text:
    Barbara Ann BARR, Plaintiff-Appellee, v. STATE of Louisiana, Through the LOUISIANA DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 13433.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    En Banc. Rehearing Denied March 1, 1978.
    Writs Refused March 17, 1978.

      Philip K. Jones, Marshall W. Wroten, Robert J. Jones, Doran & Kivett by William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Barham, Adkins & Coleman by Charles C. Barham, Ruston, for Barbara Ann Barr, plaintiff-appellee.
    Gist, Methvin & Trimble by Alonzo P. Wilson, Alexandria, for Paul D. Spurlock, third-party defendant-appellee.
    Hayes, Harkey, Smith & Casio by Thomas M. Hayes, Jr., Monroe, for Travelers Insurance Co., intervenor.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Defendant appeals from a judgment awarding damages to the surviving wife and children for the death of Bobby Amb-rose in a two-truck collision allegedly caused by the negligent construction and maintenance of a bridge and its approaches on Louisiana Highway 145 in Jackson Parish, Louisiana. The judgment also denied defendant’s third-party demand against Paul Spurlock, driver of one of the vehicles involved in the collision.

We modify the judgment by awarding judgment in favor of defendant on its third-party demand against Paul Spurlock for a contribution of one-half the amount of the judgment against the State of Louisiana, Department of Highways, and as thus modified, we affirm.

The accident occurred at 6:45 a. m. on July 31, 1973, approximately 65 feet north of a narrow bridge on Highway ^145. This two-lane blacktop road runs generally north and south and the surface is from 20 to 21 feet wide and narrows to about 19 feet as it approaches the bridge, which was 18 feet eight inches wide. The bridge, 59 feet long and straight, was constructed in the arc of a curve. Hills sloped downward on the north and south approach. Because of a hill and curve at each end of the bridge, drivers are required to get within 300 feet of the bridge before they could observe vehicles coming from the opposite direction. There is a curve sign with a recommended 40 miles per hour speed designation on the north and south approach. There were no other highway signs in the area.

The decedent was driving a truck and trailer unit 8.67 feet wide. Third-party defendant Paul Spurlock was driving a school bus converted to a poultry vehicle which was 7.92 feet wide. The combined width of the bus and truck is 16.59 feet. The width of the bridge is 18.7 feet. While it is possible for the two vehicles to pass on the bridge at the same time, the highway experts who testified for plaintiff established that because of the misalignment of the straight bridge in the arc of the curve, it is impossible for a driver approaching the bridge to make a straight entry upon the bridge. He will enter the bridge much closer to the center line and he drives away from the outside edge of the bridge to his left very close to and sometimes over the center line. These experts further testified that due to the misalignment of the bridge, the trailer being towed by Ambrose’s truck would offtrack and travel as much as a foot further to the left than the truck towing it. Under these circumstances, it would be virtually impossible for the trucks to pass each other on the bridge at their respective speeds of 35-40 miles per hour without colliding. One of the experts testified that in order for the two vehicles to safely pass on the bridge they would have to be operated by stunt drivers.

As Spurlock, driving south, reached a point 200 to 300 feet north of the bridge, he observed Ambrose driving north at a point between 75. to 100 feet south of the bridge. Knowing the two vehicles could not safely pass on the bridge, Spurlock applied his brakes. When he applied his brakes, the rear of the bus veered into the northbound lane and after skidding 140 feet, collided with the northbound Ambrose vehicle. The Ambrose vehicle struck the left side of the bus approximately five feet from the back of the bus and following the collision went off the road on the right side. The point of impact was entirely in Ambrose’s lane of travel. Ambrose was killed in the collision.

Ambrose was not familiar with the scene of the accident and was unaware of the narrowness of the bridge. Spurlock had crossed the bridge approximately two times a week for several years and knew it was impossible for the two vehicles to safely cross the bridge at the same time.

The bridge was built in 1928 and was part of a gravel or dirt road. At the time the bridge was built, the road was not as wide, vehicles were not as wide, and traveled at slower rates of speed. Under these circumstances, the location of the bridge in the arc of the curve did not create a situation nearly as hazardous as we find it to be today. One of the highway experts testified that when the road was widened and hardsur-faced, which was done in 1958, the bridge become a hazard and should have been widened or at the very least, the driving public should have been warned of its existence by the installation of a narrow bridge sign.

The trial judge gave written reasons for finding the defendant negligent and concluded:

“It is the conclusion of the court that the Department of Highways was negligent by allowing a dangerous condition to exist and by not placing a warning sign prior to the approach to the bridge so that travelers may be notified of the potential dangers.
“The cause of the accident was the location of the bridge in the curve and the narrowness of the bridge structure itself. In addition, by having a dangerous condition, the highway needed some type of warning to put drivers on notice. The lack of warning signs was thus a concurring act of negligence.”

Defendant contends: (a) the Department of Highways was guilty of no acts of negligence that were the proximate cause of the accident; (b) the decedent Ambrose was guilty of contributory negligence; (c) the negligence of third-party defendant Spur-lock in failing to maintain control of his vehicle was the sole cause of the accident; and (d) the trial court’s award of damages is excessive.

The duty of the defendant to maintain the highways is set forth in LSA-R.S. 48.21(A):

“The functions of the department shall be to study, administer, construct, improve, maintain, repair, and regulate the use of the state highway system and to perform such other functions with regard to public highways and roads as may be conferred on the department by law.”

The duty of defendant to safely maintain the highways for travel was defined in Petree v. Crowe, 272 So.2d 399 (La.App. 2d Cir. 1973) as follows:

“The duty imposed upon a state or its Department of Highways or other appropriate authority is to construct and maintain highways which are reasonably safe for public travel. In the performance of this duty the character of the road and the probable traffic must be kept in view, as the requirement of reasonable safety implies safety for the general or ordinary travel, or use for any lawful or proper purpose.
“The Department of Highways has a duty of maintaining the highways in a safe condition. This includes the duty of providing proper safeguards or adequate warnings of dangerous conditions in the highway. What constitutes proper safeguards and adequate warnings to motorists varies with the dangers presented and should be of such nature that it is commensurate with the danger. The negligence of the Department of Highways may be predicated on its knowledge or information of the existence of a dangerous or defective condition of the highway and subsequent failure to safeguard such condition. See McCallum v. State Department of Highways, supra [246 So.2d 46 (La.App. 3d Cir. 1971)].”

While the Department has the duty as here set forth, due to the vastness of the obligations assigned to it, the following guidelines are set forth in LSA-R.S. 48:192(A):

“The establishment of priorities on a project basis shall be sole responsibility of the board of highways. In fixing priorities, the board of highways shall consider primarily the condition of the roads, streets, and structures making up a part of the state highway system and the relative urgency of the improvements considering in their order general needs, traffic volume, accident records, technical difficulties in the preparation of plans and the procurement of rights of way as well as unforeseeable emergencies such as floods.” Emphasis added.

In the decision of Roberts v. Winston Carriers, Inc., 304 So.2d 818 (La.App. 3rd Cir. 1974), it was recognized that the highway department was not necessarily negligent in failing to update an old highway to comply with modern standards:

“She (plaintiff) argues that the highway was too narrow to accommodate that high volume of traffic safely, and that the Highway Department was negligent in maintaining such a narrow thoroughfare in that area. We agree that under modern standards the highway should be wider to accommodate the volume of traffic which uses it. We do not feel, however, that the Department of Highways is liable in damages for having failed to widen the highway or to close it to all traffic before this accident occurred simply because it did not meet modern standards as to width.”

Defendant does not seriously contend the bridge is not hazardous. One of defendant’s experts admitted the two trucks could not safely pass on the bridge. It argues that because of the low traffic count of only 147 vehicles per day its failure to have earlier replaced the bridge was not negligence and does not result in its being liable for damages because it is impossible for the Department to fix all bridges that are below standard with available funds. The Department established there are 31 bridges located in Jackson Parish with a width of less than 19 feet and 179 bridges located in Highway District 5 (this is the district in which Jackson Parish is located) which have a width of less than 19 feet. There is substantial logic in the Department’s contentions and the fact it has failed to give priority to the repair of this bridge may well be within its discretionary right under R.S. 48:192(A). In the decision of Petree v. Crowe, supra, the court stated “in the performance of this duty the character of the road and the probable traffic must be kept in view.” This is a recognition the Department is entitled to assign priorities in the performance of its duties. This principle was also recognized in Roberts v. Winston Carriers, Inc., cited supra.

While defendant may have some justification for its failure to earlier reconstruct the bridge in accordance with modern-day standards, can it be said to be also justified in failing to install warning signs which would advise approaching motorists of the narrowness of the bridge? Defendant, pursuant to LSA-R.S. 32:235, adopted a manual of Traffic Control Devices in 1962 which establishes its duty with regard to the installation of warning signs in connection with narrow bridges as follows:

“Narrow Bridge Sign : The W 28 sign shall be used to indicate a bridge having a clear roadway width of 16 to 18 feet, or any bridge having a roadway clearance less than the width of the approaching pavement. In rural areas, it shall be placed not less than 750 feet nor more than 1000 feet in advance of the narrow bridge. In urban areas this distance shall be approximately 250 feet.”
“One Lane Bridge Sign : The W 29 sign shall be used to mark all bridges having a clear roadway width of less than 16 feet. It may also be used on bridges having roadway widths of less than 18 feet, when commercial vehicles constitute a high proportion of the traffic or when the alignment approaching the structure is poor. In rural areas, it shall be placed not less than 750 feet nor more than 1000 feet in advance of the bridge. In urban areas, this distance shall be approximately 250 feet.” Emphasis added.

Defendant in brief contends the bridge did not require a sign indicating it was a hazard.

Defendant’s expert, J. B. Carter, retired State Project Engineer, testified this bridge, constructed in 1928 “began to fall below standards in 1946 after the war.” His opinion was necessarily based on the fact that the highway’s surface had been improved, vehicles were being constructed wider and traveling faster. The evidence establishes that in 1958 the road was blacktopped and widened and at this time, the bridge was not increased in width. The width of the road approaching the bridge is from 20 to 21 feet. Highway experts established that bridges should be constructed at least the width of the approaching road and shoulders which would require this bridge to be at least 21 feet in width. All bridges presently being constructed in this state have a minimum width of 28 feet. Defendant acknowledged that prior to the accident this bridge had been rated poor and plans had been prepared to reconstruct it. Defendant’s engineer explained the rating was because of the bridge’s age, narrowness, and the fact its alignment was poor because of the curve on each end of the bridge.

The first regulation above cited would require a narrow bridge sign for the reason the width of the bridge is less than the width of the approaching pavement. The second regulation cited would require a one-lane bridge sign because the alignment approaching the structure is poor. The cost of installation of one of these warning signs is minimal. The defendant was well aware of the hazardous condition of the bridge prior to the time of the accident. There is no justification for its failure to have installed the warning signs and its failure to do so is negligence. Dabov v. Allstate Insurance Co., 302 So.2d 697 (La.App. 3rd Cir. 1974); Kilpatrick v. La., Dept. of Highways, 154 So.2d 439 (La.App. 2d Cir. 1963); LeBlanc v. Estate of Blanchard, 266 So.2d 918 (La. App. 4th Cir. 1972).

Defendant contends although it may have been negligent in failing to install a narrow bridge sign, this negligence was not the proximate cause of the accident, for the reason the drivers of the vehicles involved were both familiar with the accident site and needed no warning of the hazard. The evidence does establish that Paul Spurlock traveled over the bridge at least twice a week for several years and on one occasion stopped his vehicle in order to avoid passing an approaching automobile on the bridge. Spurlock admits he knew the bridge was narrow and that was the reason he applied his brakes upon observing the approaching Ambrose vehicle. Even though Spurlock had this knowledge, he may have failed to recall the hazard which he was approaching and for this reason, did not slow the speed of his bus well in advance of his arrival at the bridge approach. If the sign had been installed 750 feet north of the bridge site as required by the manual, it could have reminded Spurlock and caused him to slow his speed well below the 35 or 40 miles per hour which he was traveling in order that he could have safely stopped the bus in the event he met a vehicle at the bridge.

The evidence does not establish Ambrose was aware of the narrow bridge. The trial court found Ambrose had never had occasion to drive a large tractor-trailer rig across this road, and the evidence supports this finding. If a narrow bridge sign had been posted 750 feet south of the bridge, Ambrose would have observed it, reduced his speed as he approached the bridge and been able to avoid the collision. Instead of observing a narrow bridge sign, Ambrose was confronted with a curve sign with a 40 miles per hour speed recommendation thereon, and therefore, had no reason to approach the bridge at a speed of less than 35-40 miles per hour. Ambrose was entitled to presume the highway was safe for normal use.

“The general rule is also well established and recognized in the jurisprudence that a motorist using a public highway has a right to presume and to act upon the presumption, that the highway is safe for usual and ordinary traffic, either in daytime or at night, and that he is not required to anticipate extraordinary danger, impediments, or obstructions to which his attention has not been directed and of which he has not been warned. See Kilpatrick v. State, supra; Falgout v. Falgout, supra [251 So.2d 424 (La.App. 1st Cir. 1971)]; and Reeves v. State, supra [80 So.2d 206 (La.App. 2d Cir. 1955)].” Petree v. Crowe, supra.

The evidence establishes that Ambrose could not have seen the approaching poultry bus until he was within 300 feet of the bridge and at his speed it would have required him from 360 to 420 feet to stop his truck. Therefore, at the time he was able to observe the approaching Spurlock vehicle, it would have been impossible for him to have stopped his 18 wheeler before colliding with the approaching poultry bus which had slid to within 12 feet of the end of the bridge after the collision. Before Ambrose would have made a determination to stop, he would have to determine the bridge was too narrow for the two vehicles to safely pass simultaneously, and he could not have made this determination until he was very near the bridge. There is no evidence that Ambrose was traveling at an excessive rate of speed or that he was not in his proper lane of travel or that he failed to take evasive action which would have avoided the accident. Though Ambrose’s truck exceeded by eight inches the eight foot width limitation of R.S. 32:381, this did not contribute to the cause of the accident. The defendant failed to establish that Ambrose was guilty of any contributory negligence.

Defendant asserts because the accident did not occur while the two vehicles were passing each other on the narrow bridge, the absence of the warning signs would not have been the proximate cause of the accident. This rationale fails to take into consideration that the absence of the sign may have failed to remind Spurlock to slow his vehicle on the approach to the bridge, and therefore, its absence was the cause of the hasty locking of the brakes on the bus which caused it to move into Amb-rose’s lane of travel. This argument also fails to take into consideration that had Ambrose seen the sign, he would have approached the bridge with caution and therefore could have brought his vehicle under control at the time he observed the approaching poultry bus.

The accident which happened here is exactly the kind of accident the installation of narrow or one-lane bridge signs was designed to avoid. The violation of the duty to install the signs contributed to causing the accident which brought about the death of Ambrose. Mixon v. Allstate Insurance Co., 300 So.2d 232 (La.App. 2d Cir. 1974).

Paul Spurlock, because of his familiarity with the location of the narrow bridge and knowledge that it was unsafe for two vehicles to pass on it simultaneously, should have approached the bridge at a slow rate of speed so that he could have brought his vehicle under control in the event he met traffic approaching from the other direction. Spurlock was not entitled to assume the road was safe to travel because he had actual knowledge of the hazardous bridge. Martin v. State, Dept. of Highways, 322 So.2d 827 (La.App. 3rd Cir. 1975). His failure to maintain control of his vehicle under these circumstances was negligence which contributed to the accident.

The Department of Highways may have been justified in failing to widen the bridge and improve its alignment because of the low traffic count on the highway, but the trial court’s finding that the Department of Highways was guilty of negligence contributing to the death of Ambrose based upon the failure to install warning signs advising of the hazardous bridge is supported by the record.

The trial court was in error in rejecting the third-party demand against Spurlock because his prior knowledge of the hazard clearly placed him under a duty to approach the site of the accident with care, and his failure to do so directly contributed to' the cause of the accident.

Third-party defendant contends if it be found the accident was caused by the joint negligence of the Department and Spur-lock, the Department’s third-party demand should be rejected because the Department, in its pleadings, did not specifically pray for a contribution from the third-party defendant in the event of solidarily liability. While the pleadings contained in the third-party demand are not as articulate as third-party defendant would require, they clearly set forth an allegation that the accident was caused by Paul Spurlock and the prayer is as follows:

“4. That on the Third Party Demands, Third Party Defendants be condemned to pay to Third Party Plaintiff any amount it may be condemned to pay to the original plaintiff, plus legal interest and all amounts from judicial demand, and for all costs of these proceedings.”

Under the provisions of C.C.P. Art. 2164, we are entitled to render any judgment that is just, legal and proper upon the record on appeal. The record clearly justifies a judgment in favor of the Department of Highways on its third-party demand against Paul Spurlock for one-half of the amount of the judgment against the Department.

We have reviewed the damages awarded the wife and children of decedent and while they are substantial, we find them within the discretion of the trial judge. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

We amend the judgment to award judgment in favor of the Department of Highways and against Paul Spurlock on the third-party demand for one-half of the amount of the judgment rendered against the Department of Highways. All costs, including cost of appeal, are assessed against the defendant, Department of Highways, and against third-party defendant, Spurlock, in solido, subject to R.S. 13:4521, which relieves the defendant Department of Highways, except for stenographic costs.

Amended, and as amended, affirmed.

      . Plaintiffs were awarded the following damages:
      The widow was awarded $125,000 for the loss of support and $50,000 for loss of love and affection. The minor, Kimberly Ann Ambrose, age 15 years, was awarded $27,500 for loss of future support and was awarded $30,000 for loss of love and affection. Carol Denise Amb-rose, age 12 years, was awarded $30,000 for loss of support and $27,500 for loss of love and affection. Bobby Ambrose, Jr., age 6 years, was awarded $35,000 for loss of support and $25,000 for loss of love and affection.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    James H. BANKSTON, Plaintiff-Appellant, v. Nina Faye Miller BANKSTON, a/k/a Mrs. Johnnie Joe Denny, Defendant-Appellee.
    No. 13434.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    Rehearing Denied March 1, 1978.

      Jack & Jack by Wellborn Jack, Jr., Shreveport, for plaintiff-appellant.
    Smitherman, Smitherman, Lunn, Hussey & Chastain by Walter F. Johnson, III, Shreveport, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

At issue in this case is the custody of the seven-year-old son of the divorced plaintiff-father and defendant-mother. Although the child has lived with his father since the parties last separated in 1973, with brief exceptions, the district court found that it would be in the best interest of the child that his custody be awarded to the defendant-mother. The father has appealed from a judgment rendered accordingly. For reasons expressed in this opinion, we reverse and award custody to the father.

In January 1977, plaintiff, a resident of Shreveport, Louisiana, filed suit against defendant, a resident of Randlett, Oklahoma, seeking a divorce on the grounds of living separate and apart for two years and seeking legal custody of the parties’ only child, Brian Keith Bankston, who was born in February 1970. Defendant filed a peremptory exception of res judicata pleading a judgment of divorce rendered in Missouri in 1973 as a bar to plaintiff’s action for divorce. Defendant also answered, praying that plaintiff’s demand for custody be denied and that defendant be awarded the custody of the child.

After trial, the district court sustained the exception of res judicata, dismissed plaintiff’s suit for a divorce, and awarded custody of the child to the defendant-mother. On appeal the plaintiff does not question the court’s judgment in connection with the divorce. The sole issue on appeal is custody.

Plaintiff and defendant were married in 1967. Defendant had been married twice previously; one daughter (presently 19 or 20) was born of the first marriage and two daughters (presently 15 and 17) were born of the second marriage. Brian was born in February. 1970.

In June 1971, the parties separated and were subsequently divorced in September of that year. Although the mother was given legal custody of the son the father had actual custody until June 1972, when the parties remarried. Defendant testified she remarried plaintiff only to regain possession of the child, not because of any love for him.

In early August 1973, plaintiff left defendant at her request. In late August he returned to the town in Missouri where they had lived together to get the child. Plaintiff drove away with the child in his pickup truck and defendant was injured while trying to stop him. Following this incident defendant filed charges of assault with intent to kill against plaintiff.

In early September 1973, plaintiff moved with the child to Sherman, Texas. Defendant filed suit in Missouri for a divorce and custody of the child. Plaintiff was never actually served or notified of the divorce and custody proceeding; constructive service being by publication. A divorce and custody judgment was rendered in favor of defendant by the Missouri court in December 1973. The wife sought to enforce the custody judgment in January 1974, by filing a writ of habeas corpus in the Missouri court which was served on plaintiff when he was temporarily in Missouri to appear at a preliminary hearing on the August assault charges. When plaintiff failed to produce the child in response to the writ he was found to be in criminal contempt of the court.

In May 1974, defendant moved to Oklahoma with her daughters and remarried her second husband. In March 1975, defendant went to Sherman, Texas, took her son from a babysitter and returned with him to Oklahoma. Plaintiff sent the mother’s husband a letter indicating his willingness to pay $1,000 for return of his son to him. Plaintiff hired a private detective firm and paid them $300 to try to secure the return of his son. About this time, in May or June 1975, a young man armed with a gun forced his way into defendant’s home and threatened to kill those present if the son was not released. Defendant’s husband, with the use of a gun, detained the young man who was arrested and prosecuted. Plaintiff denied any knowledge of the young man or the use of a gun and testified his instructions to the private investigators were to secure the return of the son without hurting anyone.

In June 1975, plaintiff, with the help of two men to whom he paid $1,000, took the child from a parking lot while he was with one of the mother’s daughters. In July, plaintiff moved with his son to Shreveport where they have lived together until the present time. The instant suit was filed in January 1977, and judgment awarding custody to the mother was rendered in June.

Twelve witnesses, including friends, neighbors, business associates, the child’s teacher and a psychologist, testified on behalf of the plaintiff. The evidence establishes that he is a good provider, good cook and housekeeper, an interested parent and the child is happy, healthy, well behaved, well adjusted and intelligent. Father and son engage in many activities together such as boating, fishing, riding horses, cutting the lawn and traveling together on the father’s business trips. The child is presently attending a private Christian school in Shreveport and has great academic potential. The father, a 49-year-old furniture salesman who earns about $2,800 per month, travels a route which he completes in the afternoon and he then picks up his son after school almost everyday. Father and son have recently moved to a house which has two bedrooms, two baths, living room, dining room, den and kitchen and is situated on three acres. The trial court found:

“Plaintiff presented some 10 witnesses . people with whom he worked, neighbors, people with whom he did business, and the teacher of the first grade of the school attended by the child, all of which were most complimentary of the child. A clinical psychologist who had examined the child on two occasions testified that he was developing normally, emotionally and otherwise.”

At the time of trial the 38-year-old mother was employed as a cook in a restaurant in Randlett, earning about $400 per month. The evidence establishes she is a good mother, provider, cook, housekeeper and disciplinarian. Her two teenage daughters live with her in a house which has two bedrooms, one bath, living and kitchen-dining area. The house is located on four lots and is close to the school which the son would attend. The town where she lives has a population of approximately 600. All children attend a consolidated school which provides classes from the first grade through high school and appears to provide students with an adequate education. Defendant’s two daughters are A and B students and her oldest daughter attends college. School and church groups provide athletic programs for the children. It appears the educational, religious and athletic opportunities for the child in Shreveport and in Oklahoma are substantially the same. Defendant is separated from her present husband who appears to be a good, hardworking man, but who has a drinking problem. The wife testified she does not plan to divorce him but will not take him back unless he quits drinking and starts going to church. The husband lives in the same town, visits his wife’s daughters weekly, and provides some financial support for them. The trial court found there was no evidence of defendant being morally unfit to have custody of the child, was very much impressed with the appearance and demeanor of the daughters who testified, and found the evidence presented by defendant’s witnesses to be most complimentary of her character and her ability to care for her children.

The written opinion of the learned trial judge is devoted in large part to a review of the conduct of plaintiff which reflects a contempt and disregard for legal process. The trial court found:

“While the plaintiff has had physical possession of the child since June of 1975 and from the evidence presented, he has been a good provider and good father, he has obtained possession of the child on at least two occasions by violence and has never before sought possession legally. He has frustrated due process of law in Missouri by failure to produce the child when served with a Writ of Habeas Corpus.”

In view of the trial court’s finding that plaintiff has been a good provider and a good father and that the mother was also suitable to have custody, it seems evident from the court’s opinion that the consideration which tipped the scales in favor of the mother in the trial court’s judgment was the father’s demonstrated contempt for legal process throughout the years of conflict between him and the mother over custody of the child. The trial court may have also been influenced by the maternal preference rule.

The father’s conduct in the respects noted is one factor properly considered in determining which parent should have custody in the best interest of the child; not as a matter of punishment to the father, but as a matter bearing on his suitability from the standpoint of morals and character. It should not be overlooked, however, that the mother was also guilty of similar conduct on at least one occasion when she took the child from a babysitter in Texas.

Likewise, the presumption that it is in the best interest of a small child to be in the custody of his mother is a factor to be considered in any custody case. The rebuttable presumption of the maternal preference rule has little applicability or weight in this case, however, for the reason that the child has been away from the mother and in the father’s actual custody during most of his young life and continuously for the past two or more years. Brackman v. Brackman, 322 So.2d 314 (La. App. 2d Cir. 1975).

In considering the best interest of the child in this case, the overriding consideration in our judgment is that the child is happy, well adjusted and developing normally in his present close relationship with his father and that a change in custody would undoubtedly upset the stable environment of the child.

While this case does not involve a previous considered decree of custody and the so-called double burden rule is not applicable, the rationale of cases such as Languirand v. Languirand, 350 So.2d 973 (La. App. 2d Cir. 1977) is applicable. Our law recognizes that changes in custody upset the stable environment of children and for that reason should not be undertaken lightly. In the absence of a finding that the existing custody situation is detrimental to the child or that a change in custody would be more beneficial to the child, a change should not be ordered.

While the father here has had actual custody rather than custody by a considered decree, the traumatic effect of changing the stable environment and wholesome lifestyle of this child is not going to be in the slightest diminished because the child has not been in the custody of his father under a considered decree. We believe the trial court’s decision overlooked or failed to give appropriate weight to this consideration and thereby does not serve the child’s best interest, which will be better served by allowing him to remain in the stable, wholesome environment where he has been for more than two years.

The custody of a child living in a good situation with a suitable parent should remain unchanged where other controlling legal principles do not necessarily dictate that a change be made.

Other factors weighing against a change are the mother’s unsettled situation with her present husband, some degree of instability on the part of the mother demonstrated by her three marriages and several divorces and remarriages, and an overcrowded situation in her home if the son were to live there with his mother and much older half sisters.

The judgment of the district court, insofar as custody is concerned, is reversed and set aside and judgment is rendered in favor of plaintiff, James H. Bankston, and against defendant, Nina Faye Miller Bank-ston, granting the permanent care, custody and control of the minor, Brian Keith Bank-ston, to the said James H. Bankston.

Reversed and rendered.

      . Although the Missouri court had status jurisdiction to render the judgment of divorce, it did not have jurisdiction to render a valid custody judgment, since the father and the child were not domiciled in Missouri and the father was not served with process in that proceeding. The Missouri child custody judgment is not entitled to full faith and credit in Louisiana. In any event, the Louisiana court has jurisdiction of the present custody proceeding and the power to modify any previous custody judgment.


author: BOLIN, Judge.

text:
    Jo Ann FULLER, Plaintiff-Appellee, v. C. J. UNDERWOOD et ux., Defendants-Appellants.
    No. 13442.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    En Banc. Rehearing Denied March 1, 1978.

      Paul Kidd, Monroe, by George M. Strick-ler, Jr., New Orleans, for defendants-appellants.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

In this appeal from the trial court’s refusal to enjoin the seizure and sale of defendants’ property, and from its subsequent order that this property be sold pursuant to executory process, the issues are: (1) whether the act of collateral mortgage executed by defendants contained a confession of judgment satisfying the requirements of Louisiana Code of Civil Procedure Article 2632; and (2) whether the demand for payment required by La.C.C.P. Art. 2639 was either properly made by plaintiff before seizure, or was waived by defendants in the act of mortgage. Agreeing plaintiff complied with these statutory requirements for the use of executory process, we affirm the trial court’s judgment.

Plaintiff attached to her petition in the executory proceedings an authentic act of collateral mortgage on real and personal property and a $50,000 demand note par-aphed for identification with the act of mortgage. Plaintiff alleged defendants owed an amount in excess of $50,000 and prayed for payment out of the proceeds of sale in “an amount in excess of the amount of the note.” After hearing in the injunc-tive proceeding, the trial judge determined defendants owed $56,000, but limited plaintiff’s possible recovery from the proceeds of sale to the amount specified in the collateral mortgage note ($50,000).

The act of mortgage contains the following clause:

The said Mortgagor is hereby bound and obligated not to alienate, deteriorate or encumber said property to the prejudice of this mortgage, which shall import confession of judgment and waive benefit of appraisement.

Defendants contend the above clause does not import a confession of judgment “if the obligation is not paid at maturity.” (La.C. C.P. Art. 2632). The trial court acknowledged this act of mortgage did not contain the exact words set forth in Article 2632, but held there was a clear intention to confess judgment according to the common understanding of the language used. We agree that the above quoted clause contains a confession of judgment which will support executory proceedings.

Following the order directing the seizure and sale, defendants were served a notice instructing them to pay the amount specified in plaintiff’s petition within three days to avoid the pending seizure of their property. Defendants contend this notice did not constitute demand for payment under La.C.C.P. Art. 2639, since plaintiff’s petition did not specify the amount due. However, plaintiff’s petition includes the attached collateral mortgage and paraphed note. For the purposes of executory process, the collateral mortgage note is the instrument evidencing the obligation secured by the mortgage. Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450 (La. App. 1st Cir., 1976); Slidell Building Supply, Inc. v. I. D. S. Mortgage Corp., 273 So.2d 343 (La.App. 1st Cir., 1972), writ denied 274 So.2d 708 (La.1973).. Since this note specified $50,000 was due, defendants were notified to pay that amount and the demand complied with the requirements of La.C.C.P. Art. 2639.

Louisiana Civil Code Article 3170 permits the mortgagee to collect the full amount of the pledged mortgage note, subject to an accounting to the debtor for any excess over and above the actual indebtedness. Allen v. Commercial National Bank in Shreveport, 138 So.2d 252 (La.App. 2d Cir., 1962). Defendants here used the injunctive procedure provided by the Code of Civil Procedure to obtain a judicial determination of the indebtedness and prevent plaintiff from claiming more than $50,000 from the proceeds of sale.

Since counsel engaged in continuing negotiations concerning the disputed debt, defendants’ property was not seized until several months after the order directing that executory process issue. Defendants contend this delay necessitated a second demand for payment prior to the actual seizure. We find a second notice is neither required by law nor capable of serving a useful purpose under the peculiar facts of this case.

Having determined the demand for payment was properly made, we need not decide if this demand was waived.

The judgment is affirmed at appellants’ cost.


author: HALL, Judge. s/ Montv M. Wvche MONTY M. WYCHE JUDGE

text:
    BOSSIER PARISH SCHOOL BOARD, Plaintiff-Appellee, v. William J. GUSTE, Jr., et al., Defendants-Appellants.
    No. 13446.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1978.
    Writ Refused Feb. 24, 1978.

      Booth, Lockard, Jack, Pleasant & LeSage by Joe C. LeSage, Jr., Shreveport, for defendants-appellants, Jackie Martin and Freddie Shewmake, Jr.
    Henry N. Brown, Jr., Dist. Atty., Benton, for plain tiff-appellee Bossier-Webster Parishes.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

This appeal was taken by Jackie Martin and Freddie Shewmake, Jr., employees of the Bossier Parish School Board and elected members of the Bossier Parish Police Jury, from a judgment of the district court declaring (1) that the policy of the Bossier Parish School Board, which insures that its employees devote full measure of their time and talent to their contracted responsibilities during work hours, is a legitimate policy and is a valid exercise of its authority under the law; and (2) that the Bossier Parish School Board’s refusal to grant leaves of absence to the defendants, Jackie Martin and Freddie Shewmake, Jr., so that they might attend meetings of the Bossier Parish Police Jury during school hours, was not an abuse of discretion by the Bossier Parish School Board.

Appellants contended in the trial court and contend on appeal that the policy of the School Board of refusing to grant them leaves of absence without pay to attend meetings of the Police Jury amounts to an abuse of discretion by the School Board contrary to state law and infringes on their constitutional rights granted by the First and Fourteenth Amendments of the United States Constitution and by the Louisiana Constitution of 1974.

After review, this appellate court is of the opinion that the issues presented in this case were correctly met and decided by the district court, whose reasons for decision we approve and adopt as the opinion of this court. The district court’s reasons for judgment are set forth in Appendix “A”.

The judgment of the district court is affirmed at appellants’ costs.

Affirmed.

APPENDIX “A”

BOSSIER PARISH SCHOOL BOARD

VS.

WILLIAM J. GUSTE, JR., ET AL

NUMBER 46,408

26TH JUDICIAL DISTRICT COURT BOSSIER PARISH, LOUISIANA

REASONS FOR DECISION

The plaintiff, Bossier Parish School Board filed this suit for a declaratory judgment seeking a determination as to whether its policy in denying the two defendants, Freddie Shewmake, Jr. and Jackie Martin, leave without pay to attend Bossier Parish Police Jury meetings is an abuse of its discretion. The case was submitted to the Court on an agreed stipulation of facts and on briefs of counsel.

The policy of the Bossier Parish School Board states that school employees will not be allowed to miss work for the purpose of attending police jury meetings, whether the time missed is minimal or substantial, and, further, that leave without pay will not be granted school employees to attend police jury meetings.

The defendants, Jackie Martin and Freddie Shewmake, Jr., are school board employees, and, also, duly elected members of the Bossier Parish Police Jury; defendant, Jackie Martin, being a school bus driver, and defendant, Freddie Shewmake, Jr., being an assistant school principal.

The Bossier Parish Police Jury meets regularly at 2:00 P.M. on the second Tuesday of each month, and has committee meetings regularly on the first Tuesday and Thursday of each month at 2:00 P.M.

The 2:00 P.M. meeting time of the Bossier Parish Police Jury conflicts with the work schedule of both Jackie Martin, who, employed as a school bus driver, must attend his routes at this time, and Freddie Shewmake, Jr., whose worktime as an assistant principal is from 8:00 A.M. to 4:00 P.M.

The school Board policy in connection with leave without pay is, in part, as follows:

“The Bossier Parish School Board may grant leaves of absence without pay for periods not exceeding one year to any regularly employed tenured teacher who requests such leave in writing and whenever such leave is in the best interest of the school system.”

The Attorney General of Louisiana has issued an opinion which states that the current policy of the Bossier Parish School Board, as it affects the defendants is an abuse of discretion of the board.

If the defendants attend the meetings of the Bossier Parish Police Jury, they will be in direct conflict with the policy of the Bossier Parish School Board, and the interest of all parties is at issue and is substantial.

The Bossier Parish School Board Employee’s Handbook provides with respect to political office:

“J. Political Office
The Bossier Parish School Board feels that its employees should devote their full energies, efforts, and abilities to carrying on and improving education in the Bossier Parish School System. The public expects, and rightfully so, the employees of the Bossier Parish School Board to devote their full energies, efforts and abilities to their children’s educational needs. A position in Public Office would take the elected employee away from their primary educational responsibility a considerable amount of the time. The Bossier Parish School Board cannot justify the time that an elected official must take away from his primary duties to fulfill his elected responsibility. The Bossier Parish School Board strongly discourages its employees from seeking public office that will in any way impede or interfere with their primary duty of contributing to the education of the children in Bossier Parish.”

It also provides with respect to school employees work schedule as follows:

“C. Work Schedule for school employees
1. Professional (EHB p. 36)
a. Teachers (EHB p. 36)
b. Administrators’ Duty Hours
(1) Principals — 12 months; 8:00 A.M.-
4:00 P.M.
(2) Assistant Principals — 10% months; 8:00 A.M.-4.-00 P.M.
(3) School Coordinators — 10% months; 8:00 A.M.-4:00 P.M.
(4) Other Staff — As prescribed by the Superintendent.
2. Classified (EHB p. 36)
a. Custodians and Janitors — 12 months; 40 hours per week as prescribed by the Principal
b. Maids — 9 months; 32V2 hours per week; June and August; 40 hours per week with a 4 week vacation in July
c. Bus Drivers — Regular school year with daily schedules prescribed by the Principal. Educational field trips assigned by the Principal are considered to be a part of the driver’s normal duty.
d. School Secretaries — 10 months (Registrars, 11 months) Work day consists of 7 hours prescribed by the Principal. _”

There were twelve regular meetings, twelve finance committee meetings, twelve road committee meetings and eleven special committee meetings held by the Bossier Parish Police Jury during the hours from 8:00 A.M. to 4:00 P.M. during 1976. The Bossier Parish Police Jury has held and will hold thirty-six meetings, twelve regular meetings and twenty-four committee meetings, during 1977, which requires the attendance of all twelve members during the hours from 8:00 A.M. to 4:00 P.M. and other special committee meetings might be held as called during these hours.

The Bossier Parish School Board recently, as examples, did grant leaves of absence, some with pay, some without pay, and some to be charged against vacation time, as follows:

“(a) Dr. C. L. Sanders, Bossier Parish School Board Personnel Director, has been granted one-half day leave during each of the twenty working days from thé period beginning March 7, 1977, through April 1, 1977, with time off to be charged against annual leave; this period coincides with his candidacy for political office.
(b) Don Truly, a school principal, was granted a one semester leave without pay for a political campaign.
(c) Mamie Pilkington, a school bus driver, who serves as President of the Louisiana Bus Driver’s Association, has been granted leave with pay to attend a portion of the last two sessions of the Louisiana Legislature.”

The defendants argue that a school board does not have the authority to determine whether an employee of that board can hold elective office. In addition, they allege that such action by the board in this case would be discriminatory in nature because other leaves had been granted to other employees, and that the announced policy of the school board is invalid in that it violates the equal protection clause of the United States Constitution and also violates the First Amendment of the United States Constitution.

The plaintiff argues that both defendants were under contract to the Bossier Parish School Board at the time of their election to the Bossier Parish Police Jury. They were obligated to perform their duties. Their duties as school board employees have come into conflict with the duties of the offices to which they have been elected. The plaintiff takes the position that since the defendants’ contracts with the school board were in force and effect at the time of and before their elections, and they both knew the terms of their contracts, they should not now be allowed to change the terms of the contracts by a ruling from the Court.

The general powers of parish school boards are set forth in Louisiana Revised Statutes, Title 17, Section 81. It provides, in part, as follows:

“Each school board is authorized to make such rules and regulations for its own government, not inconsistent with law or with the regulations of the State Board of Elementary and Secondary Education, as it may deem proper.”

With respect to the granting of leaves, Louisiana Revised Statutes, Title 17, Section 1186, provides:

“The parish and city school boards throughout the state may grant leaves of absence, without pay, for periods not exceeding one year, to any regularly employed teacher or other employee, who requests such leave in writing, whenever in the discretion of the board such leave is in the best interest of the school system

Considering the above quoted statutes, it is clear that the Bossier Parish School Board has the authority to adopt its own rules so long as they are not inconsistent with law, and that it has the authority to grant leaves whenever such leaves are in the best interest of the school system.

The Court is unable to conclude that the policy of the Bossier Parish School Board in denying these two defendants leaves of absence is inconsistent with Louisiana law. Nor does the Court have the opinion that the effect of the policy operates to deprive the defendant of any constitutional rights. As the United States Court of Appeal, Eighth Circuit, stated in the 1975 case of Evans v. Page, 516 F.2d 18, in quoting cases cited in its opinion, not every civil right is a right derived or secured by the Constitution.

In the opinion of the Court, the defendants, who were under contract with the Bossier Parish School Board at the time of their elections have no constitutional rights to demand that they be granted leaves without pay. The fact that other leaves have been granted other individuals for other reasons does not make it an abuse of discretion for the board to refuse to grant these leaves.

As Judge Tom Stagg of the United States District Court for the Western District of Louisiana, stated in Civil Action No. 76-0640 on August 20, 1976, in a suit by Freddie Shewmake, Jr., against the Bossier Parish Police Jury:

“Holding public office is a privilege bestowed upon few. However, along with the honor one attains in being chosen to represent his peers, come many responsibilities and duties. These obligations often create hardships, for the requirements of office often conflict with one’s other responsibilities in our society. It is not for this Court to ease burdens that might arise when one embarks upon the public calling. This Court cannot commiserate with the plaintiff. A decision was made to run for the Police Jury — a step creating potential conflict with current responsibilities _ -

Without in any manner deprecating the efforts of these defendants, both of whom have demonstrated their worthiness by being elected by the people of their respective districts and are unquestionably in complete good faith, they nevertheless have yet the option of fulfilling their employment contracts with the school board or of representing their constituents as police jurors. In view of the announced policy of the school board, they simply cannot do both.

In the opinion of the Court, the policy of the Bossier Parish School Board which insures that its employees devote full measure of their time and talent to their contracted responsibilities during working hours is a legitimate policy and is a valid exercise of its authority under the law. It is the further opinion of the Co'urt that in refusing to grant these defendants leaves of absence so they might attend meetings of the Bossier Parish Police Jury during school hours, the Bossier Parish School Board has not abused its discretion.

Accordingly, there should be judgment for the plaintiff as prayed for.

Benton, Louisiana, June 2, 1977.

s/ Montv M. Wvche MONTY M. WYCHE JUDGE


author: LANDRY, Judge.

text:
    Bill HARPER et al. v. Douglas BUCKELEW.
    No. 11783.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 19, 1978.

      Louis J. St. Martin, Houma, for appellants.
    Edward James Gaidry, Houma, for appel-lee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant (Appellant) appeals from judgment enjoining construction of multifamily dwellings on certain lots in Broadm-oor Heights Subdivision (Broadmoor), Ter-rebonne Parish, in alleged violation of building restrictions limiting use to single family dwellings. The issues presented are: (1) May a non-owner holding an option to purchase impose valid building restrictions on real property prior to actual acquisition of record; and (2) If valid, are such restrictions sufficiently express in this instance to constitute public notice. The trial court determined both issues adversely to Appellant. We reverse and render judgment declaring the restrictions inapplicable to Appellant’s property.

On August 24, 1963, Emmett Glynn acquired from Calvin Prevost and others, the option to purchase 10 specifically described parcels of land in Terrebonne Parish. The option, duly recorded provides for a series of purchases extending over a period of 10 years at a unit price of $3,000.00 per acre for all lands subject to the option. Glynn was given until February 14, 1964, to purchase parcels or areas 1 and 2, and until Feburary 15,1967, to buy areas 3 and 4. If areas 3 and 4 were timely acquired, Glynn was accorded further successive options to purchase every three years commencing August 15, 1969, two combined areas successively, and in order, namely areas 5, 6, 7, 8, 9, and 10, for the aforesaid unit price. The option also provided that if any one option was not timely exercised, all remaining options would be terminated. By mutual recorded agreements, Glynn’s option was extended to March 16, 1964, and again to December 28, 1966. The latter extension rescheduled the purchase dates of areas 3 through 10, inclusive.

On January 21,1965, a corporation known as Broadmoor Heights, Inc. (Developer), of which corporation Glynn was an incorporator and shareholder, purchased tracts or areas 1 and 2 from Prevost and his co-owners. This transfer was recorded February 2, 1965. The act recites that vendors transfer Glynn’s option to Developer. Glynn appeared as a party to the transfer and expressly consented to the transfer of his option rights to Developer. Subsequently, Developer purchased additional areas pursuant to the option.

Certain maps and plats of record herein, (some of which are public record and some not), indicate that Broadmoor Heights is in effect a rectangularly shaped subdivision fronting on the east side of La. Highway 659. On the west end of the subdivision, the land is subdivided into unnumbered areas designated “Broadmoor Heights Commercial Park” and “Service Real Estate”. (See Exhibit “C” dated November 15, 1976, a plat which contains no preparation data, no surveyor’s name and no indication of recordation in the public records.) To the east of the portions designated as Commercial Park and Service Real Estate are situated 10 areas, each apparently subdivided into unnumbered lots. Another plat, Exhibit “1”, by Bobby F. Warren, C.E., dated November 6, 1964, recorded Feb. 2, 1965, shows a portion of the property of Prevost in the form of a long rectangle fronting on the East side of Highway 659. The southern portion of this highway frontage to a depth of about 250 feet is indicated as belonging to the Bank of Terrebonne.

Pursuant to the aforesaid options, Developer and/or Glynn acquired all of the Pre-vost lands. In the course of development of these holdings into Broadmoor Heights, Developer recorded 5 sets of restrictions, only one of which, namely restrictions dated March 29, 1966, recorded April 1, 1966, is relied upon by plaintiff. These particular restrictions recite that Developer is owner of Broadmoor which is situated in Sections 2, 4, and 94, T 17 S, R 17 E, Terrebonne Parish as shown on map thereof by Bobby F. Warren, C.E. dated June 10, 1965, recorded February 8, 1965. Said restrictions further recite:

“APPEARER FURTHER DECLARED that said corporation has caused said land to be sub-divided for residential purposes, said subdivision to be known as BROADMOOR HEIGHTS SUBDIVISION, and that desiring to protect future owners of property in said subdivision:
THEY DO HEREBY ESTABLISH the following RESTRICTIONS
Lots 1 through 9, Block 1
Lots 1 through 14, Block 2
Lots 1 through 14, Block 3
Lots 1 through 13, Block 4
Lots 1 through 24, Block 5
Lots 1 through 4, Block 6
Lots 1 through 25, Block 7
Lots 1 through 3, Block 8
Lots 1 through 3, Block 9
Lots 1 through 34, Block 10
which said restrictions shall bear against and effect BROADMOOR HEIGHTS SUBDIVISION, and shall be covenants running with the land, on the terms, conditions, and specifications hereinafter set forth:
1. LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes, other than LOTS ONE (1) thru NINE (9) of BLOCK ONE (1). No building shall be erected, altered, placed or permitted to remain on any lot other than one detached, single family dwelling with either a garage or carport; the minimum building to be not less than 1150 sq. ft., not including carports or garages.
2. COMMERCIAL PROPERTY: LOTS ONE (1) thru NINE (9) of BLOCK (1) are specifically reserved for commercial property and the covenants and restrictions in this act shall not apply to said lots; however, said commercial lots shall be subject to the following restrictions, which shall be covenants running with the land: . . ”

The only plat of record to which the aforesaid restrictions could refer or apply is one entitled “Lot Layout Broadmoor Heights Subdivision, Warren & Associates, C.E. dated June 10,1965, recorded February 8, 1966”. This plat shows Blocks 4, 5, 6, 9, 10,12,14,15,16,19,20, 21, 22, 23, and 24, of which only Blocks 4 and 5 and a portion of Blocks 6, 9, and 10 are subdivided into lots. It shows Blocks 4 and 5 and part of Block 6 running parallel to the northern boundary of the subdivision and Blocks 9 and 10 lying to the south of and being separated from Blocks 4, 5 and 6 by Douglas Drive. All remaining blocks shown on this plat are unsubdivided and bear the notation “For Future Development”. The plat does not show Blocks 2, 3, 7, 8, 11, 13, 17 or 18 of Broadmoor if in fact the subdivision contains such numbered blocks. Neither does the map show the 9 lots in Block 1 which the restrictions indicate are exempt from the single family residential use requirement.

Appellant’s lots, designated A, B, C, D, and E, Block 9, Addendum 5, Broadmoor Heights Subdivision, were acquired by Appellant from E. M. Glynn, Inc., on May 6, 1977. No map of Addendum 5 appears of record.

Conceding that it did not own subject lots at the time the aforesaid restrictions were recorded, Appellees maintain that its subsequently acquired ownership was sufficient to render the restrictions effective. Appel-lees also suggest that the restrictions are sufficient to make clear the intent to place the public on notice that all of Broadmoor was subject to the limitations therein imposed by virtue of the use of the language “said restrictions shall bear against and effect Broadmoor Heights Subdivision”. In so contending, Appellees rely on Salerno v. DeLucca, 211 La. 659, 30 So.2d 678 (1947) and Lillard v. Jet Homes, Inc., 129 So.2d 109 (La.App.2d Cir. 1961).

Appellant maintains that the restrictions are not binding at all because they were imposed by one not a record owner of the property sought to be restricted. Alternatively, Appellant urges that the restrictions are not binding because they do not purport to encompass the entire subdivision and are limited to the expressly designated lots in Blocks 1 through 10, inclusive, and Appellant’s lots are not included therein.

It is well settled that one purchasing real property may rely upon the public record and that unrecorded agreements respecting real property are of no effect upon one purchasing on the face of the record. McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909).

Our law favors free and unrestricted use of real property. Blevins v. Manufacturers Record Publishing Company, 235 La. 708, 105 So.2d 392 (1958).

Doubt as to the existence, validity or extent of building restrictions is resolved in favor of the unrestricted use of immovable property. Fatjo v. Mayer, 247 La. 327, 170 So.2d 859 (1965); Leonard v. Lavigne, 245 La. 1004, 162 So.2d 341 (1964).

Relying on Salerno, above, and Lillard, above, Appellees contend that Developer’s intent was to include all of Broadmoor in the recorded restrictions. Our consideration of these authorities indicates that Salerno, above, holds intent to be significant only when “differences arise as to the extent or limitation of these restrictions”. See 30 So.2d 680. We note also that Lil-lard, above holds that the “area covered by the scheme must be described so as to be clearly ascertainable”. See 129 So.2d 112.

We pretermit consideration of whether such restrictions may be validly imposed by one not a record owner at the time the restrictions are recorded. Assuming, solely for argument’s sake, that such restrictions may be validly imposed by one holding only an option to purchase, we find subject restrictions inapplicable to Appellant’s property.

In the light of the rules that the law favors unrestricted use of property and that doubt as to the validity or extent of building restrictions is resolved in favor of unlimited use, we conclude that Appellant’s property is not affected by the restrictions relied upon by Appellees. The restrictions in question apply to 10 specifically numbered blocks and expressly enumerated lots in each block. The restrictions also refer to a map which does not show Blocks 1, 2, 3, 7, and 8 mentioned in the restrictions and which map shows considerably more blocks than those listed in the recorded restrictions. This variance between the map and restrictions casts serious doubts as to whether Developer intended the restrictions to apply to any Blocks other than those expressly enumerated. Addendum Number 5 to Broadmoor, in which Appellant’s property is located, is not mentioned in the restrictions. Its location is not shown on the map to which the restrictions refer. If Developer intended the restrictions to apply to all addenda to Broadmoor, it would have been a very simple matter for the restrictions to expressly so state.

It is ordered, adjudged and decreed that the injunction issued herein by the trial court be and the same is hereby annulled and set aside and judgment rendered herein dismissing Appellee’s suit, with prejudice, all costs of these proceedings to be paid by Appellees.

Reversed and rendered.


author: PONDER, Judge. LOTTINGER, Judge,

text:
    Mrs. Brenda A. COURTNEY v. LAMBERT CONSTRUCTION CO., INC., et al.
    No. 11546.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 6, 1978.

      Gerald Walter, Jr., Baton Rouge, for appellant.
    Steven Joffrion and Malcolm Dugas, Donaldsonville, for plaintiff-appellee.
    Wm. N. Faller, Baton Rouge, for defendant-appellee.
    Before LANDRY, SARTAIN, COVING-TON, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Central Builders, Inc. and Hartford Accident and Indemnity Company, Central’s insurer, appealed from a judgment awarding plaintiff $543,283.99 for her personal injuries and for the death of her husband.

The issues are: (1) Negligence of Central’s employee; (2) Contributory negligence of plaintiff’s husband; and (3) Quantum. We reverse in part and affirm in part.

Central was the dirt sub-contractor for a portion of Interstate 10 near Sorrento. Work on this portion had been intermittent for at least a year. On the day of the accident and for several days before, its employees had been engaged in picking dirt from one side of La. Highway 32, moving it across that highway and dumping it on the other side. The men were using large earth movers, or scrapers, each about 12 feet high, about 10 feet wide, about 33 feet long, painted bright yellow, and each making a complete round trip in about 6 or 7 minutes. Approximately 2,000 feet west of the crossing a 4 by 4 feet sign reading “Road Construction 500 ft.” was placed. Approximately 1,500 feet west was a 4 by 4 feet sign reading “Road Construction Next 1.0 miles”. These two signs were relatively permanent in structure and had been in place about one year. Approximately 500 feet west of the crossing was a 4 by 4 feet sign reading “Flagman Ahead.” This sign was put up before work began and taken down when work ceased. The flagman, garbed with an orange fluorescent vest and waving an orange colored flag, stood in the middle of the lane about 50 feet ahead of the crossing. The highway at this point was straight and level. Daylight conditions prevailed; the weather was clear and dry.

Cecil Courtney and his wife, Brenda, lived in the Gonzales area not far from the scene of the accident. He worked as a service station manager and she as a baby sitter, both in Donaldsonville. They usually passed the scene of the accident twice a day, but occasionally went through Burnside. On the afternoon of the accident, they left Donaldsonville about 5:30. At the T-intersection of La. 3089 with La. 22 they turned right and proceeded behind a pickup truck. Neither the pickup nor their vehicle slowed for the flagman, who had to jump out of the way. The pickup passed barely in front of an earthmover then crossing the highway. The vehicle driven by Courtney went under the earthmover. Mr. Courtney was killed instantly; Mrs. Courtney was seriously injured.

The driver of the earthmover entered La. 22 without stopping or being sure that the flagman had stopped traffic. Certainly, the flagman was attempting to flag down the pickup and the Courtney vehicle but had been unable to get either to stop. The driver testified that the flagman had flagged the pickup and car to stop and the earthmover to proceed. The flagman denies he ever waved the earthmover on. Under the circumstances we have no hesitancy in affirming the trial court’s conclusion that the driver of the earthmover was negligent.

The speed of the Courtney vehicle is very much in dispute, estimates ranging from thirty miles per hour to over eighty miles per hour. Mrs. Courtney remembered they were not going over thirty to thirty-five miles per hour and her husband had started to go around the pickup but fell back behind it when she told him they were in no hurry. She did not remember the signs, the flagman and the earth moving equipment. The flagman estimated the car’s speed as being well above 55 miles an hour, the legal speed limit. Another Central employee estimated the car’s speed as 75 to 80 miles per hour. The court found that the car was not going over 55 miles per hour. While we are inclined to disagree, we find sufficient evidence for the Court to have come to that conclusion. Nevertheless, we conclude that Mr. Courtney was driving too fast under the circumstances.

There is no dispute that the three signs listed above were in place at the time of the accident. There is no dispute that the flagman was attempting to get the pickup and the Courtney vehicle to stop. The lower court excused Mr. Courtney’s failure to see and heed the warning signs by an application of the adage, “Familiarity breeds contempt”. The two permanent signs had been erected for over a year, while the work on this stretch had been intermittent. We find no justification for this legal conclusion. Instead, the motorist has a continuous duty to “[keep] a proper look out with his [vehicle] under control.” Tom Slay, Inc. v. Continental Casualty Co., 321 So.2d 863 (La.App. 1st Cir., 1975); Dessell v. State, Dept. of Public Highways, 328 So.2d 389 (La.App. 3d Cir., 1976).

The lower court excused Courtney’s failure to see the flagman by finding that the pickup ahead obscured his vision. We doubt this conclusion. There may have been moments that the pickup prevented Courtney’s vision of the flagman, but we do not believe that the pickup obscured Courtney’s vision ahead while the vehicles traversed four-tenths of a mile, 2,100 feet from the T-intersection to the crossing. If it did the facts even more cogently convict Courtney of negligence by following too closely. Instead, the estimates of the distance between the pickup and the Courtney vehicle range from one car length to 100 feet. Much is made of the fact that the flagman stood in the middle of the eastbound lane until he had to jump into the ditch to avoid being hit by the pickup and did not have sufficient time to get back into position to flag Courtney, even though he did stick out his flag in front of the car without waving it. We believe, as pointed out above, that Courtney could have seen the flagman well prior to passing the place where the flagman stood.

But even if Courtney could not see the flagman, nevertheless, he could and should have seen all the activity going on at the construction site ahead of and to the left and right of him. The testimony that the vision ahead and to the right and left was clear except for the pickup has been uncon-troverted and at least one of the photographs admitted into evidence certainly bears this out. Even though the earthm-overs be not evenly spaced, nevertheless, seven large bright yellow machines as well as a large bulldozer should have been seen by Courtney and should have alerted him to imminent danger. His failure to see the earthmover coming near and onto the highway remains unexplained.

Also of great importance is the fact that both Mr. and Mrs. Courtney were familiar with the work going on. While the work admittedly had been intermittent, nevertheless, the earthmovers had been working at this site for two or three days. Mrs. Courtney testified they drove by the scene twice a day quite often. A motorist may not assume the way is clear when he has actual knowledge of a hazard. Martin v. State, Department of Highways, 322 So.2d 827 (La.App. 3d Cir., 1975).

Allowing the deceased to assume the way was clear in light of this knowledge, the warning signs, the flagman, and the construction activity going on in plain sight and to continue driving at the speed of even 30 to 35 miles per hour is absolving him completely of any duty to look out for himself. We find that he was contributorily negligent.

The lower court relied heavily on Kruebbe v. National Fire and Marine Insurance Company, 274 So.2d 832 (La.App. 4th Cir., 1973) for the principle that Courtney owed no duty to -stop. We note that the validity of the principle is questionable since the Supreme Court, 278 So.2d 506 in refusing a writ found: “On the facts found by the Court of Appeal, the result is correct.” At any rate, we disagree with the dictum as applied to the present case.

We are cognizant of the limited appellate review of facts. However, we believe that our constitutional duty demands more of us than a perfunctory approval of the judgment of the lower court. Moreover, we are in disagreement more with the lower court’s application of the law and its conclusions than we are with its finding of fact.

Because of our decision on the issue of contributory negligence it is unnecessary to consider the issue of the award for the husband’s death.

The lower court awarded Mrs. Courtney a total of $15,977.54 for her injuries and special expenses. No complaint has been made thereof and we find no error.

For these reasons, we reverse that portion of the judgment awarding benefits to Mrs. Brenda A. Courtney for the death of her husband and affirm that portion of the judgment awarding her $15,977.54 for her personal injuries and special expenses. The costs of this appeal are cast against the plaintiff.

REVERSED IN PART AND AFFIRMED IN PART.

LOTTINGER, Judge,

dissenting and concurring.

I concur with my brethren of the majority in the finding of negligence on the part of the driver of the earthmover, however, I dissent as to their finding of contributory negligence on the part of the deceased.

The Trial Judge in written reasons for judgment said:

“The posted speed limit was 55 miles per hour. There is in the opinion of the court no satisfactory evidence to establish that the decedent was proceeding at a rate of speed in excess thereof. His wife, a guest passenger, testified that his speed was much less. It is true that the State Trooper who investigated the accident estimated the speed of the Courtney vehicle at 65 miles per hour but the court sustained an objection to this testimony because it was only an estimate by an officer who was not present at the time of the accident and who was not qualified as an expert in accident reconstruction.
“It is also true that the flagmen, Robert Leggett and Willie Swafford, both estimated the speed of the Courtney vehicle in excess of 55 miles per hour. However their testimony as a whole indicates clearly that (1) both were uneducated laborers with no clear basis for their estimates and (2) that other estimates of speed and distance made by them were clearly erroneous. While their testimony is suggestive it is not sufficient to meet the burden of proof in view of these considerations and in view of the contradictory testimony of Mrs. Courtney. “Furthermore, even if it be conceded for the sake of argument that the Courtney vehicle was speeding in excess of the posted limit this is immaterial for the reason that his speed was not a cause in fact of the accident. The testimony of the plaintiff expert, Colonel Joseph Andre, clearly demonstrates that the accident would have transpired even if Courtney had been driving at the posted speed limit of 55 miles per hour.
“On the question of notice to the decedent of the construction activity there were posted signs so indicating; however, these signs had been in place for many months; they remained in place twenty-four hours per day, seven days per week; construction activity had been intermittent for some time; and it was after the close of the normal working day. While Courtney therefore had general notice that there was construction activity in the area he had no specific notice that anything was transpiring at the particular time in question on the particular day in question.
“There was a flagman attempting to stop traffic on Louisiana Highway 22 but the uncontroverted evidence shows (1) that Courtney was following immediately behind a pick-up truck; (2) that the flagman, contrary to proper procedure, was standing in the center of the lane of traffic only 50 feet from the intersection; (3) that the pick-up truck failed to stop forcing the flagman to jump out of the way; (4) that the flagman was not visible to Courtney because of the presence of the pick-up truck ahead; (5) that the flagman did not have time to attempt to flag Courtney after the pick-up truck passed; and (6) that at best Courtney could only have seen the flagman a split second before the accident and when it was far too late to take any action to avoid a collision.
“This court concludes therefore that this accident was a direct result of the failure of the operator of the earth mover to stop before entering the highway and to remain stopped until the traffic had passed or was halted by the flagman, and that Courtney is not chargeable with any negligence which contributed to the accident.”

In reversing on the question of contributory negligence, the majority attempts to insulate itself as to any charge of abuse of the appellate review process by saying: “we are in disagreement more with the lower court’s application of the law and its conclusions than we are with its findings of fact.” The function of an appellate court is neither to try nor retry a case, but rather to review the trial thereof under prescribed rules.

It is apparent that the Trial Judge concluded from the facts presented that the deceased could neither see the flagman nor the activity ahead of him at the point where the earthmover was to cross the highway. Though the deceased had passed this site often in the days immediately preceding this accident, the majority fails to recognize that the accident happened “after the close of a normal working day.” Apparently, the majority would require the deceased to be on his vigil all hours of the night when passing this area.

Accordingly, I find no error on the part of the Trial Judge as to his finding of no contributory negligence, and thus dissent from the reversal by the majority.


author: INZER, Presiding Justice for the Court:

text:
    Henry DUNSON v. S. A. ALLEN, INC.
    No. 49786.
    Supreme Court of Mississippi.
    Feb. 1, 1978.
    Rehearing Denied March 1, 1978.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Jane M. Wilbourn, Charles M. Merkel, Clarksdale, for appellant.
    Upshaw, Dale, Dorizas & Calhoun, Tom P. Calhoun, III, Greenwood, for appellee.
    Before INZER, WALKER and BROOM, JJ.
   INZER, Presiding Justice for the Court:

This case involves the question of whether the manufacturer of a product can be held strictly liable in tort when such product is intended to be used only in conjunction with a second product and when so combined, the combination of the two is unreasonably dangerous and could only be remedied by changes or adjustments to the second product. We hold that it can be held liable.

Appellant, Henry Dunson, brought suit in the Circuit Court of Washington County against J. I. Case Company, G & G Pulpwood Company, S. A. Allen, Inc., and the Ayres Company seeking to recover damages for the personal injury resulting from the operation of a piece of equipment used to cut pulpwood. During the course of the trial, a nonsuit was taken as a result of a settlement with J. I. Case and Ayres Company, and the trial proceeded against the defendant S. A. Allen, Inc. The record is silent as to the disposition of the suit against G & G Pulpwood Company.

The proof on behalf of the plaintiff in this case established that Dunson was severely injured on November 2, 1973, while operating a Case Uniloader equipped with a plantation thinning shear manufactured by S. A. Allen, Inc. The Allen Plantation Thinning Shear is an attachment used in the wood industry for cutting trees. It has a pair of sharp knives used to cut the trees and a pair of claws or grasps which hold the tree while it is being lifted and carried to be stacked with trees already cut. The cutting knives and the claws are operated by means of hydraulic connections between the Allen shear and the equipment with which it is being used.

The particular Allen shear involved in this case was designed by Allen and was especially adapted by it' through special mounts and hydraulic hose connections for use with the Case Uniloader. As manufactured the shear could not be used with any other type of tractor. When the Allen shear is in use its ■ knives and claws are opened or closed by the operation of a seesaw type pedal inside the Case Uniloader. This pedal can be pressed either forward or backward to open or close the knives and claws. The pedal activates the shear by means of a hydraulic hose connection between the Case Uniloader and the Allen shear.

On the day of the accident, Dunson was operating a Case Uniloader equipped with an Allen shear to cut and stack trees. He had just cut a tree and started toward the pile with the tree and had traveled some ten or fifteen feet when suddenly the claws of the shear opened and released the tree. The top part of the tree became entangled with the tops of surrounding trees and the base or bottom of the severed tree came backwards into the front of the unshielded Case Uniloader where it fell on Dunson, pinning him in the cab and crushing his right leg.

S. A. Allen, Inc. had manufactured this particular type shear to be used with a Case Uniloader and had tested it in connection with a Uniloader. In testing the shear in connection with the Case Uniloader, Allen had become aware that it was likely that a tree which had been severed and was being carried by the shear could be dropped by sudden opening of its grasps without any intentional act on the part of the operator. Allen also was aware that when the shear was used in connection with a Case Uni-loader the operator would have no shield in front of him to protect him from objects such as limbs of trees entering the front of the cab. Allen was also aware that another brand tractor for which the Allen shear was designed to be used, did have such a shield in front of the operator. Dunson testified that on the day in question his equipment was working fine until he cut a tree, lifted it slightly, and started toward the pile, when suddenly something caused the grasp to open, releasing the tree. He said the tree came into the machine, pinned his leg against the back of the machine and his knee against the steering clutch, causing him to lose control of the machine.

Plaintiff also offered expert testimony to the effect that the device as manufactured and used by Dunson was unreasonably dangerous.

When plaintiff rested its case, the trial court sustained an oral motion on behalf of Allen for a directed verdict and dismissed the suit. The record does not reflect the grounds upon which the court sustained the motion for a directed verdict, but apparently the court was of the opinion that the testimony failed to establish that the product was defective or unreasonably dangerous when it left the hands of the manufacturer.

Appellant argues that the trial court was in error in sustaining Allen’s motion for a directed verdict because the evidence established that the intended use of this particular thinning shear was to cut trees when coupled with a Case Uniloader and when so coupled the shear was unsafe for its intended use. Appellee contends that plaintiff’s proof established that there was no defect in the product when it left its hands, was reasonably safe for its intended use and the problem arose after it was attached to the Case Uniloader.

We are of the opinion that the crucial question in this case is whether the thinning shear was defective or unreasonably dangerous in the light of our decision in State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss.1966). There we pointed out that if a product left the defendant’s control in a dangerous or unsafe condition or was not reasonably safe or was unsafe for its intended use, the manufacturer is liable whether or not he was at fault in creating that condition or in failing to discover or eliminate it. The question of whether a product is reasonably safe is a flexible one and to be determined by the facts in each case. The intended use of the particular thinning shear involved in this case was to cut trees when coupled to a Case Uniloader. Until so coupled the product was useless. We are of the opinion where, as here, the product is manufactured for the purpose of being used in conjunction with another product, which when combined proves to be unsafe for the purpose for which it was intended, the manufacturer of the first product can be held liable.

In summary, we are of the opinion that the allegations of the declaration and the evidence in support of the allegations are sufficient to create a jury issue as to whether the product was defective or unreasonably dangerous when it was attached to the Case Uniloader. For this reason, this case must be and is reversed and remanded.

REVERSED AND REMANDED.

PATTERSON, C. J., and SMITH, P. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.