reasons the judgment of the trial court is reversed as to the award of penalties and attorney’s fees, and in all other respects is affirmed. Appellant and appellee are to share all costs of this appeal.

REVERSED IN PART AND AFFIRMED IN PART.


author: BAILES, Judge.

text:
    Edwin E. FOSTER, Jr. v. Joseph M. HAMPTON et al.
    No. 12650.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Rehearing Denied July 16, 1979.

      Michael R. Connelly, Baton Rouge, for plaintiff-appellant Edwin E. Foster, Jr.
    Thomas S. Halligan, Baton Rouge, for defendants-appellees State of Louisiana.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

This is a personal injury suit in which an exception of prescription was sustained in favor of the State of Louisiana. The plaintiff has appealed that judgment.

On March 26, 1975, Joseph M. Hampton, while on duty as a deputy sheriff, was involved in an intersectional collision in Baton Rouge, Louisiana, with Edwin E. Foster, Jr., who was on a motorcycle at the time. The plaintiff sustained serious personal injuries as a result of the accident.

This protracted litigation followed. J. A1 Amiss, the sheriff of the Parish of East Baton Rouge, was originally made a defendant herein upon allegations that he was the employer of Hampton. An exception of no cause of action denying the employer-employee relationship was thereafter sustained in favor of the sheriff.

An amended petition was subsequently filed by the plaintiff naming the Parish of East Baton Rouge as Hampton’s employer. This petition was also met with an exception of no cause of action by the parish which denied that it was responsible for the acts of a deputy sheriff and that exception was also sustained.

On appeal, this court affirmed both judgments. Foster v. Hampton, 343 So.2d 219 (La.App., 1st Cir. 1977). The Supreme Court of this state also affirmed. Foster v. Hampton, 352 So.2d 197 (1977).

On January 11, 1978, a second amended petition was filed by the plaintiff naming the State of Louisiana as the employer of this deputy. Thereafter, the State did not timely file pleadings and a default judgment was entered against it in favor of the plaintiff on April 27, 1978.

On June 5,1978, the State filed an exception of one year prescription to the claim which was subsequently argued and maintained in its favor. We affirm.

As noted by the Supreme Court in its opinion previously referred to herein:

“. . . However, it is well settled that the deputy sheriff is an officer of the state. Williams v. Guerre, 182 La. 745, 162 So. 609 (1935); State v. Jones, 181 La. 390, 159 So. 594 (1935); State v. Titus, 152 La. 1011, 1016, 95 So. 106, 107 (1922). The State, then, may be considered the deputy sheriff’s ‘employer.’ Although the doctrine of respondeat superior might be available to hold the State vicariously liable for the negligent torts of its employee in the course and scope of his employment, the State is not a party to this proceeding.”

In this state, the filing of a suit against one obligor within the prescriptive period interrupts that prescription as to all solidary obligors. An employer is not, however, solidarily obligated with its employee. Its obligation is vicarious only and prescription as to an employer is not interrupted by the filing of a timely suit against an employee. Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948). Moore v. Sun Oil Co., 357 So.2d 588 (La.App., 1st Cir. 1978). Little v. State Farm Mutual Automobile Ins. Co., 177 So.2d 784 (La.App., 1st Cir. 1965).

The amended petition which first made the State of Louisiana a defendant herein was filed some 33 months after the accident in which the plaintiff was injured. The appellant contends however, that, because they are political subdivisions of the state, the filing of its suit against the sheriff of the Parish of East Baton Rouge and the Parish itself, was sufficient to interrupt prescription as to the State of Louisiana. We conclude, however, that the constitutional and statutory provisions of our law dealing with suits against public bodies establish a clear delineation between the State, a state agency, or a political subdivision of the state.

Article 12, Section 10 of the Louisiana Constitution of 1974 provides:

“(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.
(C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.”

LSA-R.S. 13:5102 distinguishes between a state agency and political subdivisions as follows:

“A. As used in this Part, ‘state agency’ means any board, commission, department, agency, special district, authority, or other entity of the state, but does not include any political subdivision or any agency of a political subdivision.
• B. As the term is used in this Part, ‘political subdivision’ means any parish, municipality, special district, school board, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency.”

For suit purposes, the State of Louisiana is obviously an entity separate and apart from its agencies or political subdivisions, as defined, and the timely filing of a suit as to one does not interrupt prescription as to another unless they are solidarity liable.

The appellant further contends that the state is solidarily liable with Hampton because he is an officer of the state and that the timely filing of the suit against that officer interrupted prescription as to the State. That argument overlooks the nature of the relationship under the particular facts of this case, which were considered by the Supreme Court when it originally had this matter before it. As noted in the quoted part of its opinion above, the plaintiff here attempts to hold an employer responsible for the negligent torts of its employee while in the course and scope of his employment. These facts are suggestive of vicarious responsibility only and we find nothing therein to indicate the possibility of their being solidary obligors.

The plaintiff also maintains that, prior to the Supreme Court’s initial ruling in this case, it had no way of determining who the employer of Hampton was and that prescription should not begin running against it until the rendition of that judgment.

That court observed that it long has been the settled jurisprudence of this state that a deputy sheriff is a state officer. Further, since Gray v. De Bretton, 192 La. 628, 188 So. 722 (1939) and its progeny, it also has been recognized that a sheriff is not liable for the acts of a deputy under the doctrine of respondeat superior, master-servant, or principal-agent. This was plainly the law of Louisiana prior to the filing of this suit and prior to the events which created this cause of action.

Similarly, it previously had been determined that a parish was not responsible for the negligent torts of a deputy. Nielson v. Jefferson Parish Sheriffs Office, 242 So.2d 91 (La.App., 4th Cir. 1970). Clearly in light of these decisions, the “employer” of a deputy sheriff in this state is and has been the State of Louisiana.

If vicarious liability is to be imposed in those instances, the one year prescriptive period must be interrupted by a timely suit against that body. This was not done here. We are aware of no facts which could have been hidden or withheld. All of the information necessary for the plaintiff to sue the correct “employer” was available. In Patin v. Stockstill, 315 So.2d 868 (La.App., 1st Cir. 1975) this court said:

“Assuming the plaintiffs are correct in that the above proffers were improperly denied by the trial judge, the doctrine of ‘contra non valentem,’ nevertheless, does not apply in the instant case. Said doctrine is an exception to the general rules of prescription and establishes that prescription does not run against persons unable to bring an action or against persons who for some reason are unable to act. However, the mere failure on the part of a plaintiff to ascertain whom to sue within a year does not toll the running of prescription, Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La.App., 1st Cir. 1970). Concealment of his identity by a defendant by silence alone is not enough to toll the running of prescription. Additionally, he must be guilty of some trick or contrivance tending to exclude suspicion and prevent the plaintiff from bringing his action. There must also be reasonable diligence on the part of the plaintiff to ascertain the identity of the party injuring him and the means of knowledge are the same in effect as knowledge itself, Martin v. Mud Supply Company, Inc., 239 La. 616, 119 So.2d 484 (1960).” (Emphasis added)

The exception of prescription by the State of Louisiana was correctly maintained.

Foster also contends that to sustain the state’s exception of prescription here would be violative of his rights under the due process and equal protection clauses of the state and federal constitution. The imposition of a statute of limitations for the filing of suits has met constitutional requirements on many prior occasions. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950); Davis v. Contorno, 234 So.2d 470 (La.App., 1st Cir. 1970). For those reasons and for the reasons cited by the Supreme Court in its first opinion herein, those arguments are rejected.

The judgment of the district court is affirmed, all costs of this appeal to be paid by the appellant.

AFFIRMED.


text:
    Mr. and Mrs. Leo F. McGOWAN v. Wilfred T. GUERIN et al.
    No. 12654.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 1979.
    Rehearing Denied July 16, 1979.

      Guy A. Módica, Baton Rouge, for plaintiffs-appellees Mr. & Mrs. Leo F. McGowan.
    Robert L. Kleinpeter, Baton Rouge, for defendants-appellants American International Ins. Co. and Wilfred T. Guerin.
    James E. Moore, Baton Rouge, for defendant-appellee American Fidelity Fire Ins. Co.
    David W. Robinson, Baton Rouge, for defendant-appellee Zurich Insurance Co.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

This appeal is from the trial court judgment in favor of the parents of Helga M. McGowan who was killed in a two vehicle intersectional collision in Baton Rouge on July 25, 1976. Also killed in the accident was James T. Eldred, Miss McGowan’s host driver. The appellants are the driver of the other involved vehicle, and his insurer, American International Insurance Company.

The trial judge assigned written reasons for judgment which we approvingly quote in full:

“An early morning intersectional collision which occurred July 25, 1976, wherein two persons were killed, has precipitated this suit by the parents of one of the deceased seeking recovery of damages, both under a survival and death action, for the loss of their daughter, Helga M. McGowan. Named as defendants are American Fidelity Fire Insurance Company, the insurer of the vehicle owned by James W. Eldred and also of James T. Eldred, the driver of the vehicle in which Helga M. McGowan was a passenger, Wilfred T. Guerin, driver of the other automobile involved in the collision, his insurer, American International Insurance Company, and Zurich Insurance Company, who was the uninsured motorist insurer of Helga M. McGowan. Each of the defendants has denied liability * * *.

“Since Helga M. McGowan was a passenger in Eldred’s automobile, it is only necessary to establish her innocence as to involvement and prove that circumstances of the accident compel a finding that either one or both drivers must have been at fault. Eason v. Hartford Accident & Indemnity Co., 327 So.2d 187 (La.App. 2nd Cir. 1976). It then becomes incumbent upon the other drivers to exculpate each of themselves, respectively, not by mere denial of negligence, but by asserting facts and circumstances of affirmative force. Eason, supra. There was no evidence submitted which indicated that Helga M. McGowan contributed to or was a cause of the accident or assumed any risk or harm which may have been shown by the circumstances. Accordingly, it is necessary that the defendants affirmatively present evidence showing that their respective drivers were free of negligence or did not contribute to a cause of the accident.

“Stipulation of counsel and evidence introduced on the trial of the matter show that prior to the accident Wilfred T. Guerin was driving his 1972 Chevrolet. Van in a northerly direction in the outside lane of Plank Road and was involved in an accident with James T. Eldred who was proceeding east on Evangeline Street. This intersection is controlled by an electric semaphore signal which reflects a flashing red signal for traffic on Evangeline Street and a flashing yellow signal for traffic on Plank Road. The evidence indicates that the signal was functioning properly at the time of the accident.

“With both occupants of the Eldred automobile deceased, the only remaining eyewitnesses were the defendant, Wilfred T. Gue-rin and Clifford Burleigh, Jr., who was following a short distance behind Guerin. Guerin testified that he was driving north in the outside lane of Plank Road at between 35 and 40 miles per hour. He said that he noted the flashing yellow light at the intersection of Plank and Evangeline and that approximately four ‘van’ lengths from the intersection he took his foot off the accelerator and tapped his brakes. He said he continued on at the same reduced speed at which time he saw a blur and the other car suddenly appeared two feet in front of him. Guerin recalled that he struck the Eldred automobile broadside with the front of his vehicle.

“Burleigh was called by Guerin and his insurer as a defense witness. He testified that he was 3 or 4 car lengths behind Gue-rin and was proceeding about the same speed as Guerin. He said Guerin slowed down as he approached the intersection to the extent that it was his impression that Guerin may turn. Right before the intersection, Burleigh said that he observed a ‘flash’ which was the automobile operated by Eldred. While he characterized it as a ‘flash’, he subsequently declared that the Eldred car was not going fast. Burleigh stated that Guerin was right at the intersection when the other vehicle came across.

“Under LSA-R.S. 32:234, subd. A(l), a flashing red light is tantamount to a stop sign insofar as the duty of the motorist approaching it is concerned, and he is under a duty to stop and not proceed until he is certain it is safe, Great American Ins. Co. v. Turnage, 339 So.2d 1322 (La.App. 1st Cir. 1976). On the other hand, under LSA-R.S. 32:234, subd. A(2), a motorist who approaches an intersection controlled by a flashing yellow light is under a duty to exercise a greater degree of care and vigilance than one approaching a green light or uncontrolled intersection; and the degree of caution required includes approaching at a reasonable speed and maintaining a proper lookout for danger. Great American Ins. Co. v. Turnage, supra.

“Gauged against the above standards, the Court finds that there is no doubt that Eldred failed to obey the requirements of the statute and his negligence was a cause in fact of the accident. In assessing the prospective liability of Guerin, a far more difficult determination is involved. The corroborated testimony of Guerin indicates that he slowed down as he approached the intersection; however, he acknowledged under cross examination that he did not see the Eldred automobile until it was ‘two feet before me.’ The physical characteristics of the intersection reveal that it is very wide (68 feet) and the motorist proceeding north on Plank Road has an unimpeded view of approaching eastbound traffic on Evangeline Street a distance of nearly 160 feet from the outside lane. Therefore, it appears that if Guerin had been maintaining a proper look out he should have seen El-dred’s approaching vehicle much sooner than he did. Burleigh, who was following Guerin — while describing it as a ‘flash’— testified that he saw Eldred’s automobile as it entered the intersection. However, there is some question whether Guerin could have avoided the collision even if he had detected it at the time it was entering the intersection.

“In the final analysis, the Court believes that Guerin did not maintain a proper lookout which failure, more probably than not, was a contributing cause in the accident. In any event, he has not offered sufficient proof on this point to exculpate himself from responsibility as required under Great American Ins. Co. v. Turnage, supra. Accordingly, he and his liability insurer are also held liable for the death of Helga M. McGowan.

“Plaintiffs make two claims, one being a survival action for the pain and suffering resulting from the injuries to their daughter prior to her demise and the other being the death action. In regard to the survival action, the only evidence submitted bearing on this claim was the hospital report (Exhibit P-4) which reflects that the young lady suffered a massive blow to her head and her chest. There was no evidence of reaction by her to any stimuli administered during the twelve hours she lived following the accident. Because of shock and unconsciousness, it is doubtful that she felt any pain and suffering. However, the Court believes that a minimal award of $2,000.00 should be awarded to be divided between each parent with respect to this claim.

“Helga M. McGowan was 19'years of age when she died and was one of two children of the petitioners. Her parents were devoted to her and had reason to be very proud of their daughter as she was an outstanding student both in high school and at the university. (Exhibits P-3 and P-7) It is evident that they sustained a deep loss with the death of their daughter. The Court awards each parent the sum of $40,000.00 as to this aspect of the claim. Total expenses relating to her death amount to $1,839.46. (Exhibits P-9, P-10 and P-11)

“For the reasons assigned herein, judgment is rendered in favor of the plaintiff, Leo F. McGowan, and against the defendants, American Fidelity Fire Insurance Company, Wilfred T. Guerin and American International Insurance Company, jointly and in solido, in the sum of $42,839.46. Further judgment is rendered in favor of the plaintiff, Mrs. Leo F. McGowan and against the defendants, American Fidelity Fire Insurance Company, Wilfred T. Guerin and American International Insurance Company, jointly and in solido, in the sum of $41,000.00. Judgment against American Fidelity Fire Insurance Company is limited to $10,000.00 being the amount of their coverage. Plaintiff’s claim against Zurich Insurance Company is dismissed. * * * Finally, all costs of this proceeding are to be divided equally between American International Insurance Company and Zurich Insurance Company. Since American Fidelity Fire Insurance Company had tendered its policy limits prior to the installation of suit, it is relieved of any payment of costs.”

In seeking a reversal of the judgment appealed, appellants rely on an assignment of two errors. These are:

I. The trial judge improperly construed Eason v. Hartford Accident & Indemnity Co., 327 So.2d 187 (La.App.) and consequently placed an unreasonable and heavy burden upon appellants and did not require plaintiffs to prove their case by a preponderance of the evidence.

Appellants do not attack the holding in Eason as erroneous but contend the Court a quo improperly construed Eason and misapplied Eason to the fact of the instant case. Appellants do not argue that the deceased, Miss McGowan, was guilty of any negligence in this accident.

In Eason the court adopted the holding enunciated in Michel v. State Farm, 314 So.2d 535 (La.App. 1st Cir. 1975), which stated:

“When an innocent party is injured through the concurrent acts of. two parties under circumstances where one or the other must be at fault, the burden is upon these parties to exculpate themselves from negligence.” 314 So.2d 538.

This is a rule of evidence to be applied by the court. The trial court considered the testimony of the only two eyewitnesses to the accident, viz: the defendant, Wilfred T. Guerin and the following motorist, Clifford Burleigh, Jr., and found defendant Guerin negligent in not maintaining a proper lookout as he approached the intersection. Witness Burleigh saw the Eldred vehicle as it entered the intersection and appellants assign no reason why Guerin could not have done so, too.

We find no error in the trial court’s application of Eason.

II. Alternatively, the trial judge committed error by concluding that Wilfred T. Guerin failed to maintain a proper lookout as a result of its conclusion that appellants failed to shoulder their burden to exonerate them from liability and in also failing to consider the proximate cause of the accident.

We fully concur in the trial court’s finding that Guerin failed to maintain a proper lookout. Witness Burleigh saw the Eldred vehicle as it entered the intersection. He was to the rear of the Guerin vehicle and had a view to his left, the direction from which the Eldred vehicle came, of lesser depth or distance than Guerin. Yet appellant Guerin did not see the Eldred vehicle until two feet from him and stated that it appeared as a blur.

As to the failure of the trial court to consider the proximate cause of the accident we find that appellant Guerin’s negligence was a proximate cause of the accident.

In Great American Ins. Co. v. Turnage, 339 So.2d 1322 (La.App. 1st Cir. 1976), we stated:

“[3,4] A motorist who approaches an intersection controlled by a flashing yellow light is under a duty to exercise a greater degree of care and vigilance than one approaching a green light or an uncontrolled crossing. Pederson v. Schenck, La.App., 204 So.2d 316 (1st Cir. 1967). The degree of caution required of a person approaching a flashing yellow light includes approaching at a reasonable speed and maintaining a proper lookout for danger. What constitutes a reasonable speed and a proper lookout depends on the facts of each case. Rogers v. Tiger, La.App., 305 So.2d 147 (1st Cir. 1974); Insured Lloyds v. Liberty Mutual Insurance Co., La.App., 286 So.2d 420 (1st Cir. 1973). While a driver approaching a flashing yellow light may ordinarily rely on the fact that a driver approaching a flashing red light will stop before entering the intersection as required by law, the driver approaching the yellow light is under a duty to exercise caution and vigilance as he enters the intersection so that he may ascertain whether he can cross with safety. State Farm Mutual Automobile Ins. Co. v. Merritt [185 So.2d 832, La.App., 3rd Cir. 1966], supra; Savoy v. Cooley, 144 So.2d 223 (La.App., 1st Cir. 1962).”

Appellant breached his duty as a motorist in the approach and entrance into the intersection and this breach was a proximate cause of the accident.

The judgment appealed is affirmed at appellants’ cost.

AFFIRMED.