text:
    In the Matter of the Succession of Anna Lusk JONES.
    No. 12461.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearing Denied April 16, 1979.

      Charles H. Dameron, Baton Rouge, of counsel, for Testamentary Executrix-appellant Jessie Lee Lusk Blackwell.
    Stephen Dart, St. Francisville, of counsel, for defendant-appellant Jefferson Lusk Smith.
    William H. Mouton, Lafayette, of counsel, for defendant-appellant Jessie Lee Lusk Delahoussaye.
    C. N. Malone, Baton Rouge, of counsel, for defendant-appellant Alice Louise Lusk Johnson and Ethel Lusk.
    Bruce Turner, Baton Rouge, of counsel, for plaintiff-appellee Evelyn Higdon Blackburn.
    J. B. Thompson, in pro per.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This is a declaratory judgment action brought by Jessie Lusk Blackwell, Testamentary Executrix, seeking interpretation of the Last Will and Testament of Anna Lusk Jones dated March 20, 1972, which has been probated by the District Court in the probate proceedings. The Testamentary Executrix alleged that she was unable to deliver all of the legacies made in the will because of a number of ambiguities and uncertainties contained therein.

The facts in this case show that Anna Lusk Jones died on November 15, 1975, domiciled in East Baton Rouge Parish, Louisiana. Her husband, Benjamin A. Jones, predeceased her, as did her parents. The decedent had no children; and, therefore, she left no forced heirs. She was survived by one sister, Jessie Lusk Blackwell, the Testamentary Executrix, and the following children of predeceased brothers and a sister: Webster L. Lusk, Sr., Harry Upton Lusk, Jessie Lee Lusk Delahousaye, Alice Louise Lusk Johnson, Jefferson Lusk Smith, Joseph W. Lusk, Myrtle Lusk St. Pierre, Ethel Lusk, Mabel Lusk Kelly, Marion Lusk, Alfred Persac Lusk, and Sister Joseph Marie Lusk, all of whom were named parties defendant in the declaratory judgment action brought by the Testamentary Executrix. The suit also named Evelyn Blackburn, a legatee, and James B. Thompson, III, transferee in an Agreement to Sell, as defendants.

The petition set out that the will contained the following ambiguous and uncertain legacies:

A. “To my sister Jessie Lusk Blackwell, I leave my home and all the furnishings including my silver and china.”

This legacy was said to be uncertain in failing to describe the amount and description of immovable property included in the word “home” and in failing to particularize what was included in the word “furnishings.”

B. “To Webster Lytle Lusk Senior, I leave the home he is now living in on Hobgood Tract, from his driveway to the Comite River.”

This legacy was said to be uncertain in failing to adequately describe the amount and description of the immovable property included in said legacy.

C. “To Mrs. Blackburn, I leave the house she is now renting from me with a frontage from my yard on the west side — containing a frontage to the property line bordering the land formerly owned by Albert LeBlanc et als.”

This legacy was said to be uncertain in that Mrs. Blackburn (believed to be Evelyn Blackburn) was not renting from the decedent at the date of death and in that it failed to adequately describe the immovable property embraced within the legacy.

D. “(1) To Jessie Lusk Blackwell, I leave ten thousand dollars and all remaining cash after all my debts are paid.
“(2) To Jessie Lusk Blackwell, I leave all remaining property I own in City of Baton Rouge, La.”

These two legacies were said to be uncertain as to their meaning and intent, particularly with respect to the property to which they are applicable, and with respect to the question as to whether or not the two legacies (considered together) amount to a universal residuary legacy.

The petition also inquired into the enforceability of a purchase agreement by setting out that there was uncertainty with respect to whether or not the Testamentary Executrix was required to initiate the appropriate steps to effect a transfer to James B. Thompson, III, of the balance of the property described in the Agreement to Sell between the decedent and James B. Thompson, III, dated April 25, 1972, even though the time stated for passage of the Act of Sale had expired.

As a collateral matter, it was alleged that the Testamentary Executrix needed advice as to what disposition was to be made of the proceeds of the sale if a sale was made, or what disposition was to be made of the immovable property if the sale was not made.

On the trial, the District Court rendered judgment declaring the rights of the parties and judicially interpreting the Last Will and Testament of Anna Lusk Jones as follows:

“1.
“The following legacy contained in the last will and testament of the decedent: “ ‘To my sister Jessie Lusk Blackwell, I leave my home and all of the furnishings including my silver and china.’
“be and the same is hereby decreed to include the following:
“a.) A certain tract or parcel of land, together with all of the buildings and improvements thereon, situated in the Parish of East Baton Rouge, State of Louisiana, in Section 44, Township 6, south range 1 east, containing 2.54 acres and being designated as ‘Tract Y-l’ on a plan of survey, dated October 15, 1974, revised September 10, 1977, made by Shashikant C. Shah, registered professional engineer, which survey is entitled ‘A map showing the survey of a 162.91 acre tract known as the Anna Lusk Jones tract, and the division of the 157.96 acre portion being south of Joor Road into tracts X & Y, located in Section 44, T-6S, R-l-E, Greensburg Land District, East Baton Rouge Parish, Louisiana’; the said parcel of land having such dimensions as is shown on said map “b.) All of the contents of any nature or kind whatsoever which are located in the residence of decedent located upon the tract described in sub-paragraph (a) above.
“2.
“The following legacy contained in the last will and testament of the decedent: “ ‘To Webster Lytle Lusk, Senior I leave the home he is now living in on Hobgood Tract, from his driveway to the Comite River.’
“be and the same is hereby declared to include the following:
“A certain tract or parcel of land together with all of the buildings and improvements thereon situated in the Parish of East Baton Rouge, State of Louisiana, in Section 44, Township 6, south range 1 east, containing 152.47 acres and being designated as ‘Tract X’ on the plan of survey dated October 15, 1974, revised September 10, 1977, made by Shashikant C. Shah, registered professional engineer, which survey is entitled ‘A map showing the survey of a 162.91 acre tract known as the Anna Lusk Jones Tract, and the division of the 157.96 acre portion being south of Joor Road into tracts X & Y, located in Section 44, T-6-S, R-l-E, Greensburg Land District, East Baton Rouge Parish, LA’; the said parcel of land having such dimensions as is shown on said map.
“The said legacy does not include ‘Tract Z’ as shown on said map.
“3.
“The following legacy contained in the last will and testament of the decedent: “ ‘To Mrs. Blackburn I leave the house she is now renting from me with a frontage from my yard on the west side, containing a frontage to the property line bordering the land formerly owned by Albert LeBlanc, et als’.
“be and the same is hereby declared to be a legacy in favor of defendant, Evelyn Blackburn, and to include the following: “A certain tract or parcel of land together with all of the buildings and improvements thereon, situated in the Parish of East Baton Rouge, State of Louisiana, in Section 44, Township 6, south range 1 east, containing 2.95 acres, and being designated as ‘Tract Y-2’ on a plan of survey dated October 15, 1974, revised September 10, 1977, made by Shashikant C. Shah, registered professional engineer, which survey is entitled ‘A map showing the survey of a 162.91 acre tract known as the Anna Lusk Jones tract, and the division of the 157.96 acre portion being south of Joor Road into tracts X & Y, located in Section 44 T-6-S, R-l-E, Greensburg Land District, East Baton Rouge Parish, LA.’; said parcel of land having such dimensions as is shown on said map.
“4.
“The following legacy contained in the last will and testament of the decedent: “ ‘To Jessie Lusk Blackwell, I leave Ten Thousand Dollars and all remaining cash after all my debts are paid.’
“be and the same is hereby decreed to include the sum of Ten Thousand ($10,-000.00) Dollars and, in addition, only the following:
“All other currency or coins, amounts on deposit in savings and loan associations, bank checking or savings accounts and bank time certificates of deposit, owned by the decedent at her death, together with any interest earned on any of the above from the date of the death of the decedent until delivery of the legacy, less and except any of said items or the revenue therefrom which has been or maybe required to discharge the debts of the decedent, special legacies, or charges of the succession. Shares of corporate stock and U.S. Savings Bonds are excluded from said legacy.
“5.
“The following legacy in the last will and testament of the decedent:
“ ‘To Jessie Lusk Blackwell, I leave all the remaining property I own in the City of Baton Rouge.’
“be, and the same is hereby decreed to be restricted to immovable property actually located within the city limits of the City of Baton Rouge, Louisiana, and includes only the following:
“(1) A certain lot or parcel of ground together with all improvements thereon situated in that part of the City of Baton Rouge, Louisiana, known as Lorente Town, the said lot being designated according to the official map of the City of Baton Rouge, Louisiana, as Lot No. Eleven (11) Square No. Two (2) or Two Hundred Thirteen (213), measuring Sixty-four Feet (64') front on Champagne Street, by a depth between parallel lines of One Hundred Twenty-eight feet (128'), being the same property acquired by this vendor by donation Mortis Causa from Mrs. Leontine Nodler as will be seen by reference to proceedings had in the matter of the succession of the said Mrs. Leontine Nodler No. 3252 Probate Docket of the Nineteenth Judicial District Court of Louisiana.
“(2) A certain lot or ground, with the buildings and improvements thereon, situated in that part of the City of Baton Rouge known as Hickey Town, being Lot No. Two (2) of Square No. Twenty (20) or One Hundred Thirty (130), measuring Sixty-four (64) feet front on Convention Street by a depth of One Hundred Twenty (120) feet.
“(3) A certain lot of ground situated in Roselawn Memorial Park Parish of East Baton Rouge, and being the northwest quarter of lot number 191 in section number F, according to the plan thereof on file in the office of Roselawn Development Association and in the Office of the Clerk and Recorder of East Baton Rouge Parish, Louisiana.
“6.
“The following legacy contained in the last will and testament of the decedent: “ ‘The lot of ground I own on Florida St. and now rented by Goodyear Tire and Rubber Company, being leased to Goodyear for Fifteen years at Three Hundred Dollars per month, I leave' to Jessie Lusk Blackwell.’
“be, and the same is hereby decreed to embrace the following described property to-wit:
“A certain lot of ground, with the buildings and improvements thereon, situated in that part of the City of Baton Rouge known as Hickey, Duncan and Mather Town, being Lot No. Four (4) of Square No. Five (5) or Ninety-seven (97), measuring sixty-four (64) feet front on Florida Street by a depth between parallel lines of One Hundred Twenty-eight (128) feet. “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the last will and testament of the decedent fails to contain a residuary legacy and, hence, all property owned by decedent and not made the subject of specific legacies or which was the subject of any lapsed legacy, shall be inherited by the heirs at law of the decedent in the proportions provided by law.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant, James B. Thompson, III, be, and he is decreed entitled to enforce specific performance which he has demanded of that certain agreement to sell, dated April 25, 1972 and filed as original 44 of Bundle 8136 of the Records of the Clerk and Recorder for the Parish of East Baton Rouge, and, accordingly, the testamentary executrix be, and she is hereby authorized and directed to initiate and complete the proceedings necessary to convey the balance of the property embraced within said agreement to James B. Thompson, III, or his designees or assignees.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the consideration received by the executrix for the transfer of said property, mentioned in the preceding paragraph hereof, shall not be subject to the special legacy mentioned in Paragraph 4 hereinabove, but, on the contrary, after having been reduced by its proportionate share for payment of other special cash legacies, debts and charges of the succession, shall be distributed to the heirs at law of decedent in the proportions provided by law.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, good cause having been shown for an additional extension of time for filing of Louisiana Inheritance Tax Return and the paying of inheritance and the estate transfer taxes, if any, under the provisions of R.S. 47:2420, the time for filing such return and the fixing and paying of such taxes, without interest or penalty, is hereby extended to a date which shall be ninety days after the judgment in this declaratory judgment suit shall have become final. “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs of this declaratory judgment proceeding shall be paid by the succession. “JUDGMENT RENDERED AND SIGNED at Baton Rouge, Louisiana, on this 27th day of June, 1978.
“/s/ Steve A. Alford, Jr. “JUDGE, NINETEENTH JUDICIAL DISTRICT COURT”

Appeals from this judgment were taken by Jefferson Lusk Smith, Jessie Lee Lusk Delahousaye and Alice Louise Lusk Johnson. Jessie Lusk Blackwell, the Testamentary Executrix, has also appealed; but in her brief on appeal, she takes the position that she is “simply in the nature of a stakeholder and stands ready to distribute succession property in accordance with the final judgment which may be rendered interpreting the last will and testament. Because of this fact, and in the interest of protecting the rights of those parties who did not plead, it was felt that the testamentary executrix should perfect an appeal so as to insure that the declaratory judgment, in its entirety, will be reviewed by the appellate court.”

The cardinal rule in interpreting wills is that the intention of the decedent must be ascertained, and must be given effect, if this can be done without doing violence to the strict codal requirements concerning formalities. Carter v. Succession of Carter, 332 So.2d 439 (La.1976).

The basic principles applicable to the interpretation of wills are primarily set out in two articles of the Civil Code:

Article 1712: “In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.”
Article 1713: “A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.”

In discussing the foregoing interpretative rules, the Supreme Court in Carter v. Succession of Carter, supra, said:

“Principally, courts must endeavor to ascertain the testator’s intention. All other rules are only means to that end. Succession of La Barre, 179 La. 45, 153 So. 15 (1934); Succession of McBurney, 165 La. 357, 115 So. 618 (1928); Succession of Blakemore, 43 La.Ann. 845, 9 So. 496 (1891). The function of the court is to determine and carry out the intention of the testator if it can be ascertained from the language of the will. Succession of Wilcox, 165 La. 803, 116 So. 192 (1928). “ ‘This intention must be ascertained from the whole will, and effect must be given to every part of the will as far as the law will permit. No part of a will should be rejected, except what the law makes it necessary to reject. Where it is a question of the choice between two interpretations, one of which will effectuate, and the other will defeat, a testator’s intention, the court will carry out the intention of the testator.
“ ‘There is also another rule which is invariably followed by the courts in interpreting a will; namely, that, if possible, the will should be read so as to lead to a testacy, not to an intestacy.’ Succession of La Barre, supra 179 La. at page 48, 153 So. at page 16.
“In the absence of contrary expressions, the law presumes that when a will is executed the testator intends to dispose of his entire estate. Succession of Killingsworth, 292 So.2d 536 (La.1973); Succession of Montegut, 211 La. 112, 29 So.2d 583 (1947); Succession of Fertel, 208 La. 614, 23 So.2d 234 (1945). And the cases have recognized that in the interpretation of wills, the first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. The testator is not supposed to be propounding riddles, but rather to be conveying his ideas to the best of his ability so as to be correctly understood at first view. Succession of La Barre, supra; Succession of Bobb, 41 La.Ann. 247, 5 So. 757 (1889).”

In order to ascertain the intention of the decedent, the language of the will must “be understood in its ordinary popular meaning ánd without attending so much to the niceties of rules of grammar.” Succession of Price, 202 La. 842, 13 So.2d 240 (1943).

With the foregoing principles serving as guides to the interpretation of the will in the instant case, we now consider the questions posed by the Testamentary Executrix.

A(1). The meaning of “my home”: The dictionary definition of “home” is “the house and grounds with their appurtenances habitually occupied by a family.” See Webster’s Third New International Dictionary. We have no difficulty in ascertaining that it was the intention of the testatrix, Anna Lusk Jones, to leave to her sister, Jessie Lusk Blackwell, the immovable property described by the trial court in its decre-tal portion, 1(a), of the judgment.

J. Russell Doiron, realtor who managed some of the real estate holdings of the decedent and her husband for over 40 years, testified as follows:

“A. Y-l is the homeplace. And we have already described the division line, the property line between Y-l and Y-2.
The Court: That is on the southeast line?
A. That’s right. Then the front line of the property is on Joor Road. The upper line between the property of L.J. St. Pierre and the homeplace there is no fence line, but there is a planted area between the two that indicates the property line. It is sufficiently sharp enough that you can readily see that at the real line of the St. Pierre line there is an offset from what is the established property line between Y-l and the St. Pierre property.
Q. How can you tell that: What features on Y_
A. There is a fence — there are two fences on the ground. There is a fence that runs a short distance — I am trying to identify it from whatever this point is — there is a fence parallel to Joor Road and there is also a fence with a gate from the rear portion of Y-l in order to enter the area in Tract X, which we refer to as the pasture land.
Q. Let me see if I can get my directions straight. If you will start, please sir, at the southwest corner of the St. Pierre property. I guess that would be southwest, would it not?
A. This would be southwest.
Q. Which is labeled, Fpund 3/4 Rod? That point?
A. That would be it.
Q. From that point going in a generally southwest direction, is there a fence?
A. There is a fence.
Q. In that little short offset?
A. That’s right. Then the fence makes a left-hand turn and goes to what we refer to as the LeBlanc property line. And this is where — in the rear area of this fence, close to the Le-Blanc property line is a large gate for access to the pasture land.
Q. Am I correct in saying that the only place that Y-l is not separated from the St. Pierre property by a fence — I am sorry, from the rest of the property by a fence would be along the southwesterly line of the St. Pierre property?
A. That would be the area from Joor Road, a distance of 234.96 feet to the fence line along the rear of the St. Pierre property.
Q. Now is the St. Pierre property otherwise fenced so far as you know?
A. Only the rear line.
Q. The rear line. And what do you mean by the rear line?
A. That would be the line paralleling— the southerly line paralleling Joor Road. There is no fence between Y-l and the St. Pierre property in the area fronting Joor Road.
Q. Now are you familiar with the property that Mrs. Jones — the residence that she actually occupied and the premises that she used as her yard?
A. Very definitely.
Q. Does Y-l correctly represent that area so far as you know?
A. I am positive that it does.
Q. How many residences are there on that property?
A. Only one.
Q. That was where Mrs. Jones, herself, resided?
A. It was her home.”

Mr. Doiron’s testimony is corroborated by Webster L. Lusk, Sr., nephew of the decedent and one of the legatees, in his testimony, and by the testimony of Charles Harlan, land surveyor.

The foregoing extrinsic evidence was admissible to resolve the ambiguity in the meaning of “my home.” See Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1 (1966); Succession of Smart, 214 La. 63, 36 So.2d 639 (1948).

In Giroir v. Dumesnil, supra, the Court said:

“When a will is ambiguous, the court uses extrinsic evidence to determine what the words of the testator as written actually mean. The evidence is used to resolve ambiguity, not to rewrite the will or do violence to its terms. The court seeks to lay bare the intention of the testator.” (Emphasis by the Court).

In Succession of Smart, supra, the Court said:

“We see no merit in the appellants’ contention that the will as a whole is so ambiguous that the intent of the testatrix cannot be determined. Where there is ambiguity in the description of the legatee, or the thing which the testatrix intended to bequeath, or the quantum or portion of the legatee, or where there is doubt as to the sense in which the words are used by the testatrix, resort may be had to extrinsic evidence. In fact, all' circumstances throwing any light on the testatrix’s intention must be considered.”

We are buttressed in our opinion that “my home” means the entire home site conveniently and habitually used for the family purposes, and is not limited to the house and the land on which the house is immediately situated, by the decisions of Succession of Cardone, 271 So.2d 338 (La. App. 2 Cir. 1972), writ denied, 273 So.2d 300 (La.1973); Succession of Davis, 178 So.2d 481 (La.App. 1 Cir. 1965).

A(2). The meaning of “furnishings including my silver and china”: The term “furnishings” is commonly understood as referring to the furniture, drapes, carpets and other household items with which a person’s dwelling is furnished. See Succession of Cardone, supra. “Silver” is, of course, understood as meaning utensils, flatware, holloware and other table articles made of the metal “silver”, used for serving food on special occasions. And, “china” means the dishes made of that material. The trial court treated the expression “all of the furnishings including my silver and china” as meaning “All of the contents of any nature or kind whatsoever which are located in the residence of the decedent” situated on the home site. We agree with this interpretation under the particular circumstances of this case. We do not mean to imply that in all cases “furnishings including my silver and china” would be synonymous with the “contents of a residence.” Each case turns on its own peculiar facts and circumstances.

B. The meaning of “the home he (Webster L. Lusk, Sr.) is now living in on Hobgood Tract, from his driveway to the Comite River.”

Mr. Doiron, the realtor-manager of the Jones property, was also quite familiar with this particular tract of land. It is a clearly identifiable tract, and has been used as a unit by Webster L. Lusk, Sr. for his place of residence and for raising cattle, for a period of about 25 years. In discussing this particular tract of land, Mr. Doiron testified as follows:

“Q. To what extent are you familiar, sir, with tract X? How long have you been familiar with it?
A. I have been familiar with Tract X since about 1940. Now I have not personally walked over all of Tract X. I have walked over part of it. The quad maps show that the greater portion—let me change that, that a great portion, probably 50% of Tract X is low land and subject to inundation.
Q. I notice just to the northeast of the St. Pierre tract and on Tract X is what purports to be an existing residence. Do you know who resides in that house?
A. Yes, that is the residence that is occupied by Mr. Webster Lusk.
Q. Do you know how long he has lived there to your knowledge, approximately.
A. I have a record of it. If memory serves me correctly, about 1953, I believe.
Q. Do you know who built the house?
A. Mr. Lusk built it.
Q. Do you know generally what use that property has been put to since the residence of Mr. Lusk was erected?
A. Cattle grazing.
Q. By whom?
A. By Mr. Lusk.
Webster Lusk? O’
Mr. Webster Lusk. <4
Now the will makes reference to a driveway by Mr. Lusk — I am not quoting it exactly, but do you know where Mr. Lusk’s driveway is? Have you been on the grounds? O'
Many times.
Can you use a pencil, if you would, and draw me, for me — I would like for you to draw in on the map for me — locate Mr. Webster Lusk’s driveway. ©>
Mr. Lusk’s driveway comes in off of Joor Road somewhere in this area. It might be a little closer to the St. Pierre line than I am indicating.
Well, does it adjoin the St. Pierre line, do you know? O’
I can’t be positive. It is in the very close proximity of the St. Pierre property.
Just give us the general location. <©
Then it comes in here and then it turns around and comes back out to Joor Road. >
Now would you just put an arrow and label that with the letter A. And that is your appreciation of the general location of Mr. Lusk’s driveway? <©
Right.
All right.
And as stated before, it is a very short distance from the St. Pierre property line and it could be less distance than would be indicated en-gineeringly by my sketch.
Now as far as you know, has Mr. Webster Lusk for the years that you indicated actually raised cattle on the property? O'
Mr. Lusk has been ón the property the entire period of time that I have known him. And he has been grazing cattle on this piece of land.
And during all this period of land (sic) that Mrs. Jones actually occupied a residence on Tract I, Y-l? <©
Y-l, yes.
Q. Now, of course, I take it that you would not know the arrangements between Mr. Lusk and Mrs. Jones?
A. No, I never did investigate it, because Miss Anna handled that herself.
The Court: He has been living in there since the 1940’s?
A. I have it in my records. I think though that Webster built that house about 1953. I believe I have it. in my records.
Q. Now with respect to Tract Z, are you familiar with that area?
A. Yes. Back in the middle 50’s the Louisiana Department of Highways rerouted Joor Road and built a new bridge over the Comite River. And in the rerouting they severed Tract X, which contained 4.95 acres.
The Court: You mean Z.
A. I mean Z. I am sorry. They severed Tract Z, which contained 4.95 acres from the larger tract which was across the new Joor Road.”
Webster L. Lusk, Sr., testified as follows:
“Q. Now have you lived in the house continuously since you built it?
A. I have.
Q. Have you been a neighbor to Mrs. Jones continuously from the time you built the house until the time of her death?
A. I have. Let me inject this. My family had. I was away for 18 months on foreign assignment with the company but I maintained the home.
Q. Did you have somebody in it while you were gone?
A. Yes.
Q. Now, what was the extent of the property that you used, if any.
A. I used all of Tract X and Tract Z until such time as the highway reroute severing Tract Z from Tract X. I still had the property but there was never anything done on it.
Q. So as I understand it, you never, from the time that the highway severed Tract Z, you have never been on it or used it in any way. But is that the reason you haven’t been on it?
A. On account of the highway going through.
Q. It was not practical?
A. It was only 4 or 5 acres and it is low land and I really couldn’t use it for anything.
Q. Have you been in court and have you heard Mr. Doiron’s testimony?
A. I heard Mr. Doiron’s testimony.
Q. Did you see him indicate in pencil by the letter “A” the approximate location of your driveway?
A. I saw him in the act, that’s right.
Q. Does that reasonably approximate the location of your driveway?
A. It does with the exception that it goes too far, I would say, south, just above the turning at the point and makes a turning closer to the house. It does not go as far east, past the location of the house.
Q. It does go behind your house?
A. Yes.
Q. About how far to the south of your house is it?
A. About a car’s length. I would say about 30 feet would be the inside curve and turning point.
Q. ' Would it be true that it does not extend all the way to the section line between 44 and 47?
A. It does not extend that far.
Q. What use did you make of the property, Mr. Lusk?
A. I bought the cattle that Mrs. Jones had on the property.
Q. When did you buy her cattle?
A. I bought her cattle around — oh, it would be 1944, around in 1944 I bought her cattle.
Q. You paid her for them?
A. I paid her for them. And I added to the herd and had cattle on the property until about 1955 or ’56 when they widen (sic) the Comite River.
Q. And then what did you do with the cattle then?
A. Well, I started selling them off until I finally got rid of the herd, because I was having trouble with them, crossing the Comite River. And I didn’t feel peaceful to fence it in. City-Parish wouldn’t fence it in and there was no previous fence there.
Q. What, if any, did you make of the property after you sold your cattle?
A. I used it more or less as pleasure and hunting and fenced it down to the river.
Q. Were these uses that you made of the property with the knowledge and consent of Mrs. Jones?
A. Absolutely.
Q. Did you have any written agreement of any kind?
A. No written agreement.
Q. Now I believe that you testified that you heard Mr. Doiron’s testimony in this case but I don’t want to go over it all again.
A. Correct.
Q. Did you hear him testify about the fences and the hedge rows and the physical features that separate these tracts as shown on the map. Were you out there with Mr. Doiron and the surveyor when this map was prepared or when the work was done?
A. When the work was done I was there.
Q. Did you physically see the features that he described?
A. I did.
Q. Would you care to make any change in the testimony in that respect in any way? Are there any discrepancies that you detected at all?
A. No.”

As appears from the survey of Shashi-kant C. Shah, registered professional engineer, dated October 15, 1974, the tract held by the lower court to have been bequeathed by the decedent to Webster L. Lusk, Sr., is a tract of land, designated as Tract X on said survey and comprises 152.47 acres. It is on this tract that Webster L. Lusk, Sr., has built his home and where he resides. This tract is situated northeasterly of the L.J. St. Pierre tract of 2.81 acres, and extends to the Comite River (which is one of the boundaries mentioned in the will of Mrs. Jones). From the testimony, it appears that this tract of land consists primarily of pasture land south or below Hobgood (or Jones) Creek, with the remainder being timber and swamp or lowlands. Mr. Webster Lusk kept cattle in the pasture (as had Mrs. Jones’ husband) until about 1955 when the entire herd was sold. Thereafter, the actual occupancy has continued only in the nature of occasional pleasure hunting. There is a small garden plot not far from the residence and a horse pen to the rear of the garden plot. Only a small part of the property is fenced.

There was an earlier will left by Mrs. Jones, but it was admittedly revoked by the later will, which has been probated. This earlier will can, however, aid us in interpreting the last will and testament of the decedent. In the earlier will, Mrs. Jones left to her nephew, Webster L. Lusk, Sr., “a piece of land with all of the buildings and improvements thereon, that he is now occupying as a home — this piece of land to include a frontage on Joor Road from the Hobgood Tract of 400 feet beginning from the fence adjacent to and running along side of the driveway making a southwesterly boundary, and with a depth of 350 feet making a plot 400 feet front by a depth of 350 feet.”

When the present bequest is considered in light of the earlier bequest (in 1962), it is clear that Mrs. Jones intended to bequeath “more land” to Mr. Lusk in her last will than she had in her 1962 will. We can not believe she would intend to merely leave him the same tract as she had earlier, and yet write in her will such a different description of the property, a description that encompasses the furthermost reaches of the tract of land (the Comite River), a well-defined geographical boundary. It also appears that the Hobgood Tract, less the portions that had been sold out or had been definitely set aside for other uses, was well-known. The evidence established that Mr. Lusk treated the tract on which his residence was built as a unit, the area habitually used for family purposes, from his driveway to the Comite River.

C. The meaning of the Blackburn legacy. Although the bequest was made to a “Mrs. Blackburn,” all of the witnesses were able to identify her as Evelyn Blackburn. The witnesses, particularly Mr. Doi-ron, were able to identify the particular property bequeathed to Evelyn Blackburn. It is of no consequence that Mrs. Blackburn was not actually renting from Mrs. Jones at the death of Mrs. Jones. The language “the house she is now renting from me, etc.” identifies the property and does not impose a condition upon the bequest. The property is well delineated on the survey, and its boundaries pose no particular problem at this time. We agree with the trial judge that it was Mrs. Jones’ intention to leave the property which Mrs. Blackburn occupied as a lessee or tenant in 1972 (when the will was written) to Mrs. Evelyn Blackburn.

D(l). The meaning of “Ten thousand dollars and all remaining cash after all my debts are paid.”

From the evidence, the trial judge concluded that this bequest to Jessie Lusk Blackwell included “the sum of Ten Thousand ($10,000.00) Dollars and, in addition, only the following:

All other currency or coins, amounts on deposit in savings and loan associations, bank checking or savings accounts and bank time certificates of deposit, owned by the decedent at her death, together with any interest earned on any of the above from the date of the death of the decedent until delivery of the legacy, less and except any of said items or the revenue therefrom which has been or may be required to discharge the debts of the decedent, special legacies, or charges of the succession. Shares of corporate stock and U.S. Savings Bonds are excluded from said legacy.” (Emphasis by the District Court.)

We agree with this conclusion. This interpretation is consistent with the definition of “cash” found in 14 C.J.S. p. 15 et seq. See also Succession of Bannon, 341 So.2d 623 (La.App. 4 Cir. 1977). A share of corporate stock is not cash in the sense “cash” is used in the decedent’s last will; a share of stock is usually thought of as “a unit of interest in a corporation.” See 18 Am.Jur.2d sec. 209, p. 737. For a discussion of the treatment accorded United States Savings Bonds in this State, see Succession of Guerre, 197 So.2d 738 (La.App. 4 Cir. 1967), writs refused, 250 La. 929, 199 So.2d 925 (1967) and 250 La. 933, 199 So.2d 926 (1967).

D(2). The meaning of “all remaining property I own in City of Baton Rouge, La.”

This legacy is, as the trial judge held, “restricted to immovable property actually located within the city limits of the City of Baton Rouge, Louisiana.” The property affected by the legacy is particularly described in the judgment. It appears that Mrs. Jones intended to leave to her sister all of her immovable property situated within the city limits of Baton Rouge, unless she had made a special legacy thereof.

One other parcel of land needs to be considered, although it presents no special problem, and that is the lot rented to Goodyear Tire and Rubber Company on Florida Street in Baton Rouge. Mr. Doiron was very familiar with this parcel of land; and from all of the evidence, there can be no question but that Mrs. Jones bequeathed this parcel, which is described in the judgment, to her sister, Jessie Lusk Blackwell.

There is one other question concerning the bequests in the will which we are called upon to answer, and that is whether or not Mrs. Jones intended to make Mrs. Blackwell her “universal residuary legatee” (although she did not specifically do so in the will). The trial court held that the last will and testament of the decedent failed “to contain a residuary legacy and, hence, all property owned by decedent and not made the subject of specific legacies or which was the subject of any lapsed legacy, shall be inherited by the heirs at law’ of the decedent in the proportions provided by law.”

We agree with the trial judge that the last will and testament of Mrs. Jones does not contain a residuary legacy. Mrs. Blackwell was not named as Mrs. Jones’ universal legatee. A universal legacy is a testamentary disposition by which the testator bequeaths to one or several legatees “the whole of the property which he leaves at his decease.” LSA-C.C. art. 1606; Succession of Bannon, supra. Thus, the property of the decedent not made the subject of a specific legacy is inherited by the heirs at law of Mrs. Jones. LSA-C.C. art. 1709; see Oppenheim, Louisiana Civil Law Treatise, Successions and Donations, sec. 151, p. 269 (1973).

On appeal, it is' urged that the trial court erred in its judgment decreeing that James B. Thompson, III, was entitled to specific performance of the agreement to sell, dated April 25, 1972, between the decedent and Thompson, and authorizing and directing the testamentary executrix to initiate and complete the proceedings necessary to convey the balance of the property embraced within the agreement to sell to James B. Thompson, III.

The record shows that on April 25, 1972, the decedent and Thompson entered into the subject agreement to sell, which agreement was duly recorded. By the terms of the agreement, Thompson was given six months within which to buy a minimum of 25 acres, and the balance of the acreage within three years of the date of execution of said agreement. Pursuant to the agreement, Mrs. Jones sold thirty-three acres to a corporation owned by Thompson. Thereafter, on April 7, 1975, there was an agreement entered into by the parties extending the time for taking title to the remainder of the property for an additional six months, to October 25, 1975.

Prior to October 25, 1975, the parties agreed to a second extension to December 31, 1975. The second extension was signed by Mrs. Blackwell on behalf of Mrs. Jones, but Mrs. Blackwell did not have a written power of attorney to execute the extension.

While we agree with the opponents that any extension in the time limit of the purchase agreement must be in writing. Burk Development Company, Inc. v. Guillory, 335 So.2d 512 (La.App. 1 Cir. 1976), we do not agree that the purchase agreement is unenforceable. The agreement to sell did not provide that time was of the essence, and there is no evidence outside of the contract that time was of the essence, particularly in light of the proposed extension in the time limit. Thus, as was held in Luna v. Atchafalaya Realty, Inc., 325 So.2d 835 (La.App. 1 Cir. 1976), the contract remained viable after the expiration of the time for transferring title, and either party is in a position to demand specific performance. Neither party was in default at the end of the contracted period, and either party could put the other in default.

For the foregoing reasons, the decision of the District Court is affirmed. We believe that a share of the costs should be borne by the succession, because the ambiguities in the last will and testament of the decedent necessitated judicial interpretation. Therefore, we cast the costs of this appeal on the appellant, Jessie Lusk Blackwell, as Testamentary Executrix of the succession, and appellants Jefferson Lusk Smith, Jessie Lee Lusk Delahousaye and Alice Louise Lusk Johnson, one-half to the succession and one-half to the other appellants.

AFFIRMED.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Dr. and Mrs. Alan J. OSTROWE v. Louis U. DARENSBOURG.
    No. 12467.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearing Denied April 16, 1979.
    Guy A. Módica, Baton Rouge, of counsel for plaintiffs-appellants Dr. and Mrs. Alan J. Ostrowe.

      David Vaughn, John Dale Powers, Baton Rouge, of counsel for defendant-appellee Louis U. Darensbourg.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Plaintiffs (Appellants) appeal from judgment granting defendant’s motion for partial summary judgment and dismissing that part of plaintiffs’ demands for attorney’s fees and damages for mental pain and anguish for alleged breach by defendant of a contract to erect a residence intended for Appellants’ personal use. We affirm.

On appeal, Appellants have not mentioned their claim for attorney’s fees either in brief or oral argument. Under the circumstances this facet of the appeal must be deemed abandoned. Jones v. State, 336 So.2d 59 (La.App. 1st Cir. 1976).

The sole issue presented is whether damages may be recovered as a matter of law for mental pain, anguish and anxiety resulting from breach of a contract to build one’s personal residence.

It is conceded that if Appellants are to recover such damages, herein they must do so pursuant to LSA-C.C. 1934(3) which provides, in pertinent part:

“Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; * * * ”

In the recent case of Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), an action in which damages were sought for mental pain and anguish resulting from failure to timely repair an automobile, the Supreme Court interpreted Article 1934(3), above, as follows:

“Thus, we would interpret Article 1934(3) as follows: Where an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification) nonpecuni-ary damages as a consequence of nonful-fillment of that object are not recoverable.
On the other hand, where a principal or exclusive object of a contract is intellectual enjoyment, nonpecuniary damages resulting from the nonfulfillment of that intellectual object are recoverable. Damages in this event are recoverable for the loss of such intellectual enjoyment as well as for mental distress, aggravation, and inconvenience resulting from such loss, or denial of intellectual enjoyment.”

Appellants contend the instant case is distinguishable from Meador, supra, in that they contracted for a home which they painstakingly planned in conjunction with their architect, which residence was constructed in an exclusive subdivision, which was designed to satisfy Appellants’ lifestyle and from which Appellants expected to derive intellectual gratification and enjoyment. It is urged that there is a difference between a contract to repair an automobile and one to construct an expensive, uniquely planned residence in an exclusive residential subdivision.

As pointed out in Meador, supra, our jurisprudence has established a liberal interpretation of Article 1934(3) as evidenced in Jack v. Henry, 128 So.2d 62 (La.App. 1st Cir. 1961), which held that recovery of damages.is allowed even where the object of the contract is purely physical gratification, and also as held in Holland v. St. Paul Mercury Insurance Co., 135 So.2d 145 (La.App. 1st Cir. 1961), Meyer v. Succession of McClellan, 30 So.2d 788 (La.App.Orl.1947), and Melson v. Woodruff, 23 So.2d 364 (La.App. 1st Cir. 1945), which allowed such recovery for breach of contracts involving elements of both, intellectual and physical gratification.

The Court in Meador, supra, noted, however, a line of authority favoring a strict interpretation of Article 1934(3), above, which allows recovery in cases of this nature only when the object of the contract is exclusively intellectual enjoyment. Included in this category are Rigaud v. Orkin Exterminating Co., 236 So.2d 916 (La.App. 3d Cir. 1970), Baker v. Stamps, 82 So.2d 858 (La.App.Orl.1955), Lillis v. Anderson, 21 So.2d 389 (La.App.Orl.1945), and Sahuc v. United States Fidelity and Guar. Co., 320 F.2d 18 (5th Cir. 1963).

After noting the foregoing, the Court in Meador, supra, then observed that none of the foregoing authorities considered the origin and historical source of Article 1934(3), above, which had no counterpart in either the Code Napoleon or the Louisiana Civil Code of 1808, and which first appeared as Article 1928 in the Louisiana Civil Code of 1825. Paragraph 3 of Article 1934, above, appeared as Article 1928 in our 1825 Civil Code in both French and English versions, each of which are official texts, the French version of which properly translates, in part, as follows:

“When the contract has for its object to confer to someone a purely intellectual enjoyment, such as those pertaining to religion, morality, taste, convenience or other gratifications of this sort, . . .”

Meador, supra, also found that the English version of Article 1928 was mistranslated to read:

“Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, . . . ”

which mistranslation was copied verbatim into our Civil Code of 1870 as part of Article 1934(3).

Considering the French source persuasive if not controlling, Meador, supra, concluded that the source article does not admit of recovery where the sole object of the contract is physical gratification but that it did not intend to bar such recovery in all cases having physical gratification as an object. So finding, Meador, held there can be no recovery “[wjhere an object, or the exclusive object, of a contract, is physical gratification (or anything other than intellectual gratification),” but “. . . where a principal or exclusive object of a contract is intellectual enjoyment, nonpecuniary damages resulting from the nonfulfillment of that intellectual object are recoverable.”

Applying the foregoing principles, the Court in Meador disallowed recovery by plaintiff upon finding that the principal object of the contract at issue, as made known to defendant, was the repair of plaintiff’s automobile with its consequent utility or physical gratification, and that the procuring of intellectual enjoyment therefrom was an incidental or inferred contemplation of the parties and not a principal object of the agreement.

The majority of the Court in Meador concluded by noting that our law allows recovery in tort actions for mental distress occasioned by tort and that the better rule should perhaps allow similar recovery in contract cases, but that the responsibility for the distinction rests with the legislature and the function of the court is merely to interpret laws as written. A dissent by Justice Dixon holds that Article 1934(1) allows recovery of such damages in cases involving breach of contract.

Irrespective of our views in Jack v. Henry, supra, it appears the Supreme Court has laid the issue to rest in Meador, supra. Applying the rationale of Meador, supra, we find that although Appellants’ home might be expensive, unique, and constructed with great preparation and planning, we conclude the principal object of the contract was the utility, gratification and satisfaction of Appellants’ physical need for shelter and a place in which to live. With this basic need in mind, we conclude that the cost of the residence is not the determining factor. A house costing much less is just as important to its owner as Appellants’ expensive, exclusive residence is to Appellants. In either instance, the motivating factor of paramount importance is the procurement of an abode. Such intellectual, as distinguished from physical, enjoyment that one derives in such instances is purely incidental.

■ Finding that intellectual gratification was not a principal object of the contract, Appellants may not recover for mental distress occasioned by its nonfulfillment.

The judgment is affirmed at Appellants’ cost.

Affirmed.


author: ELLIS, Judge:

text:
    CARRUTH MORTGAGE CORPORATION and Bank of Commerce & Trust Co. and American Bank & Trust Company v. F AND B BUILDERS, INC.
    Nos. 12478-12480, 12481-12492, 12493-12502.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Charles S. McCowan, Sanders R. Cazedus-sus, Baton Rouge, for plaintiff-appellee Carruth Mortg. Corp. and American Bank & Trust Co.
    Victor L. Roy and Michael A. Patterson, Baton Rouge, for plaintiff-appellee Bank of Commerce & Trust Co.
    Crews R. LeBlanc, Baton Rouge, for in-tervenor-appellant Baton Rouge Supply Co. and Baton Rouge Plumbing Supply Co.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge:

These consolidated cases are all executory proceedings against various properties on which homes were being constructed by F and B Builders, Inc., which defaulted in its payments. The houses being constructed thereon were in various stages of completion at the time of default.

Baton Rouge Supply Co., Inc. and Baton Rouge Plumbing Supply, Inc. intervened in all cases claiming a vendor’s lien and privilege on various items sold by them to defendant, and installed in the said houses. These items include door and door frame units, commodes, wash basins, and central air conditioning and heating units, all of which are alleged to be easily removable. Intervenors originally prayed that the said items be sold separately from the immovable properties seized;, that the proceeds of the sale be held by the sheriff; that their vendor’s lien and privilege on the said properties be recognized; and that intervenors be paid the amounts of their claims by preference and priority over the plaintiffs. Subsequently, the plaintiffs and intervenors stipulated to the values of the various items on which the vendor’s liens are claimed, and further stipulated as follows:

“3. Following the hearing on the merits of intervenor’s petition, should intervenor be found not to possess any vendor’s lien or privileges, then and in such event in-tervenor shall abandon any claims which it may have either to these items or to the proceeds realized from any judicial sale thereof.
“4. Following the hearing on the merits of intervenor’s petition, should intervenor be found to possess any vendor’s lien or privileges, then and in such event, plaintiff shall be required either to pay the amount equal to the value of the items subject to the vendor’s lien or to allow intervenors to remove the items in question.”

It is intervenors’ contention that although the items sold and installed in the houses may have become immovables by nature or destination under Civil Code Articles 467 and 468, they remain subject to the vendor’s lien unless they cannot be removed without substantial damage to the property.

Plaintiff contends that the items had become immovable by nature, and as a result, intervenors no longer have a vendor’s lien thereon.

Trial was had on the merits of the intervention, with most of the testimony bearing on the ease with which the items could be removed from the buildings, and the damage to the structure which might result therefrom. The trial judge found the items to be immovable by nature and not subject to the vendor’s lien, and dismissed the intervention. Intervenors have appealed.

Articles 467 and 468 of the Civil Code provide:

“Art. 467. Wire screens, water pipes, gas pipes, sewerage pipes, heating pipes, radiators, electric wires, electric and gas lighting fixtures,' bathtubs, lavatories, closets, sinks, gasplants, meters and electric light plants, heating plants and furnaces, when actually connected with or attached to the building by the owner for the use or convenience of the building are immovable by their nature.”
“Art. 468. Things which the owner of a tract of land has placed upon it for its service and improvement are immovable by destination.
“Thus the following things are immovable by destination when they have been placed by the owner for the service and improvement of a tract of land, to wit:
“Cattle intended for cultivation.
“Implements of husbandry.
“Seeds, plants, fodder, and manure.
“Pigeons in a pigeon house.
“Beehives.
“Mills, kettles, alembics, vats, and other machinery made use of in carrying on the plantation works.
“The utensils necessary for working cotton, and sawmills, taffia distilleries, sugar refineries and other manufactures.
“All such movables as the owner has attached permanently to the tenement or to the building, are likewise immovable by destination.”

Until recently, intervenor’s position was sound, and supported by the jurisprudence. However, in American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970), the Court held that if “a thing is immovable by nature, it is immovable as to everyone.” Specifically included were vendors of an item which has become immovable by nature, who were held to have lost their vendor’s lien and privilege for that reason.

Although the Springer case, supra, deals with Article 464 of the Civil Code, we conclude that the interpretation of that article is equally applicable to those items which are included under Article 467. We are further of the opinion that the items which are the subject of this suit are within the scope of Article 467, including the central heating and air conditioning systems. All of these items are now ordinarily included in new construction, and should be considered as having been installed for the use and convenience of the building. See Yiannopoulos, Louisiana Civil Law Treatise, Vol. 2, Property, §§ 47 and 108 (1975 pocket part).

We are of the opinion that the items in question in this case became immovable by nature when installed in the houses being built, and that the intervenors thereupon lost their vendor’s lien and privilege. We do not deem it material that the construction of the various houses was not complete. The identity of the items was lost upon installation.

The judgment appealed from is therefore affirmed, at intervenors’ cost.

AFFIRMED.


author: BAILES, Judge.

text:
    Marguerite TOBIN, Plaintiff-Appellant, v. Donald JACOBSON et al., Defendants-Appellees.
    No. 12507.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Floyd J. Falcon, Jr., Alex W. Wall, Dodd, Barker, Avant, Wall & Thomas, Baton Rouge, for plaintiff-appellant.
    M. O’Neal Walsh, Franklin, Moore & Walsh, Baton Rouge, Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appellees.

      Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

Appellant’s husband, Walter A. Tobin, died on December 20, 1976, as a result of injuries received in an industrial accident on December 7, 1976. The decedent was employed by H. E. Wiese, Inc., as a pipefit-ter-welder in the construction of an industrial plant in Ascension Parish. On the day of the accident decedent was about his work on an elevated deck between the third and fourth floors when he fell through a 30 inch unbarricaded opening to the third floor about 26 feet below.

The defendant-appellees, Donald Jacobson and Herman Thompson were employed by H. E. Wiese, Inc., as job superintendent and safety superintendent respectively on the job where decedent was fatally injured.

In this action, plaintiff seeks to recover damages both to decedent and herself arising from the death of her husband. Her action is based on the alleged fault and negligence of the defendants in their failure to provide: a safe place to work; adequate warnings; proper hand rails; proper coverings for the dangerous holes; proper equipment; and further, the defendants failed to prescribe safe work procedures and that the defendants owed to dece'dent a duty to provide the above safeguards and that such duty was disregarded. Additionally, plaintiff alleges that the gross negligence of the defendants as set forth above constituted intentional acts within the scope and meaning of LSA-R.S. 23:1032.

Anticipating that LSA-R.S. 23:1032, as amended by Act 147 of 1976, would be urged as a bar to her recovery, plaintiff alleges that LSA-R.S. 23:1032 is unconstitutional and null and void for the reasons that it is violative of Article I, Sections 2, 3 and 22 of the La. Constitution of 1974 in that it denies to her due process of law and the equal protection of the laws and denies to her access to the courts and an adequate remedy for the injuries and for the death of her husband, and further, that it violates the 14th amendment to the federal constitution in that it denies to her due process of law and the equal protection of the laws.

Defendant-appellees’ response to plaintiff’s petition was an exception of no cause of action urged on the ground that LSA-R.S. 23:1032 denies plaintiff a cause of action against them.

The trial court sustained the exception of no cause of action and dismissed plaintiff’s suit at her costs. It is from this judgment that plaintiff appeals.

The issues raised by appellant are the constitutionality of LSA-R.S. 23:1032; whether the petition states a cause of action; and whether the alleged fault and negligence of the defendants is to be interpreted as an “intentional act” within the context of LSA-R.S. 23:1032.

The constitutional due process challenge to the exclusivity of the workmen’s compensation law was put at rest in the early case of Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (La.1919) wherein the Louisiana Supreme Court held that the regulation of causes of action for personal injuries was a legitimate function of the legislature and that it was constitutionally permissible for the legislature to limit one’s right of recovery to the provisions of the Workmen’s Compensation Act. Also see Day v. Louisiana Central Lumber Co., 144 La. 820, 81 So. 328 (1919).

The plaintiff had no vested property right under LSA-C.C. Article 2315 or LSA-R.S. 23:1032, as amended, and this was the law at the time of decedent’s injury and death. Any action for the recovery of damages for tortious injury is statutory, consequently it can be changed from time to time as the legislature mandates.

The plaintiff relies on the case of Foster v. Hampton, 352 So.2d 197 (La.1977), to support her attack on the constitutionality of Section 1032. Therein the court stated on page 202:

“Foster makes further constitutional attacks upon R.S. 33:1433. He contends his rights to due process and equal protection, under Art. 1, §§ 2, 3 and 22 of the Louisiana Constitution of 1974, have been violated in being denied recovery against the sheriff. These sections read as follows:
§ 2. ‘No person shall be deprived of life, liberty, or property, except by due process of law.’
§ 3. ‘No person shall be denied the equal protection of the laws * * *.’
§ 22. ‘All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to his person, property, reputation, or other rights.’
“Foster is correct in his allegation that the right to recover damages for injury is a property right which cannot be denied without due process of law. Angle v. Chicago, St. Paul, Minneapolis and Omaha Railway Co., 151 U.S. 1, 14 S.Ct. 240, 38 L.Ed. 55 (1893). But there has been no denial of due process or access to the courts here. Foster has a remedy against the deputy sheriff and may further be able to recover against the State, the proper party to sue as ‘employer’ of Hampton in this instance.”

Further, the court in Foster makes this observation on the issue of equal protection, namely:

“Regarding his equal protection claim, so long as the law applies to all persons in the same circumstances and conditions in a like fashion, the requirements of equal protection are met * *.”

Plaintiff argues that she has no forum in which she may prosecute her right to claim damages of these defendants. This is true for the reason that, short of an intentional injury, the legislature has proscribed such an action.

In the recent case of Burmaster, et al. v. Gravity Drainage District No. 2 of the Parish of St. Charles, et al., 366 So.2d 1381, the supreme court said:

“Where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. See Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 78 L.Ed. 342 (1933); Pritchard v. Norton, 106 U.S. 124, 132, 1 S.Ct. 102, 27 L.Ed. 104 (1882). However, where the injury has not yet occurred and the cause of action has not yet vested, the guarantee of due process does not forbid the creation of new causes of action or the abolition of old ones to attain permissible legislative objectives. See Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929). Our jurisprudence has recognized the validity of legislative regulation of causes of action, including replacement and even abolition, that one person may have against another for personal injuries. See Ancor v. Belden Concrete Products, Inc., 260 La. 372, 256 So.2d 122 (1971); Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); see also Heirs of Fruge v. Blood Services, 506 F.2d 841 (5th Cir. 1975).

Passing now to a consideration of the alleged intentional act of injury, we find that the alleged fault and negligence of the defendants cannot be equated to an intentional act for the reason that, under the pleadings herein, there is no basis for concluding that the defendants desired to achieve the fatal accident or that decedent’s fall through the unbarricaded and unguarded hole was substantially certain to follow their alleged omissions.

In Guidry v. Aetna Casualty & Surety Co., 359 So.2d 637 (La.App. 1 Cir. 1978) this court had the opportunity to consider an alleged intentional act, and therein it was stated:

“To constitute the requisite intent to result in civil liability, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow. * * *.
Although the statute does not affect an employer’s tort liability for his intentional acts, plaintiff’s petition fails to state a cause of action for the reason that it does not allege that the acts of Charles Dickey were done with the requisite intent to cause injury to plaintiff.”

If the facts as understood and known to the plaintiff will support the necessary allegations of fact to meet the requisites for holding the act intentional the plaintiff should have been given the opportunity to amend her petition to so allege. However, this opportunity was denied plaintiff by the trial court for the exception of no cause of action was sustained and the action dismissed.

C.C.P. Article 934 provides:

“When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment’ within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

Accordingly, for the foregoing reasons the judgment of the trial court sustaining the exception of no cause of action to the plaintiff’s petition is affirmed, however, inasmuch as under C.C.P. Article 934 the trial court should have fixed a delay within which the plaintiff could have amended her petition to state a cause of action as to the alleged intentional act of injury, this action is remanded to the trial court for compliance with C.C.P. Article 934.

AFFIRMED IN PART AND REMANDED.

      . Another named defendant, Gary Moody, allegedly employed as engineering superintendent by Pullman Kellogg Company at the same job site was not cited and he is not a party to this appeal.


author: LOTTINGER, Judge.

text:
    The HOUSE OF REPRESENTATIVES OF the LEGISLATURE of Louisiana, etc. v. Sherman A. BERNARD and Richard C. Britson.
    No. 12510.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.

      David R. Poynter, P. Raymond Lamonica, Baton Rouge, for plaintiff-appellee.
    John R. Martzell, New Orleans, for defendants-appellants.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   LOTTINGER, Judge.

This is an appeal from a judgment making fines for contempt imposed by the House of Representatives of the Legislature of Louisiana against the defendants, Sherman A. Bernard and Richard C. Britson, executory.

On June 9, 1978, defendants in response to subpoenas issued by the Subcommittee on Insurance Regulation of the House Commerce Committee appeared in the committee room. The facts are undisputed that Mr. Bernard persisted in making a statement, and then refused to honor the subpoena by remaining in the committee room until called. His assistant, Mr. Britson, concurred with Mr. Bernard and also departed the committee room.

Both defendants before leaving the committee room were advised that they would be held in contempt and offered an opportunity to present a defense. No defense was offered.

After their departure, the subcommittee held both defendants in contempt and fined Mr. Bernard $250.00 for his disruptive manner and $250.00 for failure to honor the subpoena. Mr. Britson was also fined $250.00 for failure to honor the subpoena by leaving.

Through House Resolution 18 , the House of Representatives adopted the actions of the subcommittee and assigned it to the House and Governmental Affairs Committee. Another hearing was called and Mr. Bernard’s attorney was present. The resolution was reported favorably, and the entire House adopted it as such.

The resolution authorized the collection of the fines along with legal interest and attorney’s fees. The trial judge held under Article III, Section 7 of the Louisiana Constitution of 1974 that the House of Representatives had the constitutional authority to hold the defendants in contempt and to impose punishment, the assessed fines. The court held, however, that the imposition of legal interest and attorney’s fees lay beyond the power to punish the defendants, and thus would not be eligible for enforcement under executory process.

Following the submission of their appeal to this court, appellants applied to the Louisiana Supreme Court for writs due to the uncertainty of the procedural vehicle for review of the decision of the trial court in light of Joint Legislative Committee of Legislature v. Strain, 263 La. 488, 268 So.2d 629 (1972). Writs were denied by the Supreme Court without comment on December 15, 1978.

This court on its own motion ordered the defendants-appellants to show cause why their appeal should not be dismissed based on this court’s lack of jurisdiction.

This court’s jurisdiction is defined by the Louisiana Constitution of 1974, Article V, Section 10(A) as follows:

“Section 10. (A) Jurisdiction. Except in cases appealable to the supreme court and except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of all (1) civil matters decided within its circuit and (2) matters appealed from family and juvenile courts, except criminal prosecutions of persons other than juveniles. It has supervisory jurisdiction over cases in which an appeal would lie to it.”

The Supreme Court in Joint Legislative Committee of Legislature v. Strain, supra, expressly held in a similar case that where a contempt proceeding is criminal, or at least criminal in nature, it was not appealable to the courts of appeal, for it was not a civil matter(

In determining what was criminal contempt vis-a-vis civil contempt, the Supreme Court in Strain said that “criminal contempt differs from civil contempt in that criminal contempt involves a fixed punishment for the transgression, while civil contempt is merely a means of compelling compliance with lawful orders of the court. * * In the federal system contempt of Congress is treated as a crime.”

Black’s Law Dictionary, 390 (Revised 4th Edition 1968) makes the following distinction between civil and criminal contempt:

“Contempts are also classed as civil or criminal. The former are those quasi contempts which consists in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court, while criminal contempts are acts done in disrespect of the court or its process or which obstruct the administration of justice or tend to bring the court into disrespect. A civil contempt is not an offense against the dignity of the court, but against the party in whose behalf the mandate of the court was issued, and a fine is imposed for his indemnity. But criminal con-tempts are offenses or injuries offered to the court, and a fine or imprisonment is imposed upon the contemnor for the purpose of punishment.”

We conclude, therefore, that the refusal by both defendants to remain in the hearing room and honor the subpoenas, as well as the conduct of defendant Bernard were criminal contempts of the legislature, or at least criminal in nature.

This proceeding is one seeking to have a contempt fine imposed by the House of Representatives made executory in the form of a money judgment so as to allow the collection of the fines. See La.C.Cr.P. art. 886 providing for the enforcement of criminal fines by civil process.

We are of the opinion that the enforcement of the criminal fine by civil process is merely a continuation of the criminal proceeding wherein the fine was imposed, or at least the civil proceeding is criminal in nature.

In McHugh v. Placid Oil Co., 206 La. 511, 19 So.2d 221 (1944) our Supreme Court said:

“Although the penalty may be recovered in a civil suit, as well as in a criminal proceeding, it is still a punishment for the infraction of the law and that the word penalty conveys the thought and idea of punishment, the character of which is not changed by the method through which it is imposed whether by a civil action or a criminal prosecution.”

This court recently in State v. Dugas, 338 So.2d 132 (La.App. 1st Cir. 1976), held “that a bond forfeiture proceeding, while civil in nature, is considered to be criminal for jurisdictional purposes, * *

In response to the “show cause order,” defendants-appellants argue that the trial court assumed jurisdiction it did not have, and thus this court has jurisdiction to reverse the trial court which did not have jurisdiction. As we have above noted, the finding of contempt in this instance is criminal, or at least criminal in nature, and the civil proceeding to implement collection of the fine imposed is either a continuation of the criminal proceeding, or at least criminal in nature. Under neither situation does this court have jurisdiction to exercise its appellate or supervisory jurisdiction.

Therefore, for the above and foregoing reasons the appeal is dismissed at defendants’-appellants’ costs.

APPEAL DISMISSED.

APPENDIX A

House Resolution 18 provides:

To acknowledge, ratify and confirm the holding of Sherman A. Bernard and Richard C. Britson in direct contempt of the House of Representatives of the Louisiana Legislature, by their direct contempt of the Subcommittee on Insur-anee Regulation of the House Committee on Commerce.

WHEREAS, the Committee on Commerce is a duly created standing committee of the House of Representatives; and

WHEREAS, the Subcommittee on Insurance Regulation is a duly created subcommittee of the Commerce Committee of the House of Representatives; and

WHEREAS, said Subcommittee on Insurance Regulation of the House Commerce Committee is granted subpoena power, the power to administer oaths and the power to punish for contempt; and

WHEREAS, Sherman A. Bernard, Commissioner of Insurance, State of Louisiana on June 9, 1978 while under subpoena by that subcommittee, did contumaciously persist in vocal outbursts before that committee while he was not called as a witness, and did by such vocal outbursts disrupt said committee and prevent it from the orderly conduct of its affairs, despite the entreaty and order of its Chairman to desist in such actions; and

WHEREAS, said Sherman A. Bernard did thereafter and further leave and refuse to return to the room wherein said subcommittee was meeting, located in the State Capitol, Baton Rouge, Louisiana while under subpoena by said subcommittee and being ordered by the subcommittee to stay and appear before it; and WHEREAS, said Sherman A. Bernard did further leave said meeting room and refused to testify before the subcommittee after being afforded the opportunity to stay and offer evidence why he should not be held in direct contempt of the Subcommittee, or to offer any evidence in mitigation of said charges; and WHEREAS, Richard C. Britson, Deputy Commissioner of Insurance, State of Louisiana, did on June 9, 1978 leave and refuse to return to the room wherein said subcommittee was meeting, located in the State Capitol, Baton Rouge, Louisiana, while under subpoena by said subcommittee and being ordered by said subcommittee to stay and appear before it; and WHEREAS, said Richard C. Britson did further leave said meeting room and refused to testify before the subcommittee after being afforded opportunity to stay and offer evidence why he should not be held in direct contempt of the subcommittee, or to offer any evidence in mitigation of said charge; and

WHEREAS, the Subcommittee on Insurance Regulation of the House Commerce Committee thereafter on June 9, 1978, did hold Sherman A. Bernard in direct contempt of the subcommittee for disruptive vocal outbursts and did further hold him in direct contempt of the subcommittee for the separate and distinct act of refusing to stay and appear before the subcommittee while under subpoena; and

WHEREAS, the Subcommittee on Insurance Regulation of the House Commerce Committee on June 9, 1978, did hold Richard C. Britson in direct contempt of the subcommittee for refusal to stay and appear before the subcommittee while under subpoena; and

WHEREAS, the Subcommittee on Insurance Regulation did impose punishment on Sherman A. Bernard of a fine of two hundred fifty ($250.00) dollars for, the vocal outbursts before the committee and two hundred fifty ($250.00) .dollars for the separate and distinct act of refusing to stay and appear before the subcommittee while under subpoena and further did impose punishment on Richard C. Britson of a fine of two hundred fifty ($250.00) dollars for refusal to stay and appear before the subcommittee while under subpoena.

THEREFORE BE IT RESOLVED by the House of Representatives of the Louisiana Legislature that it does hereby take cognizance of the aforementioned action of Sherman A. Bernard and Richard C. Britson and does hereby acknowledge, ratify and confirm the actions of the Subcommittee on Insurance Regulation of the House Commerce Committee in holding said Sherman A. Bernard and Richard C. Brit-son in direct contempt of the House of Representatives of the Louisiana Legislature by such actions before said subcommittee, and assessing the above mentioned penalties for said contemptuous actions.

BE IT FURTHER RESOLVED that said fines be paid to the Clerk of the House of Representatives of the Louisiana Legislature within ten (10) days of service of this Resolution.

BE IT FURTHER RESOLVED that upon failure to pay said fines within the aforementioned time, the Clerk of the House of Representatives of the Louisiana Legislature is authorized and instructed to take action by summary civil proceedings in the Nineteenth Judicial District Court, Parish of East Baton Rouge, to collect said fines plus legal interest and reasonable attorneys fees.

      . For full text of House Resolution 18 see Appendix A of this opinion.

      . Article III, Section 7(B) of the 1974 Louisiana Constitution provides:
      Each house may compel the attendance and testimony of witnesses and the production of books and papers before it, before any committee thereof, or before joint committees of the houses and may punish those in willful disobedience of its orders for contempt.


author: ELLIS, Judge.

text:
    Ronald Joseph BRAUD v. Diane Marie Martinez BRAUD.
    No. 12516.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.

      Gordon R. Crawford, Crawford, Lambert & Goldsmith, Gonzales, for plaintiff-appellant.
    Lawrence R. Dodd, Dodd, Achee & Burt, Baton Rouge, for defendant-appellee.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   ELLIS, Judge.

This is a suit for separation from bed and board filed by Ronald Joseph Braud against his wife, Diane Marie Martinez Braud, on the ground of abandonment. The petition alleges that there had been a previous action for separation filed on May 17, 1977, that the parties had thereafter reconciled, and that the reconciliation had extinguished the previous action. It is further alleged that, subsequent to the reconciliation, the defendant refused to return to the matrimonial domicile, despite repeated requests by plaintiff.

Defendant answered, denying the above allegations, and reconvened for a separation on the ground of cruel treatment, without alleging any specific facts constituting cruel treatment.

After trial on the merits, judgment was rendered in favor of defendant on her re-conventional demand, granting her a separation from bed and board. Plaintiff has appealed.

On the trial of the case, the evidence showed that the parties had separated on May 16, 1977, when Mrs. Braud left the matrimonial domicile. She testified to conduct on the part of Mr. Braud, prior to that time, which was of such a nature as to constitute grounds for a separation for cruel treatment. Her testimony in this respect is unrebutted. She further testified that there had been no instances of cruel treatment subsequent to the reconciliation. Mrs. Braud also admitted that she had had sexual relations with Mr. Braud on three occasions between the date of their separation and the trial of the first case. She stated that she did so because he offered her money, and she needed money at the time, and that she told Mr. Braud that the money was the only reason she was going to bed with him.

Mr. Braud testified that they had had sexual relations after the separation on about six occasions, and gave the dates of three of the occasions as July 10th, July 17th, and October 23, 1977. He could not recall the dates of the other three times. He denied that he offered money as an inducement to get his wife in bed. He said that she brought up the subject of money either during or after each episode.

Apparently, after the trial of the second case, the judge was of the opinion that the above actions on the part of the parties hereto did not constitute a reconciliation. However, we gather from the record that, in the first case he found that there had been a reconciliation based on the same set of facts.

Of course, if the parties had reconciled, then defendant would be held to have condoned the conduct of plaintiff on which she now bases her suit for a separation, and would not be entitled to the judgment which was rendered in her favor.

In this court, plaintiff has filed a peremptory exception of res judicata. Article 2163 of the Code of Civil Procedure provides:

“The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
“If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.”

The record, as presently constituted, does not permit a decision on the exception. For some reason, neither party placed in evidence the record of the first case, so that we do not know if or when a judgment was signed therein, or if, as suggested by counsel, Mrs. Braud judicially admitted, in a pleading, that a reconciliation had taken place.

Rather than attempt a decision on the merits on the basis of this incomplete record, we think the interest of justice would best be served by remanding the case to the trial court for the introduction into evidence of the record in the first case, for a hearing on the exception of res judicata, and, if necessary, a determination on the merits, based on the complete record.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings, in accordance with this opinion, and according to law. Defendant shall pay the costs of this appeal. All other costs shall await final determination hereof on the merits.

REVERSED AND REMANDED.


text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Plaintiff-Appellant, v. Donald J. DANIELS, Defendant-Appellee.
    No. 12518.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearing Denied April 16, 1979.
    Writ Granted June 11, 1979.

      E. Wade Shows, Baton Rouge, of counsel, for plaintiff-appellant General Motors Acceptance Corp.
    Teddy W. Airhart, Jr., Baton Rouge, of counsel, for defendant-appellee Donald J. Daniels.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

Plaintiff initiated executory proceedings on February 6, 1978, against the defendant for collection of a promissory note given in part payment of a Chevrolet automobile purchased from Lamar-Lane Chevrolet, Inc., secured by chattel mortgage on said vehicle. On March 1, 1978, defendant sought and obtained in the district court a preliminary injunction against the sale of the automobile. Plaintiff appealed the judgment granting the preliminary injunction.

On March 1, 1978, the defendant filed a petition for a preliminary injunction seeking to halt all further action in this suit. The petition alleges that suit number 24,118 on the docket of the 23rd Judicial District Court, Parish of Ascension, captioned “Donald J. Daniels vs. Lamar-Lane Chevrolet, Inc., and General Motors Corporation” was pending as of the time of the filing of this foreclosure suit and that the injunction should issue since the prior suit is an action in redhibition which seeks to rescind the sale of that vehicle. The penden-cy of the redhibitory action is admitted.

The matter was heard on March 10, 1978, at which time the district judge determined that the injunctive relief requested by the defendant was proper.

It is contended that this judgment should be reversed because the purchaser contractually waived any action in redhibition as to this plaintiff due to the terms of the “Sale and Chattel Mortgage” executed in connection therewith and, further, that since an executory proceeding is “in rem” in nature, it should not be affected by the defense of redhibition.

The jurisprudence of this state has approved a waiver of express or implied warranties under certain circumstances by a consumer when purchasing merchandise. The requirements for such a waiver were recently set out in Hendricks v. Horseless Carriage, Inc., 332 So.2d 892 (La.App.2d Cir. 1976) as follows:

“[1] * * * In Richardson v. French, 253 So.2d 602 (La.App.2d Cir. 1971) we noted that the seller warrants the thing sold is fit for the purpose intended and this warranty could be expressly waived. See La.C.C. Arts. 2474, 2503 and cases cited in Richardson.
“[2] Our holding there has been strengthened by more recent decisions of our highest court.1 (Footnote omitted) From these decisions and from Anderson v. Bohn Ford, 291 So.2d 786 (La.App.4th Cir. 1974), writ denied 294 So.2d 829 (La. 1974), it is established that three elements must exist before a waiver is held to be effective:
(1) The waiver must be written in clear and unambiguous terms;
(2) The waiver must be contained in the sale and chattel mortgage document; and
(3) The waiver must either be brought to the attention of the buyer or explained to him.”

As no testimony has been taken in this case, we do not know whether the waiver was brought to the attention of the buyer or explained to him. Absent such proof, the validity of the waiver cannot be approved at this time, although all parties will have the right to a hearing on this issue in the redhibitory action presently pending.

We are also unable to agree with the appellant’s contention that because an exec-utory proceeding is an action “in rem” that it should not be subject to the consequences of a redhibitory action. It has long been recognized in this state that injunctive relief is proper in such circumstances. This rule has arisen because the action in redhi-bition, if successful, operates as an extin-guishment of the obligation. Coco v. Mack Motor Truck Corp., 235 La. 1095, 106 So.2d 691 (1958); Bickham Motors, Inc. v. Crain, 185 So.2d 271 (1st Cir. 1966).

Code of the Civil Procedure Article 2751 provides:

“The defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the mortgage or privilege is extinguished, or is legally unenforceable, of if the procedure required by law for an executory proceeding has not been followed.”

The relief obtained in the district court is, therefore, specifically allowed and included among the articles providing for executory process and is available without regard to the “in rem” nature of an executory proceeding.

Accordingly, for the foregoing reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


text:
    Gregory CRAIN v. DEARMOND’S et al.
    No. 12528.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Etta Kay Hearn, Baton Rouge, for plaintiff-appellant Gregory Crain.
    Walton J. Barnes, Baton Rouge, for defendant-appellee Dearmond’s et al.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

Plaintiff-appellant Gregory Crain brought this suit to recover the sum of $956.81, exclusive of legal interest, allegedly due as damages inflicted to a 1965 Pontiac automobile vandalized by unknown persons while in the possession of defendants as depositary. This matter originated in the City Court of the City of Baton Rouge.

After trial on the merits, plaintiff-appellant was awarded judgment in the amount of $382 by the said city court on February 10, 1977. Judgment was signed on February 11, 1977. On February 23, 1977, an appeal to the Nineteenth Judicial District Court was moved for and granted to the defendant, Allen D. Dearmond.

The appeal was heard by the Nineteenth Judicial District Court on July 21, 1978. For written reasons assigned, the judgment appealed was reversed and the demands of the plaintiff were rejected at his cost. From the judgment of the Nineteenth Judicial District Court, sitting as an appellate court, the plaintiff has appealed to this court.

We notice ex proprio motu lack of jurisdiction.

Article 5, Section 10 of the Constitution of 1974, provides:

“(A) Jurisdiction. Except in cases ap-pealable to the supreme court and except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of all (1) civil matters decided within its circuit and (2) matters appealed from family and juvenile courts, except criminal prosecutions of persons other than juveniles. It has supervisory jurisdiction over cases in which an appeal would lie to it.” (Emphasis added.) “(B) Scope of Review. * * *.”

Section 16 of Article 5 of the constitution provides:

“(A) Original Jurisdiction. * * *.
“(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.”
C.C.P. Article 4833, states:
ll * * *
“B. The appeal from a city court when the amount in contest is one thousand dollars or less exclusive of interest, shall be returnable to the district court of the district in which the city is located.
The appeal from a city court when the amount in contest exceeds one thousand dollars, exclusive of interest, shall be returnable to the court of appeal of the circuit in which the city is located. Amended by Acts of 1976, No. 84, § 1.”

As the amount involved in this matter is less than one thousand dollars, exclusive of interest, and in accordance with the constitutional and statutory provisions above quoted, this court has no jurisdiction to hear this appeal. There is but one appeal of right in matters of this nature. The defendant cast in the judgment of the city court appealed to the Nineteenth Judicial District Court. The unsuccessful party in that appeal has no right to appeal to this court and this court has no jurisdiction to hear this so-called appeal.

Accordingly, this matter is dismissed at appellant’s cost.

APPEAL DISMISSED.