author: HOOD, Judge.

text:
    PLACID OIL COMPANY, Plaintiff-Appellant, v. Watson TAYLOR et al., Defendants-Appellees.
    No. 4453.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 12, 1976.

      Herschel M. Downs, Shreveport, and Armand A. Gutierrez, Dallas, Tex., for plaintiff-appellant.
    Whitehead & McCoy by Charles R. Whitehead, Jr., Sam Nelken and Watson, Murchison, Crews & Arthur by Daniel T. Murchison, Natchitoches, for defendants-appellees.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.
   HOOD, Judge.

This is a concursus proceeding instituted by Placid Oil Company to determine the ownership of certain mineral and royalty interests in two 20-acre tracts of land in Natchitoches Parish.

We decided the case originally on March 12, 1974. See Placid Oil Company v. Taylor, 291 So.2d 892 (La.App.1974). The Supreme Court granted certiorari (294 So.2d 832), and thereafter it reversed our decision, but remanded the case to us for determination of an issue which we did not consider when the case was before us originally. 306 So.2d 664 (La.1975). The issue presented on the remand was argued before a panel consisting of three judges of this court, and that panel rendered judgment deciding that issue on May 5, 1975. 313 So.2d 626 (La.App.1975). The Supreme Court then remanded the case to us for re-argument under Article V, Section 8, of the Constitution of 1974. 318 So.2d 40 (La.1975). The matter has been re-argued before a panel consisting of five judges, and it is before us now for determination of the same issues which we attempted to resolve on May 5,1975.

The facts are set out in the earlier opinions which have been rendered by this court and by the Supreme Court. We refer to those opinions for a detailed statement of most of the pertinent facts.

The sole issue presented here is whether Placid, as lessee, is obligated to pay royalties of one-eighth or royalties of one-fourth of the oil and gas produced from the leased property, insofar as that production may be attributed to the mineral interests formerly owned by Watson Taylor and Pap C. Taylor.

' We held in the opinion which we rendered on May 5, 1975 (313 So.2d 626, La.App.) that the royalty liability of Placid did not exceed one-eighth of the production from the above mineral interests. After reconsidering the matter, however, we have decided that we erred in reaching that conclusion. We now conclude that Placid, instead, is obligated to pay royalties amounting to one-fourth of all of the oil and gas produced from the leased premises, including the production which may be attributed to the mineral interests formerly owned by Watson Taylor and Pap C. Taylor.

Watson Taylor executed an oil, gas and mineral lease in favor of Placid on March 19, 1964, covering the mineral interests then owned by the said Watson Taylor in one of the 20-acre tracts of land (Tract 58) involved in this suit. Another oil, gas and mineral lease was executed by Watson Taylor, Pap C. Taylor and Robert Taylor in favor of Placid on the same date, March 19, 1964, covering the mineral interests then owned by said lessors in the other 20-acre tract of land (Tract 59) involved here. Both of the above leases provided for the payment of royalties amounting to one-eighth of all oil and gas produced from the leased premises, and both of those leases were recorded in the Convey-anee Records of Natchitoches Parish on April 3, 1964.

Watson Taylor and Pap C. Taylor sold all of their mineral interests in the land affected by the above leases to C. C. Copeland, by mineral deed dated April 3, 1964. That mineral deed was recorded in the Conveyance Records of Natchitoches Parish on April 6, 1964, three days after the above leases were recorded. The printed form of that mineral deed provided that “This grant is subject to a mineral lease now affecting said lands. . . .” Even without that stipulation in the mineral deed, of course, the mineral interests affected by that deed would have been acquired by Copeland subject to the previously recorded leases from Watson and Pap C. Taylor to Placid. The mineral interests owned by Robert Taylor were not conveyed to Copeland and they are not involved in this litigation.

Copeland acquired additional mineral interests in the land involved in this suit, and on May 8, 1964, he sold all of the interests he had acquired, including the interests formerly owned by Watson and Pap C. Taylor, to L. M. Hudson. Hudson, in turn, sold all of the mineral interests he had acquired to Judge Jim Johnson on June 10, 1964. The printed form used in both of the above mineral deeds, to Hudson and to Johnson, contained the stipulation that “This grant is subject to a mineral lease affecting said lands. . . .”

On February 5, 1965, Judge Jim Johnson executed an oil, gas and mineral lease in favor of Placid, as lessee, covering all of the mineral interests then owned by Johnson in both of the above 20-acre tracts of land (Tracts 58 and 59), including the interests which he had acquired by mesne conveyances from Watson Taylor and Pap C. Taylor. At that time, of course, Johnson owned a substantially greater mineral interest in the leased property than that which he had acquired from Watson and Pap C. Taylor. The lease from Johnson to Placid provided that the lessee would pay royalties of one-fourth of all oil and gas produced from the leased property. There is nothing in that lease contract which refers to any other oil, gas and mineral lease affecting the land therein described. More specifically, the lease from Johnson to Placid, dated February 5, 1965, contains no reference to the prior leases from Watson Taylor and Pap C. Taylor to Placid, and there thus is nothing in the agreement between Johnson and Placid which could be construed as excepting the mineral interests formerly owned by Watson and Pap C. Taylor from the obligation of the lessee in the 1965 lease to pay royalties to the lessor, Johnson, of one-fourth of all of the oil and gas produced from the leased premises.

On July 2, 1966, Judge Jim Johnson sold and conveyed to Mrs. Betty Beason all of the mineral interests he owned in the two 20-acre tracts of land involved here. The printed form of that mineral deed contained the usual provision that “This grant is subject to a mineral lease now affecting said lands. . . .’’By that mineral deed, therefore, Mrs. Beason became the owner of all of the mineral interests theretofore owned by Johnson, subject to any lease which affected those interests, and she thus acquired all of the rights which Johnson previously had, as lessor under any such lease. If Johnson was entitled to recover royalties of one-fourth of the production which could be attributed to the interests formerly owned by Watson and Pap C. Taylor, then Mrs. Beason is entitled to recover the same royalties from that production.

Mrs. Beason contends that the lease from Johnson to Placid, dated February 5, 1965, constituted a novation of the 1964 leases affecting the Watson and Pap C. Taylor mineral interests, and that Placid thus owes royalties amounting to one-fourth of the oil and gas produced from all of the mineral interests covered by the lease, including those acquired from Watson and Pap C. Taylor, as provided in the later Johnson lease. Placid, on the other hand, contends that the 1965 lease was not a novation of the pre-existing leases, because there was nothing in the 1965 lease which showed an intention by the parties to extinguish the existing obligations.

In the judgment which we rendered on May 5, 1975, we concluded that the 1965 lease did not supersede or effect a novation of the 1964 leases, and that Placid thus owed royalties amounting to only one-eighth of the oil and gas produced from the original Watson and Pap C. Taylor interests.

The following articles of the Louisiana Civil Code are applicable:

“Art. 2185. Novation is a contract, consisting of two stipulations; one to extinguish an existing obligation, the other to substitute a new one in its place.”
“Art. 2190. Novation can be made only by persons capable of contracting; it is not presumed; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.”

Placid’s principal argument, based on the cited articles of the Civil Code, is that the terms of the 1965 lease do not make it clear that the parties intended to extinguish the old leases and substitute the new one in their place, that novation cannot be presumed, and that the evidence thus fails to support a holding that the 1965 lease effected a novation of the previously existing leases.

The determining factor in deciding whether a novation has been effected is the intention of the parties. The intention to novate may be shown by the character of the transaction, and by the facts and circumstances surrounding it, as well as by the terms of the agreement itself. The burden of proof to establish novation is on the person who claims it. Antoine v. Elder Realty Company, 255 So.2d 625 (La. App. 3 Cir. 1971); Midlo & Lehmann v. Katz, 195 So.2d 383 (La.App. 4 Cir. 1967).

In Midlo & Lehmann v. Katz, supra, the Fourth Circuit Court of Appeal stated, appropriately, that:

“Since novation is never presumed, the burden of proof to establish novation is on the person who claims it; the determining factor is the intention of the parties to substitute a new obligation for the original one; only when this intention is present does the original obligation cease to exist; and such intention may be shown by the character of the transaction and the facts and circumstances surrounding the transaction, as well as by the terms of the agreement itself.”

The provisions of LSA-C.C. art. 2190 are substantially the same as those contained in Article 1273 of the French Civil Code. Planiol makes the following observations relating to the French Code:

“ ‘Novation is not presumed’ says Art. 1273. It should not, therefore, be readily admissible by the court, and in case of doubt, it should maintain the old obligation as co-existing with the new one. However, the intention to effect a novation need not be mainfested in any special manner. It suffices, says Art. 1273, that such intention ‘result clearly from the act.’ In general, one understands the word ‘act,’ as used in this text, as meaning the contract effected, and not the writing which establishes it; it is not necessary, therefore, that the intention to novate be expressly declared in the writing; it can be tacit, and it can be implied from the nature of the contract made, or from the external circumstances.” Planiol Civil Law Treatise, English Translation, Vol. 2, Part 1, No. 544, page 302.

The intent of Johnson and Placid in entering into the 1965 lease agreement conceivably could have been: (1) To extinguish the existing 1964 leases and to substitute the 1965 lease in their place, as contended by Mrs. Beason; or (2) that the 1964 leases were to be continued in effect, with the 1965 lease covering' only the additional mineral interests owned by Johnson over and above those which he acquired by mesne conveyances from Watson and Pap C. Taylor, all as contended by Placid; or (3) that the 1964 leases were to co-exist with the 1965 lease, with the result that the lessee owes royalties amounting to a total of three-eighths of the oil and gas production attributable to the Watson and Pap C. Taylor mineral interests.

No one suggests that the third or last conceivable interpretation should be placed on the transaction involved here, and neither do we. It seems to us, however, that this last conceivable interpretation is at least as logical as the one urged by Placid, particularly in view of Planiol’s comment that “in case of doubt, it (the court) should maintain the old obligation as coexisting with the new one.”

After considering the character of the transaction involved in the instant suit, the facts and circumstances surrounding it, and the terms of the agreement itself, we have concluded that the parties intended to extinguish the existing 1964 leases from Watson and Pap C. Taylor to Placid, and to substitute in their place the 1965 lease executed by Johnson in favor of Placid. We believe now, contrary to the view we expressed in our last judgment, that a novation clearly was effected by the execution of the 1965 lease.

One important circumstance which prompts us to arrive at the above conclusion is that the 1965 Johnson lease was silent as to the prior existing leases. It is inconceivable, we think, that the parties would omit a reference to the 1964 leases, if they actually intended that the lessee was to pay only a one-eighth royalty on the production from the Watson and Pap C. Taylor mineral interests instead of the one-fourth royalty provided in the 1965 lease covering the same interests. The printed form of the lease contract executed by Johnson in favor of Placid in 1965 provided for the payment of a one-eighth royalty in the oil and gas produced from the leased premises. That lease, however, was accompanied by a separate letter from Placid to Johnson, also dated February 5, 1965, which reads:

“For all purposes please refer to the Oil, Gas and Mineral Lease which you executed on February 5, 1965, as Lessor in favor of Placid Oil Company as Lessee, covering and affecting the NE/4 of the NE/4 of Section 28, Township 11 North, Range 6 West, Natchitoches Parish, Louisiana.
“This letter will evidence the fact that we have agreed that wherever the words ‘one-eighth’ appear in Article 3 of the aforementioned lease, they shall be deemed to be ‘one-fourth’ just as though the latter words had been substituted for the former on the original lease form itself.
“Otherwise, the lease correctly reflects all terms and conditions upon which we have agreed.”

Johnson also signed that letter, signifying that he accepted the terms or provisions set out in it. It is apparent that this letter agreement specifically refers to the 1965 lease, it describes the property covered by that lease, it provides that one-fourth royalties are to be paid, and no exception is made in that letter as to the production obtained or to be obtained from the Watson and Pap C. Taylor interests. The letter further recites, “Otherwise, the lease correctly reflects all terms and conditions upon which we have agreed.” We believe some reference would have been made to the Watson and Pap C. Taylor mineral interests in that letter if the parties had intended that the one-fourth royalty provision did not apply to those interests.

Another fact which has influenced us is that at the time the 1965 lease was executed Johnson owned substantially more mineral rights in the 40-acre tract of land involved here than those which had already been leased to Placid, that is, the Watson and Pap C. Taylor interests. We believe we are justified in assuming that it was to Placid’s advantage to obtain a lease covering substantially more mineral interests in the leased property than it already had, and that that was an important consideration for its agreement to effect the novation and to pay the additional royalties on the interests which previously had been leased.

Considering these facts and the nature of the transaction, we are convinced that the parties intended to effect a novation in executing the 1965 lease.

Placid argues further, however, that the parties obviously did not intend to extinguish the 1964 leases, because such an extinguishment would have had the effect of releasing the Robert Taylor mineral interest. Robert Taylor was a lessor in one of the 1964 leases at issue here. He did not sell his interest to Copeland, and Johnson thus never acquired the mineral interest owned by him. All parties agree that the Robert Taylor interests are not involved in this proceeding. We cannot agree with Placid’s argument that the lease of the Robert Taylor interest would be extinguished if the 1965 lease is held to constitute a novation. Since the Robert Taylor interest was never acquired by Johnson, it was not affected by the 1965 lease. The' novation which resulted from the execution of the 1965 lease thus did not affect the Robert Taylor interest.

Our conclusion is that the leases from Watson Taylor and Pap C. Taylor to Placid Oil Company, dated March 19, 1964, and recorded on April 3, 1964, which leases provide for a one-eighth royalty, were extinguished and were superseded by the lease from Judge Jim Johnson to Placid Oil Company, dated February 5, 1965, providing for a one-fourth royalty. Placid’s royalty liability as to all of the property covered by the 1965 lease, including the mineral interests formerly leased by Watson and Pap C. Taylor, thus is one-fourth of the oil and gas produced from the leased premises.

For the reasons herein assigned, the judgment which we rendered on May 5, 1975, is hereby rescinded and recalled, and judgment is hereby rendered affirming the judgment of the district court. All costs of this appeal, except those which the Supreme Court specifically taxed against the money deposited (See 306 So.2d 664, La.), are assessed to plaintiff-appellant, Placid Oil Company.

Our original judgment rescinded, and judgment of district court affirmed.

CULPEPPER, J., dissents for the reasons stated in the previous decision authored by him and rendered May 5, 1975.

MILLER, J., dissents for the reasons assigned by CULPEPPER, J.


source: Caselaw Access Project

author: WATSON, Judge. MILLER, Judge

license: Public Domain

text:
    Ellarine THIBODEAUX, etc., Plaintiff-Appellant, v. FIREMAN’S FUND INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5254.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearings Denied Jan. 28, 1976.

      Daniel J. McGee and A. Bruce Rozas, Mamou, for plaintiff-appellant.
    Lewis & Lewis by John M. Shaw, Ope-lousas, for defendants-appellees.
    Before HOOD, CULPEPPER, MILLER, WATSON and CUTRER, JJ.
   WATSON, Judge.

Plaintiff, Ellarine Thibodeaux, individually, and as natural tutrix of her minor child, Julius James Bergeron, filed this suit to recover damages for injuries the child received when his bicycle was struck by an automobile driven by defendant, Leslie L. Derouen. Other defendants are the owner of the automobile, F. J. Derouen, Jr., and its insurer, Fireman’s Fund Insurance Company. The trial court dismissed plaintiff’s suit, finding that Leslie Derouen was not negligent and Julius was guilty of contributory negligence.

Plaintiff has appealed, contending that the trial court erred in:

(1) failing to find Leslie Derouen negligent even though she was admittedly exceeding the speed limit;
(2) holding the eight-year-old bicycle rider contributorily negligent;
(3) failing to apply the doctrine of last clear chance;
(4) failing to hold that Leslie Derouen’s failure to call her passenger as a witness creates a presumption that the witness’s testimony would have been unfavorable.

The questions presented are:

A. whether there is manifest error in the trial court’s holding that there was no negligence on the part of the defendant driver;
B. whether there is manifest error in the holding that the bicyclist was guilty of contributory negligence; whether the trial court erred in not applying the presumption of adverse testimony as to the driver’s passenger in its consideration of contributory negligence; and
C. if liability is present, what damages should be awarded plaintiff

The testimony on the question of liability presents the facts:

Leslie Derouen testified in person and by deposition as follows: The accident occurred on May 15, 1971, in Eunice, Louisiana. She was, at that time, 15 years old and was accompanied by a friend and classmate, Martha Stone. She was driving in an easterly direction on Betty Street, in a residential area with little traffic and a 25-m'ile per hour speed limit. The weather was clear and dry; the station wagon she was driving was new. When she turned the corner, about a block and a half away from the site of the accident, she saw children playing in the yard at the corner of Fannie and Betty Streets. Leslie was familiar with the neighborhood and had seen young children in the afea on previous occasions. As Leslie approached the “T” intersection of Fannie and Betty Streets, she saw a boy on a bike coming fast from Fannie Street into the intersection. Her speed was admittedly over the limit but estimated at not over 35 miles per hour. She put on her brakes and swerved to the right. She could have avoided hitting the boy except for the presence of a parked automobile on the righthand side of the road. Her companion screamed just prior to the impact. Leslie identified photographs of the intersection and the Julius Bergeron home on the corner. She said Julius and the bike fell near the point of impact, perhaps two feet away, after a glancing blow from the car.

Ferdie Labbe, an employee of the Eunice City Police Department for 19 years, testified that he investigated thé accident, which occurred around 5:00 p. m. The skidmarks left by the Derouen automobile measured approximately 102 feet. The speed limit was 25 miles per hour; there was a stop sign controlling the traffic entering Betty Street from Fannie Street. There is no center line on Betty Street; it is very narrow. Officer Labbe said the point of impact was approximately in the center of Betty Street.

Julius James Bergeron, age 11 at the time of trial, testified that he was eight years old on the day of the accident and had not been to school that day because of mumps. He was then in the second grade but had repeated the first grade. Julius had been riding his bike in the yard of his home. He cut across the corner of his yard onto Betty Street; saw a car and heard its brakes and horn. He stopped his bike and was hit by the car.

George Joubert, Jr., elementary school principal, testified that he knew Julius, a student at his school who had attended first grade there. Julius’ I. Q. was in the average realm.

Joann W. Derouen, mother of Leslie Derouen, testified that she took the photographs in the record of the scene.

Ms. Estelle Perrault, a professor at LSU Eunice, testified that she was familiar with the accident scene. She heard the noise of the accident while inside a- nearby house. Betty Street is asphalt with grass and gravel on the shoulders. The bicycle, which was badly damaged in the accident, was located on the northern edge of the asphalt. There was also a small amount of blood at that point. Both Ms. Perrault and Mrs. Derouen testified that, after the accident, there was a scratch on or near the front door of the Derouen automobile. Mrs. Derouen said it was on the driver’s side; she did not recall seeing it on her car prior to the accident.

Dr. J. D. Cole, a clinical psychologist, testified that he gave Julius a battery of tests and concluded that Julius had verbal ability in the dull normal range and motor ability in the mid-average range.

A. Negligence of Leslie Derouen

There is no question that Leslie Derouen’s conduct was a cause in fact of the harm to Julius. Leslie was under a legal duty to refrain from driving over the speed limit, to drive in her proper lane of traffic and to exercise caution in a residential area where she knew small children were present. She breached the duty of care owed by motorists to others on the streets. Leslie Derouen admitted that she was exceeding the posted speed of 25 miles per hour on a narrow untraveled road in a residential area. The trial court said she was exceeding the posted speed limit and going 30 to 35 miles per hour.

The trial judge erred manifestly in his computation of the station wagon’s speed on the basis of the 57 feet of skidmarks leading to the point of impact. He should have calculated the speed on the basis of the 102 feet of clearly visible skidmarks (D-l and D-2). On the basis of the speed charts reflected by the exhibit P-1, a joint offering which includes figures from “Driver’s Guide” Department of Public Safety, Blashfield, and Lawyer’s Motor Vehicle Speed Chart 1950, all of which vary to some extent, the 102 feet of skid marks indicate a speed of 40 to 50 miles per hour. This speed was clearly excessive on a narrow blacktop city street where children were seen playing nearby.

The new station wagon must have accelerated very rapidly from the corner where she turned onto Betty Street to the point of the accident. The quick acceleration and fast speed clearly demonstrate negligence by the driver.

In addition, there are other indications of negligence. Leslie testified that she saw a boy on a bike coming off Fannie Street toward Betty Street and that she swerved to the right to avoid him. However, a photograph in the record as D-2 indicates that her automobile was in fact in the center of Betty Street prior to the accident rather than in the right lane of traffic. This is confirmed by the testimony of Officer Labbe that the impact, even after Leslie swerved, was approximately in the center of the road. Leslie Derouen testified in deposition that she was familiar with the area, and had seen small children in the area before. She also testified that, when the bicycle glanced off the car, the boy and bike only fell a couple of feet. Estelle Perrault was on the scene immediately after the accident and testified that the bicycle was next to the edge of the asphalt on the north side of the street and there was also a small amount of blood there. The evidence all indicates that Leslie Derouen was not only exceeding the speed limit on a narrow street where she had noticed that children were present, but was also, even after she swerved to the right, in the middle or slightly to the north of the middle of the road. She saw the bicycle coming out of Fannie Street into the intersection. There were no obstructions to her vision, according to her own testimony, and her failure to take evasive action and avoid the child constitutes negligence. Comeaux v. Dupuis, 254 So.2d 687 (La.App. 3 Cir. 1971); Ates v. State Farm Mutual Automobile Insurance Co., 191 So. 2d 332 (La.App. 3 Cir. 1966).

B. Contributory Negligence of Julius

An eight-year-old of average intelligence is legally capable of contributory negligence.

However, it must be remembered that contributory negligence is an affirmative defense, and the burden of proof is on defendants. Miss Derouen failed to call her friend, companion and classmate, Martha Stone, to establish this defense. It is presumed that Martha Stone’s testimony would have been adverse to Miss Derouen. Marshall v. Southern Farm Bureau Casaulty Co., 204 So.2d 665 (La.App. 3 Cir. 1967), writ refused, 251 La. 860, 206 So.2d 711, U.S. cert. den., 393 U.S. 883, 89 S.Ct. 189, 21 L.Ed.2d 158; New Amsterdam Casualty Company v. Culotta, 230 So.2d 339 (La.App. 4 Cir. 1970). Also see King v. Jarvis, 144 So.2d 616 (La.App. 4 Cir. 1962).

The question arises as to whether the plaintiff should have called Martha Stone. Due to the close association between the two girls and the fact that Martha Stone was a passenger in the vehicle driven by Miss Derouen, we attribute the failure to call this eyewitness to the defendants, rather than plaintiff. The presumption is that her testimony would have been unfavorable to Miss Derouen. The trial court erred as a matter of law in failing to give weight to this presumption.

Aside from the issue of Martha Stone, we find no reasonable factual basis for holding Julius Bergeron contributorily negligent. We find, therefore, manifest error.

Leslie Derouen, who with Julius was the only other witness to the accident, said she had no idea whether the boy saw her or not. Julius testified that he heard the sound of the car’s brakes and slammed on his bicycle brakes to stop his progress into the intersection but was struck by the automobile. There is no evidence that Julius knowingly ventured into the path of the automobile. Dupuy v. Pierce, 285 So.2d 321 (La.App. 3 Cir. 1973). The evidence in the record does not establish contributory negligence for a youngster, which is:

“ . . . gross disregard of one’s safety in the fact of known, perceived and understood dangers . . .” Cormier v. Sinegal, 180 So.2d 567 at 570 (La.App. 3 Cir. 1965).

Considering such factors as the 40 to 50 miles per hour speed of the station wagon, the residential neighborhood, the narrow street, the children playing in the area, and the bike being struck by the left side of the station wagon which extended partially (according to the location of the skid marks) onto the wrong side of the street, we do not find reasonable a conclusion that defendants have carried their burden of proving that Julius was negligent in failing to see the vehicle or in venturing into Betty Street.

This case is remarkably similar in many respects to Kelly v. Messina, 318 So.2d 74 (La.App. 4 Cir. 1975), recently decided by our brothers of the Fourth Circuit, which reversed the trial court in a speeding auto-moble-bicycle case where skid marks of 100 to 110 feet indicated excessive speed of about 49 miles per hour. As we understand the Kelly opinion the child’s (11 years old as compared to 8 here) conduct did not amount to contributory negligence under the circumstances. We reach the same conclusion here.

The trial court erred in its conclusion, therefore, that Julius was guilty of contributory negligence.

We do not reach the question of whether Leslie Derouen had the last clear chance to avoid the accident.

C. Damages

It was stipulated that Fireman’s Fund Insurance Company carried a policy of public liability insurance on the Derouen automobile sufficient to satisfy any judgment rendered.

The evidence as to damages was as follows :

Julius was first seen at the Savoy Memorial Hospital in Mamou, Louisiana, by Dr. Wayne G. LaHaye, whose report was offered in evidence without objection in lieu of his testimony. His report shows a fracture of the left femur and lacerations of the scalp and right hand. Julius was hospitalized, treated with traction, a spika cast and medication. X-rays were taken. Julius was also treated by Dr. Gary J. La-Fleur, whose report was entered in evidence without objection in lieu of his testimony. Dr. LaFleur saw Julius the day after the accident for surgical treatment of the fractured femur. Julius was treated with traction until June 17, 1971, approximately five weeks after the accident, when he was placed in a spika cast. Julius remained in the cast until August 3, 1971, when it was removed and he was started on crutches. On October 22, 1971, Julius was discharged with an adequately healing femur. Dr. LaFleur last saw Julius on May 29, 1974, when this doctor found recovery from the fracture with a residual increase in length of the left leg of % inches. Dr. LaFleur also found some angulation which was not clinically significant. Heel elevation of the right leg was suggested but no further treatment recommended. Dr. LaFleur found a permanent disability of eight to fifteen per cent.

Dr. George P. Schneider, stipulated as an expert in orthopedic surgery, testified in deposition that he saw Julius James Bergeron on July 16, 1973. Examination showed' a mild adduction type swing of the left leg which Dr. Schneider described as a transitory thing during rehabilitation. The left femur was % of an.inch longer than the right. There was moderate residual angulation at the fracture site. Dr. Schneider stated that Julius had a permanent residual disability of 15% of the left leg. Dr. Schneider said Julius’ complaints of pain and discomfort were justified on the basis of the physical findings.

Dr. William Preston Cloyd, a psychiatrist in Lafayette, Louisiana, testified in deposition as an expert in psychiatry. Dr. Cloyd saw Julius on referral from Dr. LaFleur on May 15, 1974. Dr. Cloyd said that Julius had emotional difficulties and the accident had been a precipitating factor in the manifestation of these symptoms. Dr. Cloyd scheduled re-examination on May 28. He placed Julius on a mild anti-anxiety, anti-depressant type medication and made arrangements for him to be counseled by a psychiatry social worker under supervision. Dr. Cloyd’s diagnosis was as follows:

“. . . a neurosis following trauma which has been manifest by personality changes, anxiety, depressive symptoms . . .” (Tr. 48)

Moses S. Pickney, assistant principal at Eunice Elementary School, testified that he had been in the teaching profession for 17 years and knew Julius from a physical education class which Mr. Pickney taught and in which Julius was enrolled. He had previously known Julius from a fourth grade physical education class. Mr. Pick-ney said that Julius had complained on a couple of occasions about his leg hurting him. Mr. Pickney said that Julius likes sports, particularly baseball and appears to have no special problems, although of only average ability.

Dr. Ladislas Lazaro, III, stipulated as an expert in orthopedic surgery, testified that he examined Julius on October 9, 1972, at the request of Dr. Rodney Perron. At that time Julius complained of intermittent pain in the thigh area radiating to the left knee related to activity. Dr. Lazaro’s examination revealed angulation of the femur, a slight discrepancy in leg length and an unusual gait. X-rays indicated osteoporosis of the left knee because of disuse and angulation of 4 to 6 degrees at the site of the fracture. Dr. Lazaro encouraged normal activity to resolve the osteoporosis of the knee. Dr. Lazaro saw Julius again on January 25, 1973. There was angulation of 10 to 11 degrees where the bone was bowing at the fracture site which Dr. Lazaro thought was acceptable and would not impair function of the leg. The osteoporosis of the knee had cleared up. Dr. Lazaro again saw Julius on December 4, 1973. Julius complained of pain in the left thigh after activity. Dr. Lazaro stated that Julius would have a residual impairment to the left femur throughout his lifetime which might place additional stress on the hip and knee joints. This was evaluated as a 14% disability of the left leg. Scanograms showed an overgrowth of the left femur of 1.5 centimeters, or approximately % of an inch. Dr. Lazaro stated that this was a significant leg length inequality which created a pelvic obliquity and stress on the lumbosacral area. These problems might cause difficulties later in life. Dr. Lazaro did not think the leg length discrepancy would resolve itself and recommended an elevated shoe on the right foot. Julius’ complaints were stated to be not inconsistent with the medical findings.

Julius Bergeron’s accident necessitated extensive medical treatment, as detailed above. However,. his mother testified that she had not paid the bills for this treatment but had submitted them to the Louisiana Welfare Department. The Welfare Department has not intervened, and

Mrs. Thibodeaux can not recover these expenses since she has not assumed the obligation of paying them. Collins v. Allstate Insurance Company, 264 So.2d 693 (La.App. 4 Cir. 1972).

An award of general damages for pain and suffering and permanent disability in the amount of fifteen thousand dollars is justified by the evidence. In Johnson v. Fred H. Moran Construction Company, 289 So.2d 323 (La.App. 1 Cir. 1974), writ refused, La., 293 So.2d 171, $15,000 in general damages was awarded for a 20% disability of an ankle and emotional stress and strain. In Adams v. Employers Liability Assurance Corp., 232 So.2d 311 (La.App. 3 Cir. 1969), a minor received $15,000 for a 25% permanent, partial disability of the left leg. In Skains v. Allstate Insurance Company, 264 So.2d 230 (La.App. 1 Cir. 1972), a seven-year-old with a 15 to 20 per cent disability of the left leg and other injuries received $14,000. The leg injury in Skains was strikingly similar to that here in treatment and residual. Although Julius did not have the other injuries of the child in Skains, he has suffered more than the usual mental trauma.

For the foregoing reasons, the judgment of the trial court herein is reversed, and

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Ellarine Thibodeaux, individually, and as natural tutrix of her minor child, Julius James Bergeron, and against defendant, Fireman’s Fund Insurance Company, in the amount of fifteen thousand and no/100 dollars ($15,000.00), together with legal interest from date of judicial demand, until paid.

All costs are assessed against defendant-appellee, Fireman’s Fund Insurance Company.

Reversed and rendered.

MILLER, J., dissents and assigns written reasons.

HOOD, J., dissents for the reasons assigned by MILLER, J.

MILLER, Judge

(dissenting).

I am unable to agree to the reversal of the trial court’s factual determinations. In my opinion appellants failed to establish manifest error in the trial court finding of contributory negligence on the part of an 8i/¿ year old child who ran his bicycle at high speed through a stop sign at an obstructed (not blind) intersection. The bicyclist ran into the side of the right-of-way vehicle after the motorist had applied brakes immediately after seeing the bicyclist come into view.

In carefully considered written reasons the trial court found the child to be “an average child” who “was familiar with the intersection, was familiar with the stop sign, and knew what it meant.” Instead of the bicyclist “venturing into Betty Street” as the majority holds, the trial court held the bicyclist “attempted to cross the intersection on his bicycle at a fast rate of speed and come on to Betty Street . . .” Tr. 152.

It is respectfully submitted the majority failed to apply the rule that:— v

Where evidence is before the trier of fact which, upon a reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this factual finding absent manifest error. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may believe its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The majority summarized portions of the testimony, but did not quote from the trial judge’s carefully considered written reasons.

The majority’s key factual determination which differs with that of the trial court is the speed of the Derouen small sized Oldsmobile stationwagon. The trial court held that when brakes were applied Miss Der-ouen (who was almost sixteen at the time) was travelling between 30 and 34 mph. The majority finds her speed to have been between 40 and 50 mph. This is based on two findings by the majority- — -1) all four tires were effectively braking for a distance of 102 feet, and 2) the black topped road surface was ideal. The record supports the trial court and not the majority as to both factors.

As to this first finding, it should be noted the skidmarks were not measured. The investigating officer testified he only stepped off the distance. Is there not room for a “reasonable inference” that from prior testimony in other cases the trial court knows this officer’s steps are not accurate but instead his steps indicate longer measurements than actually exist? And it was positively established that only three of the Derouen vehicle’s four tires were braking and most of this braking-occurred while the stationwagon was sliding in a direction to the left of the direction it was facing. This occurred because the left front tire had no braking effect. A beer can was found embedded in the left front tire at the point where the rubber meets the road. Under these facts the majority erred in using the stopping/distance charts applicable where all four tires were effectively stopping the test vehicles in a straight line.

Secondly, one independent and most responsible witness testified the hardsurfaced right-of-way road had small bits of shell and pea gravel on it. Photographs in evidence support this testimony. The trial court was not in error in accepting an inference that the road surface was less than ideal. Relevant here is the fact that there was no expert testimony to reconstruct the accident or to establish the speed of the car based on skidmarks and road conditions.

It is respectfully submitted that the trial court’s reasonable evaluations of credibility and reasonable inferences of fact are as reasonable as the majority’s evaluations and inferences.

The majority does not mention one of the trial court’s essential factual determinations — that impact occurred near the middle of Betty Street “somewhere around the east side of a continuation of Fanny Street.” There is no error in this conclusion for this is exactly the location of impact assigned by the investigating officer’s sketch in evidence at Tr. 151. This is in turn relevant to one of the majority’s grounds for reversal.

I read the majority opinion to hold the bicyclist was one of a group of children and the motorist should have slowed because she saw these children “in the area.” As to the motorist having seen children in the yard, the trial court expressly held “there is no evidence as to just exactly how close they were to the street.” The record does not suggest these children were close enough to the road to cause concern on the part of the oncoming right-of-way motorist. Nor is there a suggestion in this record that these children who were playing in the yard might have placed the motorist on notice that a bicyclist might dart from an obscrued street through a stop sign at high speed. This is related to another key error in the majority’s decision — that “there were no obstructions to (Miss Derouen’s) vision.” This suggests the motorist should have seen the bicycle approaching the stop sign at high speed.

On these findings the majority aligns this case with Kelly v. Messina, 318 So.2d 74, (La.App. 4 Cir. 1975). In Kelly, the motorist saw a line of four bicyclists a substantial period of time and from a substantial distance before the child turned his bicycle into his traffic lane, but nevertheless continued driving at an excessive rate of speed the facts in the instant case do not remotely resemble those in Kelly.

The trial court expressly found the motorist “applied her brakes as soon as she saw young Bergeron, and the Court does not believe that she could see him for a great distance down Fanny Street.” The evidence to support the trial court’s conclusion was given by an independent witness who lives in the vicinity of the accident. She testified she wanted to determine how the accident occurred and carefully studied the motorist’s approach to the accident. She found the motorist’s vision of Fanny Street was obscured by trees, especially a cedar tree which was “heavy at the bottom.” The view was also obscured by a growth of pampas and wisteria bushes which were thick at this time of the year, “so the view is blocked somewhat.” Tr. 273. It is respectfully submitted the trial court’s factual finding is again supported by the evidence.

The majority has based its reversal, in part, on a presumption against the right-of-way motorist for failing to call her guest passenger who was a friend at the time of the accident. On the basis of three decisions, the majority presumes the guest passenger’s testimony would be adverse to the motorist. These cases are' readily distinguished.

In Marshall v. Southern Farm Bureau Casualty Co., 204 So.2d 655 (La.App. 3 Cir. 1967), the presumption was applied against the brother of the decedent where the presumption is properly applied. Furthermore the presumption was used to affirm the jury determination. 204 So.2d at 670 [headnote 8]. In New Amsterdam Casualty Company v. Culotta, 230 So.2d 339 (La.App. 4 Cir. 1970), the presumption was again used to affirm the trial court, not to overrule the trial court’s factual determination. In all probability the triers of fact (in the first a jury, in the second the trial judge) applied the presumption. The trial court knows a lot that doesn’t get in the record. For instance, in the instant case it was suggested the guest passenger had been confined in a hospital under the trial judge’s order. How could the trial judge apply an inference against the motorist under these circumstances ?

The citation of King v. Jarvis, 144 So.2d 616 (La.App. 4 Cir. 1962) as authority for this presumption is interesting. The court there acknowledge the rule but refused to apply it and affirmed the trial court.

It is respectfully submitted first that the rule does not apply to an unrelated guest passenger, and second, if the rule may be applied, it should be used to affirm the trial court whose duty it is to distill the evidence and make “reasonable inferences of fact.” The rule should never be used to reverse a trial court whose knowledge concerning availability of witnesses far exceeds the bounds of the transcribed record.

Relevant to the trial court’s overview of this case is the time sequence. This accident occurred May 14, 1971. Suit was filed May 12, 1972. The first effort to bring the matter to trial (so far as the cold record indicates) was taken on March 28, 1974 when plaintiff noticed the driver that her discovery deposition would be taken. The case was tried and decided in June of 1974. The trial court might have inferred plaintiff did not value the claim as a serious one.

The trial court reasoned “the child darting out on a rapidly moving bicycle was a contributing factor to the accident and recovery on (the child’s) behalf is barred under the doctrine of contributory negligence which has been measured by the court in the light of his age and understanding.” Tr. 154. I am,unable to find manifest error in this factual determination.

If Canter v. Koehring Company stands for the quoted principal, supra, I respectfully submit we should affirm the trial court decision which has a reasonable factual basis.

I respectfully dissent.


author: MILLER, Judge.

text:
    Camille QUOYESER, Plaintiff-Appellant, v. DEPARTMENT OF PUBLIC SAFETY et al., Defendants-Appellees.
    No. 5290.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.

      Thompson & Perrin by Michael F. Thompson, Lafayette, for plaintiff-appellant.
    Foye L. Lowe, Jr., and james C. Dixon, Dept, of Public Safety, Baton Rouge, for defendants-appellees.
    Before MILLER, WATSON, and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff Camille Quoyeser appeals the denial of injunctive relief from enforcement of a Department of Public Safety administrative decision to suspend his driver’s license for refusal to take a test required by the Implied Consent Law, LSA-R.S. 32:661-669. The denial was based on a review of that decision and evidence heard by the trial judge. We affirm.

At 1:05 a. m. State Trooper Gerald F. Melton was patroling on Highway 90. He observed a vehicle weaving and driving erratically — crossing the center line into the opposing lane and running off the shoulder. He had difficulty getting the driver to stop and summoned help on his radio. Trooper David W. Davenport responded and took a position to intercept the vehicle. The driver, Mr. Quoyeser, stopped shortly after Davenport had been summoned. Trooper Melton' immediately detected the smell of alcoholic beverages and Quoyeser had to lean against his car for balance. Melton placed Quoyeser under arrest and explained to him his Miranda rights. Quoyeser was placed in the trooper’s police unit and the PEI van was summoned to administer a Photoelectric Intoximeter test.

State Police Lieutenant C. C. Barton drove the PEI van to the scene of the arrest and was prepared to administer the test. Quoyeser was placed in the van and “read his rights” under R.S. 32:661 et seq. from a printed form similar to that quoted in Swan, infra, at 311 So.2d 449. Quoyeser was belligerent and said he was not taking any test—he refused to sign anything. Lieutenant Barton read the rights to Quoy-eser again. Both officers “explained the entire consequences” of Quoyeser’s refusal to take the test, and Quoyeser steadfastly refused to sign. He never requested to see or call an attorney.

Quoyeser testified that he was driving to the home of a business associate in a line of three cars—one associate was ahead and one behind. When he got out of the car the officer asked him to walk a straight line and then “wrote out the ticket (for D.W.I.) and I refused to sign the ticket.” Tr. 36. The reason he gave for refusing to sign was he “always” had been advised not to sign anything without legal counsel in matters such as this. Each time he was asked to sign the form acknowledging the effect of his refusal to take the PEI test, he refused to sign anything without consulting an attorney. Quoyeser made it clear he didn’t ask to see an attorney, “I just said I wasn’t going to sign anything without having my attorney period.” Tr. 37-8. On cross examination, Quoyeser was unable to remember many relevant facts. At the conclusion of his testimony, the trial judge took note of this and asked him to explain why. Quoyeser explained “I was under the influence, sir.” Tr. 39.

Quoyeser was brought to the parish jail and bonded out one hour after his arrest. So far as the record indicates, Quoyeser never requested an attorney.

Quoyeser contends his refusal to sign anything until he consulted an attorney was taken by the officers to mean he refused to take the chemical test offered. He argues he had been advised of his rights to have an attorney and he was exercising these rights by refusing to sign until he saw an attorney.

The trial court found no merit to this contention. Quoyeser never asked for an attorney. The effect of his refusal to take the PEI test was carefully explained to him.—his refusal would result in a six month suspension of his driver’s license. The record supports this conclusion.

Swan v. Department of Public Safety, 311 So.2d 498 (La.App. 4 Cir. 1975) is distinguished on the facts. In Swan the offender asked for an attorney and his request was denied. Quoyeser never requested an attorney—he simply refused to sign anything until he consulted an attorney.

Swan recognized the licensee did not have the right to counsel with respect to making his decision about taking the PEI test. 311 So.2d at 500. Thus the failure to afford counsel to the licensee prior to requiring him to take the test does not prevent license suspension. In Swan the officers misled the licensee and did not remove the misunderstanding. There was no such confusion here.

Nothing in this re.cord supports the contention the police misled Quoyeser. It was established and licensee admitted he was under the influence of intoxicants and refused to cooperate from the start. He did not even remember being advised of his rights by the arresting officer. Tr. 36-7.

Quoyeser next contends his rights to due process are denied because his license may be suspended for six months for refusing to take the test, whereas if guilty of D.W.I. his license could be suspended for only two months. He was not prosecuted for the D.W.I. offense. We reject this contention.

There is no comparison between the two statutes. The D.W.I. statute (LSA-R.S. 14:98) provides penalties for the first offense of a fine of up to $400 and imprisonment up to six months. A second conviction results in a larger fine together with a mandatory 125 days of imprisonment. A third conviction provides for imprisonment at hard labor for a minimum period of one year. The suspension of driving privileges is only a portion of the penalty for D.W.I., whereas suspension is the only sanction applied for refusal to take the test.

Lastly Quoyeser contends the suspension of his license would violate due process in view of the holding in State v. Jones, 316 So.2d 100 (La.1975). The issue in Jones related to the use in criminal cases of the results of a Photoelectric Intoxi-meter brand of sobriety test. But the court did not prohibit the use of PEI tests. Instead the court prescribed the manner for its use at 316 So.2d 105. That decision does not affect the Implied Consent Law. Furthermore, in Meyer v. State, Dept. of Public Safety Lic. Con., Etc., 312 So.2d 289 (La.1975), the burden of proving invalidity of a PEI test was held to rest upon licensee. Quoyeser made no effort to prove a PEI test would not have been properly conducted.

In deciding these issues of due process, we find it appropriate to refer to the rule of construction set forth in State v. Free, 321 So.2d 50 (La.App. 3 Cir. 1975). A person’s right to drive a motor vehicle is in furtherance of the public interest and the general public’s right to safety on the highways is superior to the individual’s privilege to use the highways. Just as habitual offenders may have their license suspended, so also may those who unjustifiably refuse to submit to a PEI test. A license to operate a vehicle upon the highways is a privilege and not a property right. Hughes v. Department of Public Safety, 79 So.2d 129 (La.App. 1 Cir. 1955). See also 60 C.J.S. Motor Vehicles § 159 (1969); 7 Am.Jur.2d Automobiles and Highway Traffic §§ 6, 12 (1963).

The record establishes Quoyeser did unjustifiably refuse a properly tendered sobriety test. The period of suspension is not unlawful and the suspension of his driver’s license does not violate due process.

The trial court judgment is affirmed at appellant’s costs.

Affirmed.


author: CULPEPPER, Judge.

text:
    Polly Ann COURVILLE et al., Plaintiffs-Appellants, v. CITY OF OPELOUSAS et al., Defendants-Appellees.
    No. 5375.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 9, 1976.

      Dubuisson, Brinkhaus, Guglielmo & Dauzat by Jimmy L. Dauzat, and Thistleth-waite & Thistlethwaite by Hugh Thistleth-waite, Opelousas, for plaintiff-appellant.
    Lewis & Lewis by John M. Shaw, and C. Kenneth Deshotel, Opelousas, for defendants-appellees.
    Before CULPEPPER, MILLER and DOMENGEAUX, JJ.
   ON MOTION TO DISMISS APPEAL

CULPEPPER, Judge.

The defendants-appellees, The City of Opelousas, Employers Commercial Union Insurance Company and Lucius J. Doucet, II, move to dismiss the unlodged appeal of the plaintiff-appellant Polly Ann Courville, on the grounds that the plaintiff-appellant failed to perfect her appeal by timely posting her appeal bond. The motion is unopposed.

The pertinent facts, briefly statecl, are as follows: A formal judgment in favor of the defendants-appellees was rendered on April 4, 1975. On June 27, 1975 the plaintiff timely moved for and was granted a devolutive appeal to this court conditioned upon her furnishing bond in the sum of One Thousand and No/100 ($1,000.00) Dollars. The appeal was made returnable on August 25, 1975.

The defendants-appellees have attached to their Motion a Certificate, signed by one Dolores S. Couvillion, Deputy Clerk of Court, St. Landry Parish, that as of December 17, 1975, no appeal bond has been filed in this record.

It is well settled that the failure to timely file the appeal bond is jurisdictional, and that the appellate court does not acquire jurisdiction unless the bond is filed within the appropriate delays. Pan American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968), and cases cited therein; Daniels v. Soileau, 311 So. 2d 638 (La.App. 3 Cir. 1975); Moore v. State Farm Mutual Automobile Insurance Company, 297 So.2d 779 (La.App. 3 Cir. 1974); and Freeman v. Liberty Mutual Insurance Company, 289 So.2d 875 (La.App. 3 Cir. 1974).

No appeal bond having been filed to date, and the delays having obviously run, the appeal of the plaintiff-appellant is hereby dismissed.

Appeal dismissed.


text:
    Calvin LAMBERT, Plaintiff and Appellant, v. HEIRS OF Joseph ADAMS et al., Defendants and Appellees.
    No. 5239.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 16, 1976.

      Kenneth W. Ford, Morgan City, for plaintiff and appellant.
    James A. Hammers, St. Martinville, for defendants and appellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

This is a petitory action. The plaintiff, Calvin Lambert, seeks judgment recognizing him as owner of a tract of land fronting about 5 acres on Belle River in St. Martin Parish. The defendants are the heirs of Joseph Adams, who, plaintiff admits in his petition, are the record owners of the land in dispute. The district court rendered judgment on the merits dismissing plaintiff’s suit. Plaintiff appealed. We affirm.

The issues are: (1) Did the trial court err in failing to grant plaintiff’s motion for a continuance before the trial? (2) Was certain evidence properly admitted over plaintiff’s objection that it was hearsay and self-serving? (3) Did plaintiff prove by a preponderance of the evidence that his parents acquired ownership by the acquisitive prescription of 30 years ?

In 1973, plaintiff purchased the property for $250 from his mother, Ozelia A. Lambert, and his brothers and sisters, who, together with the plaintiff, are the sole heirs of his father, Felix Lambert. Plaintiff claims that his mother and father had acquired ownership of the property by the acquisitive prescription of 30 years. Defendants contend that, even assuming the Lamberts had lived on the property for over 30 years, they never intended to possess as owners and that they actually paid rent to defendants almost every year from 1946 through 1969.

At the time of the trial in 1975, Lambert was 59 years of age. He stated that when he was a child his family lived in a houseboat on the river, tied to the bank at approximately the center of the property. His father, Felix, was a trapper and worked in the swamps. He would move the houseboat to wherever his job was. After a job was completed, he would bring the houseboat back and tie it up in the same location.

Plaintiff testified that about 40 years ago, the houseboat was pulled from the river onto the property and the boat was enlarged, renovated and utility services were added. The Lamberts also built a fence, a hog pen, sheds and a chicken coop. There is a conflict in the testimony as to when these improvements were erected. Plaintiff and his mother say the entire property was enclosed by a fence before the houseboat was pulled onto the bank. But other witnesses testified no improvements were built by the Lamberts until after the boat was pulled onto the land.

The evidence as a whole indicates that the Lamberts have been residing on the land for more than 30 years. But it also shows that other persons have been living upon the property here in dispute. Plaintiff himself admitted that Ivey Leonard has lived next door for approximately 40 years. Paul Gros, who lives on his own land on Belle River close to the Lamberts, testified that the Leonards had been on the land in dispute at least since 1947. Plaintiff also admitted that Harry Blanchard has lived on the land for at least 24 years. Mrs. Harry Blanchard, who was 49 years old at the time of the trial, testified that she has been on the property since she was 6 years old. Besides these families, other persons have also lived on the land. Plaintiff conceded that none of these persons possessed with permission of the Lamberts or paid rent to the Lamberts.

At the trial, several persons testified that although the Lamberts had been on the property for many years, they had not begun to claim ownership until about 1969. Only one witness, Aline Hebert, said the Lamberts had claimed ownership before 1969, and she did not give a specific date.

Defendants introduced receipt books showing collections of rent from plaintiff’s father. These receipt books were not complete records, but they did show that rent was collected as early as 1952 and as late as 1969. Patricia Adams, the daughter-in-law of defendant, Bernie Adams, testified that her husband, who was deceased at the time of the trial, had begun collecting rent in 1952 and had collected it through 1968. She said she went with him to collect it sometimes but she could not remember exactly when. She says she collected the rent in 1969 after her husband’s death in 1968.

Plaintiff and his mother testified at the trial that his father and mother had never paid rent to anyone and had never been asked by anyone to pay the rent. However, in a pretrial deposition, plaintiff’s mother, Ozelia Lambert, admitted she had once paid rent to the Adams family for a few months and then stopped. She stated that this was 10 to 15 years ago.

Defendant, Bernie Adams, testified that Felix Lambert had first paid rent to him in 1946 or 1947 and that he collected One Dollar a year until his son started collecting the rent in about 1952. Telesmar Landry corroborated this testimony. He testified that 39 or 40 years ago, he took Bernie Adams in his boat to collect the rent and that he had seen Felix Lambert pay it. He said that Bernie collected One Dollar rent and put it in one pocket and took a dollar out of the other pocket and gave it back. Landry testified he understood Adams collected the rent “just so they don’t homstead his land.”

The evidence also shows clearly that the Adams family collected rent from the other families living on the property. Mrs. Blanchard testified she had paid rent since 1952.

On appeal, appellant urges that certain evidence was improperly admitted over his objections that it was self-serving and hearsay. He contends that if this evidence were excluded, there would be insufficient proof to dismiss his suit. Specifically, the objections refer to the introduction of the receipt books purporting to show rent payments on the disputed property and to certain statements by Mr. Adams that rent was collected by him in 1940 and by his son from 1946 or 1947 until 1969. Objection is also made on appeal to the testimony of Telesmar Landry that he had taken Bernie Adams to collect rent from the Lamberts.

The fact that testimony is self-serving does not form the basis for a valid objection. This is a factor which goes to the weight of the testimony. The only question is whether the evidence objected to was improperly admitted under the hearsay rule. This rule excludes “extrajudicial statements offered to prove the truth of the matter contained in the statement.” G. Pugh, Louisiana Evidence Law, p. 413 (1974); Veal v. Hutchinson, 284 So.2d 60 (La.App., 4th Cir. 1973). Hearsay evidence is excluded as being unreliable because it is based on statements made by persons who are not before the court, have not been sworn and are not available for cross-examination. Manuel v. American Employment Insurance Company, 212 So. 2d 527 (La.App., 3rd Cir. 1968).

Plaintiff attacks the testimony of Bernie Adams and Telesmar Landry as to the occasion in about 1946 when they went in Landry’s boat and collected the first rent from Felix Lambert. This testimony was not hearsay. Both witnesses testified from personal knowledge.

Defendant strenuously attacks as hearsay the testimony of Bernie Adams that his son collected rent. Counsel refers particularly to page 267 of the transcript for this testimony. A reading of that page indicates that no objection was made by counsel. Furthermore, other portions of the record contain testimony that Adams’ son collected rent.

Appellant contends the receipt books are hearsay. We agree. However, they are admissible under the “Business Records” exception to the hearsay rule. The criteria for that exception was summarized in the recent case of Pritchard v. Wolfe, 230 So.2d 612 (La.App., 3rd Cir. 1970). There we said, quoting from La.L.Rev. 459 through 460:

“The modern Louisiana cases can be summarized as follows. Records of industrial and commercial organizations, as well as medical reports and hospital records are admissible as proof of their assertions if: (1) persons concerned with recording the information are unavailable for testimony, or production of such persons would be a needless burden; (2) the first collected record available to or usable by the court is introduced; (3) the records are identified at the trial by one familiar with the bookkeeping procedure; and (4) the evidence seems reliable after considering such factors as (a) contemporaneousness of the entry with the occurrence or fact recorded, (b) first-hand knowledge of the entrant, (c) existence of a business or professional duty to record or report the facts in the regular course of business, (d) completeness and honest appearance of the books, (e) absence of fraud in making the entries or in destroying the supporting memoranda, and (f) perhaps, whether the books belong to a third party.”

See also G. Pugh, Louisiana Evidence Law, p. 486 (1974)

In the present case, these criteria were met. The person who made these receipts, Mr. Bernie Adams’ son, is now deceased. His wife, Mrs. Patricia Adams, was familiar with the records and she testified regarding them at the trial. The records appear to have been made contemporaneously with the rent payments and they were made by the late Mr. Adams who had first-hand knowledge of the transactions. In addition, the receipts were made in the regular course of business and appeared to be honest and reliable on their face. Garner v. T. R. Johnson Plumbing Company, 208 So.2d 18 (La.App., 1st Cir. 1968) and Broome v. Simon, 255 F.Supp. 434 (W.D.La.1965).

The question in the instant case is simply whether the requirements of LSA-C.C. Article 3500 have been met, i. e., whether the Lamberts possessed publicly and unequivocally and under claim of ownership for more than 30 years. Clearly, they did not. As has already been pointed out, plaintiffs were not the only persons living on the land here in dispute. The evidence indicates that the Leonard family and the Blanchard family and others also lived on the land and paid rent to the Adams family. There is little if any evidence to indicate that the Lamberts claimed the property as owners until very recent years.

Appellant urges, however, that no evidence that the property had been leased may be considered because a lease would be in violation of Article 2997 of the Civil Code which requires that the power of mandate must be express and special for the purposes of encumbering or hypothe-cating. He suggests that none of Joseph Adams’ heirs were authorized to grant a lease. We cannot agree that Article 2997 is controlling here. Under Article 3500 of the Civil Code the issue is whether a person possesses publicly, unequivocally and under the title of owner. If he does not possess as owner but rather - believes himself to be leasing property, it matters not that in fact his lease may be invalid. We therefore find it unnecessary to determine whether “encumber” or “hypothecate” in Article 2997 of the Civil Code includes the lease of property.

Appellant’s final contention is that the trial judge erred in refusing to grant a continuance before trial. LSA-C. C.P. Article 1601 provides:

“A continuance may be granted in any case if there is good ground therefor.”

Article 1602 provides:

“A continuance shall be granted in the following cases: (1) If the attorney of record in the case is a member of the legislature and 'his absence is caused by his attendance at a legislative session; or (2) If at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.”

In this case, the granting or refusal to grant the motion for continuance was discretionary. No peremptory grounds under Article 1602 were alleged or shown.

Counsel for plaintiff urges that the trial court abused its discretion by refusing plaintiff’s motion for a continuance and that injustice, unfairness and inequity have resulted. Injustice of the parties is well recognized as an important factor in deciding whether to grant a continuance. See Eskine v. Brown, 125 So.2d 684 (La.App., 1st Cir. 1960). A trial judge must always consider the effect a continuance would have on the administration of justice. Bryer Insurance Agency, Inc. v. Bruno, 244 So.2d 667 (La.App., 4th Cir. 1971). However, in this case we are unable to say that injustice has resulted.

On March 3, 1973, Calvin Lambert filed suit claiming the pertinent land. Mr. Michael Patterson was his attorney. After suit was filed, the course of events was as follows:

“June 19, 1974: Mr. Michael Patterson filed notice to take depositions on seven persons. The depositions were set for July 11, 1974 (T-61). Civil subpoenas were issued (T-62 et seq). Depositions, including those of the plaintiff and his mother, were taken on July 11, 1974 (T-94 and 101). The certificate to the depositions indicate the depositions were prepared on the 17th and 18th of August, 1974.
“August 30, 1974: Motion to Withdraw as counsel for Calvin Lambert was filed by Michael A. Patterson (T-70). An order was signed permitting his withdrawal from the case.
“September 18, 1974: Motion was filed to fix for trial by defendants. Trial was not set until March 24, 1975, because this was the earliest time fixing could be obtained.
“January, 1975: Mr. Calvin Lambert contacted Mr. Neal Bagwell, Attorney at Law, to represent him (T-147). Thus, Mr. Bagwell was aware of the case several months before the trial on March 24, 1975.
“March 5, 1975: Subpoenas issued to defendants’ witnesses.
“March 20, 1975: Mr. Neal Bagwell mailed motions to be enrolled as attorney and motion for continuance on behalf of plaintiff, Calvin Lambert (T-81, 82). The first time that defendant’s attorney had known that Mr. Bagwell would represent Calvin Lambert was on Friday, March 21, 1975, (T-149), only three days before the trial, two days of which were not regular business days.
“March 24, 1975: Date of trial.”

Although the record shows that no definite arrangements for representation had been made in January when Mr. Lambert first contacted Mr. Bagwell to represent him, arrangements for representation could have been made at that time either with Mr. Bagwell or with another attorney. If plaintiff had arranged for legal representation at that time, there would have remained sufficient time before the trial date for the attorney’s preparation. A defendant in litigation has a right to have his case heard as soon as is practicable. For him to remain at the mercy of a dilatory opponent would most certainly result in injustice. This is particularly true where plaintiff’s case is a weak one, as it is here.

In the granting of a continuance on discretionary grounds, the trial court has great discretion and that discretion is considered abused only in exceptional circumstances. Evans v. Travelers Insurance Company, 220 So.2d 117 (La.App., 3rd Cir. 1969); Gossett v. Nealy, 230 So.2d 671 (La.App., 3rd Cir. 1970); Manley v. Manley, 203 So.2d 832 (La.App., 2d Cir. 1967). In the present case, we are unable to say that those exceptional circumstances are present. As we stated in Evans v. Travelers Insurance Company, supra:

“It seems to us that plaintiff simply did not undertake to retain counsel at a time which would have permitted an attorney time to take any steps he felt necessary in the preparation of [his] case. This court cannot agree with plaintiff that [his] case has been prejudiced by the refusal of a continuance when the sole reason for [his] not being prepared is [his] own lack of due diligence.”

A trial court’s decision to grant or refuse to grant a continuance will not be disturbed on review in the absence of clear abuse. Evans v. Travelers Insurance Company, supra; Manley v. Manley, supra.

For the reasons assigned, the decision of the trial court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

Affirmed.

325 So.2d — 22


author: CULPEPPER,' Judge. MILLER, Judge

text:
    Elsie CARTER, Plaintiff-Relator, v. Dr. R. Bruce PHILLIPS, Defendant-Respondent.
    No. 5341.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 31, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Granted Jan. 30, 1976.

      Daniel E. Broussard, Jr., Neblett, Führer & Broussard, Alexandria, for plaintiff-relator.
    Provosty & Sadler by LeDoux R. Pro-vosty, Jr., Alexandria, for defendant-respondent.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX, WATSON and GUIDRY, JJ.
   CULPEPPER,' Judge.

We granted this Writ of Certiorari to review an order of the district judge that the plaintiff-relator furnish security for costs, as provided for under LSA-R.S. 13:4522. The substantial issue is whether the district judge erred in issuing the order without the introduction of evidence by the defendant to show the necessity for and the amount of the bond for costs.

The record shows that this is a medical malpractice case for damages in the total sum of $250,000. Plaintiff alleges that during oral surgery performed by the defendant physician he negligently severed several facial nerves, thereby seriously injuring her.

After filing an answer in which he generally denies negligence, the defendant filed a motion for security for costs under LSA-R.S. 13:4522 which provides:

“The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the qase may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to the state or any political subdivision thereof.”

In his motion, the defendant alleges that in order to show that he was not negligent he will be compelled to obtain the testimony of expert medical witnesses and to pay or be responsible for their fees and the costs and charges incident to taking their depositions. Plaintiff then lists by name five doctors, two from New Orleans and three from Alexandria, Louisiana. He alleges that the fees of the two doctors from New Orleans will be $150 each and the fees of the doctors from Alexandria will be $100 each and that the notary and transcription fees will be $60 per deposition, for a total of $900.

At the hearing on the motion, counsel for both defendant and plaintiff were present and argued. No witnesses were called and no evidentiary offerings made. The hearing was closed and the motion was submitted and taken under advisement by the judge. At a later date, the judge gave oral reasons and granted the motion ordering plaintiff to post the bond for costs in the sum of $900.

Plaintiff argues that under Romero v. Romero, 232 So.2d 572 (La.App. 3rd Cir. 1970) it was necessary that the defendant introduce evidence at the hearing to show the necessity for and the amount of the security for costs. Our primary reason for granting this writ was to review our holding in Romero. We now conclude that the decision in Romero must be overruled insofar as it can be construed as holding that in every hearing under LSA-R.S. 13:4522 the defendant must introduce evidence to show both the necessity for and the amount of the security for costs requested.

Essentially, we adopt the reasoning of the dissent in Romero, which leaves to the discretion of the trial judge the nature of the showing required of the defendant. It is not necessary that evidence be introduced in every case. It is within the discretion of the trial judge to determine whether the showing required may be made by the allegations in the motion, the arguments of counsel at the hearing, supporting affidavits, introduction of testimony or other evidence, or in any other manner which the trial judge deems appropriate. And the appellate court should not change the ruling of the district judge in the absence of an abuse of his large discretion in such matters.

In the case of Stump v. City of Shreveport, 255 So.2d 210 (La.App.2d Cir. 1971) the court cited Romero but distinguished it on the basis that counsel stipulated during the hearing that a bond in the sum of $1,000 would be sufficient. In Carville v. City of Plaquemine, 303 So.2d 291 (La.App. 1st Cir. 1973) the court also cited Romero for the general proposition that although the statute itself, LSA-R.S. 13:4522, does not expressly require a showing of the necessity for bond for cost, the jurisprudence makes it clear that defendant must make such a showing at the hearing. The decision in Carville states that the ruling of the district court was made on the basis of “the pleadings, the testimony and arguments of counsel”. So apparently testimony was introduced, and the court was not faced with the issue of whether evidence must be introduced in every case.

Although neither the Stump case nor the Carville case uphold the rigid rule that evidence must be produced by the defendant in every case, we wish to state, for the purpose of clarity, that we disagree with any construction of the decisions in these two cases which would support such a rule.

Since the rationale for our decision in the present matter has been fully set forth in the dissent in Romero, we see no need to repeat it here.

Plaintiff-relator makes an additional argument that there is no necessity for defendant to take the depositions of the three doctors from Alexandria since they can be subpoenaed as witnesses at the trial. This argument is expressly rejected in the leading case of Whitson v. American Ice Company, 164 La. 283, 113 So. 849 (1927). See also Romero v. Romero, supra.

For the reasons assigned, the Writ of Certiorari and the Stay Order issued herein on December 15, 1975 are recalled. The order of the district court requiring plaintiff to give security for costs is affirmed, except that the plaintiff, Elsie Carter, is to be allowed an additional ten days from the time this judgment becomes final within which to post the bond in the amount of $900. All costs of this Writ in the appellate court are assessed against the plaintiff-relator. Costs in the district court must await a final determination there.

Writ of certiorari and stay order recalled; order of the District Court affirmed as amended.

MILLER, J., dissents and assigns reasons.

MILLER, Judge

(dissenting).

Under this decision, defendant is required to schedule a hearing in order to establish his need for security for costs, but does not need to present evidence at that hearing. I understand this ruling to mean that the hearing is scheduled to allow plaintiff to present evidence and show that defendant does not need security or as much security as he is requesting for costs. This switches the burden of proof contemplated by the statute and jurisprudence (which require defendant to schedule the hearing). It seems to me that when a party is required to schedule a hearing — that party should have the burden of establishing his need.

This 19 year old plaintiff was required to post a $1,000 cost bond on filing the suit. She has now been ordered to post an additional $900 bond to allow the defendant physician to depose three physicians practicing medicine in the defendant’s home city and two physicians practicing medicine in New Orleans, There is no affidavit or testimony in this record to indicate the need or cost of getting these depositions. Presumably the five doctors will testify concerning the defense that defendant “at all times exercised the degree of skill ordinarily employed under similar circumstances by the members of his profession in good standing in the same community and/or locality and by members of his profession specializing in the field of oral surgery . .

There was no showing defendant could not obtain statements from these physicians or answers to interrogatories. There was no showing that one or more of these five physicians was in ill health or about to move and could not be expected to testify at trial. There is no showing that all this medical testimony is needed. If depositions of these five are needed (without a line of testimony to establish need), why not ten, fifteen, twenty, or fifty doctors?

I respectfully submit the trial judge's discretion must be exercised “with due regard for the actual necessity for a bond and for the interest or motive of the party demanding it.” Whitson v. American Ice Co., 164 La. 283, at 289, 113 So. 849, at 851 (1927). See Romero v. Romero, 232 So.2d 572, at 574 (La.App. 3 Cir. 1970). To allow the court to make a judgment on these issues, we agree defendant must schedule a hearing. It seems strange that the burden of proof is to be carried by the responding party.

In Romero, we reserved to defendant the right to establish, on proper showing when the necessity may arise, his need for additional costs. Plaintiff relied on that ruling which placed the burden on defendant to establish his need for security.

Now that Romero has been overruled, I would at the very least grant plaintiff another hearing to afford him an opportunity to establish, if he is so disposed and can, that defendant can prepare his defense without all these depositions or that the costs will be less than the $900 which defendant requested.

I respectfully dissent.


text:
    Mark Stephen ARABIE, Plaintiff-Appellant, v. The TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5288.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 16, 1976.

      Charley Quienalty, Lake Charles, for plainti f f-appellant.
    Holt & Woodley, by Edmund E. Wood-ley, Lake Charles, for defendant-appellee.
    Plauche, Smith & Hebert, by Reid K. Hebert, Lake Charles, for defendant-appel-lee.
    Before MILLER, WATSON, and CU-TRER, JJ.
   MILLER, Judge.

Guest passenger plaintiff Mark Stephen Arabie appeals the trial court’s dismissal of his claim for personal injuries on finding he assumed the risk of riding with a drunken driver. Defendant Travelers Insurance Company carried liability insurance on the only vehicle involved in the accident. Arabie contends the trial court’s factual determinations are not supported by the record, and that is the sole issue. We affirm.

Arabie was riding in the right rear seat of an eastbound 1973 Plymouth Roadrunner when it crossed the westbound lane of McNeese Street, jumped a ditch, and flipped over several times before coming to rest in a field north of McNeese Street. The car left several deep imprints in the field which indicated to the investigating officers that it flipped over several times during the 309 feet it travelled out of control. The driver and two passengers were thrown out of the car and Arabie was partially in and partially out when the car came to rest.

Although the accident occurred only a few minutes after the 1:30 a. m. departure from a bar and lounge, the three guest passengers testified they were asleep when the accident occurred. The driver and two guest passengers had been visiting and drinking in bars and lounges since about 9 p. m. that night. Although there is testimony indicating Arabie joined them as ejj.rly as 10:30 p. m. and testimony he joined them as late as 12:30, the trial judge held the foursome had been together for one and a half hours before they departed for another bar and lounge. During that hour and a half all four drank four rounds of drinks — two mixed drinks and two beers. Arabie admitted the circumstances of his meeting the others in a bar might suggest they had been drinking before he saw them, but testified he could not tell they had been drinking from their appearance. Arabie had consumed several beers before he met the others. One guest passenger became nauseated from the drinking while Arabie was present. Ara-bie did not recall that incident.

A few days before the accident, the driver had celebrated her 17th birthday. During the evening the driver consumed four mixed drinks and four beers according to her count. She had not eaten food since 5 p. m. The alcohol level in her blood at 3:50 a. m. was “187 milligrams percent” [the physician’s testimony] which was considered by a properly qualified medical expert to show intoxication which should be recognized by a lay person.

Eastbound eyewitnesses who were not related to the parties testified the Roadrunner was overtaking them at a high rate of speed. This caused the eyewitness to drive as far to the right as possible to give the Roadrunner more room to pass. Although there was no other traffic the Roadrunner went out of control before it overtook the slower moving eastbound motorist. One eyewitness went to the driver’s aid and testified the driver’s breath had a strong smell of alcohol. This was confirmed by the investigating officer and by the physician who drew blood from the driver.

The trial judge expressly rejected the testimony by all four occupants that they were not under the influence of alcohol and the driver had not exhibited signs of her inebriated condition. The court concluded the unfortunate accident resulted from the fact that all these young people had too much to drink; the driver’s faculties were materially impaired to the point she should not have been driving; and a person whose own faculties were not impaired would have been able to discern this condition. One passenger testified she would not have allowed the driver to drive her car at the time when they left the last bar.

A guest passenger who voluntarily accompanies an intoxicated driver cannot recover for injuries received in an accident the cause of which is attributed to the driver’s consumption of intoxicants. Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971); Evans v. Louisiana Farm Bureau, 291 So.2d 865 (La.App. 3 Cir. 1974).

Where evidence is before the trier of fact which, upon a reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this factual finding absent manifest error. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may believe its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Bertrand v. Aetna Casualty & Surety Company, 306 So.2d 343 (La.App. 3 Cir. 1975). Plaintiff failed to establish manifest error in the trial court’s determination.

The trial court judgment is affirmed at appellant’s costs.

Affirmed.


author: SCHOTT, Judge.

text:
    David C. WOLF v. STATE of Louisiana ex rel. and Louisiana Board of Review, Department of Employment Security.
    No. 7130.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      Thomas F. Schexnayder, Metairie, for plaintiff-appellee.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert E. Redmann, William P. Curry, Jr., Asst. Attys. Gen., for defendants-appellants.
    Before STOULIG, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

The State of Louisiana and the Board of Review of the Department of Employment Security of the State have appealed from a judgment in plaintiff’s favor for $3,475.42 plus costs and attorney’s fees.

In his petition plaintiff alleged that he was mugged on the streets of New Orleans on October 28, 1972, and incurred medical and hospital expenses as well as loss of wages as a result. Invoking the provisions of Act 721 of 1972, LSA-R.S. 46:1801 et seq., he alleged that he requested payment of benefits by the defendant Board but it refused to satisfy his claim. He prayed for judgment against defendants ordering the State to appropriate money to the Board for the payment of his claim.

Defendants filed dilatory and peremptory exceptions, alleging that the action was premature because no funds had been appropriated under the cited act, particularly under § 1803 which authorizes the Board to “accept funds from public or private sources including any monies made'available by the Government of the United States . . . ” Defendants further alleged that the Board has no resources available to satisfy such claims' so that it can only accept and process applications. Defendants also filed the dilatory exception of prematurity alleging that plaintiff had not exhausted the administrative procedures set forth in the act prior to filing his petition for judicial review.

Correspondence filed in evidence at the trial of these exceptions indicates that plaintiff did make application with defendant Board for relief under the act. On January 16, 1973, the Attorney General advised plaintiff as follows:

“Therefore, it is our opinion the Board must proceed to accept applications for compensation under the terms of the Act and to process them even if funds are not available for the payment of the award.”

On February 6, 1973, the Board through its chairman, addressed a letter to plaintiffs attorney in which the following was said:

“Your letter of February 1, 1973, received regarding the above claimant.
“As stated in answer to your letter of November 22, 1972, there are no funds available for the enforcement of this program and we do not know when they will be made available. However, I am filing your letter, which shows the expenses of your client, along with other appeals.
“The only procedure the Board of Review can follow at this time is to accept applications and process them.”

The trial judge overruled the exceptions and awarded the judgment on plaintiff’s testimony as to the circumstances of the mugging and his injuries, together with copies of bills.

R.S. 46 .T812 provides:

“The orders and decisions of the board shall be reviewable in the appropriate court as in any other civil action.”

Based upon this provision plaintiff had a cause of action for a review of the Board’s administrative action but not for a money judgment against the Board.

R.S. 46:1801 provides that “The board of review of the Department of Employment Security hereinafter referred to as the board, shall, among its other duties, serve as a board of review for claims made under this chapter.” The Board of Review is established by R.S. 23:1652 and consists of three members appointed by the Governor to perform various functions within the Department of Employment Security. Their duties with respect to Act 721 of 1972 are spelled out in detail in the act. They can be capsuled to include the acceptance of applications for claims, the conduct of hearings and the authorization of payments based upon findings the Board is to make following such hearings. It is authorized to homolgate rules and regulations so as to carry out the provisions of the act, § 1804. It is prohibited from authorizing payments without hearings, § 1806 subd. D., and it must make specific findings as to the occurrence of an act which would warrant payment under the statute, § 1806 subd. D. Under other limitations prescribed by § 1813 it has other duties and is clothed with a great deal of discretion in the handling of these claims, all of which can be seen by reference to the act which need not be discussed in detail for purposes of this opinion. It suffices to say that the Board did not process plaintiff’s application despite advice from the Attorney General to do so and despite the statement of its own chairman that it would do so. On his application to the trial court for a review under § 1812 plaintiff was entitled to a judgment ordering the Board to perform the duties spelled out in Act 721 of 1972, R.S. 46:1801 et seq. as aforesaid.

A reading of the statute demonstrates that the Board is to conduct “an adjudication proceeding” and is to make a “final decision or order” as. discussed in R.S. 49:964A. Thereafter a judicial review may be applied for and should be accomplished in accordance with that statute. Under R.S. 49:964G. the trial court may remand the case to a board for further proceedings. In view of the fact that the Board has failed to conduct proceedings in accordance with law the trial court in this case should have remanded the case to the Board of Review for the Department of Employment Security for that purpose.

As to the State of Louisiana, there can be no judgment against it under Act 721 of 1972 before the Board performs its duties in the administration of the Act and consequently the dilatory exception of prematurity filed by the State should have been maintained by the trial court.

Defendants have contended that plaintiff has no right to have his application processed under the Act because the Act contemplates appropriations of federal funds to the state as a condition precedent for implementation of the Act. They cite the above quoted language of § 1803, and § 1818, which provide as follows:

“There is hereby created, in the office of the state treasurer, a fund to be known as the criminal victim indemnity fund (hereinafter referred to as the 'fund’). The fund shall consist of such amounts as may be deposited in, or appropriated to such fund, as provided by law, or as may be contributed to such fund by public or private agencies or organizations or individuals, including grants from the government of the United States.”

This section does authorize the use of grants which might be made by the federal government for this purpose, but it also prescribes that the fund “shall consist of such amounts as may be . appropriated . . . ” clearly suggesting that the legislature may appropriate funds for this purpose. Although it may be that the legislature has not appropriated such funds and that no funds are available to plaintiff for the payment of his claim, this would not preclude plaintiff from having his claim administratively processed. Parenthetically, we observe that the claim may never be paid because of R.S. 13:5108 subd. B. which provides:

“Any judgment rendered in any suit authorized by the Louisiana Legislature to be filed against the state of Louisiana or one of its political subdivisions, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable and paid only out of funds appropriated by the legislature or the political subdivision concerned.”

Accordingly, it is ordered, adjudged and decreed that the judgment appealed from be reversed and set aside, and there is judgment in favor of the State of Louisiana and against the plaintiff, maintaining the State’s exception of prematurity, and dismissing plaintiff’s suit against the State.

It is further ordered that plaintiff’s suit against the Board of Review of the Department of Employment Security be remanded to the trial court in order that a proper judicial review be made pursuant to R.S. 46:1812 and 49:964, and in order that the trial court may remand the case to the Board of Review of the Department of Employment Security for implementation of Act 721 of 1972, R.S. 46:1801 et seq.

Reversed and remanded.

      . The petition was filed against “The State of Louisiana, ex rel,” and in the judgment the state is referred to in the same way. The phrase “ex rel” is used when the legal proceedings are instituted in the name of the state at the instigation or request of an individual who has an interest in the matter, Black’s Law Dictionary, 1968, p. 663. It was the practice to use the term “ex rel” when extraordinary remedies were sought under the Code of Practice. See comment (d) to LSA-C.C.P. Art. 3781. The addition of the phrase to the State of Louisiana as a defendant in this case has no practical effect and the State itself must be deemed the named defendant as well as the judgment debtor, along with the defendant Board.