text:
    STATE of Louisiana v. Johnny Clarence BROOKS.
    No. 59856.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Thomas J. Divens, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant Johnny Clarence Brooks was indicted by the Terrebonne Parish grand jury on October 1, 1974 for the first degree murder of Genii Caraleta Boston on September 21, 1974. He was found guilty on March 5, 1975 and sentenced to death. Three assignments of error are relied upon in this appeal.

Assignment 3

On voir dire examination defense counsel challenged prospective juror Do-mangue for cause because he understood Domangue to say that he felt the State had a case against the defendant. The trial judge then interrogated Domangue and ruled that Domangue’s answer was the result of a misunderstanding. He denied the challenge. However, when the defense again objected the judge excused the juror. This assignment is without merit.

Assignment 5

While testifying for the State, Jimmy Boston, husband of the victim, indicated that on his return to their store he noticed the cash register drawer was open and only two pennies remained. He was also asked if it was customary for his wife to keep cash in the register of the grocery store. He replied that he was not familiar with her practices because he worked for Exxon away from the store. She ran it completely.

Later Jimmy Boston was asked by the prosecutor if he could tell from any inventory he may have made exactly how much cash may have been taken from the register the day of the murder. When defense counsel objected that no evidence established that an inventory had been made, the question was rephrased: “Did you make any attempt to determine how much money may or may not have been taken on that morning?” The witness then answered, “approximately $30.00 or $40.00.” Furthermore he explained that he could not state exactly how much money was in the cash drawer: “It could have been $50.00, it could have been $100.00, it could have been $40.00.”

This interrogation was laced with defense objections that the court was permitting the State’s witness to speculate. Actually, the witness frankly stated, in substance, that he did not know how much money was in the cash register at the time of the murder. This development was favorable to the defense because the testimony did not support the State’s attempt to prove robbery at the time of the killing in order to sustain a conviction of first degree murder. Jimmy Boston’s testimony regarding the amount of money in the cash register did not support the robbery theory, for he could not say that there was money in the cash register at the time of the killing. Therefore, insofar as that phase of his testimony is concerned no prejudice to the defense was involved.

Apparently the jury was satisfied from other circumstantial evidence that a robbery did in fact take place. For one thing, Boston’s testimony that the open cash register contained only two pennies strongly indicated the cash register had been hurriedly emptied of whatever money it did contain.

There is no merit to this assignment.

Assignment 11

At the conclusion of the State’s case, the court granted a request to permit the jury to examine the physical evidence introduced during the trial. The items were handed to the jurors by the assistant district attorney trying the case. He was in turn assisted by John Walker, a recent law school graduate who was to become an assistant after he was admitted to the bar.

At some point during the jury’s inspection of the evidence, Roy Chauvin, a juror, asked Walker about a possible typographical error on one of the exhibits. The problem seemed to be whether the exhibit was marked “S-22” or “S-20” to coincide with a list of exhibits being viewed by the jury. Walker, in an effort to be helpful, responded that he felt the mark was just an exhibit number. This is all Walker could recall telling Chauvin. The entire incident was completely inadvertent. In no way does the record demonstrate, nor is it claimed, that the State sought an advantage from this brief verbal exchange. Nor does the record support a finding, even by inference, that defendant was prejudiced by this event. Defendant’s motion for a mistrial was therefore properly denied.

This assignment is without merit.

After the death penalty was imposed for this September 21, 1974 murder, the United States Supreme Court decided Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). By that 1976 decision the death penalty prescribed by Article 30 of the Criminal Code, in effect on September 21, 1974, was declared unconstitutional. Then, before argument of this appeal during October 1977, this Court on October 14, 1976, rendered its decision in State v. Jenkins, et al., La., 340 So.2d 157. By the Jenkins decision this Court fashioned an appropriate sentence for persons validly convicted but unconstitutionally sentenced to death as a result of the Roberts decision: The most severe penalty established by the legislature for criminal homicide at the time of the offense which the Court could presume to be constitutional in the wake of Roberts v. Louisiana. This penalty is imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. The Jenkins decision is dis-positive of the issue. See State v. Tyler, 342 So.2d 574 (La.1977). Defendant’s death sentence must be set aside and he must be resentenced.

For the reasons assigned, the conviction of Johnny Clarence Brooks is affirmed, but the death sentence is set aside, and the case is remanded to the trial court with instructions to resentence defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    Jean Orr HEBERT v. John Allen HEBERT.
    No. 59889.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Emile L. Turner, Jr., The Law Office of Emile L. Turner, Jr., New Orleans, for plaintiff-applicant.
    Roy S. Lilley, Lea, Lilley & Brainis, Me-tairie, for defendant-respondent.
   DENNIS, Justice.

This is a simple case involving a single issue.

The issue on appeal is whether the amendment of a child support judgment, which originally condemned the father to pay “the sum of $65.00 per week,” altered the substance of the judgment by ordering the father to pay “the sum of $65.00 per week, of which $50.00 is to be paid in cash and $15.00 per week is to be paid for the payment of the mortgage on the home owned by the parties for which defendant [the father] will receive credit as a payment on community property * * *.”

The legal rule is that a final judgment may be amended to change the phraseology, or to correct errors of calculation, but not to change the substance of the judgment. La. C.C.P. art. 1951.

It is not disputed that the judgment amended was a final judgment. The court of appeal held that only the phraseology of the judgment had been changed because the amendment merely expressed the trial judge’s actual intention as evidenced by his oral remarks at the conclusion of the child support hearing:

“You can either pay her fifty dollars a week plus one half of the house note which is another seventy one a month — I fix child support in the amount of sixty five dollars a week, which involves half of the house note plus fifty dollars a week for each [sic] child.”

The issue is well defined. Which constitutes the “substance” of the judgment that may not be altered by amendment, the written judgment or the oral remarks of the judge in open court? The portion of the amendment declaring that the father shall receive credit as a payment on community property for part of the child support award does not appear in either the written judgment or the judge’s oral remarks and is therefore clearly a substantive alteration. Furthermore, we think that the legislature intended to prohibit alterations in the substance of the written judgment after it has been signed by the judge and not alterations in the judge’s oral statements from the bench. Otherwise, inadvertent but substantive misstatements once uttered by the trial judge could not be changed except for their phraseology or for corrections of errors in calculation. This result would be unreasonable. It is much more likely that the lawmakers considered the written judgment to be the final judgment which is unalterable in substance. A judgment of this nature is usually prepared with care, and the trial judge may require that both parties or their counsel approve its form before signing. A written judgment may be revised before it is signed thus eliminating many possibilities of error or misunderstanding. In the event a substantive error nevertheless creeps into the written judgment the aggrieved party has recourse to a timely application for new trial or a timely appeal. Moreover, the notion that the substance of the judge’s oral remarks should govern instead of the substance of the written judgment could not have been the legislative intent because it would destroy the integrity of written judgments as evidence and public record of the court’s decree. For these reasons we conclude that the amendment of the original judgment of July 21, 1975 constituted a substantive alteration in contravention of La.Code of Civil Procedure Article 1951.

Accordingly, the judgments of the court of appeal and the trial court are reversed and the original judgment of July 21, 1975 is reinstated at the cost of the appellee.

       Cf. McGee v. McGee, 157 So.2d 312 (La.App. 4th Cir. 1963).


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Seymour FERINA, Appellant.
    No. 59896.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Robert F. DeJean, Sr., DeJean & DeJean, Opelousas, Louis B. Merhige, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, Jr., Dist. Atty., Patrick G. Quinlan, J. Wensles Parra, Jr., Asst. Attys. Gen., for plaintiff-appellee.
   TATE, Justice.

By joint stipulation, it has been brought to our attention that the appellant died while this appeal was pending. The prosecution in these proceedings is therefore abated. State v. Morris, 328 So.2d 65 (La.1976).

Accordingly, the appeal in this case is dismissed, the judgment of conviction is vacated, and the case is remanded to the district court with instructions to dismiss the indictment.

PROSECUTION ABATED, APPEAL DISMISSED.


author: PER CURIAM.

text:
    STATE of Louisiana v. David Scott JOHNSON.
    No. 59898.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    James Brodtmann, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Vincent Paciera, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed,


text:
    STATE of Louisiana v. Dee Wayne PERRY.
    No. 60928.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Lewis 0. Unglesby, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On May 3, 1977, defendant was convicted of possession of marijuana with intent to distribute. The order for appeal was timely filed and signed, but delays connected with the transcript have prevented the lodging of the record in this court. Defendant alleges that he has new evidence of a bargain between the prosecution and its witnesses, and that this forms a sufficient basis for a motion for a new trial under La.C. Cr.P. art. 851(3).

La.C.Cr.P. art. 853 provides: “When the motion for a new trial is based on ground (3) of Article 851, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case.” The motion for a new trial is therefor timely proposed, and we remand to the trial court to allow the filing and disposition of the defendant’s motion. See State v. Bradford, 275 So.2d 407 (La.1973).

REMANDED TO DISTRICT COURT.


text:
    In re Mr. and Mrs. Henry MARTIN applying for the Adoption of the minor Lance Joseph LeBoeuf v. Floyd Joseph LeBOEUF.
    No. 60964.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Ralph D. Hillman, Thibodaux, for defendant-appellant.
    Michael J. Scurto, Houma, for plaintiff-appellee.
   PER CURIAM.

Petitioners, Mr. and Mrs. Henry Martin, seek to appeal from an adverse judgment on their petition for an interlocutory decree of adoption. At petitioners’ request, the district court, relying upon La. R.S. 9:438, granted the appeal, returnable to this Court. However, that portion of R.S. 9:438 which states that appeals in adoption proceedings shall lie to the supreme court is in conflict with the constitutional provisions setting forth our appellate jurisdiction in civil cases. Under the Louisiana Constitution of 1974, our appellate jurisdiction does not extend to such matters, which are instead appealable to the courts of appeal. La.Const.1974, art. 5, §§ 5(D), 10. See also, La.R.S. 13:1591. In light of the constitutional revision of appellate jurisdiction effected subsequent to the enactment of La.R.S. 9:438, we find that the statute, to the extent that it conflicts with the constitution, had been impliedly repealed.

We conclude that the present proceeding is one over which we have no appellate jurisdiction and therefore it must be transferred to the proper court of appeal. See, La.R.S. 13:4441,13:4442; La.C.C.P. art. 2162. It is ordered that this appeal be transferred to the First Circuit Court of Appeal, costs of the transfer to be paid by petitioners and all future costs to await final disposition of the case.


text:
    Newell A. TAYLOR v. Hayden J. DEES, Warden.
    No. 60583.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Newell A. Taylor, applying for writ of certiorari.

Writ granted. Trial judge ordered to rule on merits of relator’s application for habeas relief.


text:
    Georgia L. SLONE v. TRAVELERS INDEMNITY CO. et al. Jeanell P. RUIZ v. TRAVELERS INDEMNITY CO. et al.
    No. 60834.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Georgia L. Slone & Jeanell P. Ruiz applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 349 So.2d 460; 349 So.2d 461.

Writ denied.


text:
    Eddie NAMIE et ux. v. W. M. MILAM & SON, INC.
    No. 60844.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Eddie Namie, et ux., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Winn. 349 So.2d 996.

Writ denied.


text:
    W. D. KING et al. v. ALLSTATE INS. CO. et al. Frank A. URBANIC et al. v. COMMERCIAL UNION INS. CO. FLORIST MUTUAL INS. CO. v. ALLSTATE INSURANCE CO. et al.
    No. 60875.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: James L. Rogers, Charlotte 0. Rogers and Commercial Union Ins. Co. applying for certiorari, or writ or review to the Court of Appeal, Second Circuit, Parish of Caddo. 349 So.2d 998.

Writ denied.


text:
    Joe Dolph WILLIAMS et al. v. TOWN OF MANY, Sabine Parish Police Jury and Hon. George R. Cook, Sheriff of Sabine Parish.
    No. 60848.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Joe Dolph Williams, et al applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Sabine. 350 So.2d 224.

Writ refused.


text:
    Marie M. WEST et al. v. STATE of Louisiana, Through STATE SUPERINTENDENT OF PUB. EDUCATION and State Board of Education.
    No. 60877.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Marie M. West, et vir, applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge.

Writ refused.


text:
    Eugene H. WATSON, Sr. v. Mrs. Ceola S. SCOTT et al. Allen D. MORGAN v. Vadna Burkett CULPEPPER et al.
    No. 60879.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Vadna Burkett Culpepper, Delphia Burkett Thomas, Ernest O. McCoy, Mack Allen McCoy and Marlin Margene McCoy applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bienville. 349 So.2d 982.

Writ Denied.


text:
    Gladys K. ROZAS v. Joseph A. GUILLORY et al. Mrs. Willis ROZAS et al. v. Joseph A. GUILLORY et al.
    No. 60843.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Dixie Auto Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 349 So.2d 453; 349 So.2d 457.

Denied.


text:
    STATE of Louisiana ex rel. Eric JOHNSON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60590.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Eric Johnson applying for writs of certiorari, habeas corpus.

Application denied, as having no merit.


text:
    STATE of Louisiana ex rel. Charles FORT v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60595.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Charles Fort, applying for remedial writs of certiorari and habeas corpus.

Writ denied. There is no merit in this application.


text:
    STATE of Louisiana v. Daniel J. LEDET.
    No. 60610.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Daniel Ledet applying for remedial writs.

Writ denied. No error of law in the judgment of the trial court.


text:
    STATE of Louisiana v. DANIEL BURCH AND WRESTLE, INC.
    No. 60620.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: State of Louisiana through the District Attorney, Harry F. Connick applying for writ of certiorari.

Writ denied. The ruling of the trial court is correct.


text:
    STATE of Louisiana ex rel. James McNEAL v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60623.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: James McNeal applying for writ of habeas corpus.

Writ denied. The showing made does not warrant the exercise of this court’s supervisory jurisdiction.


text:
    Succession of L. J. ALEXANDER, Deceased v. J. Earl ALEXANDER.
    No. 60876.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: J. Earl Alexander, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson.

Writ denied.


text:
    STATE ex rel. Melvin EDWARDS and Joseph Millet v. Charles C. FOTI, Criminal Sheriff, Orleans Parish.
    No. 60891.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Melvin Edwards and Joseph Millet applying for writ of mandamus.

Writ refused. Since relator has been returned to parish prison, the application is moot.


text:
    RESERVE REALTY COMPANY, INC. v. Hugues J. DE LAVERGNE, II et al.
    No. 60944.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Reserve Realty Co., Inc. applying for supervisory writs of certiorari, prohibition and mandamus.

Writ denied. Ruling of the trial judge was correct.


text:
    STATE of Louisiana ex rel. Charlie WILLIAMS v. Harold M. TERRY, Sheriff of Caddo Parish.
    No. 60598.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Charlie Williams applying for remedial writs and writ of habeas corpus.

Writ granted. Trial court is ordered to supply applicant with copy of pertinent forms, as per Rule 22, Sec. 2 Rules of Louisiana Supreme Court.


text:
    Earl T. SANDERS v. HARTFORD LIFE INSURANCE CO.
    No. 60982.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Earl T. Sanders applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Union. 350 So.2d 945.

Writ denied. Applicant has not applied for rehearing in Court of Appeal. The judgment is final. Rule X, Sec. 4(b).


text:
    Robert Daniel CHAPPUIS v. SEARS ROEBUCK & CO.
    No. 60725.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Robert Daniel Chappuis & Sentry Ins., A Mutual Company, applying for cer-tiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 349_ So.2d 963.

Writ granted. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Richard W. PARKER.
    No. 60602.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Richard W. Parker, applying for writ of review.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Walter C. Peters, Judge of the 31st Judicial District, Court for the Parish of Jefferson Davis to transmit to the Supreme Court of Louisiana, on or before the 25th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Lloyd LINDINGER.
    No. 60621.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Lloyd Lindinger applying for a writ of certiorari, review, prohibition or mandamus.

Granted. The petition of the relator m the above entitled and numbered ease having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Earl H. Edwards, Judge of the Twelfth Judicial District, Court for the Parish of Avoyelles, to transmit to the Supreme Court of Louisiana, on or before the 25th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Mack I. FRANK.
    No. 60641.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: State of Louisiana applying for writ of certiorari.

Writ Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank A. Marullo, Jr., Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 25th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    Margaret B. Everett, wife of/and Gary EVERETT v. Daniel W. GOLDMAN, M. D., et al.
    No. 60959.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Daniel W. Goldman, M. D., applying for writ of review or certiorari.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Sol Gothard, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 25th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Joe Nathan GAUT.
    No. 60748.
    Supreme Court of Louisiana.
    Nov. 13, 1977.
   In re: Joe Nathan Gaut applying for certiorari, mandamus and prohibition.

Writ granted.

SUMMERS, J.,

dissents from the grant of this writ. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Gayle K. Hamilton, Judge of the First (1st) Judicial District, Court for the Parish of Caddo, to transmit to the Supreme Court of Louisiana, on or before the 28th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a day to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    Louis G. VILLAUME v. Christine R. VILLAUME.
    No. 60961.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Christine R. Mahar applying for writ of mandamus.

Writ granted. District court ordered to grant appeal in this case.


text:
    STATE of Louisiana v. George HUTCHINSON.
    No. 61100.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: George Hutchinson applying for supervisory writs and remedial writs.

Writ granted. The petitioner is entitled to a speedy trial.


text:
    CITY OF BATON ROUGE v. Cinderella MAYS.
    No. 60654.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Cinderella Mays applying for writ of review and stay order.

Writ denied. There was some evidence of attempted theft.


text:
    CITY OF BATON ROUGE v. Hayward BRADFORD.
    No. 60729.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Hayward Bradford applying for remedial writs.

Writ denied. There is no merit to the application.


text:
    STATE of Louisiana ex rel. Robert SKIPPER v. Cliff C. ADAMS, Judge, Madison Parish, Tallulah, Louisiana.
    No. 60750.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Robert Skipper applying for writ of mandamus.

Writ denied. The trial judge acted on relator’s habeas corpus application on November 2, 1977; therefore, this application for mandamus is moot.


text:
    STATE of Louisiana ex rel. Leon THOMAS v. H. M. “Mike” CANNON, Clerk, 19th Judicial District Court, Parish of East Baton Rouge.
    No. 60751.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Leon Thomas applying for remedial writs.

Writ denied. Relator is represented by counsel, who has filed a brief in this Court. The case is assigned in this Court on November 21, 1977.


text:
    STATE of Louisiana v. Edmond E. TALBOT, III.
    No. 60858.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Edmond E. Talbot, III, applying for supervisory writs.

Writ denied. Adequate remedy by appeal in event of a conviction.


text:
    STATE of Louisiana v. Matthew LARRY.
    No. 60932.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Matthew Larry applying for writs of certiorari, prohibition, mandamus and stay order.

Writ refused. No merit in application.


text:
    STATE of Louisiana ex rel. John F. BOISSIERE v. Ross MAGGIO, Warden, La. State Penitentiary, Hon. Frank Foil, 19th Judicial District Court, Parish of East Baton Rouge.
    No. 60967.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: John F. Boissiere applying for writ of mandamus.

Writ refused. The trial judge having ruled on the petition, there is no merit in this application.


text:
    STATE of Louisiana ex rel. Troy PRINE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60976.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Troy Prine applying for writ of certiorari.

Writ denied. The application is moot. By letter of October 31, the clerk of court informs this court that relator has been transmitted the documents requested.


text:
    STATE of Louisiana ex rel. Oliver MARKS v. CLERK OF COURT, CRIMINAL DISTRICT COURT, State of Louisiana, et al.
    No. 60920.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Oliver Marks applying for remedial writs.

Writ denied. In the absence of particularized need, the relator is not entitled to the relief prayed for.


text:
    STATE of Louisiana v. Edward L. KENNEDY.
    No. 60485.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Edward L. Kennedy applying for stay order.

Writ denied. There is no merit in this application.


text:
    STATE of Louisiana v. Edward L. KENNEDY.
    No. 60485.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Edward L. Kennedy applying for writs of certiorari, prohibition, mandamus.

Writ denied. There is no merit in this application.


text:
    STATE of Louisiana v. Donald R. JONES.
    No. 60955.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Donald R. Jones applying for writs of certiorari, prohibition, mandamus and stay order.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Richard B. Williams, Judge of the Tenth Judicial District, Court for the Parish of Natchi-toches to transmit to the Supreme Court of Louisiana, on or before the 28th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained..

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Jerome D. LOEHR.
    No. 60737.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Jerome D. Loehr applying for writs of review.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Robert M. Fleming, Judge of the 16th Judicial District, Court for the Parish of St. Mary, to transmit to the Supreme Court of Louisiana, on or before the 28th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Linda M. LOEHR.
    No. 60738.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Linda M. Loehr applying for writs of review.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Robert M. Fleming, Judge of the 16th Judicial District, Court for the Parish of St. Mary to transmit to the Supreme Court of Louisiana, on or before the 28th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court, and the respondent through Counsel shall show cause in this court, on a date to be fixed by this Court, why the relief prayed for the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Louis SMITH and James Campbell.
    No. 60720.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: Louis Smith applying for writ of certiorari.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Elmo E. Lear, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 28th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Kaldon YOUNG.
    No. 60702.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
   In re: State of Louisiana through Harry F. Conniek, District Attorney applying for writs of certiorari, prohibition and mandamus.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered- that a Writ of Certiorari issue herein, directing the Honorable Andrew Búcaro, Judge Ad Hoc of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 28th day of November, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


author: PER CURIAM. LEMMON, Judge,

text:
    Nat G. KIEFER v. Judge Ernest N. MORIAL et al.
    No. 9194.
    Court of Appeal of Louisiana, Fourth Circuit.
    Decree Nov. 8, 1977.
    Opinion Nov. 9, 1977.
    Rehearings Denied Nov. 9, 1977.
    Writ Refused Nov. 9,1977.
    Martzell & Montero, John R. Martzell, Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for plaintiff-appellant Nat G. Kiefer.
    Jefferson, Bryan & Gray, Trevor G. Bryan, Sidney M. Bach, David Marcello, Donald A. Meyer, Stephen I. Dwyer, New Orleans, for defendant-appellee Ernest N. Morial.
    Tucker, Schonekas & Garrison, Gibson Tucker, Jr., Montelepre & Montelepre, Philip Montelepre, and Louis A. DiRosa, New Orleans, for defendant-appellee Joseph V. DiRosa, Jr., New Orleans.
    Robert L. Danner, Jr., Joseph W. Thomas, New Orleans, for defendants-appellees Governor Edwin Edwards, and Paul Hardy, Secretary of State.
    Floyd J. Reed, Metairie, for defendant-appellee Board of Supervisors of Elections.

      Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOUTALL, SCHOTT, BEER and BAILES, JJ.
   PER CURIAM.

The first primary election for Mayor of the City of New Orleans was held on October 1, 1977. Ernest N. Morial, defendant, and Joseph V. DiRosa finished in first and second place and were certified as candidates in the general election scheduled for November 12.

Plaintiff Nat G. Kiefer, who finished third, brought this suit on November 4, 1977, to contest Morial’s qualifications as a candidate and to have himself certified as a candidate in the general election in place of Morial against DiRosa. Made defendants along with Morial were DiRosa, the Board of Supervisors of Elections for the Parish of Orleans, the Governor and the Secretary of State.

DiRosa intervened, claiming that Morial became disqualified after the primary election and seeking to have himself declared elected Mayor as the only remaining qualified candidate in the general election.

Defendants filed various exceptions which were referred to the merits. The trial court overruled all exceptions after trial and dismissed the petition and the intervention. From this judgment Kiefer and DiRosa have appealed.

The following facts are pertinent to the case:

1. When Morial qualified for Mayor he was a judge of this Court.

2. LSA-R.S. 42:39 provides as follows:

“A. After July 31, 1968, no person serving in or elected or appointed to the office of judge of any court, justices of the peace excepted, shall be eligible to hold or become a candidate for any national, state or local elective office of any kind whatsoever, including any national, state or local office in any political party organization, other than a candidate for the office of judge for the same or any other court.
“B. The provisions of Subsection (A) of this section shall not be construed as prohibiting any person from resigning from his office as judge of any court for the purpose of becoming a candidate for nomination or election to any national, state or local elective office for which he is qualified and eligible; provided, however, that the resignation of any such person shall be and is made not less than twenty-four hours prior to the date on which he qualifies as a candidate for nomination or election to the office to which he seeks nomination or election. “C. If any judge elected or appointed, justice of the peace excepted, qualifies for any other elective position, other than those allowed by the provisions of this section, without complying with the provisions of Subsection (B) set forth above, his qualification as a candidate for the other office shall ipso facto be null and void.”

3. R.S. 18:396 provides that any objection to one’s candidacy must be filed within five days after the last date for qualifying, in this case August 11, 1977.

4. During this five day period there was a valid and subsisting order of the United States District Court granting declaratory relief to Morial and declaring R.S. 42:39 Unconstitutional. This order had been signed on February 7, 1977.

5. On November 3,1977, the United States Court of Appeals for the Fifth Circuit ordered the previous order of the United States District Court stayed.

6. On November 4, 1977, Morial resigned as a judge of this Court.

Kiefer was not required to bring his election contest suit within five days after the last date for qualifying because at that time the disqualifying statute was without effect. Therefore, his suit, brought on November 4, was timely under the circumstances.

However, until November 3 Morial was not disqualified because the effect of the disqualifying statute was suspended. Morial’s resignation as a judge on the day after the statute regained its viability as a result of the order of the United States Court of Appeals was timely under the circumstances. Thus, there was never any effective impediment to his qualifications as a candidate.

Accordingly, we have affirmed the judgment of the trial court.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs.

The positions of both plaintiff and inter-venor depend upon the effect of the February, 1977 declaratory judgment of the United States District Court, declaring R.S. 42:39 unconstitutional and enjoining its enforcement.

Plaintiff contends, in effect, that defendant’s failure to resign before qualifying was a calculated risk that depended entirely upon final victory in his effort to strike R.S. 42:39 as unconstitutional and that when the declaratory judgment and injunction were stayed on November 3, 1977, allowing enforcement of the prohibitory law, defendant’s failure to resign before qualifying rendered his qualification null and void ab initio.

The very purpose of an action for a declaratory judgment is to allow a person to ascertain his legal rights without having to breach a contract or violate a civil statute. If a person timely obtains a declaration of his legal rights and takes action in reliance on such a declaration, and the declaratory judgment is subsequently reversed (or stayed), it would be manifestly unjust (at least in the absence of damage to another person) to hold that such action was at his own risk and the judicial protection from the consequences of his action was of no significance.

In the present case defendant, far in advance of the August qualifying date, sought a declaratory judgment in order to remove an impediment to his qualification by orderly legal process. When R.S. 42:39 was judicially struck with nullity, he qualified for the office, complying with all other laws then in effect. And when R.S. 42:39 again became effective on November 3, he immediately resigned in order to remove the impediment presented by the prohibitory law.

Thus, defendant has at no time violated a prohibitory law which was in effect, and the impediment of R.S. 42:39 was never applicable as an impediment to his qualification. Of equal importance, no other person was harmed by defendant’s action in qualifying without resigning, which was done in reliance on the declaratory judgment.

Defendant’s November 4 resignation constituted reasonable compliance when R.S. 42:39 again became effective. To hold that defendant’s qualification was initially null and void under the circumstances of this case would deprive him of due process and would constitute an unconstitutional application of R.S. 42:39.

      . Neither the original petition nor the intervention in this suit are preempted. If defendant’s qualification for office was null because of a prohibitory law, then the suit to declare the nullity is not governed by any specific time limits of the election law. This suit, which was brought immediately after the staying of the injunction that had prevented enforcement of the prohibitory law since the date of defendant’s qualification, was therefore timely.


author: CULPEPPER, Judge.

text:
    Alexon LANCLOS et al., Plaintiffs and Appellees, v. Robert S. TOMLINSON, Jr., et al., Defendants and Appellants.
    No. 6023.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.

      Dubuisson, Brinkhaus & Dauzat by Jerry J. Falgoust, Opelousas, for defendants and appellants.
    Taylor & Trosclair by Frank P. Tros-clair, Jr., Opelousas, for plaintiffs and ap-pellees.
    Lewis & Lewis by John M. Shaw, Opelou-sas, for third party defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff, Pearl Landos, and her husband, Alexon Landos, seek damages for personal injuries sustained by Mrs. Landos when she fell while attempting to cross a small wooden bridge spanning a roadside ditch. The bridge provided ingress and egress to a lot and rental dwellings owned by the principal defendants, Robert S. Tomlinson, Jr. and Allen T. Tomlinson. The principal defendants filed a third party demand against the City of Opelousas (the City) and its insurer seeking indemnification or contribution from the City in the event the principal defendants were found liable. The trial court rendered judgment against the principal defendants and their insurer, but rejected the third party demand against the City and its insurer. The principal defendants appealed. Plaintiffs answered the appeal, seeking an increase in damages.

The substantial issues are: (1) Was there a reasonable evidentiary basis for the trial court’s conclusion that a latent defect in the bridge planking was the cause of plaintiff’s fall? (2) Did the trial court err in applying the doctrine of strict liability, embodied in Articles 670, 2322, 2693 and 2695 of our Civil Code, to this defective bridge which was not located on defendant’s property? (3) Are defendants liable in tort?

GENERAL FACTS

Robert Tomlinson and his brother, Allen Tomlinson, purchased a tract of land on December 24,1973 described as Lot No. 1 of Block 4 of the Colorado-Southern Subdivision in the City of Opelousas, Louisiana. This rectangular corner lot is bounded on the west by Arkansas Avenue and on the north by U.S. Highway 190. It has a frontage of 50 feet on Highway 190 and of 150 feet on Arkansas Avenue.

At the time of the accident, two houses were situated on the lot. One faced U.S. Highway 190 and the other faced Arkansas Avenue. Mr. and Mrs. Noah Bourque were living in the house facing Arkansas Avenue at the time of the accident. This house was leased by the Tomlinsons to Bertha Bourque, the daughter of the tenants.

Plaintiffs lived in a house across Arkansas Avenue from the Bourque residence. Often plaintiff would walk to the Bourque house to get food scraps to feed her pig. Her usual route was through her back yard, across Arkansas Avenue, and finally over a small wooden bridge spanning a shallow ditch which ran along the eastern edge of the graveled portion of Arkansas Avenue.

To the casual observer, it would appear that the eastern edge of the small wooden bridge rested on the front yard of the Bo-urque residence, and the western edge of the bridge rested on the easternmost part of Arkansas Avenue. The edge of the bridge nearest the Bourque residence was only nine feet away from the porch of the house. Actually, however, surveys showed the bridge and ditch were situated entirely within the right of way of Arkansas Avenue, and did not abut defendants’ property.

Arkansas Avenue is a city street with a 60-foot right of way. The graveled portion along the center has a width of about 20 feet. The ditch, about one and one-half feet deep and four feet wide, runs along the eastern edge of the graveled portion. Thus, the right of way boundary is about 14 feet beyond the bridge and ditch.

The porch of the Bourque house encroaches 5.4 feet onto the Arkansas Avenue right of way.

On June 8,1974, plaintiff fell and injured her leg while crossing the bridge on her return trip from the Bourque house. She was carrying a bucket of slop for her pig. There were no other witnesses to the accident, but plaintiff testified she fell through the bridge when one of its planks broke under her weight. Though there is some dispute as to the condition of the bridge, the trial court found the defect in the bridge was latent, and plaintiff was not crossing the bridge in a negligent manner.

The bridge in question was built by Wil-fret Anderson more than 20 years before the accident. It was a simple wooden frame structure with no handrails. Its surface consisted of wooden planks attached to cross beams. At the time Anderson built the bridge, he was a resident of one of the lease houses on the property. The record shows that from the time the bridge was built, it was repaired only once. These repairs were performed about 20 years before the accident by the present lessee, Noah Bourque, and the plaintiff, Alexon Landos.

Both defendants testified that prior to the date of the accident they did not know the bridge in question existed. The Tomlin-sons further testified that prior to the accident they had never inspected the property. They stated their father acted as their agent in negotiating the purchase of the property, and that not even he viewed the property prior to the date of the accident. Defendants did not construct or maintain the bridge.

Once or twice a year, city crews cleaned the drainage ditch. In the course of their cleaning operations, the crew would lift the small platform-type bridge and set it aside to clean the portion of the ditch under the bridge. After cleaning operations were completed, the bridge was replaced in the same spot it had been before. In 1974, the year of the accident, the City work crew did not remove the bridge because someone, apparently Noah Bourque, told the crew he would clean under the bridge.

The city instructed its road crews to remove any bridges found to be unsuitable or dangerous. In 1974 and prior years the city road crews did not consider the subject bridge to be unsuitable or dangerous.

Apparently, the city has never used the full 60-foot width of the Arkansas Street right of way.

CONDITION OF THE BRIDGE

The first issue is whether there is a reasonable evidentiary basis for the trial court’s conclusion that a latent defect in the bridge planking was the cause of plaintiff’s fall. There is some dispute in the evidence as to whether the bridge was in good condition or was instead falling apart at the time of the accident. Pictures introduced into evidence show a very dilapidated wooden bridge with six to eight inch gaps where planks had fallen off or are only partially attached to the supports. There is some question, however, as to whether these are pictures of the bridge which was in place at the time of the accident. In any event, the trial court concluded: (1) Plaintiff walked on the side of the bridge where there were no gaps between the planks and not the more dangerous side of the bridge with large gaps. (2) Plaintiff stepped on a plank which either gave or broke under her weight. (3) The defect in the bridge was a latent one rather than an apparent one, and could not have been discovered on a simple inspection of the bridge. (4) Plaintiff was not crossing the bridge in a negligent manner at the time of the accident.

Though there is conflicting testimony about the condition of the bridge, the above findings of the trial court are supported by a reasonable evidentiary basis and should not be disturbed on appeal.

STRICT LIABILITY

In Krennerieh v. WCG Investment Corporation, 278 So.2d 842 (La.App.3rd Cir. 1973), we stated the following rule:

“An owner-lessor is held to strict liability, i. e., liability without fault, for personal injuries sustained by his tenants or others through the defective' condition of the premises; neither the landowner’s ignorance of the defects nor its latency will defeat the injured person’s recovery. LSA-C.C. Articles 670, 2322, 2693 and 2695.”

The trial court quoted this same language from Krennerieh in holding the Tomlinsons strictly liable for injuries sustained by plaintiff while crossing the bridge. We think the trial court erred in its application of the Krennerich case and the four Code Articles cited there.

There is no legal basis for holding defendants strictly liable for injuries sustained on a defective bridge not located on or attached to their property and which was not proved to be built, owned, maintained or leased by defendants. A reading of the cited Code Articles reveals their inapplicability to the present case:

“Art. 670. Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passers-by, under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.
“Art. 2322. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.
“Art. 2693. The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is bound to make, as hereafter directed.
“Art. 2695. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

The above quoted articles limit imposition of strict liability to only those cases where (1) the defendant owns the building which causes damages (Articles 670 and 2322) or (2) the damages result from vices or defects in the thing leased (Articles 2693 and 2695). Thus, these code articles have no application where the defective thing is neither owned nor leased by the defendant. The injured plaintiff who grounds his claim on the strict liability imposed by the quoted articles has the burden of proving the defendant was the owner or lessor of the defective thing. See Levi v. Crescent City Seltzer & Mineral Water Company, 2 La.App. 286 (Orl.App.1925).

The defendants denied ownership of the bridge and the plaintiffs failed in their burden of proving otherwise. There is no evidence to support an assertion that defendants owned the bridge. Defendants did not build the bridge. The bridge was built by Wilfret Anderson, a former resident of one of the leased houses. Defendant did not buy the bridge. Although the bridge may have been an immovable by nature or by destination, defendants did not acquire it when they purchased the subject lot and house because the bridge was not situated on the subject property.

The defendants denied that the bridge was included as a part of the “thing leased” (i. e., the lot and dwellings), and plaintiffs failed in their burden of proving otherwise. At the time of the accident, defendants were leasing the subject property to Bertha Bourque under the terms of an oral lease. The specific terms of the oral lease were not disclosed at trial. There was no evidence that the bridge was intended to be included in the lease. In the absence of specific lease provisions or other evidence to the contrary, we must presume defendants leased only the property which they owned. Defendants owned only Lot 1 of Block 4 of the Colorado-Southern Subdivision and the improvements thereon. They did not own the bridge.

Since defendants were neither the owners nor the lessors of the bridge, strict liability cannot be imposed under Articles 670, 2322, 2693 and 2695. If we were to hold otherwise, we would expand the codal concept of strict liability beyond its intended scope.

Though there have been expansive interpretations of the word “building(s)” in Articles 670 and 2322 to include such things as wharves attached to houses, we know of no cases expanding that term to encompass structures situated entirely on the property of another with no physical .connection to defendant’s building or property. See, for example, Cothern v. LaRocca, 255 La. 673, 232 So.2d 473 (La.1973); Cristadoro v. Von Behren’s Heirs, 119 La. 1025, 44 So. 852 (1907); Allain v. Frigola, 140 La. 982, 74 So. 404 (1917); see also Quintanilla v. Chateau Louisiana, Inc., 392 F.Supp. 510 (E.D.1975).

LIABILITY IN TORT

Having concluded there is no legal basis for imposition of strict liability, we next address plaintiff’s argument that defendants are liable in tort under Article 2315 of the Civil Code.

In the absence of a specific duty imposed by statute or ordinance, an abutting property owner is not responsible for injuries sustained as a result of a defect in the adjoining street or sidewalk unless he creates the hazardous condition or endangers the pedestrian by his negligence. Arata v. Orleans Capital Stores, 219 La. 1045, 55 So.2d 239 (1951) and cases cited therein; Gauthier v. Aetna Casualty & Surety Company, 286 So.2d 103 (La.App.3rd Cir. 1973).

Under the “reasonable man” standard, the lessor-landowner may have a duty to warn his tenants of observable defects on adjoining premises or at points of ingress and egress. See Cothern v. LaRocca, supra. Assuming, without deciding, that defendants breached a duty owed to plaintiff by not inspecting the bridge, defendants are nevertheless not liable to plaintiff for her injuries. Since under the trial judge’s findings, any defects in the bridge were latent rather than apparent, the defendants’ failure to inspect the bridge is not a legal cause of the accident. An inspection of the bridge would not have revealed its latent defects.

Having concluded there is neither a basis for the application of strict liability nor any basis for imposition of liability under the general tort provisions, we must reverse the judgment of the trial court holding defendants liable for plaintiffs’ damages.

LIABILITY OF THE CITY

The trial court rejected the principal defendants’ third party demand against the City on the grounds that the City had neither actual nor constructive notice of the defect in the bridge. We need not reach the issue of the City’s liability to the principal defendants as we find the principal defendants are not liable to plaintiff. Plaintiff did not name the City as a party defendant.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is hereby rendered in favor of defendants-appellants rejecting plaintiffs’ demands and dismissing their suit. All costs in the trial and appellate courts are assessed against the plaintiffs-appellees.

REVERSED AND RENDERED.

WATSON, J., concurs in the result.


author: REDMANN, Judge.

text:
    HIBERNIA NATIONAL BANK IN NEW ORLEANS v. Dave DeGRAAUW, etc., et al.
    No. 8843.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 15, 1977.

      W. Larry Floyd, New Orleans, for relator.
    Wayne G. Cresap, New Orleans, for respondents.
    Before REDMANN, STOULIG and ' MORIAL, JJ.
   REDMANN, Judge.

For lack of jurisdiction over this application for supervisory writs to the First City Court of the City of New Orleans, we transfer it to the Civil District Court for the Parish of Orleans.

We have supervisory jurisdiction only “over cases in which an appeal would lie” to us, and appeals lie to us in all civil matters within our circuit “except as otherwise provided by this constitution”, La.Const.1974 art. 5 § 10(A). Art. 5 § 16(B) provides that district courts “shall have appellate jurisdiction as provided by law” and La.C.C.P. 4833 B (as amended, Acts 1976 No. 84 § 1) provides that “[t]he appeal from a city court when the amount in contest is one thousand dollars or less exclusive of interest, shall be returnable to the district court of the district in which the city is located.”

(Art. 4833’s heading — in any case not part of the law, C.C.P. 5057 — reads “Jurisdiction of city courts in municipalities of ten thousand or more population, New Orleans city courts excepted; appeal”. The heading appears to except New Orleans only from the jurisdiction provision and not from the appeal provision. The text of the article, subsection A, provides “This Subsection shall not apply to the city courts of New Orleans.” There is no similar provision in subsection B, which makes appeals returnable to district court or to court of appeal on the basis of the amount in contest.)

The Civil District Court for the Parish of Orleans is given jurisdiction over appeals in this case by C.C.P. 4833 B. We therefore have no appellate jurisdiction and no supervisory jurisdiction in this case. The District Court presumably has the authority to issue supervisory writs, as “needful writs” in aid of its jurisdiction within Const, art. 5 § 2.

Application transferred to the Civil District Court for the Parish of Orleans.


author: CLAIBORNE, Judge.

text:
    Donald H. McGREGOR, Individually and as administrator of the estate of his minor son, Robert T. McGregor v. UNITED FILM CORPORATION et al.
    No. 11088.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 1977.
    Rehearing Denied Nov. 21, 1977.

      Joseph A. Gladney, Baton Rouge, of counsel for Donald H. McGregor, plaintiff-appellant.
    Charles R. Moore, Baton Rouge, of counsel for Indv., etc., plaintiff-appellant.
    Neil H. Mixon, Jr., Baton Rouge, of counsel for United Film, Telefilms & Anthony Favaro, defendants-appellees.
    William N. Faller, Baton Rouge, of counsel for Guaranty Corp. and Guaranty Bond & Finance Corp., defendants-appellees.
    William A. Norfolk, Baton Rouge, of counsel for Guaranty Broadcasting Corp. and The Travelers Ins. Co., defendants-ap-pellees.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

This is a workmen’s compensation claim brought by Donald H. McGregor individually and on behalf of his minor son, Robert T. McGregor, who was seriously injured in an automobile accident on September 14, 1968. After young McGregor reached the age of majority he was substituted as a party plaintiff insofar as his personal claims were concerned.

In the early morning hours on that day, Robert McGregor was traveling alone from Hammond, Louisiana to Baton Rouge, in an automobile owned by the Guaranty Broadcasting Company, when the vehicle, for unexplained reasons, overturned in a ditch. Prior to the accident he had delivered, in connection with his employment, motion picture film which had been processed during the night by United Film Corporation employees.

As a result of this accident, the plaintiff sustained serious back injuries requiring surgery and an extended period of convalescence. Liberty Universal Insurance Company, the workmen’s compensation insurer of United Film, began paying the statutory weekly benefits and did so for 98 weeks, in addition to certain medical expenses; however, it then became insolvent and has been placed in liquidation. After the accident, Telefilms, Inc. also contributed some financial assistance to the claimant during his recovery period.

This litigation began shortly after the insolvency of Liberty Universal became known. Made defendants on varying theories of responsibility are United Film and its principal shareholder, Anthony H. Fava-ro, Telefilms, Guaranty Broadcasting Corporation, Travelers Insurance Company, Guaranty Corporation, Louisiana Insurance Guaranty Association, and Tom I. McFar-ling, as liquidator of Liberty Universal Insurance Company. The suit as to Louisiana Insurance Guaranty Association was dismissed by summary judgment from which no appeal was taken.

After a lengthy trial, which included additional testimony and evidence on behalf of the defendants taken on reopening of the case for such additional evidence, judgment was rendered awarding the plaintiff total and permanent disability benefits and penalties and attorney’s fees against United Film only, the suit being dismissed as to the remaining defendants.

The extent of the plaintiff’s disability is the initial question raised on appeal. That issue is the subject of considerable controversy and is not free from difficulty. At the trial, Dr. F. C. McMains, an orthopedic surgeon who treated McGregor, testified that he performed a laminectomy and spinal fusion to correct plaintiff’s back injuries but as a result of these injuries, there was a permanent residual disability of 50 per cent, and that driving an automobile for any sustained period of time would cause McGregor pain and discomfort. Dr. Thomas B. Flynn, a neurosurgeon who also treated the plaintiff, agreed with that conclusion.

The issue was complicated by certain conflicting statements made by the plaintiff in connection with litigation pending in his behalf in California. As a result of a subsequent fall in 1972 on a cruise ship on which he was employed, a suit captioned “Robert McGregor v. Pacific Far East Line, Inc.” was filed in the United States District Court for the Northern District of California. Certain statements made by him in connection with that litigation are in conflict with his testimony here. More particularly, he testified at length in the trial of the instant case as to the continued physical difficulties resulting from the automobile accident and yet he made several assertions incidental to the California suit which indicated that he had no residual problems whatsoever from the accident in Louisiana.

The trial court considered this conflict at length in its thorough and well-reasoned opinion and concluded that the plaintiff was totally and permanently disabled under our workmen’s compensation statute. In that regard, the Court observed:

“. . . Notwithstanding the inconsistencies and prevarications in McGregor’s own testimony, and despite his alleged contrary position taken in out-of-state litigation, the medical testimony establishes that plaintiff is totally and permanently disabled under the Louisiana Workmen’s Compensation Act. . .

We are persuaded that that conclusion should not be disturbed. It is the function of the trier of facts to ascertain the truth from all the evidence before it. Naturally, having found that the plaintiff was untruthful the Court was free to reject all or any part of his testimony. The trial judge’s findings on the issue of disability are not manifestly erroneous, particularly in view of Dr. McMain’s testimony which convincingly establishes the major disability which McGregor still has and which verified that the plaintiff can no longer do that work which he was doing on the night of the accident without pain and discomfort.

The plaintiff contends that we should disregard the corporate status of United Film and render judgment against Favaro personally. The trial judge explored the jurisprudence of this state concerning the “alter ego” theory of responsibility and rejected that argument on the ground that the close relationship between Favaro and United Film, stock transfers subsequent to the accident, and delivery of corporate assets to another corporation (Telefilms) in which Favaro was interested were not motivated by fraud. In the case of Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So.2d 265 (La.App. 2nd Cir. 1969) which is representative of cases considering this question, the Court noted:

“A general exception to the rule of nonliability of shareholders and officers for corporate obligations is recognized where the shareholder or officer has practiced fraud upon a person through the corporation or upon the corporation itself. LSA-R.S. 12:95.
“Other exceptions to these rules of non-liability of a shareholder for corporate debts have been recognized where the stockholder is the alter ego of the corporation. For the doctrine of an alter ego to apply, it must be shown that the stockholder whose individual and personal liability for a corporate debt is sought disregarding the entity of the corporation and, thus, made the corporation a mere agency for the transaction of his own private business. Thus, the separate individualities of the corporation and its stockholders must have ceased to exist. Brown v. Benton Creosoting Co., Inc., 147 So.2d 89 (La.App. 2d Cir. 1962 — cert. denied).
“The doctrine of alter ego does not create assets in a corporation but it simply fastens liability on an individual who uses the corporation merely as an instrumentality in conducting his own personal business. Liability in such instances springs from fraud perpetrated not necessarily on the corporation itself but upon third persons dealing with the corporation. Shreveport Sash and Door Company v. Ray, 159 So.2d 434, 437 (La.App. 2d Cir. 1963). . . .
“The fact that one owns a majority of stock in a corporation does not of itself make him liable for the corporate debts. So long as the corporate existence is maintained, immunity from liability of even a sole stockholder is the same as if there are many stockholders. Buckeye Cotton Oil Co. v. Amrhein, 168 La. 139, 121 So. 602 (1929); Johnson v. Kinchen, 160 So.2d 296 (La.App. 1st Cir. 1964); 18 C.J.S. Corporations §§ 580, 581, pp. 1306-1308. Except under circumstances whereby a shareholder becomes individually liable for corporate debts through fraud, deceit, or ill practices, the shareholder is within his rights to limit his obligation by the amount of and to the extent of his subscription for capital stock. He may properly say, ‘Thus far I will go but no further — I will risk the amount paid for my stock, but no more.’ ” (emphasis added).

The plaintiff primarily relies upon an agreement of January 14,1969, in which Favaro bought out the interest of Guaranty Bond & Finance Company, Inc., in United Film. Lengthy documentation of other corporate business dealings between United Film and the Guaranty Group was also introduced by the plaintiff. None of the evidence indicates that Favaro used the corporate entity for his personal affairs at the time of the accident nor is there any proof of fraudulent conduct on the part of the shareholders. To the contrary, the buy-sell agreement was entered into at a time when McGregor was being paid compensation benefits which he continued to receive until July 31, 1970. There is no allegation or proof of fraud as to Favaro. Therefore, the reservation of rights of action for fraud contained in LSA-R.S. 12:95 is inapplicable.

Plaintiff contends, however, that Favaro is liable under the provisions of LSA-R.S. 12:93 D, as a stockholder who has received unlawful dividends or other unlawful distribution of assets. The facts in this regard are that subsequent to the accident but prior to the financial failure of Liberty, Guaranty Corporation, majority stockholder of United Film, entered into the contract with Favaro, the minority stockholder, whereby the latter purchased all of the stock owned by Guaranty Corporation in United Film for the price of $40,000. Fava-ro delivered his promissory note for the purchase price and pledged the stock to the seller to secure the debt. By agreement United Film continued to process film for Guaranty Broadcasting Corporation, a solely owned subsidiary of Guaranty Corporation, and all sums due to United Film for such services were paid by Guaranty Broadcasting Corporation to Guaranty Corporation in payment of Favaro’s note, which was eventually paid in full. In effect, therefore, the rights and credits of United Film Corporation were diverted and distributed to its only stockholder. United Film was eventually allowed to become dormant and was so declared formally by resolution of its board. Such a distribution of corporate assets was unlawful, and rendered Fa-varo liable to the creditors of United Film “in an amount not exceeding the amount so received by him” under the provisions of LSA-R.S. 12:93 D. It may be argued that the action of creditors under LSA-R.S. 12:93 D does not apply to unliquidated claims, and therefore, that such an action cannot be cumulated with a suit for workmen’s compensation. However, the statute makes no distinction between liquidated and unliquidated debts, and where the law does not distinguish, courts of law ought not to distinguish. A workmen’s compensation claimant or tort claimant is a creditor although his claim may not have been reduced to judgment. It is well settled that a money judgment does not create a debt; it only recognizes the obligation and makes it executory. Bailey v. Louisiana & N. W. R. Co., 159 La. 576, 105 So. 626 (La.1925); Lalanne v. Payne, 42 La.Ann. 152, 7 So. 481 (La.1890). The general definition of a creditor and a debtor is found in LSA-C.C. Art. 2132:

He who is bound to do, or not to do, or to give, is indifferently called the obligor, or the debtor; and he to whom the obligation is made is in like manner without distinction called the obligee or the creditor. (Emphasis added).

As a workmen’s compensation claimant, plaintiff was a creditor of the corporation (United Film), and as a shareholder in receipt of an unlawful distribution of corporate assets, Favaro is liable with his corporation to the plaintiff to the extent of the unlawful distribution received. This liability is further limited by the peremption provisions of the statute, under which the action to enforce the liability must be brought within two years from which the unlawful distribution was received. Favaro was not joined as a party defendant until October 30, 1973. Therefore any distributions unlawfully received by him prior to October 30, 1971, would be perempted. A total of nine payments were received by Favaro after that date (from December 7, 1971 to September 12, 1972) for a total of $17,-002.15.

The plaintiff asserted the following case against Guaranty:

“Plaintiff hereby makes Guaranty Bond and Finance Company, Inc., now known as Guaranty Corporation, an additional party defendant herein, and further alleges that because of the facts alleged hereinabove, as well as the facts alleged hereinbelow, the court should disregard the corporate entity of United and ‘pierce the veil’ of corporateness of United and hold its principal stockholder, Guaranty Bond and Finance Company, Inc., now known as Guaranty Corporation, liable to plaintiff for all sums sued for herein on the additional grounds that as of September 14, 1968:
1. Guaranty, the parent corporation, owned approximately seventy-five (75%) per cent of the stock of United;
2. Guaranty financed United frequently by making advances of funds to United to meet its routine business expenses;
3. United had grossly inadequate capital with which to meet its foreseeable obligations;
4. United had very little business with persons other than its parent corporation, Guaranty;
5. Guaranty, the parent corporation, used the property, business and employees of the subsidiary, United, as its own;
6. The officers and directors of United did not operate United by independent action in the interest of United, but rather took their orders from the parent corporation, Guaranty, in Guaranty’s interest;
7. The financial books and records of United were kept by and commingled with the books and records of the parent, Guaranty;
8. There existed such a unity of interest and ownership that the individuality or separateness of United and Guaranty had ceased, and for all practical purposes they were and should be treated as one corporate entity;
9. United was the alter ego of Guaranty.”

As previously discussed courts will not strip a principal stockholder of the shield of personal immunity from liability for corporate obligations except on the necessary showing of fraud or other misconduct. Sampay v. Davis, 342 So.2d 1186 (La.App. 1st Cir. 1977). Limited or inadequate capitalization does not of itself indicate fraud or raise any presumption of fraud, deceit or ill practices on the part of a stockholder. Sampay v. Davis, supra; Texas Industries, Inc. v. Dupuy & Dupuy Developers, Inc., 227 So.2d 265 (La.App. 2nd Cir. 1969). No fraud was alleged or proven with respect to either of the Guaranty Corporations.

Plaintiff further seeks recovery against the solvent defendants by alleging that at all pertinent times he “was an employee of and was under the joint control of all defendants . . . .” There is absolutely no proof that McGregor was ever employed by any of the Guaranty corporations.

The facts as to Telefilms require close scrutiny. United Film and Telefilms were separate corporations. At the time of the accident Favaro owned one-fourth interest in the former while Guaranty owned seventy-five per cent (which it subsequently sold to Favaro as previously discussed). Favaro owned one-third of the stock of Telefilms, in which the Guaranty corporations owned no stock. Both corporations had their offices in a building belonging to Favaro, and Favaro apparently ran the day-to-day operations of both companies. United Film was a film processing company, while Telefilms, at that time, was engaged in filming athletic events. (At a subsequent time as United Film became less active because of a lack of equipment for color processing, Telefilms also undertook to process films). Corporate records were separately maintained. Significantly, however, their personnel and business ventures were closely interrelated. McGregor sometimes worked for one corporation and sometimes for the other. His immediate superi- or and paymaster in both cases was Favaro. His duties involved driving to an athletic event, helping to film the game, returning with the film for processing, and then delivering the processed film to the customer. According to the corporate arrangement, part of this work — the filming — was for one corporation, and the other part — the delivery of processed film — was for another. Plaintiff received one payment for his work, and apparently no effort was made to allocate his wages. He believed United Film and Telefilms were identical. Tele-films provided him with a hospital bed at home after his injury, while United Film’s insurer paid workmen’s compensation.

On the evening of the accident, McGregor and Morris Lucia, a principal stockholder in Telefilms, had gone to New Orleans where they filmed a high school football game. They returned to the joint corporate offices at 1738 Wooddale Boulevard via Hammond where they picked up other film to be proe-. essed that night. The film was developed by employees of United Film, and at 2:30 a. m. plaintiff was sent back to Hammond to make delivery of the processed film. The accident occurred on the return trip. The entire operation was in essence a joint venture of United Film and Telefilms financially beneficial to both corporations which shared their employees. The operations were totally interdependent since the taking of films was useless to their customers unless the films were subsequently processed and delivered. Evidence indicated that immediate processing and prompt delivery were essential to the service provided.

In Babineaux v. Southeastern Drilling Corporation, 170 So.2d 518 (La.App. 3rd Cir. 1965) the court cited with approval the following quotation from Malone, Workmen’s Compensation Law (1951), Section 58, pp. 66-67:

“Where ‘the employee is subject to the joint control of several employers at the same time and for the same work, he is entitled, if injured, to subject them all to his compensation claims. * * * If the work being done at the time of the accident was in furtherance of a joint enterprise shared by all employers, so that each of them had a direct financial interest in the entire job, we are presented with a case of partnership or joint enterprise liability. * * * It is not necessary, that each partner or joint venturer personally control the work of the injured employee. It is sufficient that they are engaged in a common enterprise that contemplates the employment and control of the claimant by one of the interested parties for the benefit of all. * * * (Emphasis added by this Court).

See also Guilbeau v. Liberty Mutual Insurance Company, 324 So.2d 571 (La.App. 1st Cir. 1975) affirmed on this point in 338 So.2d 600 (La.1976).

As a result of the joint enterprise both employers are liable to the employee for workmen’s compensation.

The district court was correct in assessing penalties and attorneys’ fees with the following explanation:

“The court finds that plaintiff is entitled to the attorneys’ fees and penalties provided for in LSA-R.S. 23:1201.2, because at the time of the discontinuance, the employer failed to pay for no better reason than the fact that his compensation insurer became insolvent. The failure to continue payments within a reasonable time after notice was without probable cause on the part of” the employer. The court properly rejected consideration of the second accident as justification for nonresumption of payments in view of the fact that the employer had no knowledge of the second accident and was not motivated thereby in suspending payments.

The judgment of the district court is affirmed insofar as it awards plaintiff total and permanent workmen’s compensation benefits, subject to credit for compensation previously paid, together with penalties and attorneys’ fees, and medical expenses, against United Film. It is reversed insofar as it dismisses the suit as to Telefilms, Inc., and Anthony Favaro individually, which defendants are hereby cast, in solido with United Film, liability of Anthony Favaro being limited to $17,002.15.

It is ordered, adjudged and decreed that the judgment of the trial court be amended to include judgment against defendants United Film, Telefilms, Inc. and Anthony Favaro in solido, liability of Anthony Fava-ro individually being limited to the sum of $17,002.15. All costs to be assessed against defendant United Film, Telefilms, Inc. and Anthony Favaro. The judgment of the district court dismissing the suit as to all other defendants is affirmed.

Affirmed in part, reversed in part and rendered.


author: SARTAIN, Judge.

text:
    J. W. HAWTHORNE, and his wife, Ruby Taylor v. J. O. SLAYDON et al.
    No. 11608.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 1977.
    Rehearing Denied Nov. 3, 1977.
    Writ Granted Dec. 14, 1977.

      Richard B. Stricks, New Orleans, Mary Elizabeth Paltron, Baton Rouge, for appellant.
    Phillip E. Pfeffer, Covington, for appel-lees.
   ON MOTION TO DISMISS APPEAL

Before SARTAIN, COVINGTON and LOTTINGER, JJ.

SARTAIN, Judge.

This matter is before us on appellees’ motion to dismiss an unlodged appeal. We grant the motion.

The facts are not in dispute. A devolu-tive appeal was granted to appellant, James A. Slaydon, on April 1, 1977, returnable to this court on May 30, 1977. A bill for estimated costs for preparing the transcript of the trial court proceedings and the required filing fee was sent by the clerk of court to the appellant’s attorney on April 11, 1977. No payment has been received nor has appellant sought an extension of the twenty days in which to make payment as provided for in C.C.P. Art. 2126. As a result, the clerk of court for St. Tammany Parish has not caused the transcript to be lodged with us. Appellees filed the instant motion on June 1, 1977.

It is appellees’ basic position that appellant’s failure to pay the estimated court costs within the delays provided for in C.C.P. Art. 2126 is fault imputable to appellant which results in the untimely lodging of the appeal and is grounds for its dismissal.

Appellant counters with the recent holding in Davidge v. Magliola, 346 So.2d 177 (La.1977), and argues that it was the duty of the clerk to seek an extension of the return day. In brief in opposition to the motion, appellant admits that he did not pay the estimated costs within the twenty day period or seek an extension of an additional twenty days in which to pay the costs. He further admits that as of the day of the return date (May 30,1977) he did not possess the costs, but as of the date of the filing of his brief (June 21, 1977) he was able to pay the same but was withholding such payment pending the outcome of our decision on the motion.

The facts giving rise to Davidge occurred prior to the 1976 amendment to C.C.P. Art. 2126, which article now, in pertinent part, provides:

“The appellant shall pay to the clerk of the trial court, not later than twenty days after the granting of the order of appeal, all costs as estimated by said clerk for the preparation of the record on appeal, and the filing fee required by the appellate court to lodge the appeal.
“The twenty-day time limit may be extended once for not more than twenty additional days by the district judge. Such extension shall be in written form.

Accordingly, our task is to construe the above article with Davidge in mind and to give to each the effect each is entitled to receive. Simply stated, Davidge held that C.C.P. Art. 2125 imposed a duty on the clerk of court to seek an extension of the return day when the balance of the costs due the clerk for the preparation of the record have not been remitted within the three day period prior to the return day. More importantly, the court stated that the clerk’s “failure in this regard precluded judicial determination of the merits of extending the extended return day to afford appellants an opportunity to pay the costs of the transcript. This neglect is not imputable to appellants.” Prior jurisprudence to the contrary was overruled, i. e., Louisiana Power & Light Co. v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970).

We think the amendment to C.C.P. Art. 2126, above, was designed for a very definite and practical reason. It fixed a reasonable time limit, forty days at the most, in which the estimated costs are to be paid. It requires the clerk to estimate the costs and to notify the appellant as to the amount. If these costs can not be paid within twenty days it affords appellant, on application to the district judge, an additional twenty days. All of the above requirements can be met prior to the return day. Whether, after the timely payment of costs, the record can be prepared by the clerk to meet the return day is another matter. If it can not, then it is the responsibility of the clerk to seek appropriate extensions.

In the instant matter all of the delays available to appellant to seek judicial determination of the merits of his failure to pay the estimated court costs had lapsed. Under the very terms of Art. 2126, even the district judge was without authority to grant appellant further time. Assuming that the clerk had requested an extension of the return day, it would have served no useful purpose save only to render the intent and purpose of Art. 2126, as amended, completely useless.

Thus, we hold that where an appellant has failed to pay the estimated court costs within twenty days and to seek an extension to pay the same within an additional twenty days as provided for in Art. 2126, as amended, and the record is not prepared and lodged in the court of appeal by the return day, then the appellant is deemed to be at fault and his appeal will be dismissed; and, that where an appellant has failed to pay the estimated court costs within twenty days or to seek an extension and pay the same within forty days, the clerk is under no duty to seek an extension of the return day.

For these reasons, appellees’ motion is granted and this appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.


author: BOUTALL, Judge.

text:
    Edna NELSON v. John DOE and Schwegmann Brothers Giant Super Markets, Inc.
    No. 8360.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, Madison C. Moseley, New Orleans, for John Doe and Schwegmann Brothers Giant Super Markets, Inc., defendants-appellants.
    Edward P. Comeaux, Metairie, for Edna Nelson, plaintiff-appellee.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Customer Edna Nelson sued Schweg-mann Bros. Giant Super Markets, Inc. for personal injuries which occurred while shopping in the St. Bernard store. Defendant appeals from a judgment awarding damages.

Plaintiff was proceeding to the meat counter and, when she reached the end of the aisle in which she was walking, she was struck on the left leg by a large flat-bed cart loaded with merchandise, being pushed along the intersecting passageway. She produced evidence that the cart could not be seen because of the merchandise stacked at the end of the aisle, and that the boxes stacked on the cart were so high that the person pushing the cart could not see that the way was not clear. The defense offered evidence that the accident was never reported, and that the identity of the cart pusher was unknown and was not an employee of Schwegmann. The trial judge obviously resolved the question of credibility of witnesses in favor of plaintiff in finding that plaintiff was injured at that time. The court found that the cart was being pushed by a person who could not see what was ahead of him and although it made no specific determination that the cart pusher was an employee of Schwegmann rather than an employee of some merchandise jobber, it found a violation of the safety rules testified to by the store’s manager. That testimony was to the effect that each person who brought merchandise into the store to stock on Schwegmann’s shelves was supposed to be given instructions with respect to safety. The trial judge found neglect of these rules and imposed liability upon the store owner. There is sufficient evidence in the record to support his findings.

While the record could also support an inference that the cart pusher was not an employee of Schwegmann’s, we are not permitted to substitute our judgment for that of the trial court when there is ample evidence to support the trial judge’s conclusion. We affirm.

Similarly, on the question of damages, the trial judge has discretion in ascertaining the amount thereof and we find no abuse of his discretion.

AFFIRMED AT APPELLANT’S COST.