author: HALL, Judge.

text:
    Jack COLEMAN et al., Plaintiffs-Appellees, v. Harold B. HOUP et al., Defendants-Appellants.
    No. 5159.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Seale, Smith & Phelps by John W. Swanner, Baton Rouge, for defendants-appellants Broadview Station.
    Robert S. Cooper, Jr., and Robert E. Til-lery, Baton Rouge, for plaintiffs-appellees.
    William J. Doran, Jr., Joseph R. Raggio, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, WATSON and HALL, JJ.
   HALL, Judge.

This case and three companion cases arise out of an automobile-truck accident which occurred in the early morning of January 7, 1971, on a bridge known as the ‘-''spillway bridge” on Louisiana Highway 71 about ten miles north of Krotz Springs in St. Landry Parish.

Earnest S. Garrison, Sr. and six of his fellow workers were proceeding southerly on Highway 71 in Garrison’s automobile on their way to work. There was ice on the bridge and while crossing it Garrison lost control of his automobile. The automobile struck the guard rails and came to rest near the south end of the bridge at approximately a forty-five degree angle blocking the southbound lane of the highway. Garrison and his passengers disembarked and attempted to push the automobile off the bridge without success.

A few minutes after the Garrison automobile had come to a stop on the bridge a tractor/trailer unit owned by C & H Transportation Company, driven by Harold B. Houp and insured by Commercial Standard Insurance Company, approached the bridge from the north. As the truck reached the bridge the driver lost control, the truck jackknifed and struck three of Garrison’s passengers. All three died as a result of injuries received in the accident. The truck tractor overturned onto and damaged the bridge railing.

The surviving widows and children of the persons killed instituted wrongful death actions against Houp, C & H and Commercial Standard. The defendants denied negligence and filed alternative third party demands for indemnity and/or contribution against the Louisiana Department of Highways alleging negligence on the part of the Highway Department in failing to provide proper safeguards and warnings as to the icy condition of the bridge surface.

More than a year after the accident, the Highway Department was joined as an additional defendant by the original plaintiffs in the wrongful death actions. The Department filed exceptions of prescription and answered denying liability.

The Department also filed suit against the drivers of both vehicles, the owner of the truck and its liability insurer for property damage done to the bridge railing. Garrison filed a reconventional demand against the Department for personal injuries and property damage alleged to have been sustained by him in the accident.

All suits were consolidated for trial on the merits. After trial, the district court rendered judgments in favor of the original plaintiffs against the original defendants, holding the accident was caused solely by the negligence of the truck driver. The third party demands of the original defendants against the Highway Department were dismissed with prejudice. Judgment was rendered in favor of the Department of Highways against Houp, C & H and Commercial Standard for property damage. The reconventional demand of Garrison against the Department was dismissed with prejudice.

The appeals before this court are by Houp, C & H and Commercial Standard, from the district court’s dismissal of their third party demands against the Department of Highways and from the judgment against them for property damage in favor of the Department of Highways.. The original defendants did not appeal from the adverse judgments against them in favor of the original plaintiffs.

On appeal appellants contend that the dangerous, icy condition of the spillway bridge was the sole cause, or at least a contributing cause, of the accident and resulting fatalities. They further contend that the Department of Highways was negligent in failing to warn or alert oncoming motorists and in failing to place suitable abrasives on the surface of the bridge or otherwise take steps designed to alleviate the icy condition, and that this negligence was a legal cause of the accident.

There is no real dispute as to the law applicable to these cases. Both parties cite Martin v. State Department of Highways, 175 So.2d 441 (La.App. 4th Cir. 1965) which stated the general duty of the Highway Department as follows:

“Generally, it is the duty of the highway department to construct and maintain the highways, and this includes bridges which are a part thereof, reasonably safe for a traveler himself exercising ordinary care; a highway will be deemed safe within these requirements if it may be negotiated successfully by all but the very reckless and careless drivers, there being no obligation to construct and maintain highways so as to insure the safety of such drivers.”

Both parties also cite Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3d Cir. 1963) for the well-settled proposition that in order to hold the Department liable for an accident caused by an unsafe or hazardous condition it must be shown that the Department had prior notice, either actual or constructive, of the dangerous condition and sufficient opportunity to remedy same or at least to alert and warn the motoring public of its presence, and failed to do so.

In holding the Department was free from negligence, the district court in written reasons for judgment stated:

“The main plaintiffs make no serious effort to show fault in the Department of Highways and practically concede its absence of negligence. The Houp defendants strenuously urge the department’s failure to apply surfacing to the bridge and to display ice warning signs as constituting fault contributing to the accident.
“The accident was reported to the state police by the Krotz Springs police department at approximately 6:45. The evidence is unclear as to by whom and how long after the accident word got to the Krotz Springs police department. The accident was in an isolated area of the parish about 10 miles from Krotz Springs. It is unlikely that a car passed by immediately after the accident. Thus, it could be 30 minutes or more between the accident and the report to the state police.
“Also, the Garrison group left Le-moyne about 5:30 and traveled 13.4 miles to the accident site. Averaging thirty miles per hour, they would have reached the accident site shortly before 6 o’clock. It was not more than 10 or 15 minutes later that the accident occurred. Accordingly, from this calculation also it is reasonable to fix the accident time at between 6:00 and 6:15.
“At 4:45 a. m. or shortly thereafter notice was given to Marcantel, the highway maintenance superintendent for the area in question, that the Opelousas overpass was iced over. Even if it is assumed that the highway department is obligated to immediately proceed to surface all bridges in the area upon receipt of notice of any bridge icing over, it is clear that it would not have been possible to have applied surfacing to the bridge in question before the accident. There had to be notice to the crews; the crews had to get to the highway barn, load up the abrasives and travel to the bridge in question. All this would have been done under extremely adverse weather conditions. There was just not that much time involved.
“Counsel cites no cases and this court is aware of none which specifically require a highway department to have crews constantly alerted to cover iced bridges or that require a constant surveillance of weather conditions to anticipate the need for such action. The weather reports of the previous day and into the early part of the night do not indicate such a likelihood of bridges icing over as to require that the department have an overnight crew standing by. Mr. Marcantel testified that the weather forecasts for the previous day were not such as to indicate the necessity for an overnight watch of weather conditions if such is ever so.
“With regard to the department’s failure to display the ‘Ice on Bridge’ sign, the court doubts that if Marcantel had immediately notified Stagg (the foreman in charge of the bridge in question) to proceed to display the warning sign he could have done so prior to the accident. However, Marcantel had no notice of that bridge icing. The evidence showed that other higher bridges (the Opelousas overpass being one of these) in the area iced sooner and that the spillway bridge was not particularly subject to icing. The highway department is not obligated to proceed to display ice warning signs with the same urgency that firemen answer an alarm or an ambulance driver responds to an emergency call.
“It is highly questionable that the display of the ‘Ice on Bridge’ sign would have prevented the accident. Houp had every reason to suspect that ice was on the bridge and to travel accordingly. He certainly knew that conditions for traveling were so adverse that he ought to have proceeded onto the bridge with extreme slowness and alertness of outlook. It is doubtful whether an ice warning sign would have altered that situation. Accordingly, the court cannot conclude that the highway department was at fault or that such fault was a contributing factor in the accident.”

The issue in this case narrows down to whether the Highway Department, after receiving notice of icing conditions in the area, failed to take reasonable steps within a reasonable period of time to remedy the situation or to warn the motoring public and, if so, whether such failure was a legal cause of the accident.

Garrison and his passengers left Le-moyne at about 5:30 a. m. and drove approximately thirteen miles to the site of the accident. The Garrison automobile was stopped for several minutes before the truck came along. The accident was reported to the State Police Headquarters by a call from the Krotz Springs Police Department at 6:45 a. m. A state trooper was dispatched and arrived at the scene at about 7:10. He testified the persons present at the scene said the accident happened about 6:30. The trial court fixed the time of the accident as between 6:00 and 6:15, and it certainly happened no later than 6:30.

The radio operator at Troop K Headquarters of the State Police testified he received a call at 4:46 a. m. from Lt. Guillo-ry advising that there was ice on the overpass bridge east of Opelousas on U.S. Highway 190. The radio operator then called Allen Marcantel, Highway Superintendent for the Department of Highways, who lives in Opelousas and whose territory includes all of St. Landry Parish.

Marcantel testified he received a call from the State Police at about 5 :00 in the morning at his home advising that it was freezing in Alexandria and that he should get his crews out to the bridges in the area as soon as he could. Marcantel dressed, went to his office and called his foremen who in turn called their men. Marcantel testified he did not call the foreman in charge of the spillway bridge, Charles Stagg, because he figured Stagg would probably be on his way to the Beggs Unit out of which he worked and where he calls in every morning around 7:00 a. m. Mar-cantel himself proceeded on to the Krotz Springs bridge which is usually the first to freeze over and where there have been the most accidents in the past. Stagg called in about 6:45 or 7:00 and was instructed to go to the spillway bridge and stand by. Stagg got to the spillway bridge at about 7:30 or a little later and after the accident had occurred.

Marcantel testified the usual procedure of the Highway Department is to send crews out to the bridges when the temperature gets to about thirty-six degrees and it is raining and getting colder, indicating freezing conditions. The crews unfold the “Ice on Bridge” signs, set out temporary signs closer to the bridge warning of ice on the bridge, set out a smudge-pot type flare, and spread C-3 lightweight aggregate, an abrasive substance like sand, over the bridge. During the night and after office hours the Highway Department depends on the State Police to give them notice of anticipated freezing conditions.

During the day preceding the night of the accident the weather was clear and freezing conditions were not anticipated. The trucks were, therefore, not loaded and ready for action as they sometimes are when freezing conditions are anticipated. The warning signs and flares were located at the various units, including the Beggs Unit, but the abrasive material had to come out of Opelousas. The procedure on the morning of the accident was for the crews to go to the bridges, open the “Ice on Bridge” signs, put out the temporary signs and flares and wait for the truck with the C-3 light aggregate.

Stagg testified that had he been called it would have taken him at least one hour to get to the spillway bridge.

Considering all these circumstances, it appears that Marcantel acted with reasonable dispatch and took reasonable steps under the circumstances. He did not call Stagg because he thought he was probably already on the way to work and would be calling in within a relatively short period of time. The nature of the communication from the State Police advising of ice on an overpass in Opelousas was not such as to indicate the necessity for extremely drastic action to meet a dire emergency, particularly as to the spillway bridge which had iced over on only one or two occasions in the six previous years.

Even if Marcantel had called Stagg earlier it is doubtful that Stagg and his crew could have arrived at the spillway bridge in time to take precautionary measures prior to the time the accident happened. Assuming Marcantel could have gotten in touch with Stagg by 5 :00 a. m. and the accident happened between 6:00 and 6:30 a. m., it would have taken split-second timing in order for Stagg and his crew to have arrived at the scene in time to take precautionary measures which might have prevented the accident. It would be unreasonable to hold the Department to such split-second efforts under the circumstances and it would be highly speculative to find that a call by Marcantel to Stagg at his home would have prevented the accident. We hold, first of all, that there was no negligence or substandard conduct on the part of the Highway Department. Secondly, we hold that it was not proven that what the Highway Department employees did or did not do was a cause in fact of the accident.

These conclusions are in accord with those of the trial judge, who correctly resolved the factual and legal issues presented.

For the reasons assigned, the judgment of the district court is affirmed at appellants’ cost.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Joycie CALLAHAN et al., Plaintiffs-Appellees, v. Harold B. HOUP et al., Defendants-Appellants.
    No. 5160.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Seale, Smith & Phelps by John W. Swan-ner, Baton Rouge, for defendants-appellants Broadview Station.
    Robert S. Cooper, Jr., and Robert E. Til-lery, Baton Rouge, for plaintiffs-appellees.
    William J. Doran, Jr., Joseph R. Raggio, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, WATSON and HALL, JJ.
   HALL, Judge.

For the reasons assigned in the opinion rendered this date in Coleman et al. v. Houp et al., La.App., 319 So.2d 831, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.


text:
    Orena P. PLEASANT et al., Plaintiffs-Appellees, v. Harold B. HOUP et al., Defendants-Appellants.
    No. 5161.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Seale, Smith & Phelps by John W. Swan-ner, Baton Rouge, for defendants-appellants Broadview Station.
    Robert S.“ Cooper, Jr., and Robert E. Til-lery, Baton Rouge, for plaintiffs-appellees.
    William J. Doran, Jr., Joseph R. Raggio, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, WATSON and HALL, JJ.
   HALL, Judge.

For the reasons assigned in the opinion rendered this date in Coleman et al. v. Houp et al., La.App., 319 So.2d 831, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.


text:
    DEPARTMENT OF HIGHWAYS, State of Louisiana, Plaintiffs-Appellees, v. Earnest GARRISON et al., Defendants-Appellants.
    No. 5162.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Seale, Smith & Phelps by John W. Swanner, Baton Rouge, for defendants-appellants Broadview Station.
    Robert S. Cooper, Jr., and Robert E. Til-lery, Baton Rouge, for plaintiffs-appellees.
    William J. Doran, Jr., Joseph R. Raggio, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, WATSON and HALL, JJ.
   HALL, Judge.

For the reasons assigned in the opinion rendered this date in Coleman et al. v. Houp et al., La.App., 319 So.2d 831, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.


author: PICKETT, Judge:

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. C. SCHEXNAYDER, INC. (two cases).
    Nos. 10428, 10429.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    D. Ross Banister, Deputy Gen. Counsel, William W. Irvin, Jr., Executive Asst. Gen. Counsel, Jerry F. Davis, Asst. Gen. Counsel, Johnie E. Branch, Jr., Asst. Gen. Counsel Highway Dept., Baton Rouge, for appellant.
    Vincent J. Sotile, Donaldsonville, for ap-pellee.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   PICKETT, Judge:

The defendant’s tract of approximately 1142 acres of land, in Ascension Parish, was severed by two separate takings by the Louisiana Highway Department, for highway purposes. The first taking involved the construction of Louisiana Highway No. 3089, or the Donaldsonville — Sunshine Bridge Highway. (Number 10,428 on the Docket of this Court.) The second taking involved the construction of La.Hwy. No. 70, or the Paincourtville — Sunshine Bridge Highway. (Number 10,429 on the Docket of this Court.)

THE FIRST TAKING, No. 10,428:

Before the taking, the defendant owned a tract of approximately 1142 acres of land with frontage on the Mississippi River, on the right descending bank of said River, located about a mile and a half below the Town of Donaldsonville. The river at this point runs in a generally east-west direction, and the defendant’s tract had a quadrangular configuration from north to south. The tract was crossed by the Texas and Pacific Railroad tracks in a manner so as to divide the north one-third, approximately, from the south two-thirds. The taking for La.Hwy. No. 3089 paralleled the railroad on the Northerly side of the tracks. The effect was to sever the north remainder from access to the railroad and to sever the south remainder from access to the river.

The dispute between the real estate appraisers involved the impact of the taking on the value of these remainders after the taking. The value of the land actually taken is not seriously contested.

On the one hand, Mr. Chester A. Drig-gers, testifying on behalf of the Department of Highways, was of the opinion that the northern and southern portions of the tract, as divided by the railroad, were already susceptible of separate evaluations as to their respective highest and best uses. In his opinion, the northern portion had a highest arid best use for industrial purposes both before and after the taking and “it could be used in the same efficiency as before the taking.” (Transcript, page 20) He felt that this acreage was still ample or sufficient to accommodate an industrial purchaser. He assigned a value of $2,000.-00 per acre to this portion and found no damages had resulted by reason of the taking. Mr. Driggers felt that the southern portion could and should be treated as a separate “rear land” tract for purposes of highest and best use and therefore valuation. In his opinion, this portion was best suited for agricultural purposes, with a potential higher use in the future. He explained that a purchaser of this tract would probably continue the agricultural use and hope or speculate that future growth and development in the area would open up new possibilities. He assigned a value of $800.00 per acre to this portion and again found no damages had resulted by reason of the taking.

On the other hand, Mr. Kermit A. Williams, the defendant’s appraiser, was of the opinion that the entire property was a prime industrial site prior to the taking and assigned an overall value of $2,000.00 per acre. In his opinion, the division of the property into two separate tracts caused damages or diminution of 10% of the before value. He reasoned that an industry would prefer the larger property for a number of reasons, but generally to avoid proximity to incompatible neighboring landowners, who, in his experience, were prone to raise objections to a plant’s operations. He also considered that the denial of rail access to the northern portion was a damaging factor and that the location of this new road would be deemed by industry to be an adverse rather than a beneficial factor.

The trial judge accepted the opinion of Mr. Williams for the following reasons, in which we concur:

“After considering the testimony of these two experts, the Court finds that the analysis presented by Mr. Williams is better reasoned and is supported by the weight of the factual evidence and the jurisprudence. Mr. Williams cited instances in which purchases of industrial tracts were made contingent upon the recission (sic) of existing roads traversing the properties. . . . Furthermore, Mr. Williams pointed out a situation of common knowledge in Ascension Parish; that the route for Highway 30 on the east side of the river as initially proposed ran through various industrial tracts, and that the industries involved united in a concerted and successful effort to have the Highway Department change the location to the rear of those industrial tracts.
“In addition, the existing jurisprudence in cases of this type supports defendant’s position. In State, Department of Highways v. Burden, 180 So.2d 784 (La.App. 1st Cir., 1965) involving a similar factual situation the court stated at pages 791— 792:
“It is also plaintiffs contention that this property was divided prior to the taking by the servitude of the railroad, pipeline, and power line. The testimony convinces us otherwise for it has been established that the railroad, the ethylene gas line, and the power line traversing the property have not been considered by purchasers of land which is in industrial use as a division of the property but as an asset, whereas, a highway across the land has been considered as dividing the land and as a detriment where it traverses the property as in the present case. Plaintiff’s argument is also fully answered in the recent case of State Through Dept. of Highways v. Williams, La.App. 3d Cir., 131 So.2d 600. . . .
******
“In the Williams case it was also urged by the plaintiff that the tract was already divided into two parts by the railroad right of way across the northwestern portion and that the pipeline rights of way on both sides of the railroad right of way already separated the land from the railway tracks. With regard to this contention the Court held:
‘We regard this summary as correctly stating the principles to be applied in Louisiana in deciding the question, and no controlling contrary authority is cited to us. The trial court correctly applied these principles in determining that, as a matter of fact, the defendant’s property consisted before the taking of a single 120-acre tract suitable for industrial purposes. For, as the evidence indicates, the owner had the legal right to cross the railroad and pipeline servitudes and the legal right to use the pipeline rights of way for many purposes, all of which under the circumstances reflected by this record constituted these rail and pipeline rights of way as asset in the integrated industrial use of the entire tract (even though there was a lessened fee value of the strips themselves actually subject to the rail and pipeline servitudes.”

Likewise in the instant case the court finds that prior to the taking defendant’s property consisted of a single tract suitable as a whole for industrial purposes and that the expropriation and location of the highway across the tract it has been effectively divided into two separate tracts, neither of which is as desirable or useful as was the whole prior to the taking.

After concluding that severance damages in fact had been caused by the taking, the trial judge also accepted the factor of 10% of the before value to determine the amount thereof. The judge noted that here, as in the Burden case, supra, the State’s expert witness found no severance damages so that there was no evidence as to an alternative method of computing the same. We find no error in this ruling.

THE SECOND TAKING, No. 10,249:

The Paincourtville-Sunshine Bridge road, Louisiana Highway No. 70, runs in a generally northeast to southwest direction across the southeast portion of the defendant’s property. It divides the southerly remainder (resulting from the first taking) into a western tract of 577 acres and an eastern tract of 103 acres.

The trial judge used the adjusted value of $1,800.00 per acre to determine the value of the land actually taken. (In the suit on the first taking, he found a before value of $2,000.00 per acre which was diminished by 10% as a result of the taking.) The judge then found that the 103 acre easterly remainder, having been cut off from the access to the railroad and rendered irregular in shape, had suffered a loss in value from $1,800.00 to $900.00 per acre, but that the 577 acre westerly remainder had not been adversely affected. The judge again relied on the appraisal and opinion of Mr. Kermit A. Williams in determining the amount of damage to the easterly remainder and on the adverse factors cited by another appraiser, Mr. C. C. Book, to show that this tract had in fact been severely damaged:

“The court is convinced beyond question that this east remainder has been severely damaged. In addition to the denial of rail access Mr. Book on pages 7a and 7b of his appraisal report points out the following factors:
‘Purchasers of large industrial tracts are most knowledgable and make a careful analysis of the advantages and disadvantages of each tract prior to acquisition. The presence of La.Hwy. 70, slashing diagonally across this tract and severing the tract into separate segments, will be listed as a distinct disadvantage by such purchasers.
‘These purchasers will consider the extra cost of numerous road borings for pipelines across the road and/or conveyor belt systems for transporting products and raw materials across and above the road. All industrial plants are more and more concerned with security and safety. Presence of La.Hwy. 70 on this property will add cost for industrial fencing, gates and guards at gates. Repeated crossing of this roadway will be necessary by men and equipment which will be an added safety hazard. Continual streams of fast moving vehicular traffic through the plant site will forever be a detriment to the efficient and economical construction and operation of the plant.
‘As proof that industry considers such public roads through plant sites to be detrimental, it should be noted that two sales of nearby property to industry were both conditioned upon abandonment (by the Police Jury) of public roads within the area to be purchased (1) Laws to Copolymer, Inc. of 720 acres, February, 1966 in West Baton Rouge Parish (2) Orange Grove, Inc. to Enjay Chemical Co. of 1,000 acres, June, 1966, in Ascension Parish.’ ”

Our review of the record convinces us that the reasoning of and the results reached by the trial judge are legally sound and amply supported by a preponderance of factual evidence and competent expert opinion.

Accordingly, the judgment of the Trial Court in suits Nos. 10,428 and 10,429 are affirmed. The costs of these proceedings are to be borne by Appellant, Louisiana Department of Highways, to the extent permitted by law.

Affirmed.


author: ELLIS, Judge:

text:
    Dr. Floyd W. TURNER v. LOUISIANA DEPARTMENT OF HIGHWAYS.
    No. 10427.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.

      Malcolm J. Dugas, Jr., Donaldsonville, for appellant.
    Robert J. Jones, Dept, of Highways, Baton Rouge, for appellee.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   ELLIS, Judge:

This is a suit for damages allegedly caused by a highway drainage outlet crossing the property of plaintiff, Dr. Floyd W. Turner. Defendant is the Louisiana Department of Highways. An exception of no cause of action was filed to the original petition. The exception was sustained, and plaintiff was given 20 days to amend his petition. A supplemental and amended petition was then filed, to which the Department filed an exception of prescription, as well as various other objections to the sufficiency of the petition. After a hearing, judgment was signed, sustaining the exception of no cause of action first filed, and dismissing plaintiff’s suit. From that judgment, plaintiff has appealed.

The well pleaded allegations of fact in plaintiff’s petitions, which, for the purposes of the exception of no cause of action, must be accepted as true, are as follows :

Plaintiff is the owner of a tract of land in Ascension Parish, fronting 180 feet four inches on the Donaldsonville-Napoleonville Highway, and running back between parallel lines to Bayou Lafourche. Plaintiff acquired the property from Louis Boud-reaux in 1973.

A drainage outlet, running from the highway to the bayou, was constructed across the property by the Department of Highways while Mr. Boudreaux owned the property. The Highway Department built the drainage outlet without “right or consent.”

As a result, plaintiff alleges he has suffered loss of part of his property by erosion, loss of use of part of the property, and a diminution of the value thereof; has incurred expenses in attempting to prevent further erosion, and suffered various other injuries.

Alternatively, he alleges that, if the Department has a servitude of some other species of right to cross his property, it has failed properly to maintain the outlet, and has caused him the same damages outlined above.

The Department bases its exception of no cause of action on R.S. 48:223, which provides, in part:

“The department may construct canals, ditches, or drains sufficient in its judgment to properly drain any highway embraced in the system of state highways constructed or to be constructed through any lands of private persons. The rights of way for these canals may be acquired in the same manner and on the same basis of compensation as provided for acquiring rights of way for highways.”

It is argued that the above statute does not obligate the Department to maintain its drainage outlets. We interpret the foregoing as a grant of authority to the Department rather than a limitation of its responsibility for improper conduct. Under the provisions of R.S. 48:21, it is a function of the Department to maintain and repair the public highways. Under R.S. 48:1(11), a drainage outlet, as an appurtenance necessary to the highway, is as much a part thereof as is the roadbed. We are of the opinion that if a person is injured as a result of a failure by the Department to fulfill this duty, the Department will be liable in damages.

We think this is true whether the damage results from an alleged trespass or if the Department enjoys some species of right to cross the property of the injured party.

We readily concede that the petitions filed herein are vague in several respects, but we are of the opinion that plaintiff has alleged a cause of action.

The exception of prescription was heard, and some evidence was offered in support thereof. The Department points out that the suit was brought more than one year after plaintiff acquired the property, and that the allegations of the petitions show that the outlet was installed while Mr. Boudreaux owned the property. It is claimed that prescription began to run when the outlet was installed. We note, however, that the record is devoid of any evidence or allegations tending to show when the damage was sustained. If the prescription of one year applies, as contended by the Department, it is their burden to prove that more than one year has elapsed since the injury happened, and they have not done so. We therefore find no merit in the exception of prescription.

The judgment appealed from is reversed and set aside, and the case remanded to the trial court for further proceedings in accordance with law. The Department shall pay the costs of this appeal for which they may be liable under the law. All other costs shall await final disposition of this case on its merits.

Reversed and remanded.


author: SARTAIN, Judge.

text:
    Daniel SMALL, Jr., Plaintiff-Appellant, v. CATERPILLAR MFG. CORP. et al., Defendants-Appellees.
    No. 10426.
    Court of Appeal of Louisiana, First Circuit
    Sept. 2, 1975.
    Steven F. Griffith, Destrehan, for plaintiff-appellant.
    Francis G. Weller, New Orleans, for defendants-appellees.

      Before SARTAIN, ELLIS and PICKETT, JJ.
   SARTAIN, Judge.

This suit comes before us on a peremptory exception of one year prescription maintained in favor of defendant, Caterpillar Tractor Company, in a suit for personal injury allegedly sustained by plaintiff, Daniel Small, Jr. We reverse for reasons stated herein.

The abbreviated record before us reveals that plaintiff alleges personal injury sustained on July 31, 1973 while operating machinery manufactured by “Caterpillar Manufacturing Corporation” and sold by Boyce Machinery Corporation which malfunctioned and caused him to be sprayed by hot fertilizer. Suit was instituted on July 31, 1974 against “Caterpillar Manufacturing Corporation”, Boyce Machinery Corporation, John Doe and XYZ Corporation or Company, all of whom were alleged to be liable jointly, severally, and in solido to plaintiff for their negligent acts. Defendant “Caterpillar Manufacturing Corporation” was alleged to be a non-resident corporation not licensed to do business but doing business in the state, and service was effected through the Secretary of State on August 2, 1974. Service on Boyce Machinery Corporation was made through its agent on August 8, 1974.

On October 11, 1974, Caterpillar Tractor Company filed a motion to quash citation and service of process alleging that the same had been defective because there was no corporation known as “Caterpillar Manufacturing Corporation” and that Caterpillar Tractor Company was a foreign corporation authorized to do business in the state and had appointed C. T. Corporation System, 1300 Hibernia Bank Building, New Orleans, as agent for service of process.

As a result of this motion, plaintiff filed on October 17, 1974 a supplemental and amending petition wherein he substituted “Caterpillar Tractor Company” for “Caterpillar Manufacturing Corporation” and requested service through its agent in New Orleans.

Following plaintiff’s filing of the supplemental petition, defendant Caterpillar Tractor Company filed a peremptory exception of prescription of one year showing that plaintiff had alleged in his original petition that the cause of action arose on July 31, 1973 and suit against defendant Caterpillar Tractor Company had not been filed until October 17, 1974, more than one year following the date of the incident.

Subsequently, on December 26, 1974, the trial judge granted defendant’s motion to quash, maintained the plea of prescription, and accordingly dismissed plaintiff’s claim against Caterpillar Tractor Company.

It is well settled that the mere filing of a supplemental petition to correct a misnomer in the original petition does not relate back to the time of the filing of the original petition for purposes of prescription. Bowerman v. Pacific Mutual Insurance Company, 212 La. 1000, 34 So.2d 53 (1948); Majesty v. Comet-Mercury-Ford Company of Lorain, Michigan, 296 So.2d 271 (La.1974). In the Bowerman case, supra, suit was filed and service effected upon the Secretary of State within the year against Pacific Mutual Insurance Company. The Secretary of State forwarded citation and a copy of the petition to Pacific Mutual Life Insurance Company in Los Angeles, California. This company informed the Secretary of State that service was evidently made in error as it wrote no workmen’s compensation insurance in Louisiana. An amended petition was filed to join the proper insurer, Pacific Employers Insurance Company, and service made, but all more than one year following the incident. The court held that Pacific Employers’ plea of prescription was valid reasoning that the true insurer had not been sued within the proper period, nor was there proof that he had notice or actual knowledge of the instituted proceedings within the prescriptive period. It is obvious in the present suit that defendant, Caterpillar Tractor Company, had no actual notice of the suit within the prescriptive period since suit was not instituted until the last day of the prescriptive period and service on the Secretary of State made several days thereafter.

In Majesty, supra, suit was filed prior to the expiration of one year, but service was made one day after the year had run against Comet-Mercury-Ford of Lorain, Michigan. Ford Motor Company filed a motion to quash citation and service of process. More than a year after the incident an amended petition was filed naming the proper party, Ford Motor Company of Lorain, Ohio, and service effected through its agent in New Orleans. The court found prescription had not been interrupted and sustained the exception of prescription stating that the amending petition to correct a misnomer did not relate back to the filing of the original petition and that the original petition interrupted prescription only as to those actually named therein in the absence of solidary liability between one actually named in the petition filed prior to the termination of the prescriptive period and one not so named.

Thus, in the present suit where the incident allegedly occurred on July 7, 1973, and defendant, Caterpillar Tractor Company, was not made a party to the suit until October of 1974, an exception of prescription must be maintained unless a valid interruption has occurred.

We feel the situation in this case is governed by the rule enunciated by the Louisiana Supreme Court in Pearson v. Hartford Accident & Indemnity Company, 281 So.2d 724 (La.1973). The court there held that where one solidary obligor was timely sued and prescription as to him was interrupted pursuant to R.S. 9:5801 then prescription was further interrupted as to another soli-dary obligor pursuant to Civil Code Art. 2097. The latter was joined later by supplemental petition which contained facts not controverted and sufficient on their face to establish solidarity between the party joined and the original defendant. The court noted the uncontroverted facts in the supplemental petition and thus found no basis to support the plea at that point, but noted further that the plea might be sustained later in the proceedings if it were definitively established that the plea was founded on solid grounds such as failure of solidarity between the parties, thus making suit against the second defendant untimely.

In the present case, plaintiff has alleged facts in his supplemental petition joining Caterpillar Tractor Company which, if established, could lead to solidary liability between it and the defendant, Boyce Manufacturing Company, who was timely sued. These facts allege that Boyce and Caterpillar are, in effect, joint tort feasors. It is well settled that joint tort feasors are solidary obligors. C.C. Art. 2324 and Pearson, supra. The facts are further uncontroverted by any evidence in the record as it now stands before us. We note here as did the court in Pearson that should it develop at a later time during the course of the proceedings that the plea is well founded (i. e., for lack of solidary liability between the parties) then at that time the plea should be maintained.

Defendant argues that prescription as to Caterpillar could not be interrupted since citation on the solidary obligor timely sued was not made until after the one year limitation and it was only at that time that prescription could have been interrupted. He cites C.C. Art. 3552 for this proposition. While citation may indeed interrupt prescription we do not feel under the law that it is exclusive. Pursuant to R.S. 9:5801 prescription is interrupted as to all defendants by commencement of a suit in a court of competent jurisdiction. Commencement of suit is defined in C.C.P. Art. 421 to be the filing of a pleading presenting the demand in a court of competent jurisdiction. Thus, at that point suit has been brought and prescription interrupted as to the party or parties named. La.C.C. Art. 2097 further provides that when suit is brought against one solidary obligor prescription as to all other solidary obligors is interrupted. A resolution of the matter in this way is in keeping with the traditional notion of statutory construction in prescription matters last enunciated by the Louisiana Supreme Court in Foster v. Breaux, 263 La. 1112, 270 So.2d 526 (1972) as follows:

“Under Louisiana jurisprudence, prescriptive statutes are strictly construed, and of two permissible constructions that is adopted which favors maintaining rather than barring the action. United Carbon Co. v. Mississippi River Fuel Corp., 230 La. 709, 89 So.2d 209 (1956); Mansur v. Abraham, 183 La. 633, 164 So. 421 (1935). Cf. also State v. Stewart Bros. Cotton, 193 La. 16, 190 So. 317 (1939) (prescription is stricti juris).

In the case of Sharp v. Massey Ferguson, 153 So.2d 508 (La.App., 1st Cir., 1963) we held that suit filed before, but service after the prescriptive period had run, was sufficient to interrupt prescription against solidary obligors who were joined after the one year limitation.

For the above reasons we feel that it was improper to maintain the plea of prescription at the present time and accordingly we reverse the decision of the trial court and remand for further proceedings not inconsistent with the views expressed herein. All costs of this appeal are cast against Caterpillar Tractor Company. All other costs are to await a final disposition of this proceeding.

Reversed and remanded.

      . § 5801. Interruption of prescription by filing of suit, service of process
      All prescriptions affecting tlie cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.

      . § 2097. Interruption of prescription
      A suit brought against one of the debtors in solido interrupts prescription with regard to all.

      . Art. 2324. Liability for assisting or encouraging wrongful act
      He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.

      . Art. 3552. Interruption with regard to co-debtors and co-heirs
      A citation served upon one debtor in solido, or his acknowledgment of the debt, interrupts the prescription with regard to all the others and even their heirs.

      . Art. 421. Civil action; commencement; amicable demand unnecessary
      A civil action is a demand for the enforcement of a legal right. It is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction. Amicable demand is not a condition precedent to a civil action, unless specifically required by law.


author: BARNETTE, Judge.

text:
    Jerry D. ARCENEAUX v. Albert D. BROUSSARD.
    No. 10424.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.

      Eugene A. Booth, Baton Rouge, for plaintiff-appellant.
    Robert R. Rainer, Baton Rouge, for defendant-appellee Leatherby Ins. Co.
    James E. Moore, Baton Rouge, for defendant-appellee Dairyland Ins. Co.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This is an appeal of a summary judgment. There is no genuine issue of material fact and none is contended. The only question is whether the judgment is correct as a matter of law.

In written reasons for judgment the trial judge properly stated the issue and said in pertinent part:

“This suit arises out of an accident wherein the motorcycle operated by Ar-ceneaux was struck by a car driven by Mr. Broussard. Dairyland has been sued as the alleged insurer of the Broussard vehicle. It moved for a summary judgment in its favor on the grounds that there was no policy in effect on the day of the accident.
“Dairyland had issued a policy to Mrs. Lillie Broussard for the car that was involved in the accident. That policy was to be effective as of May 16, 1974, and it was to expire on July 16, 1974. The accident occurred on July 27, 1974. On July 2, 1974, Dairyland mailed to Mrs. Broussard and to its local agent an offer to renew the policy upon payment of the premium, and that offer noted that the policy would expire on July 16 if the premium was not paid. No payment was received until July 30, 1974, at which time Dairyland issued another policy to Mrs. Broussard under its ‘rewrite’ offer for lapsed policies. Dairy-land offered the affidavits of its local agent, Jay Modicut, Jr., and its Claims and Processing Manager, Thomas M. Lamb, to verify those facts.
“The plaintiff offered no affidavits in opposition to the motion, but a memorandum in opposition was filed. In that memorandum, and in oral argument, the plaintiff argued that a policy with a term of less than six months must either be renewed, or terminated by strict compliance with the provisions of R.S. 22:631.1 [22:-636.1]. That statute puts forth certain requirements for the effective cancellation of automobile liability insurance policies. The plaintiff’s argument is based upon the fact that in the subsection of that statute that defines ‘renewal’ or ‘to renew’, the following phrase is found: ‘ . . . ; provided, however, that any policy with a policy period or term of less than six months shall for the purpose of this Chapter be considered as if written for a policy period or term of six months.’ R.S. 22:631.1 [22:636.1]. The meaning of that phrase is not clear from a reading of the entire statute, and its meaning has not yet been interpreted by the courts of this state.
“However, when dealing with policies with terms of six months or more, the courts have held that unless the policy itself requires some notice of the failure to renew because of non-payment of the premium, then no notice of cancellation is required by R.S. 22:636.1 when the premium is not paid because the policy simply expires. Auto Owners Insurance Company v. Feret [Freret] 280 So.2d 638 (La.App. 1st Cir. 1973), and Gros v. Comeaux, 288 So.2d 98 (La.App. 4th Cir. 1974). The reasoning behind the holdings in these cases is evident. There is no reason for the insurer to comply with the provisions of a cancellation statute if the policy is not being cancelled. Cancellation implies that a policy is being disrupted for some reason, and terminated prior to its anticipated termination date. When a policy expires from the running of its term, it is not being disrupted, but instead it is dying a natural death. When an insured purchases an insurance policy, he is or should be aware of the term of that policy. He has no right to expect that that policy will continue on in effect until he decides to pay another premium. He has no right to get something for nothing, and this is true no matter whether the policy is written for a period of less than six months or a period of six months or more. Therefore, the plaintiff’s interpretation of R.S. 22:636.1 cannot be accepted.
“Assuming, however, for the sake of argument that the plaintiff is correct in his interpretation, the defendant is still entitled to a judgment in its favor. R.S. 22:636.1 provides that if a policy is being cancelled for nonpayment of the premium, only ten days notice of cancellation is necesssary. In this case, the insurer mailed to the insured more than fourteen days prior to the day that the policy expired a notice that if a premium was not paid by July 16, 1974, the policy would expire. Clearly, that would suffice as a notice of cancellation. It would be unreasonably confusing to the insured if, in order to protect itself, the insurer included with its offer to renew a notice of cancellation. The notice it did send was intended to let the insured know that there would be no insurance coverage after July 16, 1974, unless a premium was paid for a new policy.
“No genuine issues of material fact are contested by the plaintiff or Dairyland, and the Court is of the opinion that Dairyland is entitled to judgment according to law. Therefore, judgment was rendered in Open Court on February 24, 1975, in favor of Dairyland Insurance Company, granting it's motion for summary judgment and dismissing the suit by the plaintiff, Jerry D. Arceneaux, as to this defendant. The plaintiff’s rights against all other defendants are reserved.”

The applicable law is LSA R.S. 22:636.1 which provides in pertinent part as follows:

(<A. * * ‡ * * ‡
“(5) ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term; provided, however, that any policy with a policy period or term of less than six months shall for the purpose of this chapter be considered as if written for a' policy period or term of six months.
“B. A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons.
“(1) Nonpayment of premium; or
sfc ijc ‡ aje ‡
“D. No notice of cancellation of a policy to which Subsections B or C applies shall be effective unless mailed or delivered by the insurer to the named insured at least twenty days prior to the effective date of cancellation; provided, however, that where cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason therefor shall be given.”

This is clearly not a situation which invokes the provisions of the statute relative to cancellation. Cancellation is, as the trial judge aptly defined, a “disruption” or “termination” of coverage and when initiated by the insurer requires that the notice prescribed by the statute be given. The insurer is under a duty of strict compliance in that situation. This is instead an expiration of the period for which the policy was written and the coverage contracted. The expiration was not because of a default or ah act done by the insurer, but on the contrary the policy was allowed to expire by the insured after the insurer had timely notified the insured that it would expire on July 16, if not renewed by the payment of an additional premium. The insurer did not cancel.

It is significant that the insurer not only expressed its willingness to renew the coverage, but did do so July 30 when the insured belatedly availed herself of renewal privilege.

The appellant contends that policies written for a shorter term than six months are to be considered as if written for six months and that failure of payment of .premium during that period imposes upon the insurer the duty to give the cancellation notice, prescribed by the statute. This argument is based upon appellant’s interpretation of the following portion of the above quoted statute:

“(5) * * *; provided, however that any policy with a policy period or term of less than six months shall for the purpose of this chapter be considered as if written for a policy period or term of six months.”

We do not agree with this interpretation. The portion of section above quoted relates to “Renewal” of policies to extend the term of coverage and has nothing to do with “cancellation” which is treated in another section. The renewal is not automatic but can only be effected by timely payment of the renewal premium. To hold otherwise would be to completely ignore the statutory recognition of the validity of shorter than six month term policies.

We hold, as did the trial judge that the policy in question expired under its own terms on July 16, 1974.

The judgment appealed is affirmed at appellant’s cost.

Affirmed.


text:
    Walter E. BELANGER v. Vernon L. ELLERBE and Union National Insurance Co., Inc.
    No. 10416.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    MacAllynn J. Achee, Baton Rouge, for appellant.
    Daniel R. Atkinson, Baton Rouge, for appellees.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

The plaintiff, Walter E. Belanger, has appealed a judgment in favor of the defendants dismissing his suit for damages resulting from injuries sustained in an automobile collision between an automobile driven by him and one driven by the defendant Vernon L. Ellerbe, III, and insured by the defendant, Employers Fire Insurance Company.

The accident in question occurred on U. S. Highway 61 a short distance south of its intersection with Interstate 12 near the entrance to Ramada Inn Motel in East Baton Rouge Parish on August 4, 1974. The trial court found both drivers negligent and denied recovery on account of the contributory negligence of the plaintiff, Belan-ger.

We adopt the summary of testimony and the conclusions of the trial judge based thereon in his “Written Reasons for Judgment.”

“The evidence reflects that prior to the accident, Walter Belanger left the parking area in front of the Ramada Inn which is located on the west side of the Airline Highway and stopped at the southernmost exit from the Ramada Inn before proceeding in a Southerly direction down Airline Highway. He testified that he planned to drive to the Village Restaurant which is located several miLs north of the Ramada Inn on the Airline Highway. It was therefore his intention to move forward to the next gap in the median strip between the south and northbound lanes in order to make a “U” turn and proceed north to his destination.
“Belanger recalled that after stopping at the side of the highway, he looked north and perceived a group of southbound cars at a considerable distance and another single vehicle in the inside lane at some distance ahead of these cars. He estimated that when he first observed this latter vehicle, it was approximately 100 feet away from where he was stopped. Belanger stated that after this automobile passed he pulled ahead and crossed into the left or inside lane. He said that this was when he noted that the car which had just passed had come to a stop in the median gap preparatory to making a “U” turn. He said that he also brought his automobile to a halt behind this car at which time he first looked in his rear view mirror and heard the sound of squealing brakes followed by the impact of Ellerbe’s car with the rear of his vehicle.
“Ellerbe testified that before the collision he was following an employee of his who was testing another automobile. He said that he was driving southbound at approximately 45 miles per hour and at this time noted the Meyers car stopped in the intersection between the north and southbound lanes with a part of the vehicle protruding into the inside lane. He said that it was then, as he approached the northernmost exit of Ramada Inn, that he first observed the Belanger car pull out into the righthand or outside lane. He said he first applied his brakes, but then replaced his foot on the accelerator as he thought that he could proceed ahead. He said Belanger then made an abrupt 90 degree left turn into the inside lane alongside the Meyer automobile after which he struck the Belan-ger car on the left rear quarter panel.
“The investigating officer, M. J. McFarland, said that when he arrived at the scene of the accident, he found both vehicles still in the same relative position that they were following the accident. At this time, the Ellerbe vehicle was in the left lane and the Belanger automobile had reversed its direction and had come to a halt in the median strip a short distance from a light standard. He said that the debris left by the impact between the two vehicles commenced several feet north of the gap in the median strip in the left or inside southbound lane. Officer McFarland said that the rear quarter panel of the Maverick driven by Belanger was damaged and the front and left quarter panel of the Cadillac operated by Ellerbe. He acknowledged that he had made no measurements regarding the width of the median strip, the location of the point of collision or the distance from the gap in the median strip back to where the exit for the Ramada Inn was located.
“Glenn Meyers, who was called by the plaintiff, testified that he was the driver of the Buick Skylark which preceded Mr. Belanger into the intersection or gap in the median strip. He said that he intended to make a “U” turn and had brought his car to a stop in the median strip. He said that he heard the sound of brakes being applied and looked behind him and saw Ellerbe’s Cadillac sliding in the inside lane of Airline Highway and noted for the first time Belan-ger’s automobile stopped to his rear, after which the collision happened between the Cadillac and the Maverick.
“From the onset, the Court in gauging defendant’s actidn against the standard of due and reasonable care required of a motorist, must find him negligent based upon his own testimony. Faced with a congested situation wherein his own lane was partially blocked by Meyers’ automobile and with Belanger occupying the right lane, he should have maintained' a braking condition instead of renewing his efforts to proceed ahead as he related, While there is undoubtedly some question of whether Belanger remained briefly in the right lane before switching to the left lane or' whether he moved generally in a diagonal path across the right lane into the left lane, this does not absolve Ellerbe of fault when it is recalled that sufficient time had elapsed to allow Belanger to come to a complete stop. (Meyers’ testimony to this effect.) Ellerbe could have probably avoided the collision if he had continued to apply his brakes instead of merely trusting that the situation ahead would resolve itself. The Court therefore finds that Ellerbe did not exert ordinary care under the circumstances and, accordingly, was negligent contributing to the real cause of the accident.
“From a stipulation of the parties, reflected by a' diagram filed in the record (Employers # 1), it appears that the distance from the southernmost exit of the Ramada Inn to a point equidistant to the gap in the median is 108'. This would indicate that there was a relatively short distance to be traveled by Belanger from the exit to the gap in the median which would require him to traverse both lanes in the process in order to make his “U” turn. Considering the close proximity of the exit to the median gap, such manuever should have been made with care and caution, particularly as concerned approaching traffic. While Belanger said that he had initially looked to see if there was any approaching traffic and observed that there was some at a distance he acknowledged that after the Meyers car passed, he did not look again and promptly pulled out. In view of the fact that he was aware of other approaching traffic, he should have reassessed the situation before entering the roadway. As an indication that he may have thought his maneuver presented a peril to oncoming traffic is his statement that he immediately looked in his rear view mirror after stopping behind Meyers and before he heard the squealing of Ellerbe’s brakes. (Emphasis supplied by Court) This is usually a “giveaway” on the part of the motorist who has reason to believe that his actions may have not been quite proper under the circumstances. In any event, the Court believes that the plaintiff was also negligent and his negligence contributed to the ultimate cause of the collision.”

The issues in this case are strictly questions of fact and the decision of the trial judge will be given the weight which our jurisprudence directs be given to those findings. Curole v. Acosta, 303 So.2d 530 (La.App. 1st Cir. 1974); Taylor v. Roach, 302 So.2d 327 (La.App. 1st Cir. 1974); Breaux v. Villarubia, 269 So.2d 841 (La.App. 4th Cir. 1972); Aucoin v. Lodrigues, 252 So.2d 758 (La.App. 1st Cir. 1971); Ebert v. Macaluso, 248 So.2d 355 (La.App. 4th Cir. 1971), writ refused, 259 La. 758, 252 So.2d 455 (1971); Beeland v. Smith, 237 So.2d 428 (La.App. 4th Cir. 1970).

We have given full consideration to appellant’s argument and to the authorities cited with reference to the Appellate Court’s duty and range of discretion in considering all factors which may lead to a different but reasonable conclusion from that of the trial judge when based upon testimony of wide variation and conflict. We do not find such a variance of conflict as would justify the drawing of a different conclusion from that of the trial judge. Moreau v. Safeco Insurance Company of America, 290 So.2d 402 (La.App. 2nd Cir. 1974); Travelers Indemnity Company v. Ben, 269 So.2d 553 (La.App. 1st Cir. 1972) and Bogasky v. Falsetta, 189 So.2d 98 (La.App. 1st Cir. 1966), cited by the appellant, are not relevant to the factual situation we find in this case.

We find nothing in the record before us, nor in the authorities cited, to justify a reversal of the trial judge’s decision on purely factual issues, where, as here the evidence clearly supports the conclusions reached. We find no manifest error in the judgment appealed.

The extent of appellant’s injuries and the issues of quantum need not be discussed.

For these reasons the judgment appealed is affirmed at appellant’s cost.

Affirmed.


author: COVINGTON, Judge:

text:
    BATSON LUMBER CO., INC. v. Mrs. Camille Gardner YATES.
    No. 10415.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Henry A. Mentz, Jr., Hammond, for appellant.
    John N. Gallaspy, Bogalusa, for appellee.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

This is a suspensive appeal from a judgment sustaining the defendant’s motion for a summary judgment and dismissing the suit of Batson Lumber Company, Inc., the plaintiff, said judgment having been signed on November 8,1974.

On December 18, 1973, the plaintiff brought the suit to reform a timber contract and for the right to perform the contract and, alternatively, for damages. The gist of the petition and supplemental petition was to the effect that the original agreement for the timber sale was made about November 1, 1971, providing for payment in three installments, the last being November 1, 1973, said contract providing that title “shall not pass until said timber is severed.”

The plaintiff further contended that after title examination was made there was certain curative work to be done, and that the succession was not completed until the latter part of December, 1971, but that through clerical error, mistake and/or inadvertence, the final payment date was not changed to reflect the twenty-four month period for removal of said timber and, therefore, still provided that payment should be made on or before November 1, 1973. The plaintiff’s petition further stated that on or about the latter date plaintiff was informed by a member of the family that the contract had expired, whereupon plaintiff informed the defendant, through her attorney, that it was ready, willing and able to cut the remaining timber on or before December 31, 1973, and to pay for same at the contract price, whereupon defendant allegedly informed plaintiff that in the event that plaintiff or his agents or contractors entered the land that immediate legal proceedings would be instituted against them for damages or any other relief allowed by law, whereupon the plaintiff did not attempt to cut and remove the remainder of the timber.

After the trial court sustained the defendant’s exception of no cause of action, the plaintiff amended its petition, basically reiterating its original allegations.

Defendant then filed a motion for summary judgment, with supporting affidavits of defendant and her attorney to the effect that the plaintiff had made no tender of payment in accordance with the contract. The plaintiff answered the motion for summary judgment and annexed an affidavit of John O. Batson, President of Batson Lumber Company, to the effect that tender of payment had been timely made, but that defendant refused payment and prevented the defendant’s performance.

A reading of the pleadings, the timber contract and the annexed affidavits convinces us that the trial judge committed manifest error in sustaining the defendant’s motion for a summary judgment. The case is not in a posture for a summary judgment. The affidavits, together with the pleadings and the timber contract, show us that there is a. genuine issue of a material fact: plaintiff says that payment is due on December 30, 1973, while defendant says that payment is due on November 1, 1973. The date on which the payment was to be made under the timber contract is in dispute. Evidence must be received to ascertain the correct payment date. Said date cannot be determined from pleadings that are apparently contradictory, affidavits that are also apparently contradictory, and a timber contract that is apparently ambiguous.

Under LSA-C.C.P. Art. 966, it is only where there is no genuine issue of a material fact that the motion for summary judgment can be granted; see Mandella v. Russo, 294 So.2d 598, 601 (La.App., 4th Cir. 1974); Cadle v. McNemar Construction Company, Inc., East Glenhaven, Inc., 281 So.2d 834, 838 (La.App., 1st Cir. 1973). Such is not the case here.

The courts have repeatedly held that a motion for summary judgment is not a substitute for a trial on the merits. See Odom v. Hooper, 273 So.2d 510, 515 (La., 1973); Hobbs v. Fireman’s Fund American Insurance Companies, 293 So.2d 608, 610 (La.App., 3rd Cir. 1974), writ refused, 296 So.2d 832 (La.).

We so hold once again. The judgment is reversed and the case is remanded for a trial on the merits. The costs of this appeal are to be paid by the defendant-appel-lee. All other costs are to await final determination of the case.

Reversed and remanded.


text:
    Bobbye S. WILSON v. F. C. DOYAL, Jr., etc., et al.
    No. 10405.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Kenneth J. Fogg, Denham Springs, for appellant.
    Marion Weimer, Baton Rouge, for ap-pellees.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This is an appeal by a resigned employee of the Baker Bank and Trust Company for unemployment compensation benefits. Specifically she has appealed from a judgment of the District Court which upheld the decision of the Board of Review of the Department of Employment Security which had found the claimant disqualified for unemployment compensation benefits for the reason that she had resigned her position of employment voluntarily, and without cause connected with her employment.

Mrs. Bobbye S. Wilson was employed as a bank teller by Baker Bank and Trust Company for a period of four and a half years. She resigned her position on June 30, 1974 after giving the Bank a two weeks notice. Her employer notified the Department of Employment Security of the termination of her employment by resignation. After a representative of the Department questioned the claimant for reasons it was determined that she had resigned for good cause connected with her employment. She was ruled eligible for unemployment compensation benefits.

Her former employer, the Bank, appealed this ruling and a hearing was had before the Appeals Referee, Kenneth Drig-gers, on July 19, 1974. The only appearance for the hearing was a representative of the Bank, Floyd White, Vice President. The claimant, Mrs. Wilson, was not present, nor was she represented. She alleged that she has never received a notice of that hearing.

Following that hearing, the Appeals Referee reversed the determination of eligibility and ruled the claimant disqualified as of May 31, 1974. In the meantime she had received seven weekly unemployment compensation checks of $70 each.

Upon receipt of notice of her disqualification, the claimant immediately filed an appeal with the Board of Review. The Board, acting upon the record of evidence taken by Mr. Driggers ordered his decision of disqualification to be upheld.

The claimant then sought judicial review of the action of the Board of Review. The Court, on December 13, 1974, ordered the case remanded to the Board of Review for additional evidence. Accordingly, a further hearing was had by the Board of Review on January 21, 1975. That hearing was attended by the claimant and her attorney and two witnesses on her behalf. There is no explanation why but the employer, the Bank, was not represented and the only additional evidence submitted was the testimony of the claimant and her two witnesses.

The Board again ruled against the claimant and reaffirmed its previous ruling upholding the decision of disqualification made by the Appeals Referee, Mr. Drig-gers. Due return was made to the Court, which rendered judgment upholding the decision of the Board of Review. It is that judgment which the claimant now appeals to this Court.

The facts brought out at the two hearings are that Mrs. Wilson resigned upon giving two weeks notice. She did not state in her letter specific reasons for resigning. Mr. Floyd White, Vice President of the Bank, who testified at the first hearing said she gave no definite reason, but that he knew that she had expressed reasons to other persons.

Mrs. Wilson testified at the second hearing

“Well, I just didn’t think it was fair that I wasn’t paid for my sick leave when other people were and I wasn’t given any explanation as to why I had to do my extra work later. I informed Mr. White of this and he simply told me that I could stay on the job if I wanted to under the circumstances.”

In the information given by her in connection with her application for benefits she said “I had to quit under the circumstances.” We think there is no doubt that Mr. White knew of the “circumstances” of which she complained.

Her grievances were: (1) That changes were made in her work assignments which were discriminatory in that other employees of the same rank were not subject^ ed to the same changes. (2) That she was denied sick leave benefits when other employees were allowed sick leave. This, she alleged was arbitrary and discriminatory. (3) That a policy change was put into effect which required her to give up her Thursday afternoon early release to take her child to a special education class, which allowed other tellers to change from Wednesday afternoon early release to Thursday afternoon to accommodate the appointment schedule of their beauty operator. This, she alleged was arbitrary and discriminatory. •

On the second hearing Mrs. Wilson gave testimony in support of the foregoing grievances and was substantially corroborated by two witnesses, namely, Gene Ran-some, Cashier of the Bank, and Jessie Bourgoyne, Head Teller.

Mr. White testified that Mrs. Wilson’s working hours and work assignments had not been changed to his knowledge in eight or nine months. He then added:

“I know of no change in her job duties because she has had that assignment for about the last two years as far as I know.”

All of the tellers were required to do certain so called “extra” jobs, for example, to credit and debit special accounts such as automatic savings and Christmas Club accounts and to receive certain collection payments for the Town of Baker. These duties were referred to as “extra” regular duties. The tellers were permitted to discharge these duties during regular banking hours so long as it did not interfere with their duties as tellers in waiting on the Bank’s customers.

Mrs. Wilson testified that on orders of Mr. White, her supervisor told her she was no longer to do her Christmas Club and Savings Accounts credit and debit work during regular banking hours, but to do so only after balancing her money after banking hours. She testified that the same requirement was not made of the other tellers. This made her work-day longer than that of the other tellers which she thought was arbitrary and discriminatory. Mr. Bourgoyne, the Head Teller, and her supervisor, verified this testimony and admitted that he gave her those orders under order from Mr. White. He acknowledged that the other tellers were not restricted from doing their “extra” duties during regular banking hours. He gave as a reason for Mr. White’s orders an alleged complaint that Mrs. Wilson had neglected waiting on customers to do her debit and credit work. This unverified complaint is the only implication we find in the record that Mrs. Wilson did not perform her duties properly. Mr. Bourgoyne testified as follows :

A. “Well, he said that it was brought to his attention — well, he didn’t say that he just told me that she was not to do her Christmas Club debits in the afternoon because he was made aware, that’s more or less what he said, he was made aware of the fact that she was not waiting on customers while she was doing her debits. You want me to go into detail what that is ?
Q. “Unless you would like to.
A. “No, that’s okay. So he related to me to the fact that I was to tell her, you know, that she was to do it after 2 o’clock after the rest of the bank was closed and that she was not to argue or say anything about it — just do it.
Q. “I see. Were the other tellers told the same thing ?
A. “No.
Q. “The other tellers were allowed to continue doing their extra chores during the day.
A. “Right.”

This discriminatory treatment of Mrs. Wilson in regard to the required hours for doing her “extra” work was corroborated further by the testimony of Gene Ransome, Cashier. He testified that he was aware of Mr. White’s order that Mrs. Wilson not be permitted to do her “extra” duties during banking hours and that she was required to do them after regular banking hours. He testified further as follows:

Q. “Now, were all tellers told this or were some allowed to continue doing their extra duties.
A. “As far as I know some tellers were still allowed to do their extra duties during the working hours.
Q. “What about Mrs. Wilson? Was she allowed to do hers ?
A. “No, she wasn’t.
Q. “She was required to do her extra duties at the close — after the bank closed.
A. “Right.”

Both Mr. Ransome and Mr. Bourgoyne testified that there was no definite policy regarding sick leave benefits. Mr. Ran-some said that when he was in charge of operations they followed approximately the same policy as American Bank, which was to allow sick leave with pay of one day per month or twelve a year.

Mr. Bourgoyne testified that when the tellers missed days from work on account of sickness or other personal reasons, other tellers would do their work and said:

“[When] they came back they might offer to work the day back but it was never ruled that they had to make the day up and several times when Bobbye [Mrs. Wilson] was either out or something, you know, when she got back I was called into his [we assume Mr. White’s] office and told that she was to make the day up. ... I don’t know . what started it but I was told for her sake, you know, for her to make it up.”

Mrs. Wilson had an accident in April resulting in a broken hand which disabled her for several days. She missed a week from work and then took an early vacation of two weeks, during which she hoped her recovery would be complete. She was docked one week’s pay. When Mr. White was asked about this he is alleged to have replied that he paid sick leave according to what he felt an employee needed. Mr. White’s statement was:

“As far as her statement saying that we pay according to the needs of the individual — that is not the way that — certainly not the way I intended for it to sound. We pay according to the disposition of the absence.”

He further acknowledged that she was not paid for one week she was out on account of the accident.

It was the Bank’s policy to allow each of the tellers to leave early one afternoon a week after balancing their accounts after the Bank’s closing hour at 2:00 P.M. They rotated duties at the drive-in windows which required longer hours. For some time Mrs. Wilson was given early release on Thursday afternoons to take her child to a special education class. This was changed in order to accommodate the convenience of other tellers in meeting beauty shop appointments. Mr. Bourgoyne explained this change in routine as follows :

“Well, she — it was allowed until — well, the other tellers, there was two other ones —they was going for hair appointments on Wednesday and so I think Bobbye or one of the other tellers was working Wednesday while they was going there and one of those two was working Thursday while she was taking her son to that class and wherever they got their hair fixed — the lady went out of business or changed schedules or something so the two tellers wanted to get their hair fixed on Thursday too and went to Mr. White with it and so he ruled down that they would each have to take a separate turn on Thursday because it was just as important for them to get their hair fixed as it was for her to take her kid to a special school.”

There is no testimony or other evidence in the record to contradict the testimony of Mrs. Wilson and her two witnesses, Mr. Ransome and Mr. Bourgoyne, relating to the discriminatory conditions of her employment. The testimony of Mr. White that there was no change “to [his] knowledge” in Mrs. Wilson’s working hours and conditions and that he knew “of no change in her job duties because she had that assignment for about the last two years as far as I know” does not contradict the testimony of his employees that she was required to perform those duties under conditions that did not apply to the other tellers. He did not give any testimony categorically touching upon her complaint of the discriminatory treatment. Furthermore, we have already noted his acknowledgment that she was denied one week’s sick-leave pay and there is no testimony by him to contradict his employees, Ransome and Bourgoyne, that other employees were not denied sick leave under similar situations. We therefore find no evidence in the record to support Mr. White’s contention that Mrs. Wilson resigned her position without cause. The evidence clearly establishes the fact that she was subjected to working conditions which were not imposed upon other employees of equal rank and this constituted discriminatory and unfair treatment. We hold that Mrs. Wilson had good cause to resign her position and is eligible for payment of unemployment benefits.

We are fully aware of the provisions of La.R.S. 23:1634 that:

“In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” (Emphasis added)

The jurisprudence on this and similar provisions relating to other administrative boards is well settled that where there is no substantial evidence in fact to support the decision of the board, the court may, if the other evidence so warrants, set aside the ruling of the board. Kansas City Southern Railway Company v. Louisiana Public Service Commission, 254 La. 160, 223 So.2d 132 (1969); Rankin v. Doyal, 223 So.2d 214 (La.App. 2d Cir. 1969); Gardere v. Brown, 170 So.2d 758 (La.App. 1st Cir. 1964); Broussard v. Administrator, Division of Employment Security, 121 So.2d 268 (La.App. 1st Cir. 1960); Raborn v. Heard, 87 So.2d 146 (La.App. 1st Cir. 1956).

It is our opinion that there is no evidence in the case to support the ruling of the Board of Review, especially in view of the clear showing made by the claimant of prejudicial and discriminatory conditions imposed upon her relating to her employment. We find that she had good cause to resign rather than to continue to work under those conditions.

The judgment appealed is reversed and judgment is rendered in favor of the appellant, Bobbye S. Wilson, and against the defendant, Board of Review for the Department of Employment Security, setting aside and annulling its order sustaining the decision of the Appeals Referee which disqualified the claimant and holding her ineligible for unemployment compensation benefits. It is further ordered and decreed that appellant, claimant, Bobbye S. Wilson, be reinstated for said benefits according to law.

The appellee is cast for such costs of this proceeding as are in accordance with law.

Reversed and judgment rendered.