author:
CUTRER, Judge.
      DOMENGEAUX, Judge,

text:
    Warren J. MOITY, Plaintiff-Appellee, v. PETTY-RAY GEOPHYSICAL, INC. and Hartford Accident & Indemnity Company, Defendants-Appellants.
    No. 6882.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Rehearing Denied April 19, 1979.

      Voorhies & Labbe, Gregory A. Voorhies, Lafayette, for defendants-appellants.
    Joseph A. Koury, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is a suit for damages filed on behalf of plaintiff, Warren J. Moity, and against defendant, Petty-Ray Geophysical, Inc., and its insurance carrier, Hartford Accident & Indemnity Company, arising from the destruction and loss of plaintiff’s property allegedly due to the negligence of the defendant. The issues presented on appeal are whether the trial judge erred in holding that the defendant was liable to the plaintiff for damages and whether the trial court properly awarded damages for the loss of plaintiff’s fence and cattle.

The testimony of the plaintiff and his two employees, Fred Romero and Clarence Alfred, reflects that on Friday, April 6, 1974 Romero and Alfred went to the premises to check and feed the cattle. Upon arrival, they found a seismographic crew working on the property. There were two or three trucks on the property and approximately eight employees working there. Mr. Moity was called and when he arrived he told the crew that he wanted them to leave as he had the property leased. The crew left the property. Some minor damage to the fence was noticed on this occasion but, after a “head count,” it was determined that no cattle were missing.

The following day, Saturday, April 7th, the crew was again on the property and the fence was down in two places for a distance of approximately 100 feet in each place. The two gates were also damaged. A “head count” reflected that 14 cows and 1 bull were missing. The defendant’s employees were informed of the missing cattle.

The two employees of plaintiff also testified that the fences were in good condition as they had been rebuilt or repaired a short time before this incident. They also stated that the cattle were a nervous type and were easily excited by any unusual activity such as was taking place by the work of the seismographic crew. They stated that this was the only activity on or around the property that could have caused the cattle to get excited. The broken areas of the fence looked as if the cattle had pushed through the enclosure.

The employees searched for the missing cattle for two or three days to no avail.

The defendant’s witnesses acknowledged having worked on the property during the days in question but denied that any damage was done to the fences.

The general principles of law which pertain to the issues herein are as follows:

For a lessee to recover damages due to a third party’s negligence when such third party had the permission of the landowner to be on the property, the lessee has the burden of proof to establish by a preponderance of the testimony that the party’s activity was the proximate cause of the damages sustained. Hebert v. United Gas Pipeline Company, 210 So.2d 71 (La.App. 1st Cir. 1968).

In negligence cases, proof by either direct or circumstantial evidence is sufficient to constitute a “preponderance of the evidence” when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). Circumstantial evidence need not negate all other possible causes of injuries as long as the circumstantial proof excludes other reasonable hypotheses with a fair amount of certainty so that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

It is a well-known principle that much weight is to be afforded to the trial court’s finding of fact, particularly where there is a conflict in the evidence taken at trial, and the trial court’s judgment will not be reversed if the evidence of the successful party when considered by itself is sufficient to sustain the judgment. Gaudet v. Berry, 307 So.2d 767 (La.App. 1st Cir. 1975). The record in this case indicates that no manifest error was committed by the trial court. The evidence offered by the plaintiff was sufficient to sustain his burden of proof and the trial judge was correct in finding liability on behalf of the defendants.

The defendants contend that the plaintiff failed to prove the amount of damages to his fence. We can find no merit in this argument. The plaintiff has the burden of proving his damages with reasonable certainty and we feel he has done so in this case. Bourg v. Cane Air, Inc., 325 So.2d 738 (La.App. 1st Cir. 1976). The plaintiff presented the only evidence as to the value of fence damage and this was an estimate prepared by Mr. Romero, a person experienced in building fences, in the amount of $1,112.14. We find no manifest error in the trial court’s award for this amount for fence damages.

The defendants also contend that the lower court erred in holding the plaintiff proved the value of his lost cattle. The plaintiff testified that he had purchased the lost cattle in 1974, which would be within a close proximity of the time of loss, April 1974. He purchased the cattle from John Prather of P & S Stock Farms, stating that some of the cows cost $400 and some others $600. Mr. Prather, called as a witness for the plaintiff, identified a bill marked P-1 in which he valued 14 cross Brahmans at $385 per cow and one Charoláis bull at $850 for a total of $6,240.00. There is some question as to whether this figure represented the price at the time of the sale or an estimate of the value of the cattle at the time of loss. The trial judge accepted the values of Prather, however, and we find no manifest error in this regard. The court awarded $6,140.00 for the loss of cattle, computing same on the basis of $385 per cow plus $850 for one bull. We find a mathematical error in the trial court’s calculation. The value of the 14 cows is $5,390 instead of the $5,290 as calculated by the trial court. The total award for the cattle will be $6,240.00.

For the foregoing reasons, the judgment of the trial court is affirmed in all respects except that the award to plaintiff is increased to $7,352.14, with legal interest thereon from date of judicial demand.

All costs of this appeal are assessed against the defendant-appellant.

AMENDED AND AFFIRMED.

DOMENGEAUX, J., dissents and assigns reasons.

DOMENGEAUX, Judge,

dissenting.

It is my opinion that the plaintiff has failed in his burden of proof. The clear, unequivocal, and uncontradicted evidence presented by the defendants is to the effect that no fences or gates were damaged or knocked down, nor were any gates left open during the time that the quiet operations were being performed on the leased property, and further that the cattle were docile and grazing normally without skittishness.

On the other hand, plaintiff’s case is based on speculation and conjecture. The plaintiff’s testimony seems to suggest, in theory, that the defendants’ employees must have knocked down the fences and gates, thereby allowing the cattle to escape, although one of plaintiff’s witnesses suggests that the cattle may have run through the barbed wire fences because they may have been frightened. A total overview of the record indicates to me that the plaintiff has not proven either supposition.

A perusal of the able trial judge’s reasons for judgment indicates that he did not decide the case on credibility, but rather on the defendants’ use of “a positive” to prove ’ “a negative.” I conclude that the defense witness’ testimony was positive and should be treated as such. The two employees, who were on the premises during the entire time of the operation, one of whom was always in the presence of the crew, both testified that none of the defendants’ employees knocked down or damaged the fences of the plaintiff, nor left the gates open and neither did they frighten the cattle so as to cause them to go through the fences. Their testimony that they did not do any of the things alleged by plaintiff is positive testimony. Defendants should not be penalized for what their witnesses saw, while the plaintiff benefits from something which neither he nor any of his witnesses saw.

Added to the overall uncertainty in this case is the fact that some of plaintiff’s cattle had previously escaped at other times. Additionally, plaintiff’s hand, Mr. Romero, indicated that there had been some cattle rustling going on in the area and that theft was a definite possibility. This possibility is bolstered by the testimony of plaintiff and his employees to the effect that the fifteen head of cattle missing in this case were not found. It is to be remembered, according to plaintiff’s evidence, that the cattle were missed less than twenty-four hours after the defendants’ employees left the premises. It is difficult to conceive, in that short period of time, that the cattle, or at least some of them, would not have been found in the area.

If plaintiff is to recover in this case, his recovery must be founded on the basis of circumstantial evidence. I submit that his proof is lacking in that respect.

For these reasons, I respectfully dissent.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Charles DiGEROLAMO et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 8842.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Louis A. DiRosa, New Orleans, for plaintiffs-appellants.
    George J. Richaud, Bruce J. Borrello, Me-tairie, for Liberty Mut. Ins. Co., defendant-appellee.
    Before LEMMON, STOULIG and GAR-SAUD, JJ.
   STOULIG, Judge.

This case was remanded by the Supreme Court with instructions to fix quantum. In the same decision it reversed our prior holding that Liberty Mutual Insurance Company was not liable because of the manner in which the policy was procured.

The plaintiffs’ petition sets forth these claims:

Charles DiGerolamo — property damage $ 2,984.60
Charles DiGerolamo — general damage claim for his minor son Joseph DiGerolamo 17,500.00
Nicholas DiGerolamo — general damages 5,000.00
John Lamarque, Sr., individually — special damages 151.89
John Lamarque, Sr., general damages for his minor daughter Cynthia Lamarque 33,390.00

The claims of John Lamarque, Sr., and of Joseph DiGerolamo are not before us because neither appealed from the judgment of the trial court dismissing their suits. Between the time suit was filed and tried, Joseph DiGerolamo and Cynthia Lam-arque (who married Nicholas DiGerolamo) both attained majority and were substituted as party plaintiffs. Thus the dismissal as to John Lamarque, Sr., and Joseph DiGerolamo became final after the appeal time lapsed without their prosecuting .an appeal. (C.C.P. arts. 1974 and' 2087)

The property loss of $2,984.60 claimed by Charles DiGerolamo or his succession representative is denied because the uninsured motorist coverage afforded by Liberty Mutual is limited:

“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile * *

As to the remaining personal injury claims of Nicholas and Cynthia DiGerolamo, the trial court initially awarded $400 and $1,659, respectively. The reversing judgment rendered by the district court after a new trial was not based on the trial court’s stating it erred on quantum. Rather the second judgment results from a finding of no liability. Because we are favored with an opinion by the trial judge as to how quantum should be assessed, and because our review of the record discloses no abuse of the much discretion vested in the trial judge by C.C. art. 1934(3), we adopt his initial awards as our judgment. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Accordingly, it is ordered, adjudged and decreed that there be judgment in favor of plaintiffs. Cynthia Lamarque DiGerolamo and Nicholas DiGerolamo in the sums of $1,659 and $400 respectively against defendant Liberty Mutual Insurance Company with legal interest from judicial demand until paid. The suit of Nicholas DiGerola-mo, as executor of the estate of Charles DiGerolamo, is dismissed with prejudice. Charles DiGerolamo’s estate and Liberty Mutual Insurance Company are to bear the costs of this litigation in equal proportions.

JUDGMENT RENDERED.

      . DiGerolamo v. Liberty Mut. Ins. Co., 355 So.2d 622 (La.App. 4th Cir. 1978).

      . DiGerolamo v. Liberty Mut. Ins. Co., 364 So.2d 939 (La.1978).

      . The record indicates Charles DiGerolamo died while this matter was pending because Joseph DiGerolamo filed a motion to be substituted for Charles DiGerolamo as his “legal successor”. In the copy of the pleading filed in the record, the order of substitution is unsigned. In view of the result we reach we need not determine whether a succession representative had been or may now be validly substituted for Charles.


author: SCHOTT, Judge.

text:
    Mrs. Jeannie Barksdale GILLASPIE v. Dr. and Mrs. Ernest J. MITTELBRONN.
    No. 9574.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    John J. Cummings, III and Gregory F. Gambel, New Orleans, for plaintiff-appellant.

      Tucker & Schonekas, Arthur S. Mann, III, New Orleans, for defendant-appellee Mrs. Joan Rulis Mittelbronn.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

This case is a sequel to Gillaspie v. Mittelbronn, 326 So.2d 538 (La.App. 4th Cir. 1976) in which the background of this litigation was presented in detail, and all except one of the claims asserted by plaintiff were resolved. The remaining claim was for $17,995.75 allegedly loaned by plaintiff to Dr. Mittelbronn on May 6, 1969.

In our previous opinion we were confronted with a record which contained some support for plaintiff’s claim, but the evidence was not sufficient for us to hold that the trial judge committed manifest error in rejecting the claim. However, the trial judge did not have the benefit of testimony given by Mrs. Mittelbronn on February 27, 1973, at the trial of a rule she had brought against her husband that he had borrowed $20,000 from plaintiff. This testimony was critical and may have served to buttress her claim for alimony which she was then asserting.

On October 30, 1974, the original trial of the present suit was in progress. Plaintiff was attempting to establish the loan to her son as a basis for the liability to her of the community in which Mrs. Mittelbronn had an interest. Asked whether she knew anything about her husband borrowing the $17,995.75 from his mother she answered in the negative. Dr. Mittelbronn, who was representing himself, asked her on cross examination if she remembered testifying that she knew of the $20,000 debt owed to his mother, and she replied in the negative. On re-cross examination by plaintiff’s attorney she was asked “Could you have possibly testified to that?” and she replied, “Not that I remember.” On further questioning, she insisted that her mother-in-law never had any money and was always poor. She stated that her husband had to give his mother money. When asked whether she had any knowledge that her mother-in-law had sufficient money to lend to her husband, she stated “I never knew she had money to loan him.”

Because the transcript of the testimony given twenty months earlier by Mrs. Mittel-bronn was not available at the time of the trial of this case, we remanded the case to the trial court because of our conclusion:

“. . . that the advantage of insuring that justice is done by having the trial court consider the previous testimony with full opportunity afforded to all parties for examination and cross examination on the point outweighs any disadvantage which may result from further delay in these proceedings . . . ” (Emphasis supplied)

In our decree we annulled the judgment of the trial court dismissing plaintiff’s claim for the $17,995.75, and the matter was remanded “to enable the parties to introduce the transcript of the testimony and to be afforded an opportunity to offer evidence with respect thereto.”

It should be clear from a reading of our previous opinion that we were satisfied that the burden of proof was on Mrs. Mittel-bronn to offer some explanation for her earlier admission under oath that plaintiff had loaned her husband $20,000 in the light of her testimony in the present case that she had no recollection of such a loan and her affirmative assertion that plaintiff was not in a position to make such a loan. In spite of these directions, when the case was tried on remand and plaintiff offered the earlier transcript in evidence Mrs. Mittel-bronn offered no explanation whatsoever. In fact, it appears that Mrs. Mittelbronn was not even present at the trial on remand. The trial consisted exclusively of the court reporter reading the transcript of the earlier testimony.

In again dismissing plaintiff’s suit, the trial judge made the following observation:

“The facts of this case are as vivid in my mind today as on the days I tried the case. I was not impressed with the testimony of the Plaintiff herein. Further, the testimony of Dr. Mittelbronn was unbelievable, as far as I was,' and am concerned.”

He then went on to quote the testimony from the earlier hearing in which Mrs. Mit-telbronn had admitted that plaintiff had loaned $20,000 to her husband:

It is argued that on this testimony, given by Mrs. Mittelbronn, in the previous case, at an unsuspicious time, the Court is to reverse its judgment as to $17,995.75. “The Court is as convinced, as it was on February 13, 1975, that Dr. Mittelbronn does not owe his mother $17,995.75.”

We have concluded that the trial court committed manifest error. As summarized in the earlier opinion, the evidence without any regard to the testimony of plaintiff or Dr. Mittelbronn whatsoever was to the effect that plaintiff borrowed $17,995.75 from the Globe Homestead Association on May 6, 1969, and received a check from the attor-‘ neys for the Homestead for that amount to her order. This check was endorsed by her and by Dr. Mittelbronn and negotiated on May 8, 1969. Because of the quality of the testimony of both plaintiff and Dr. Mittel-bronn, as well as their behavior in failing to comply with subpoenae duces tecum, we could easily understand why the trial judge was unimpressed with plaintiff’s case. We would have affirmed the judgment at that time except for the discovery which was unknown to the trial judge that Mrs. Mit-telbronn had under oath acknowledged that her husband had borrowed $20,000 from his mother. This testimony was given at a time long before she suspected that this might operate to her disadvantage. We are cognizant of the fact that there is a difference between the amount sued for here and the $20,000, but when the $17,995.75 is added to the $2,431.74 which we held in our earlier opinion to be due to plaintiff we more nearly approximate the amount which Mrs. Mittlebronn acknowledged under oath to be a loan to her husband by her mother-in-law.

We have concluded that this series of events operated to require that Mrs. Mit-telbronn offer some explanation of her earlier testimony. Her failure to do so left intact prima facie proof of plaintiff’s claim based primarily on her own earlier admission.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of plaintiff, Mrs. Jeannie Barksdale Gillaspie, and against defendants, Dr. and Mrs. Ernest J. Mittelbronn, in the sum of $17,995.75 with legal interest from date of judicial demand until paid, and for all costs of these proceedings. The debt is of the community heretofore existing between Dr. and Mrs. Mittelbronn.

REVERSED AND RENDERED.


text:
    STATE of Louisiana In the Interest of Theodore A. HOTARD.
    No. 9752.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Richard L. Edrington, LaPlace (On behalf of the Hon. Melvin P. Barre, District Attorney, 29th Judicial District Court for the Parish of St. John the Baptist, State of Louisiana).
    Remy F. Gross, II, LaPlace, for defendant-appellant.
    Before GULOTTA, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

This is an appeal by a juvenile from an adjudication as a delinquent pursuant to LSA-R.S. 13:1580, upon being found guilty of simple burglary in violation of R.S. 14:62 and receiving stolen things in violation of R.S. 14:69.

During the night of January 3, 1978, a supermarket in LaPlace, Louisiana, was broken into and heavily vandalized. Acting on information received from an informer, a warrant was issued for a search of the premises occupied by the juvenile and his brother, Sammy Hotard. A number of items identified as taken from the store were found on the premises, whereupon Theodore (hereinafter referred to as Teddy) and Sammy Hotard were taken into custody with another juvenile.

Sammy was interrogated at the Sheriff’s office and made a statement incriminating himself, his brother and several others as the perpetrators of the crime, and providing numerous details of their actions. However, at the trial Sammy denied that Teddy participated in the crime, and stated that his only involvement was to drive the car on one of the trips to the supermarket while he and the others continued to burglarize the premises.

The state succeeded in placing the entire statement into evidence over the juvenile’s objection after Sammy equivocated as to whether he had made the statement or not.

In this court, the juvenile has attacked the statement on a number of grounds. He contends that the state failed to prove that the statement was free and voluntary, it was improper because it constituted an attempt by the state to impeach its own witness, it became inadmissible when the witness admitted he had made the prior statement and that even if the statement was admissible to impeach Sammy Hotard it was nevertheless inadmissible to prove the juvenile’s guilt.

Because we find that the last contention with respect to the statement of Sammy Hotard has merit we need not discuss the other objections raised by the juvenile.

It is the established law of this state that a prior inconsistent statement of one’s own witness cannot be admitted as substantive evidence of the truth of its content. Its admissibility is limited for its effect on impeaching the credibility of the witness. State v. Williams, 331 So.2d 467 (La.1976), State v. Murphy, 309 So.2d 134 (La.1975), State v. Williams, 258 La. 251, 246 So.2d 4 (La.1971). In State v. Michelli, 301 So.2d 557 (La.1974) the court commented that for almost a hundred years it has been the law of this state that the confession by a confederate after the termination of the conspiracy may not be introduced or used at the separate trial of another to prove his guilt.

In contesting this point, the state concedes that this is the law of Louisiana but maintains that we are out of step with the majority of other jurisdictions. We have concluded that it is not within our province as an intermediate appellate court to make this change in our jurisprudence even though it may be in order. The argument addresses itself to the Supreme Court.

Even without the statement of Sammy Hotard in evidence, the state contends that there was sufficient circumstantial evidence to convict the juvenile. This argument finds support in the findings of the trial judge, which included the following:

“This Court found the evidence against the juvenile to be ponderous and the attempt by his brother Sammy to take the blame for the entire crime to be flimsy. Even without the admission of the tape recorded statement of Sammy Hotard that his brother Teddy took part in the crime, this Court would have found Teddy a fit subject for further rehabilitation and in need of supervision.”

The record supports these findings. When the search warrant was executed one of the officers went to the front door and knocked and the other stationed himself on the side of the house. Three minutes later the back window opened and Sammy Ho-tard jumped from the window and ran, and Teddy Hotard was observed standing by the window. In the search the officers found several cases of liquor, several cases of soft drinks, about 30 cartons of cigarettes, about 100 packs of candy, and about 500 assorted candies and gum. Sammy testified in direct contradiction to the statement he had made to the officers that his brother was not involved in the burglary, never entered the supermarket, and did not involve himself in taking the items from the car. He stated that after he left the supermarket the first time with the merchandise and got to his home Teddy, who had been sleeping at home, woke up and decided to go out with Sammy and the others for something to eat. As they passed the supermarket with Teddy driving, Sammy said to Billy, “We want to stop in the store again and get more stuff.” They told Teddy to pull into the Post Office parking lot and wait while they re-entered the supermarket, leaving Teddy listening to the radio in the automobile. His testimony continued, “After we went in the store and went outside and told Teddy, come here and drive the car over here and pick us up. And he came over there and asked us where we got all that stuff and we told him, don’t worry about it.”

Teddy testified he had gone to sleep and his brother and the others came to his house and woke him up. Whereupon they showed him some “junk” and “some bacon . and ham and stuff like that.” He told them he was hungry for spaghetti, so they left with him driving and “ended up” on the street “where that store is.” They told him to pull up into the Post Office parking lot and to wait for them. After a few minutes they called him over to the side of the supermarket and his brother and the others loaded up the trunk of the automobile with filled green plastic bags. Thereafter they drove home and dropped off the bags. According to Teddy, he didn’t know until the next day where the bags had come from, and for the first time realized the stuff had come from the supermarket.

This circumstantial evidence along with the incredible testimony of Teddy himself was more than sufficient to convict him of the offenses and to support the adjudication of his delinquency.

We have carefully considered whether our conclusion is consistent with the jurisprudence. We are aware of many cases in which the admission into evidence of statements such as Sammy Hotard’s was considered prejudicial error. Examples are State v. Michelli, supra. But these cases were criminal jury cases in which the effect of the admissible evidence on the minds of the jurors could not be gauged. Any doubt had to be resolved in favor of the defendant. In the instant case, there is the affirmative declaration by the trial judge that he considered the evidence, other than the statement, sufficient to commit the juvenile.

The result we reach is likewise consistent with State In Interest of Simmons, 299 So.2d 906 (La.App. 3rd Cir. 1974). There the court in reversing an adjudication of delinquency because an inadmissible document was received in evidence by the trial court, stated:

“. . . Absent any contrary indication we must conclude that whatever is in the record was considered by the juvenile judge. Since the report contains inadmissible and prejudicial evidence, the proceeding is stricken with nullity and the commitment must be set aside.” (Emphasis supplied)

Unlike the cited case, we have not merely an indication but a positive declaration by the trial judge that he reached a conclusion of the juvenile’s guilt without considering the inadmissible statement.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Charles R. PETERSON v. DEPARTMENT OF STREETS.
    No. 9776.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.
    New Orleans Legal Assistance Corp., Mark A. Moreau, Jane Johnson, New Orleans, counsel for Charles R. Peterson, appellant.
    Michael A. Starks, Barbara Treuting Cas-teix, Asst. City Atty., Donald A. Hoffman,

      City Atty., for Department of Streets, ap-pellee.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is an appeal from a decision of the Civil Service Commission of the City of New Orleans determining that an employee had failed to report to work within a period of leave granted and was properly removed from the roll of employees.

Charles R. Peterson was an employee of the Department of Streets, City of New Orleans, when he suffered an off-duty automobile collision. The following Monday morning, July 25, 1977, he telephoned the department’s personnel office, told them of his injuries and requested authorized leave because of an appointment with the doctor the following day. On the following day, after attending the doctor, he reported to his supervisor, Mr. Jose Gonzales, showed him the doctor’s certificate of his disability and requested an indefinite period of leave without pay in order to recover from his injuries. Gonzales granted him leave without pay, and it is the extent of this leave that is in dispute.

Peterson contends that he was granted 15 days leave without pay and that these days were considered by him to be working days, and because he worked 5 days per week, he concluded that the leave period would extend through Friday, August 12, and he would report to work the following Monday. Accordingly, he reported on August 12, only to learn that he had been determined to be absent over leave from August 9th, and accordingly, had been considered as resigned under Civil Service regulations.

The position of the Department is that Peterson had been granted two weeks leave without pay, which was to expire on August 9th, because the grant of a weekly period meant calendar weeks of 7 days and not a grant of simply working days. The Department’s position is based both upon the Civil Service regulations and the statements of the authorizing supervisor, Gonzales.

Both parties refer us to the provisions of Civil Service Rule VIII, § 5. h Jerry Morrison, the senior personnel analyst for the Department of Streets explained that in the interpretation of the Section, an employee was not considered as having been granted a leave of working days unless it was so specified. The procedure was whenever an employee was granted leave, whether of working days only or calendar days, that the Department entered onto its records the corresponding calendar period with the date of beginning and end of the leave. Thus, if Peterson were granted 15 working days of leave, as he contended, the actual period involved would be 21 calendar days or three weeks (5 working days, plus 2 week-end days equal 1 calendar week). The personnel record in this case reflected that Peterson’s leave was entered as the period July 25 through August 9th inclusive, or 16 days. Since Peterson initially called and was granted time on July 25 to attend the doctor on the 26th and reported that afternoon requesting additional leave, the period granted corresponds to the initial telephone request plus 2 weeks (14 calendar days) granted by Gonzales.

In our consideration of this case, we do not see any problem posed with the interpretation of the Civil Service Rule. Leave can be granted in calendar days or working days if specified, and the only problem that is presented here is a factual determination as to the extent of the leave granted in this case. Peterson testified that he requested an indefinite time, and that his supervisor Gonzales told him 15 days without specifying whether they were working days or calendar days. However, Gonzales testified emphatically that he granted 2 weeks leave. The personnel analyst testified that under the circumstances that would translate to 15 calendar days.

Based upon the testimony of the witnesses of the Department and an evaluation of the credibility of that testimony, there is ample basis for the conclusion of the Civil Service Commission that Peterson did not return within the authorized period of leave without pay granted him, and thus was properly considered as resigned.

Appellant Peterson raises an issue as to the constitutionality of the regulations or of the interpretation reached by the Civil Service Commission that a person held to have resigned is not entitled to an appeal. Appellant was granted an appeal in this case and a hearing was had to determine whether or not his involuntary resignation was properly imposed. Our attention is not directed to any regulation which would prohibit an appeal from an involuntary resignation. We believe the statement of the Civil Service Commission in its decree which reads: “Since plaintiff has effectually resigned his position and, therefore, does not have the right to appeal, this appeal is hereby dismissed.” is erroneous. However, we do not consider that to be a controlling issue in this case because the applicant was granted a full evidentiary hearing and all of his rights of appeal.

In order to clear up any misunderstanding which might arise as a result of that language, we rule that a forced resignation or involuntary resignation by operation of the regulations cannot bar the right to appeal. See Duczer v. State Banking Department, 277 So.2d 453 (La.App. 1st Cir. 1973) and Carpenter v. Confederate Memorial Medical Center, 250 So.2d 161 (La.App. 1st Cir. 1971). An opposite result would allow the mere characterization of disciplinary action as a “resignation” to subvert the right to appeal guaranteed in Article 10 § 8 of the Louisiana Constitution.

Accordingly, we amend the decree appealed from to delete that portion stating the plaintiff “does not have the right to appeal” and, as thus amended, we affirm the decree holding that Peterson had effectually resigned his position.

AMENDED AND AFFIRMED.

      . Civil Service Rule VIII, § 5.1
      “5.1 An appointing authority may grant an employee, other than transient, emergency, or provisional, leave without pay for a period not to exceed ninety (90) days or one period of three (3) months within a calendar year whenever such leave is considered to be in the best interest of the service; provided that:
      “(a) leave without pay for a longer period may be granted only with the consent of the Director, subject to review by the City Civil Service Commission, and
      (b) When an employee is on leave without pay for more than five (5) consecutive working days, the appointing authority must submit a personnel form to the City Civil Service Department, and
      “(c) when an employee does not return to work at the expiration of a period of leave without pay as authorized herein, he shall be considered as having resigned his position as of the day following the last day of leave, and
      “(d) provisional and transient employees may be granted temporary leave without pay for a period not exceeding five (5) working days.”


author: REDMANN, Judge.

text:
    Marc Allen POSEY v. Raynard J. FABRE et al.
    No. 9784.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.

      Robert F. Fadaol, Gretna, for plaintiff.
    James M. Tompkins (McGlinchey, Stafford, Mint?, & Hoffman), New Orleans, for defendant American Bankers Ins. Co. of Florida.
    Jacob J. Amato, Jr. (Amato & Creely), Gretna, for defendant Schieffler Bros. Marine, Inc.
    Kenneth W. Manuel (Ungar, Jacobs, Manuel & Kain), New Orleans, for defendant Raynard J. Fabre.
    Before REDMANN, STOULIG and BEER, JJ.
   REDMANN, Judge.

Raynard J. Fabre was employed as a tug captain by Schieffler Brothers Marine, Inc., which was insured against liability “as owner” of the tug by American Bankers Insurance Company. Those three parties appeal from a judgment for $70,000 for injuries to plaintiff when Fabre deliberately hit him on the elbow with a pipe.

The issues' are whether Fabre is liable despite plaintiff’s verbal provocation (argued to be “contributory negligence”); if so, whether the employer is liable despite the apparently personal nature of Fabre’s action; and,’ if so, whether the employer is liable “as owner” of the tug, making the insurer also liable, notwithstanding that the incident occurred on shore.

Facts on Liability

Plaintiff had been a crewman on the tug until Fabre fired him three to six weeks before this incident. On the day of this incident, plaintiff boarded the tug, docked in the Harvey Canal, to look for his cousin Jimmy Schieffler, one of the owner’s principals, whose office was on the dock some 35 feet from the tug. Plaintiff often stopped at the office to visit his cousin on his way to his nearby work. When plaintiff did not find his cousin at the office, he went to look for him on the tug. Plaintiff accidentally knocked a galley door into Fabre, who was holding a tray of food, and, although plaintiff says he apologized, he concedes that he may have been “sarcastic.” Fabre ordered plaintiff off the boat, without telling him that Schieffler was in the engine room working. Although there is dispute over details (including whether plaintiff twice boarded the tug), there is agreement that Fabre did oblige plaintiff to leave the boat, and that plaintiff cursed Fabre. Not conceded by plaintiff, but implicitly accepted in the trial judge’s questioning of Fabre, was that plaintiff’s cursing included calling Fa-bre “the word . . . M.F.” (Fabre’s delicacy which prevented his using the word rather than two letters was matched by that of counsel and the trial judge, none of whom clarified in the record the word that Fabre found so intolerable.) Fabre, who had picked up a three-foot long pipe to force plaintiff off the tug, himself left the tug to follow plaintiff onto the dock and told plaintiff that if he repeated that epithet Fabre would hit him. Plaintiff did repeat it and Fabre did hit him on the left elbow with the pipe. By this time plaintiff was almost to the Schieffler office on the dock, some 35 feet away from the tug.

Fabre

Fabre is no doubt liable. His “contributory negligence” argument is but a restatement of the argument that verbal as well as physical abuse, by constituting one the aggressor, should be a defense to one’s damage action for the beating one received in response. Whatever be its merits in respect to a third person only vicariously liable for the assault, this argument is rejected in respect to the assaulter himself by Morneau v. American Oil Co., La.1973, 272 So.2d 313.

Schieffler Marine

The trial judge’s inference that Fa-bre was acting “in the exercise of the functions in which . . . employed”, La. C.C. 2320, and that the employer is therefore liable, is not supported by the record.

Fabre’s initial action towards ejecting plaintiff from the tug did not arise from any employment motivation on his part, but from his annoyance that plaintiff had hit him with the galley door. The ejection was contrary to the presumable interest of his employer’s principal, Jimmy Schieffler, who regularly received visits from his cousin, plaintiff. Unlike the dispute in LeBrane v. Lewis, La.1974, 292 So.2d 216, this dispute was not “primarily employment rooted”, or reasonably incidental to the employee’s work duties, although it did occur during the hours of employment and near to although not on the employment premises.

In LeBrane, the supervisory employee was attempting from the outset of the dispute, and until the stabbing occurred, to further the employer’s interests by obliging the other employee to get his hair cut suitably and, finally, by firing and evicting that employee. In our case, Fabre had no employment motive. He abandoned his employment in order to pursue the personal purpose of punishing a taunter. The employer is not vicariously liable and therefore the insurer is not liable.

Quantum

Plaintiff suffered a fracture of the left olecranon process, which required surgery twice (besides later removal of a surgical screw).

The treating physician reported on March 15, 1976, that he did not anticipate “any significant permanent disability” although plaintiff then had a 10% loss in extension. Nevertheless that physician on November 22, 1977 reports that plaintiff will have a permanent 10% loss in extension, without explaining why this permanent disability was earlier unanticipated. Another physician, having examined plaintiff on October 15, 1976, then found extension limited by only two to three degrees and opined that plaintiff could do everything with the arm that he could do before the injury.

The trial judge awarded $3,017.44 medical expenses, $9,937.35 past lost wages, $32,-292 future loss of earnings, and $25,000 general damages.

Medical bills prove the $3,017.44 expenses.

The wage awards, computed in plaintiff’s post-trial brief, are not supported by the evidence. On future loss, the brief had taken the 10% loss in elbow extensibility and converted it into a 10% earnings loss for the life expectancy of plaintiff. But the evidence is that plaintiff was earning over twice as much in construction work as he claimed in brief to have earned prior to his injury. The evidence thus shows no future loss of earnings. On past loss, the brief calculated a 17-month loss of a technically unproven $135 weekly wage. The record does not support 17 months of disability, but the medical reports do show periods of four and five months’ disability after the operations. The maximum proven loss is nine months at $135 weekly, or $5,255.

The general damages award of $25,000 is very probably beyond the “much discretion” of La.C.C. 1934(3) as a reparation for a fractured elbow tip with two surgical procedures and no serious disability. Independent of the question of mitigation of damages, we view $12,500 as approximately the maximum awardable. And we reduce, because plaintiff brought his injury upon himself if we understand correctly that “the word . . . M.F.” was “motherfucker,” as the overall context demonstrates almost to a certainty. This epithet, one of the most offensive, does not excuse but explains and mitigates the response of the already angry tugboat captain, because surely it is included among “words which are calculated to provoke and arouse to the point of physical retaliation .,” Morneau v. American Oil Co., La.1973, 272 So.2d 313, 316 (reaffirming Richardson v. Zuntz, 1874, 26 La.Ann. 313); McVay v. Ellis, 1921, 148 La. 247, 86 So. 783; Broussard v. Citizen, La.App. 1 Cir. 1950, 44 So.2d 347; Foster v. Barker, La. App. 1 Cir. 1974, 306 So.2d 910 (reducing general damages and refusing to award lost wages).

We conclude that a total award of $10,000 will compensate plaintiff as much as Fabre ought to compensate him in view of the extreme mitigating circumstances.

Reversed as to Schieffler Marine and American Bankers Insurance at plaintiff’s cost; amended as to Fabre to reduce quantum to $10,000, with plaintiff and Fabre to divide the costs of this appeal equally.


author: GARRISON, Judge. BOUTALL, Judge,

text:
    Lester Joseph MEADOUX, Sr., et al. v. Robert L. HALL et al. Valerie Martin ROBOTTOM et al. v. Robert L. HALL et al.
    Nos. 9796, 9797.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Writ Refused April 23, 1979.

      Daniel E. Becnel, Jr., Robert R. Fau-cheux, Jr., C. William Bradley, Jr., Barry J. Landry, Reserve, for plaintiffs-appellants.
    McGlinehey, Stafford, Mintz & Hoffman, Donald A. Hoffman, John E. Galloway, New Orleans, for defendants-appellees.
    Before GULOTTA, BOUTALL, and GARRISON, JJ.
   GARRISON, Judge.

On June 9, 1976, Lester Meadoux, Jr. and Larry Robottom were killed in an explosion while working at Hooker Chemicals & Plastics Corporation in Taft, Louisiana. The parents of Lester Meadoux, Jr. and the wife of Larry Robottom filed wrongful death actions against certain executive officers of Hooker Chemicals and the corporation. The corporate employer was dismissed from the consolidated actions prior to trial.

The cases were tried before a jury which concluded that defendants White Fremin, Frank Thomas, Darryl Bonvillain and Banks Clark were negligent and that their negligence was the proximate cause of the explosion. Defendants Robert Hall and George Haas were also found negligent, but their negligence was not found to be the proximate cause of the explosion. Defendant Frederick Joseph was not found to be negligent. The jury awarded Mrs. Robot-tom a total of $239,500.00 (consisting of $220,000.00 for lost wages and $19,500.00 for loss of love and affection). Mr. & Mrs. Meadoux were awarded $60,000 for loss of love and affection ($30,000 per parent). The plaintiffs filed a motion for additur which was denied. Plaintiffs and defendants have appealed. We affirm.

The issues on appeal are whether or not the parents of Lester Meadoux, Jr. properly stated a cause of action; whether the trial court erred in allowing testimony as to insurance coverage; whether the trial court erred in allowing evidence of an Occupational Safety and Health Administration (OSHA) citation which had been issued to the corporation; and quantum.

Defendants argue that the parents of Lester Meadoux, Jr. have no cause of action for the wrongful death of their son because their original petition was filed in their capacities as administrators of their son’s estate. They amended their petition to sue in their individual capacities after the one year peremption period had elapsed. La.C.C. Art. 2315 provides a cause of action for wrongful death to certain named beneficiaries. It has been held that a succession representative of the decedent has no right of action to maintain a wrongful death action. Succession of Roux v. Guidry, 182 So.2d 109 (La.App. 4th Cir. 1966), writ denied 248 La. 1106, 184 So.2d 27.

In Roux, a wrongful death action was brought by the administrator of decedent’s estate, the administrator being also a son of the decedent. More than one year after their mother’s death five more children filed an amended and supplemental petition. This court held that the wrongful death action belongs only to the parties in whose favor La.C.C. Art. 2315 creates it. The succession representative had absolutely no right to bring the action.

The court also rejected the argument that the children’s amended petition should relate back to the date of the original petition. La.C.C.P. Arts. 1151 and 1153. “The Code of Procedure articles referred to are, we believe, predicated on the assumption that the plaintiff is in Court (which, as we have seen, is not the situation before us), and that both the original and the amending supplemental petition assert one and the same right or cause of action.” Succession of Roux v. Guidry, supra, at 111.

This is exactly what distinguishes Succession of Roux from the instant case. Here all the proper plaintiffs are before the court. Here it is not the plaintiffs who are challenged — merely their capacity. There have been several cases in which an amended petition in which a party sued in one capacity has been allowed to relate the corrected capacity back to the date of filing of the original petition. In Tate v. Norfolk and Dedham Mutual Fire Ins. Co., 153 So.2d 495 (La.App. 1st Cir. 1963), father who sued for injuries sustained by his minor son without stating his capacity as administrator could file an amended petition more than a year after the accident to assert his capacity. Such amendment would relate back. See also McKay v. Southern Farm Bureau Casualty Co., 123 So.2d 658 (La.App. 1st Cir. 1960), in which the court stated at 666, 667:

“In our opinion, the plaintiffs’ rights under LSA-C.C. Article 2315 to be substituted for the deceased original tort-plaintiff were not extinguished by prescription and/or peremption, because within the requisite year pleadings were filed which (although imperfectly styled and imperfect in statement) fairly apprised the defendants of the right of the two named minors to be substituted for the decedent. Callendar v. Marks, 185 La. 948, 171 So. 86; Reeves v. Globe Indemnity Company, 185 La. 42, 168 So. 488; Kansas City Fire & Marine Ins. Co. v. Hillman, La.App. 1 Cir., 118 So.2d 174; Angelette v. Hardie, La.App.Orl., 70 So.2d 196, 197; Reynolds Metal Co. v. T. L. James & Co., La.App. Orl., 69 So.2d 630; Smith v. Monroe Grocery Co., La.App. 2 Cir., 171 So. 167. As these cases hold, in such circumstances, even though the timely-filed initial proceedings are subject to dismissal due to imperfection in pleading, the court should properly permit an amendment thereof to supply the deficiencies (as did the trial court in the present instance), which amendment relates back to the date that the original pleadings were filed, for purposes of deciding whether a cause of action arising under LSA-C.C. Art. 2315 was filed within the peremptive year. See also Jackson v. American Employers’ Ins. Co., 202 La. 23, 11 So.2d 225.
“In summary, the right of the minors Dolphus McKay, Jr., and Mattie Mae McKay to be substituted as parties plaintiff for their father who had died on June 21, 1957 was clearly sought by the proceedings filed on June 5, 1958. Although these pleadings were defective as to form and allegations and were therefore dismissed on exceptions, the trial court properly at the same time reserved the right of the plaintiffs to amend such proceedings. The substitution of the minors on October 2, 1958, pursuant to such reservation of the right to amend, relates back to the filing of the initial proceedings on June 4, within the prescriptive year, so that the minors’ rights to be substituted was not extinguished by peremption or prescription.”

See, as well, Lanis v. Illinois Cent. R. Co., 140 La. 1, 72 So. 788 (1916) wherein the court held that a widow who sued for damages under a state statute, could amend her petition to appear in the capacity as administrator under the Federal Employers’ Liability Act — and held also that her original petition prevented the tolling of the statute of limitations.

These cases point out that the essential consideration is that the defendant be apprised of the cause of action in order for the amended petition to relate back.

It has been held that prescription is interrupted when the defendant is fully informed of the nature of the claim being asserted against him even though plaintiff may lack capacity to assert that claim. Nini v. Sanford Brothers, 276 So.2d 262 (La.1973). Although a peremptive period may not be suspended, Succession of Roux v. Guidry, supra, and cases cited therein, a later-filed petition by the same party in different capacities should be allowed to relate back, especially when the defendant is fully apprised of the nature of the action against him.

Finally, in Paxton v. Ballard, 289 So.2d 85 (La.1974), these principles, applicable in the instant case, were observed:

“The Louisiana Code of Civil Procedure, rejecting procedural technicalities, adopts the salutary rule of liberal construction of pleadings.
“Article 5051 provides:
‘The articles of this Code are to be construed liberally, and with due regard for,the fact that rules of proce-' dure implement the substantive law and are not an end in themselves.’ “Article 865 specifically directs:
‘Every pleading shall be so construed as to do substantial justice.’
“These statutory imperatives plainly require a rule of reason in the construction of pleadings, designed to achieve justice between the parties.
“As this Court held in Succession of Smith, 247 La. 921, 175 So.2d 269 (1965):
‘Harsh rules of pleading are not favored in this state. Each pleading must be reasonably construed so as to afford the litigant his day in court, arrive at the truth, and do substantial justice. .
‘The characterization of a pleading by the litigant is not controlling. Pleadings are taken for what they really are, and not for what their authors designate them.’ ” 289 So.2d 85 at 87.

Applying the foregoing to the instant case, it is obvious that defendants indeed did receive proper notice of the cause of action pending against them. The proper parties were before the court. Their pleadings should be liberally construed to allow their amended petition to relate back to the date of the original petition, in that the amended petition only clarified the capacities of the plaintiffs.

Defendants’ next specification of error was that the judge incorrectly allowed evidence of insurance coverage to be admitted when the insurer was not a party to the suit. They rely on Verret v. Travelers Ins. Co., 216 So.2d 379 (La.App. 3rd Cir. 1968), which held that the allegation in the petition of the existence of an insurance contract entitles the plaintiff to prove that the contract was issued in Louisiana and thus the direct action statute is applicable. This case clearly does not aid defendants. It has recently been held that it is not error for a jury to view the various insurance policies which afford defendants coverage. This in effect informs the jury as to the policy limits of the insurers. Ardoin v. Hartford Acc. & Indem. Co., 350 So.2d 205 (La.App. 3rd Cir. 1977), writ refused as to this issue La., 352 So.2d 706, 707; Domingue v. Continental Ins. Co., 348 So.2d 209 (La.App. 3rd Cir. 1977). In Louisiana the ability of a defendant to respond in damages is well established as a proper subject for jury consideration, State Farm Fire & Casualty Company v. Drost, 330 So.2d 393 (La.App. 3rd Cir. 1976). Considering the above jurisprudence, we hold that the mention of the existence of insurance policies was not reversible error.

Defendants’ final contention is that the trial court committed manifest error in permitting references to an investigation by the Occupational Safety and Health Administration (OSHA) and the resulting citation. This occurred while plaintiffs’ counsel was cross-examining Dr. Morris Grotheer, an electrochemical expert who conducted an investigation into the explosion for Hooker Chemicals. The trial judge went on to explain to the jury:

“Ladies and gentlemen, it is admissible and so ruled by the Court that Hooker paid a fine to the Federal Government in the amount of $600 as Dr. Grotheer just testified to. But that it was paid according to their legal advice as a thrifty measure to deal with the citation; that the payment of the $600 fine was cheaper that contesting it. So they paid the fine for the citation, but they did so on what might be called by laymen, under protest, without admission of guilt. That was to be revealed to you later, but as long as the witness touched upon it let’s get it over with and we do not have to hear any more about it. Let’s move on.”

The admission of this evidence was improper, but not prejudicial to the point of being reversible. Admission of hearsay evidence is not reversible error where, as here, the record contains ample other evidence on which the trier of fact could base its findings. Prince v. Travelers Ins. Co., 320 So.2d 227 (La.App. 3rd Cir. 1975); Hue v. Blanchard, 337 So.2d 1218 (La.App. 1st Cir. 1976).

Also in the instant case the trial judge effectively informed the jury that the payment of the fine was not an admission of guilt. See Geisler v. Louisiana Power & Light Co., 346 So.2d 339 (La.App. 4th Cir.1977), where questions as to adherence to OSHA regulations were propounded and the regulations introduced. However, the trial judge correctly informed the jury that the regulations were not controlling. Even if the exposure was improper, this court held that it was harmless error. “The danger in allowing the introduction of irrelevant evidence is that such evidence might be misconstrued as proof of some fact which the evidence does not in fact tend to prove.” Landry v. Adam, 282 So.2d 590, 596 (La.App. 4th Cir. 1973). In Landry, this court held that an automobile recall letter could not be used to prove the existence of a defect. However, even though it should have been excluded, there was ample other evidence to establish defects so that the introduction was not reversible error. Here there is no possibility that the reference to the OSHA citation and fine could tend to show negligence on the part of the defendants. The trial judge took the proper action and informed the jury that this did not constitute admission of any wrongdoing.

Plaintiffs have appealed seeking an increase in quantum. In brief counsel cites cases where greater awards have been made. Nevertheless:

“The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.’ Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351, 352 (La.1974).
“The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.” Miller v. Thomas, 258 La. 285, 246 So.2d 16, 19 (1971).

A court of Appeal cannot disturb an award made by a trial court unless the record clearly reveals that the trier of fact abused its extensive discretion. La.C.C. Art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Anderson v. Welding Testing Laboratory, Inc., supra; Bitoun v. Landry, 302 So.2d 278 (La.1974); Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42 (La.1973); Walker v. Champion, 288 So.2d 44 (La.1973).

“A reviewing court might well disagree with the amount of the award fixed by the jury, but it is not entitled to substitute its opinion for that of the trier of fact.” Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 at 809 (La.1974).

Therefore, we conclude the jury did not abuse its discretion in making these awards.

For the foregoing reasons the judgment appealed from is affirmed.

AFFIRMED.

BOUTALL, J., specially concurs.

BOUTALL, Judge,

specially concurring.

I agree with the judgment but simply add to the specification of error concerning evidence of insurance coverage: since the jurisprudence permits a defendant to show his impecuniousness or inability to respond in judgment, that it is equally fair tó permit evidence of the defendant’s ability to respond in judgment.

      . Mrs. Robottom was only 21 years old and had been married to Robottom for only three years and nine months at the time of his death. Obviously, there is a very strong possibility of her remarriage.

      . “A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.
      A defendant shall plead in response to an amended petition within the time remaining for pleading to the original pleading or within ten days after service of the amended petition, whichever period is longer, unless the time is extended under Article 1001.” La.C.Civ.Proc. Art. 1151.
      “When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” La.C.Civ.Proc. Art. 1153.

      . See also, Tate, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211 (1969). This article notes that La.C.C.P. Art. 1153 is practically identical to Federal Rule 15(c) as of 1960. The federal interpretations liberally apply the relation-back statute and the amendment relates back if the amendment changes the capacity of the parties. Also in this article Tate is very critical of the Succession of Roux v. Guidry, supra, decision, stating, “[T]he court’s refusal to permit relation back not only flouts the express mandate of Article 1153, it also is contrary to earlier Louisiana jurisprudence holding the peremptive bar inapplicable under comparable circumstances.” 43 Tul.Law Rev. at 236.


text:
    Vera MARA v. Mrs. Doris McCOY, w/o and Glynn E. Blackwell.
    No. 9856.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 1, 1979.

      Reuter & Reuter, Arthur C. Reuter, New Orleans, for Vera Mara, plaintiff-appellant.
    Tooley, Gardner & Waldmann, Don C. Gardner, Gretna, for Mrs. Doris McCoy, wife of/and Glynn E. Blackwell, defendants-appellees.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is a suit for payment of a collateral mortgage promissory note alleged to have been pledged as security for the handnote of a third party. The main issue is whether there was actually a pledge.

Vera Mara, the nominal acceptor of a collateral mortgage and promissory note made by Mrs. Doris McCoy, wife of/and Glynn E. Blackwell, filed suit against the Blackwells alleging that the note and mortgage had been pledged to secure the payment of a promissory note made by C. W. Engineers, Inc. per Billy Ray Wilson, Vice-President, containing on the back thereof a pledge executed by the maker and Billy Ray Wilson individually, pledging a collateral mortgage promissory note made by Billy Ray Wilson and the collateral mortgage note executed by Blackwell, the subject of this suit.

The Blackwells admitted the execution of the collateral mortgage and the promissory note, but contend that these were confected to serve as security for a prior promissory note executed by C. W. Engineers, that the prior indebtedness had been paid in full, that they did not pledge or authorize anyone to pledge the collateral mortgage and note as surety for any subsequent transactions. They point out that Mara is not a holder of the note (she does not so allege in her petition) and that the real holder is Lawrence Aiavolasiti who loaned the money and that the entire transaction wTas handled through Mr. Aiavolasiti’s attorney, hence this is not a suit by a holder in due course, but rather by someone who is subject to all defenses.

The trial judge rendered judgment in favor of the defendants finding that “plaintiff was not a holder in due course, that there was no consideration for the note and collateral mortgage and that the indebtedness for which the collateral note and mortgage was originally pledged was discharged and paid in full,”. We affirm the judgment.

The details of the events leading up to the filing of suit, as disclosed by the evidence, are as follows: C. W. Engineers, Inc. had financial problems in 1969, and negotiated a loan with Lawrence Aiavolasiti, the transaction to be handled by his attorney. Each of the four principals in C. W. Engineers was required to execute, along with their wives, a collateral mortgage on his home in the amount of $25,000, naming Vera Mara, the attorney’s secretary, as the nominal recipient of the mortgage. The four principals then executed a written instrument of pledge, pledging the collateral notes and collateral mortgages as security for the loan. This loan was paid off, and two of the principals obtained cancellation of their collateral mortgages. The other two, Blackwell and Billy Ray Wilson, did not seek cancellation of the collateral mortgages.

There is a dispute in the evidence as to whether the attorney returned Blackwell’s note to the Blackwells, kept the note in his office or returned it to Wilson. The attorney testified that it was returned, but could not definitely say to whom it was returned. The Blackwells categorically deny receiving the note or having any conversation about the return of it, being under the belief that the payment of the original indebtedness would have the effect of cancelling the collateral mortgage. Wilson, the main mover in C. W. Engineers who handled all of the business transactions, was not available to testify, although subpoenaed by the Blackwells, being out of the United States.

About 2 years after that loan, Aiavolasiti made C. W. Engineers another loan on May 7, 1971 in the amount of $28,000, after negotiations with Wilson. The note was executed on its face C. W. Engineers, Inc. by Billy Ray Wilson, V. P., and on the reverse side thereof contained an inscription that the note shall be secured by pledge of (1) the collateral mortgage promissory note of Billy Ray Wilson and (2) the collateral mortgage promissory note executed by Blackwell. Thereunder appear the signatures of Billy Ray Wilson and C. W. Engineers, Inc. by Billy Ray Wilson, Y. P. For emphasis, we state that the note contains no signature, endorsement or pledge by the Blackwells. They deny any knowledge of the transaction and any consent to pledge.

Under the state of the evidence, it cannot be determined precisely how delivery was achieved of the pledged note. We are convinced that it was not delivered by the Blackwells. We believe the evidence preponderates that it was originally handed to Wilson by Aiavolasiti’s attorney, and that Wilson delivered it in pledge without the knowledge or consent of Blackwell. Blackwell testified that he quit the company at the end of that month of May or the 1st of June because his pay check bounced, and he had no knowledge of the continued existence of the collateral mortgage inscription until he later attempted to sell his house.

These facts all support the conclusion of the trial judge that plaintiff was not a holder in due course. Indeed, the deposition of Mara introduced into evidence shows that she never was a holder of the note, that to her recollection it was kept in the office of the attorney. There is no showing that Wilson could have been a holder for value.

The defenses of the Blackwells are applicable in this case. Aiavolasiti through his own negotiations and the employment of the attorney to handle both of these transactions, is chargeable with knowledge of a defective pledge. See Louisiana Civil Code Articles 3142, 3145 and 3146. We consider this matter to be controlled by the principles announced in the recent case of First Guaranty Bank v. C. D. Alford, et al., 366 So.2d 1299 (La.1978). Regardless of whether the Blackwells’ note had been returned to Wilson or whether it had been kept in the office of the attorney of the lender, the Blackwells had no liability on the note of C. W. Engineers and gave no consent to a pledge of their collateral mortgage note as security.

The judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


text:
    Elridge J. GREEN v. The TEXAS AND PACIFIC RAILWAY CO. and L. E. Carmichael.
    No. 9862.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Esmond Phelps, II, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for The Texas and Pacific Railway Co., defendants-appellants.
    Joel T. Chaisson, Destrehan, Paul L. Bill-ingsley, New Orleans, for Elridge J. Green, plaintiff-appellee.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a case involving a collision between an automobile and a locomotive.

On April 30, 1973, an automobile driven by the appellee, Elridge J. Green, was struck by a locomotive of the Missouri Pacific Railroad Company, the appellant in this action. Green sued for injuries and property damage suffered in the accident. After trial on the merits, the trial judge found that the sole and proximate cause of the accident was the negligence of the defendant railroad and rendered judgment in favor of the plaintiff. We reverse.

The evidence shows that a railroad engine, unaccompanied by any other railroad ears, was proceeding in an easterly direction at approximately 5 miles per hour when the accident occurred. Employees of the railroad, plus 2 witnesses whose homes were near the scene, testified that warning whistles were sounded by the engine. All except one of these people also testified that the engine’s bells were ringing. Green, however, denied hearing any signals. He testified that he drove up to the crossing, stopped to look, and then proceeded to cross the tracks when he was struck by the engine.

Appellee’s case is based upon the fact that his view of the railroad crossing was blocked by weeds growing at the crossing. He stated that the weeds were three to four feet high and that he didn’t see anything coming on the tracks. He also testified that from a stopped position, which was 15 feet from the tracks, he could see 50 to 75 feet down the tracks. The photographs introduced into evidence show that a person stopped 50 feet from the crossing could see clearly that far up the elevated tracks. A person closer to the tracks could see an even greater distance.

Other evidence indicates that Green attempted to veer around the engine. An accident investigator found that the automobile was positioned a few feet into the left traffic lane at point of impact. The brakeman and the fireman on the engine both testified that the car stopped and then changed lanes in an attempt to move around the engine. The testimony indicated that the front of the engine was approximately 15 feet from the car when the car swerved. Appellee denies having attempted to go around the engine.

There is support in the record for the trial judge’s finding that the railroad was negligent. The fireman, for example, had emergency braking mechanism within his reach and did not use it, although he clearly saw the automobile at all times. Further, the brakeman came around from his position at the front of the engine and told the engineer to stop before any brakes were applied at all. We hold, however that it was manifestly erroneous not to find that appellee was contributorily negligent and barred from recovery. His reason for leaving a position of safety and pulling in front of this slow-moving train was that he neither saw it or heard it. Neither the facts or the law support this position.

It is well settled in this state that a driver is burdened with the responsibility of seeing and hearing that which he could have seen and heard. If a driver’s view of the right of way is obstructed, he must use a higher degree of caution. Serpas v. New Orleans Public Belt Railroad, 356 So.2d 107 (La.App. 4th Cir. 1978), quoting Sulé v. Missouri Pacific Railroad, 181 So.2d 280 (La. App. 4th Cir. 1965). In dealing with a similar issue, this court stated in Watts v. New Orleans Public Belt Railroad, 287 So.2d 812 (La.App. 4th Cir. 1974), at 814:

“* * * * there is some evidence that the defendant could have seen approximately 36 feet down the track in the direction from which the train came. However, assuming that the weeds were sufficiently high and dense and the building sufficiently high so as to block the defendant’s line of sight completely, such a circumstance serves not to lessen the duty of care imposed on the plaintiff, but on the contrary increases the duty placed upon him to ascertain that he could safely cross in spite of the blind intersection.”

Appellee urges us to apply the “dangerous trap” doctrine under which a railroad may not rely upon the duty of the motorist to stop and look if physical circumstances are such that stopping and looking will do no good. Glisson v. Missouri Pacific Railroad Company, 158 So.2d 875 (La.App. 3rd Cir. 1963); Affirmed 246 La. 470, 165 So.2d 289. This doctrine is not applicable in this case, however, since appellee admitted that he had at least 50 feet of clear view with which to observe the engine. This certainly should have been sufficient since the train was moving at only 5 miles per hour. Further, the evidence indicates that appellee did indeed stop in this case, but simply failed to see that which he should have seen.

Due to our reversal on the issue of liability, it is unnecessary for us to consider the issue of quantum raised by appellant.

It is therefore ordered that the judgment of the trial court be reversed and that judgment be entered in favor of the defendant, dismissing plaintiff’s suit. All costs in both courts to be assessed against the appellee, Elridge J. Green.

REVERSED AND RENDERED.


author: BEER, Judge.

text:
    Malcolm W. HUMPHREYS v. STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General, and Charles W. Tapp, Assistant Secretary, Office of Consumer Protection, Department of Urban and Community Affairs.
    No. 9868.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.
    Writ Granted June 11, 1979.

      William J. Guste, Jr., Atty. Gen., New Orleans, Warren E. Mouledoux, Asst. Atty. Gen., New Orleans, Winston G. Decuir, Asst. Atty. Gen., Baton Rouge, Patricia J. Hakes, New Orleans, for defendants-appellants.
    Deutsch, Kerrigan & Stiles, H. Paul Simon, James A. Burton, New Orleans, for plaintiff-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   BEER, Judge.

On January 27, 1978, the State Attorney General’s office served investigative demands upon appellee, Malcolm W. Hum-phreys, the franchisee of two Arthur Murray Dance Studios, located at 1515 St. Charles Avenue and 3511 Hessmer Avenue. The demands alleged that Humphreys’ “methods of competition and the acts and practices employed with respect thereto may constitute commercial activity declared unlawful by the Unfair Trade Practices and Consumer Protection Law as set forth in Louisiana Revised Statutes 51:1405, (et seq.) and other state and federal statutory laws, and/or rules and regulations.” The demands alleged that the office of the Attorney General was privy to “evidence and information that false, deceptive, and misleading representations may have been made to students and prospective students .,” and the demands went on to outline several alleged business practices of Humphreys which might constitute violation of the state’s consumer protection statutes. Humphreys was, accordingly, ordered to produce names and last known addresses of all students enrolled in the Arthur Murray dance studios for the period October 1, 1975 to October 1, 1977; names and last known addresses of all dance instructors who worked for the Arthur Murray dance studios for the period October 1, 1974 to October 1, 1977; and names of all party clubs within the studios and/or franchise that students may join or in which students may participate.

Thus confronted, Humphreys petitioned for a protective order on various grounds, including that the investigative demand was defective because the State failed to allege such probable cause as is implicitly required by the Federal and State Constitutions. Following a hearing, the trial court issued a protective order, holding that the State had failed to set forth sufficient probable cause to refute Humphreys’ constitutionally guaranteed right of privacy, as well as the right of privacy of those persons whose names would be on the lists sought by the State.

The State has devolutively appealed, alleging error in the application of the probable cause standard to LSA — R.S. 51:1401, et seq.

There is no express probable cause requirement in LSA-R.S. 51:1401, et seq. However, appellee contends that the broad constitutional safeguards of privacy under Article 1, § 5 of the Louisiana Constitution distinguishes the federal court cases here relied upon by the State.

Notwithstanding the language of Article 1, § 5, LSA-R.S. 51:1411 indicates that the legislature, in its wisdom, has determined that the attorney general and director need only “have evidence that a person has engaged in or is engaged in any method, act, or practice declared to be unlawful by this chapter and they believe it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in or is engaging in any act or practice declared to be unlawful

Almost identical statutory language was interpreted in Commonwealth of Kentucky ex rel. Hancock v. Pineur, 533 S.W.2d 527 (Ky.1976). The Kentucky court held that the attorney general was not required to make a showing on the face of the demand of reasonable grounds for its issuance where the statute did not state or imply that the condition precedent for issuance of the demand be recited on the face thereof.

In United States v. Morton Salt Co., 388 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950), the Supreme Court observed that:

“. . . governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. (Citation omitted.) But it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.”

And, in See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943 (1967), the Supreme Court delineated the Fourth Amendment requirements by observing:

“It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. The agency has the right to conduct all reasonable inspections of such documents which are contemplated by statute, but it must delimit the confines of a search by designating the needed documents in a formal subpoena.”

Thus, we note that federal courts have delineated ground rules for investigative demands by federal agencies which require that the inquiry be authorized by the agency; that the demand not be too indefinite; and that the information sought be reasonably relevant.

To this we would add the requirements that the general nature of the investigation must be identified so that it can be fairly ascertained if this test has been met (see Steele v. State, 85 Wash.2d 585, 537 P.2d 782 (1975); also, United States v. Reno, 522 F.2d 572 (10th Cir.)) and that the demand specifies the materials to be produced with reasonable particularity and for a reasonable period of time (see United States v. Reno, 522 F.2d 572 (10th Cir. 1975), and People v. American Banco Corporation, 570 P.2d 825 (Colo.1977)).

We hold that the allegations of the investigative demands comply with the statutory requirements for issuance and are within the guidelines discussed above and, thus, disagree with the extent of the trial court’s application of the probable cause test with respect investigative demands under LSA-R.S. 51:1411 A, being also of the view, inter alia, that Humphreys is without standing to raise Fourth Amendment issues on behalf of his present or former employees and/or students.

Even so, we believe that the statute, as presently written, can, unintentionally, form a basis for administrative over-reaching since no specificity is required by the statute. Yet, judicial restraint requires that we give the statute the benefit of the doubt insofar as constitutional regularity is concerned, and, thus, the burden of refuting same rests squarely upon the entity seeking a protective order from its implementation. We cannot conclude that the record before us discloses such refutation.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans, is reversed, and the protective order encompassed in the judgment of March 14,1978, is dissolved and set aside, at appellee’s cost.

REVERSED.

      . Specifically, LSA-R.S. 51:1411 provides:
      “A. When the attorney general and director have evidence that a person has engaged in or is engaged in any method, act, or practice declared to be unlawful by this chapter and they believe it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in or is engaging in any act or practice declared to be unlawful, the attorney general and director may execute in writing and cause to be served upon any person who is believed to have information, documentary material or physical evidence relevant to the alleged or suspected violation, an investigative demand. Such investigative demand shall contain a description of the unlawful method, act or practice under investigation, and shall require such person to furnish, under oath or otherwise, a report in writing setting forth the relevant facts and circumstances of which he has knowledge, or to produce relevant documentary material or physical evidence for examination, at such reasonable time and place as may be stated in the investigative demand, concerning the advertisement, sale or offering for sale of any goods or services or the conduct of any trade or commerce that is the subject matter of the investigation.
      B. At any time before the return date specified in the investigative demand, or within twenty days after the demand has been served, whichever is shorter, a petition stating good cause for a protective order to extend the return date, or to modify or set aside the demand, may be filed in the district court having civil jurisdiction in the parish where the person served with the demand resides or is domiciled or has his principal place of business.
      C. If no protective order from the court is secured and the written request by the attorney general and director is not complied with by the return date thereof, the attorney general and director may apply to the court for an order compelling compliance with the demand under R.S. 51:1413.”


text:
    Barbara Gail SAMUEL, wife of/and Raymond Bertz v. TIME SAVER STORES, INC.
    No. 9873.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 1, 1979.

      Morris B. Phillips, New Orleans, for plaintiff s-appellants.
    Faris, Ellis, Cutrone, Gilmore & Lauten-schlaeger, Camille A. Cutrone, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   BEER, Judge.

In 1966, appellee, Time Saver Stores, Inc., entered into a 5-year commercial lease (with two additional 5-year options ) with Bert Leasing Corporation. The property, 5040-5042 West Esplanade Avenue in Me-tairie, was subsequently sold (and the lease assigned) to Bernard Samuel, who then resold the property and reassigned the lease to his daughter, Barbara Gail Samuel, appellant. The lease provides for the payment (whichever greater) of a stipulated base monthly rental of 2V2% of annual gross sales, and further provides that Time Saver have the right to sublease all or any portion of the leased premises without the lessor’s permission. Lessor agreed not to lease or sell other of its property within a one-mile radius to lessee’s competitors.

Up until the time of the events which precipitated this suit, gross sales had not ever reached the amount at which lessor could claim that the gross sales of Time Saver entitled her to a gross sales percentage rental. Thus, the stipulated monthly rental payments were made and accepted without objection.

In August, 1973, Time Saver notified Samuel of its intention to vacate and, thereafter, to sublet the premises, which was subsequently accomplished without objection. In full accordance with the terms of the lease, Time Saver continued to pay the monthly rental. Earlier in 1973, Time Saver had opened a new location at 4431 Transcontinental Drive (approximately two blocks from the lessor’s premises); however, it was not until 1977 that Samuel sought to cancel the lease, alleging that Time Saver had, by opening the new location, breached an implied continuous operating agreement. She contends, in 1977, that the action taken in 1973 has deprived her of the possibility of receiving percentage rentals and constitutes a breach of the lease, entitling her to cancel same. The trial judge, in dismissing her suit, observed that he found no restriction in the lease against Time Saver relocating within a one-mile radius; believed that Samuel must have been aware of, and had not objected to, the new location; concluded that the relocation made good business sense and was neither restricted by the lease nor the basis for cancellation thereof. Samuel de-volutively appeals. We affirm.

W. J. Murphy, former executive vice president and general manager of Time Saver, testified that his company vacated the West Esplanade location because it was no longer a good location for a convenience store because gas pumps could not be installed on the property. Though apparently unoccupied for some period, the leased premises are now occupied by a veterinarian and a plant store which, according to Samuel, pay a greater gross monthly rental to Time Saver than the monthly rental paid by Time Saver to Samuel.

The lease contains no prohibition against lessee’s opening of other stores within a one-mile radius; nor any requirement that Time Saver must continuously operate a food store on the leased premises for the term of the lease. Appellant strongly relies upon Slidell Investment Company v. City Products Corporation, 202 So.2d 323 (La. App. 1st Cir. 1967), involving a somewhat similar situation but clearly distinguished from the facts of this case.

Here, the trial judge concluded that Samuel had knowledge of Time Saver’s relocation from the outset and waived any right to object.

We are of the view that the facts correctly determined by the able trial judge support the conclusion that Samuel, an experienced realtor and shopping center owner, knew of and sanctioned the move by Time Saver. Even more compelling, in our view, is the fact that lessor knew or should have known that the language of this particular lease effectively permitted an unrestricted sublease of the premises. Examination of the document shows that the usual (and far more stringent) sublease provisions have been struck out and in their place is a very basic provision that requires Time Saver to do no more than “remain primarily responsible” for the rent.

Appellant is obviously distraught at the prospect of a continued commitment to a lease which is — at least at present — producing a mild bonanza for the lessee, but neither the terms and provisions of the agreement nor the actions of the parties provide any valid basis for overturning the lessor’s commitment.

The judgment of the Civil District Court for the Parish of Orleans is affirmed, at appellants’ cost.

AFFIRMED.

      . With incremental increases of the monthly rent.


text:
    James Lynn MARTIN v. CORAL GABLES ACADEMY AND INSTITUTE OF READING, INC., d/b/a “Gables Academy”.
    No. 9902.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.
    Henry P. Dart, III, New Orleans, for plaintiff-appellant.
    Salvatore Panzeca, Suzette L. Powers, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   BEER, Judge.

This is a suit for damages for an alleged breach of a written contract for employment brought by James Martin on behalf of his wife, Denise, against her former employer. The trial court dismissed the suit with written reasons, and Martin appeals.

Denise Martin was employed as a science and mathematics teacher by Gables Academy, a private school specializing in the education of children with learning disabilities. She was employed for the “school year” but was discharged in March, prior to the completion of the school year, and seeks damages and the balance of her salary, contending that she was fired without any serious ground of complaint. The school denies that the firing was without serious ground of complaint, and the trial court’s judgment indicates acceptance of the school’s contention that Martin created and persisted in causing a lack of harmony among the staff of the school because of her strongly expressed difference of opinion with the school administration concerning student discipline. Her actual teaching ability was not faulted and is not at issue in these proceedings.

Since plaintiff alleged that she was fired without any serious ground of complaint and sought recovery under application of La.C.C. art. 2749, the defendant’s denial of that allegation and the subsequent introduction of evidence on the issue without objection obviates our need to further consider the procedural contentions advanced by able counsel for appellant. See LSA-C. C.P. art. 1154; Gonzales v. Southwest Mobile Homes, Inc., 309 So.2d 780 (La.App. 3rd Cir. 1975); Randazzo v. Meraux, 27 So.2d 740 (La.App.Orl.1946).

The school director, William Hottenstein, testified that he decided to terminate Martin because she created discord among the faculty and was constantly at odds with the school’s disciplinary policy. He was of the view that a small group of teachers who met before school hours in Martin’s classroom was responsible for a negative attitude toward the school’s objectives regarding student discipline and that Martin was the leader of that faction. He was also of the view that Martin’s rapport with many of the students was negative and left much to be desired. He felt that her attitude was to “get” the students rather than seek to improve their discipline. He testified that he had discussed disciplinary problems with Martin on various occasions, including weekly faculty meetings, and that such discussions always resulted in unresolved arguments. He testified that after one specific conference on the subject of student discipline, there was no improvement in her actions or in her relationship with the school administration. He concluded that she was (in his view) at the root of the problem of faculty disunity especially because of her behavior at faculty meetings and was negatively affecting the attitudes of other teachers. He finally fired her because she was overtly undermining his authority within the school. He stated that she “never adjusted her personal educational philosophies to meet the needs of my particular school in the unique setting in which it was run.”

Arthur Williams, . former assistant director, testified that Martin’s attitude regarding school discipline was destructive, and noted that discipline is a different sort of problem in a school that is dealing with children who have learning disabilities. He stated that earlier in the school year, he had requested that Martin bring her disciplinary problems to the attention of the administration because unity was important; however, she did not honor this request. He stated that Martin’s unwillingness to accept the school’s position regarding discipline caused a disruptive effect at the weekly faculty meetings.

Mrs. K. H. Applewhite, a teacher whose bias was suggested by opposing counsel because of her acknowledgement that she had passed the age of retirement and could not easily find another teaching job, testified that Martin disrupted the faculty meetings and embarrassed Mr. Hottenstein. It was her opinion that the overall faculty attitude improved after Martin was fired.

Essentially, the school’s position is that Martin’s expressed views and actions with regard to the issue of student discipline created disunity among faculty and students. The school administration concluded that her termination two months before the close of the school year was compellingly necessary to preserve control of the students and to achieve proper performance by the faculty and was, accordingly, justified by the provisions of LSA — C.C. art. 2749.

Martin admitted that she may have criticized the lax discipline at Gables, but she denied ever having formed a “clique” and denied having provoked consistent confrontations with the school administration at faculty meetings.

Susan Shexnayder, a fellow teacher and acknowledged as an expert in the learning disability field, testified that plaintiff experienced no more disagreement with administrative policies than other teachers at Gables. She concluded that Martin was not a disrupting influence at the faculty meetings and that faculty disunity did not disappear after Martin was fired.

Mary Jaynes, another fellow teacher, testified that the early morning meetings in Martin’s room were not gripe sessions and corroborated Shexnayder’s testimony with regard to continued faculty disunity after Martin’s departure. She testified that Martin maintained a good rapport with her students.

Accepting the basic contention that faculty unity is especially important in a school such as this and that subversion of that unity is a serious ground of complaint, the trial judge has made a credibility call regarding the facts to be considered. Since the trial judge is in the best position to determine credibility of witnesses, his finding of fact is entitled to great weight. See Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La.App. 4th Cir. 1972), and Green v. State, Southwest Louisiana Charity Hospital, 309 So.2d 706 (La.App. 3rd Cir. 1975).

Although the record does not, in our view, establish that Martin was the cause of faculty disunity at Gables, the evidence presented by defendants supports the trial court finding that her relationship with the administration and with some students was not harmonious and had developed into a serious problem for the administration and thus constituted a “serious ground of complaint” justifying her termination. The judgment of the trial court is supported by the record, is not manifestly erroneous, and must, accordingly, be affirmed. Each party is to bear its own cost of this appeal.

AFFIRMED.