text:
    Lunder E. JOHNSON, Adm. of the Succession of Claray Smith v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA.
    No. 12069.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Granted Oct. 26, 1978.

      Edward A. Griffis, of Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff.
    Wood Brown, III, of Montgomery, Barnett, Brown & Read, New Orleans, for defendant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant (Insurer) appeals from judgment decreeing Insurer liable on a policy of insurance issued on the life of Claray Smith, deceased, and rejecting Insurer’s contention that the policy application was admissible in evidence to prove material misrepresentation knowingly made by decedent with intent to defraud and which was of such character that Insurer would not have issued the policy had the true facts been known. The trial court declined to admit the policy application on the ground that it did not conform with La.R.S. 22:618A. Plaintiff-Appellee has answered the appeal praying for damages for Insurer’s alleged arbitrary and capricious refusal to pay, which claim was rejected by the trial court. We affirm the judgment in its entirety.

The material facts are undisputed. Subject policy was solicited of Decedent by David Schneider, Manager, Insurance Department, National Mortgage Company. The letter of solicitation contained the application for the policy issued Decedent. Pursuant to the application, a policy of Mortgage Cancellation Insurance, in the sum of $17,734.88, was issued by Insurer effective November 1, 1974. The application recites that Decedent had not received medical attention or medication for heart, kidney, or lung disease, cancer, diabetes, blood pressure or other serious illness during the last 5 years, and that Decedent was actively employed full-time or self-employed working at least 30 hours. Decedent died February 20, 1975. Demand for payment of $17,583.74, the amount due on the policy at the time of Decedent’s death, was made upon Insurer, whose refusal to pay within 60 days of demand brought about this litigation.

The record establishes beyond doubt that Decedent knowingly misrepresented the state of her health and the matter of her employment. In June, 1974, Dr. Philbert J. DeMarie, Surgeon, performed exploratory surgery on Decedent because of a jaundiced condition. The operation revealed cancer of the pancreas, which condition was concealed from Decedent upon the urging of her family. The deposition of Dr. DeMarie and the hospital record conclusively show that at this time Decedent was suffering from diabetes and had lost 20 pounds on a diabetic diet.

Dr. J. H. Kety, General Practitioner, testified that he knew Decedent who worked at the hospital. He stated that on numerous occasions, Decedent spoke to him in the hospital halls about her condition, and that Decedent visited his office on March 1, 1974, on which occasion her chief complaint was diabetes. Dr. Kety prescribed medication for diabetes and saw Decedent again on March 22, 1974, for diabetes. Decedent returned to Dr. Kety’s office on May 3, 1974, complaining of high blood pressure, for which condition medication was prescribed. In May, 1974, Decedent exhibited symptoms of jaundice for which she was eventually hospitalized in June. Following the surgery, Dr. Kety considered Decedent totally disabled because her condition worsened steadily. Dr. Kety encouraged Decedent to attempt work, but she stated that she did not feel well enough to work. Decedent was seen by Dr. Kety on September 4, 1974, approximately 2 weeks before the application for subject insurance was signed. At this time, he considered that Decedent was still deteriorating.

It is conceded that the policy document was forwarded Decedent in a jacket with the inscription “National Mortgage Company and affiliate National Insurance Agency, Inc.”, where normally the sender return address appears. The lower right hand corner of the jacket bears the notation “Underwritten by a member of Transamerica Corporation, Occidental Life of California”. The jacket also contained an address opening or window. In addition to the policy, the jacket contained a folded sheet of paper bearing Decedent’s name and address, folded so that Decedent’s name and address showed through the jacket window. The name sheet contained a photo-copy of Decedent’s application bearing her signature.

It is stipulated that the sheet containing Decedent’s name, address and photo-copy of her application for insurance “was folded in half and placed oh the inside of the cover of the certificate. It was not stapled, glued or otherwise physically attached to the policy or to the certificate of insurance. No other part of the policy document contains Decedent’s name.”

La.R.S. 22:618(A) provides:

“A. No application for the issuance of any insurance policy or contract shall be admissible in evidence in any action relative to such policy or contract, unless a correct copy of the application was attached to or otherwise made a part of the policy, or contract, when issued and delivered. This provision shall not apply to policies or contracts of industrial insurance subject to R.S. 22:213(A)(1) and 22:259(2).”

Appellant maintains that the intent of the statute is met in this instance, even though the application was not physically attached to the policy and was not otherwise made part thereof. Simply put, Appellant contends that without the application, there is no policy, because the policy document itself does not name an insured.

We reject Appellant’s argument that without the application there would be no policy because of the lack of a named insured in the policy document. In its answer to plaintiff’s petition, Appellant expressly admits having issued the policy to Decedent, and defends this action solely on the ground of misrepresentation in the policy application. We find that the language of Appellant’s answer constitutes a judicial admission that the policy was issued to Decedent in the amount demanded herein. Having solemnly asserted the existence of the policy as the basis for its position that the application was falsified, Appellant may not change its position. La.C.C. Article 2291; Lavigne v. Louisiana Railway and Navigation Company, 9 La.App. 509, 121 So. 251 (2d Cir. 1928).

Citing Smith v. North American Company for Life, Accident and Health Insurance, 306 So.2d 751 (La.1975), Appellant maintains that the statute’s purpose is to make certain that the document the insured has in his possession during his lifetime and his beneficiary has after his death shall be evidence of the entire insurance contract. According to Appellant, this purpose was met herein because the application accompanied the policy and was in the possession of the insured at her death.

Appellee maintains, however, in Spain v. Travelers Insurance Company, 332 So.2d 827 (La.1976) and Fisette v. Mutual Life Ins. Co., 162 La. 620, 110 So. 880 (1926), that the Supreme Court interpreted the applicable statute to mean that the application must be physically attached to or otherwise physically made part -of the policy to afford an insurer a defense predicated upon misrepresentations in the application.

In Spain, the court observed:

“In Fisette v. Mutual Life Ins. Co., 162 La. 620, 110 So. 880 (1926) we emphatically held that The Entire Contract Policy Statute must be construed literally so as to require actual physical attachment of the insured’s application to the policy when issued in order to avail the insurer of a defense thereon. The opinion lucidly explained the purpose of the statute:
‘ * * * The language of the statute is plain and vigorous in its requirement that every life insurance policy shall contain the entire contract between the parties; that nothing shall be incorporated therein by reference to the. application or any other document unless the same is indorsed upon or attached to the policy; . The purpose of the law is that the insured shall have in his possession during his lifetime, and that the beneficiary shall have after the death of the insured, the entire evidence of the contract. . . . ’ ”

Appellant suggests the inapplicability of Spain because it reputedly dealt with a different statute, namely, La.R.S. 22:628, which Appellant claims is worded differently. Additionally, Appellant contends that Spain was legislatively abolished by Act 150 of 1976.

La.R.S. 22:618(A) is, in effect, our Insurance Code version of Act 227 of 1916, known as the Entire Contract Policy Statute, which is discussed in some detail in Spain. The purpose of the statutory requirement is to eliminate all question as to what constitutes the entire insurance contract. Although Act 227 of 1916 was originally restricted to life policies, the purposes, aims and concepts thereof were made applicable to many other types of policies by the Louisiana Insurance Code. Act 195 of 1948, as amended by Act 125 of 1958. Spain.

We can see valid reason for the interpretation requiring actual physical attachment of the application to the policy or otherwise making the application part of the policy. An application actually physically attached to a policy is more likely to be available after the death of an insured because it is less likely to be lost or misplaced by the insured during his or her lifetime.

While it is true that a copy of the application was sent with the policy in question, this does not meet the requirement that it be physically attached to the policy. Failing in this respect, Appellant may not invoke the application in defense of the claim thereon.

La.R.S. 22:656 provides for the imposition of penalties and attorney’s fees for failure to pay a claim on a life insurance policy within 60 days of receipt of proof of death, without just cause. The test of whether the insurer’s failure to pay is without just cause is the reasonableness of the insurer’s defense under the circumstances of each case. Mistric v. Republic National Life Insurance Company, 314 So.2d 472 (La.App. 1st Cir. 1975); Boudreaux v. First National Life Insurance Company, 225 So.2d 687 (La.App. 3d Cir. 1969).

The trial court denied Appellee’s claim for penalties and attorney’s fees. In so doing, the court necessarily found that Appellant was justified in thinking he had a reasonable defense to this action. We find no manifest error in that conclusion.

The judgment is affirmed at Appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Milford L. FRYAR v. William F. GUSTE, Jr.
    No. 12062.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writs Granted Oct. 26, 1978.

      Frank M. Coates, Jr., Baton Rouge, of counsel for plaintiff-appellant Milford L: Fryar.
    Ellis Magee, Thomas S. Halligan and John DiGiulio, Executive Asst. Atty. Gen., Baton Rouge, of counsel for defendant-ap-pellee William F. Guste, Jr.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

Milford L. Fryar, a taxpayer and citizen of the State of Louisiana, and a reporter for Capital City Press in Baton Rouge, requested and was denied permission to view an investigatory file of the Attorney General relative to certain members of the Ascension Parish Police Jury. He brings this suit under the provisions of R.S. 44:1 et seq., alleging that the file is a public record under the terms thereof, and praying that the court order that he be permitted to inspect and/or copy the said file. After trial on the merits, his suit was dismissed, and plaintiff has appealed.

Plaintiff was denied permission to view the file on two bases, as set forth in a letter dated August 29,1977, from Ellis C. Magee, Executive Assistant Attorney General:

“(1) Article 434 of the Code of Criminal Procedure requires persons having confidential access to information concerning grand jury proceedings to keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury; and
“(2) Much of the information contained in the report was derived from confidential sources, and such information is privileged under La.R.S. 44:3 A(2).

R.S. 44:1 A provides:

“All records, writings, accounts, letters and letter books, maps, drawings, memo-randa and papers, and all copies or duplicates thereof, and all photographs or other similar reproductions of the same, having been used, being in use, or prepared for use in the conduct, transaction or performance of any business, transaction, work, duty or function which was conducted, transacted or performed by or under the authority of the Constitution or the laws of this state, or the ordinances or mandates or orders of any municipal or parish government or officer or any board or commission or office established or set up by the Constitution or the laws of this state, or concerning or relating to the receipt or payment of any money received or paid by or under the authority of the Constitution or the laws of this state are public records, subject to the provisions of this Chapter except as hereinafter provided.”

R.S. 44:3 A provides:

“Nothing in this Chapter shall be construed to require disclosure of records, or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, police departments, marshals, investigators, correctional agencies, investigative agencies, or intelligence agencies of the state, which records are:
(1)Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled; or
(2) Records containing the identity of a confidential source of information or records which would tend to reveal the identity of a confidential source of information; or
(3) Records containing security procedures, investigative training information or aids, investigative- techniques, investigative technical equipment or instructions on the use thereof, or internal security information.”

The record reveals that on March 26, 1976, Aubert Talbot, District Attorney in Ascension Parish, requested prosecutory assistance in a Grand Jury investigation involving the Ascension Parish Police Jury. As a result of the request, Dennis Weber, an attorney, and Glenwood L. Bullard, an investigator, were assigned to the investigation. Mr. Bullard, with the assistance of three other investigators, interviewed 11 witnesses, while the Grand Jury was in session. In April, 1976, the Grand Jury pretermitted the matter, and was thereafter dissolved. Subsequent thereto, at the request of some Ascension Parish businessmen, the Attorney General agreed to continue the investigation.

Mr. Bullard, with the assistance of one man, finally completed the investigation in February, 1977, and the results were furnished to the District Attorney on March 15, 1977. During the entire investigation, 52 individuals were interviewed, some of them more than once. Fourteen of these individuals were assured by Mr. Bullard that anything they said would be held in confidence, except for necessary appearances in court or before a Grand Jury.

Mr. Bullard explained that, if a witness was reluctant to testify, he would be assured that his information would be held in strictest confidence, and that there was a specific state law which prohibited making this information available to anyone. However, if a witness was willing to talk, and expressed no reservations about testifying, no such assurance was given. All reports on these interviews are considered confidential by the Attorney General, whether assurances of confidentiality were given or not. There is nothing in any interview report to indicate whether the informant gave information in confidence or not.

When Mr. Talbot was given the results of the investigation, he expressed the opinion that there was no information therein which had not already been given to the Grand Jury, and the matter was closed.

In the case of Bartels v. Roussel, 303 So.2d 833 (La.App. 1st Cir. 1974), we said:

“. . . the right of the public to be adequately informed is of fundamental importance. In addition, we believe that statutes providing for examination of public records must be liberally interpreted so as to extend rather than restrict access to public records. Lastly, and more importantly, we believe that the wording of our statute indicates legislative intent to make all public records open to the public. We also find no evidence of the intent of the legislature to qualify this right in any manner. In this regard, we note that the statute provides that all records, writings, memoranda and papers, etc. relative to any business transaction required by law is a public document open to inspection. The language employed is extremely broad and all inclusive.”

Another important policy consideration is the necessity of permitting law enforcement agencies to maintain in confidence the identities of their informants, so as to overcome the natural reluctance of persons to give information relative to crimes.

With respect to the 11 persons who gave information while the Grand Jury conducting the investigation was still in session, we think it clear that their identities and testimony are secret under the provisions of Article 434, supra.

The same is true as to the 14 persons who were assured that the information given by them would be held in confidence. Under R.S. 44:3 A(2), supra, we consider them to be confidential sources of information. However, we do not believe that the Attorney General can, as a matter of policy, designate a willing informant as a confidential’ informant and thereby bring his identi-' ty within the scope of R.S. 44:3 A(2).

We think it clear from the record that the investigation conducted after the Grand Jury was dissolved was carried out at the request of private citizens of Ascension- Parish, and not at the request of the District Attorney or the Grand Jury. Although we believe it was intended that the information uncovered by this subsequent investigation would ultimately be presented to a Grand Jury, the fact is that it was not. Under these circumstances, we cannot say that the information revealed thereby was “directly connected with” a meeting of the Grand Jury. We hold that the information is subject to public scrutiny under the Public Records Law. R.S. 44:1, et seq.

The judgment appealed from is therefore set aside, and the case remanded to the trial court, with instructions to order that plaintiff be permitted to inspect and copy all of the said file, except for the statements taken from the witnesses interviewed while the Grand Jury was in session; and the statements taken from the witnesses who testified in confidence; and any other statements or reports which contain the identity of a confidential source of information, or which tend to reveal the identity thereof. The trial judge shall examine the entire file in camera, and conduct whatever hearings are necessary, in his discretion, to determine and protect the confidentiality or secret nature of the sources of information contained therein.

The defendant shall pay all costs for which he may be liable under the law.

Reversed and remanded, with instructions.


text:
    WPL MARINE SERVICES, INC. v. WOODS-TUCKER AIRCRAFT & MARINE LEASING CORPORATION.
    No. 12066.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writs Refused Oct. 26, 1978.
    George R. Covert, Baton Rouge, of counsel for plaintiff-appellant WPL Marine Services, Inc.
    Clarence G. Favret, Jr., New Orleans, of counsel for defendant-appellee Woods-Tucker Aircraft & Marine Leasing Corp.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

Plaintiff WPL Marine Services, Inc. negotiated the purchase of the MV “Toledo” from Atlantic Towing Corporation in August, 1974, for the price of $185,000.00, and sought financing of $160,000.00 of that amount from Woods-Tucker Aircraft & Marine Leasing Corporation. On October 15, 1974, Atlantic sold the “Toledo” to Woods, and on October 16, 1974, Woods and WPL entered into a “Bareboat Charter/Lease Agreement and Guaranty”, by virtue of which Woods, as owner, leased the “Toledo” to WPL for 60 months, at a monthly rental of $3,920.00, or a total of $235,200.00. The agreement required that WPL carry full hull insurance in the amount of $160,000.00. It grants no right or option to WPL to purchase the vessel.

Section 21 of the lease provides as follows:

“21. LOSS AND DAMAGE
“Charterer assumes all risk of loss or damage to the vessel from any and every cause whatsoever, whether or not such loss or damage is covered by insurance on the vessel. No loss or damage to the vessel, or to any part thereof, shall relieve Charterer of any obligation hereunder.
“In the event of loss or damage, Owner shall have the option to require Charterer to:
“(a) Repair or restore the vessel to good condition and working order, unless the cost thereof exceeds the ‘Stipulated Loss Value,’ or
“(b) Pay Owner in cash the ‘Stipulated Loss Value’ as set forth in Exhibit B hereto. Upon payment of the ‘Stipulated Loss Value,’ this Lease shall terminate and Charterer shall become entitled to said vessel in its then existing condition without any warranty of Owner, express or implied, with respect to any matter whatsoever.”

“Exhibit B” referred to above was never prepared, and was therefore never attached to the agreement.

In August, 1976, the “Toledo,” the name of which had been changed to “Jerri Watson”, sank in the Mississippi River, and was declared a total loss by the insurer. A check for $160,000.00 was issued by the insurer to Woods and WPL as loss payees under the policy. When WPL inquired as to the Stipulated Loss Value under Section 21(b) of the lease, supra, it was advised that the total due was $125,590.55, consisting of $109,590.55 for the rental, as discounted, and a “residual charge” of $16,000.00. WPL concedes that it owes the $109,590.55, but denies that there was ever any agreement to pay the $16,000.00 residual charge.

Plaintiff then brought this suit, characterizing the transaction between it and Woods as a loan, alleging that title to the vessel was to be returned to WPL at the end of the agreement, and asking that the payoff figures be fixed at $109,590.55, and that the Bareboat Charter be decreed to be a usurious instrument.

In its answer, Woods specifically denied that the transaction was anything but a pure lease, and alleged that the $16,000.00 was properly due it under the provisions that should have been incorporated in Exhibit B. It also reconvened for various items, but since the reconventional demand was denied and Woods has not appealed, or answered WPL’s appeal, that part of the case is not before us. By agreement between the parties the proceeds of the settlement were placed in a certificate of deposit in the Hibernia National Bank of New Orleans.

After trial on the merits, the judge found the agreement between the parties to be a pure lease and that Woods had failed to prove that it was entitled to the $16,000.00. He signed a judgment giving plaintiff $16,-000.00 of the draft and defendant $109,-509.55. On motion for new trial, he further ordered that the parties divide the balance of the draft in proportion to their insurable interests, giving WPL $5,040.00 and Woods $29,450.00. From these judgments, plaintiff has appealed.

In this court, plaintiff argues that the trial court erred in not applying the law of the State of Mississippi to the interpretation of the agreement, as therein stipulated. He claims that if Mississippi law is applied to the contract, it will be found to be a lease for security, which is a type of loan contract, rather than a pure lease, and, therefore, usurious on its face under Mississippi law.

The applicable statutory law of Mississippi is the Uniform Commercial Code, which was adopted prior to the confection of this agreement. Section 1-201(37) provides, in part:

“Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.”

The jurisprudence of Mississippi has consistently held that leases not containing an option to purchase are not intended to be leases for security.

The trial judge did consider Mississippi law and was of the opinion that the agreement herein was a pure lease and not a lease of security under both Louisiana and Mississippi law. He refused to admit parol evidence intended to show otherwise, on the ground that the lease was not ambiguous, and needed no explanation. We find his rulings to be correct in all respects. The terms of the lease are unequivocal in defining and limiting the right of the parties, and there is nothing to indicate that it was intended to be anything other than a pure lease. That being the case, the transaction can not be characterized as a lease for security, and the usury laws of Mississippi have no application.

However, we are of the opinion that the trial court erred in prorating the proceeds of the insurance policy as he did. Under the specific provisions of Section 21 of the lease, supra, the owner is entitled to nothing more than the stipulated loss value of the vessel in the event it becomes a total loss. Since the lessee becomes the owner of the vessel, he is entitled to the proceeds of the insurance policy, because the former owner no longer has any insurable interest therein.

The trial judge found the stipulated loss value of the “Jerri Watson” to be $109,-590.55, although he inadvertently signed a judgment for $109,509.55. This determination is one of fact, based on the resolution of conflicting testimony by the witnesses for the parties hereto, and we find no manifest error therein. However, the judgment must be amended so as to award the remainder of the proceeds of the insurance policy to plaintiff WPL.

The judgment appealed from is therefore amended so as to decree that plaintiff WPL Marine Services, Inc. is entitled to the sum of $50,409.45 from the proceeds of the insurance draft of $160,000.00, and defendant Woods-Tucker Aircraft & Marine Leasing Corp. is entitled to the balance of $109,-590.55. The interest earned on the certificate of deposit for $160,000.00 in the Hibernia National Bank of New Orleans shall be prorated between the parties in proportion to the proceeds of the draft to be received by each.

All costs are to be paid by defendant Woods-Tucker Aircraft & Marine Leasing Corp.

AMENDED AND AFFIRMED.


text:
    Lavern J. GIROUARD et al. v. Demest LOUVIERE. WHISKEY BAY CAMP ’N AIRE, INC. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    Nos. 12071, 12072.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearings Denied Aug. 31, 1978.

      Johnie E. Branch, Jr. and Bryan Miller, Louisiana Dept, of Transportation and Development Office of Highways, Baton Rouge, for appellant-defendant State of Louisiana, Through the Department of Highways.
    Minos H. Armentor of Armentor & Wat-tigny, New Iberia, for appellees-plaintiffs Whiskey Bay Camp ’N Aire, Inc., Lavern J. Girouard, and Bobby Ray Norman.
    Ray F. Mestayer of Mestayer & Simon, New Iberia, for appellee-defendant Demest Louviere.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

Loto Louviere was the owner of Section 55, Township 8 South, Range 8 East, and Demest Louviere was the owner of Section 56, Township 8 South, Range 8 East, in Iberville Parish. These two sections lie parallel to each other, with Section 55 to the east of Section 56. Both sections are long and narrow in shape, and run in a northwesterly-southeasterly direction. The Sections are bordered on the south by Bayou Des Glaises, and are traversed towards their northern end by a Gulf States Utilities servitude which runs east and west.

On January 17,1967, Loto Louviere sold a strip of land 300 feet wide, containing 8.421 acres, to the Louisiana Department of Highways for the construction of Interstate Highway 10. This sale left a remainder of 72.464 acres south of 1-10 and 81.665 acres north of 1-10. The act of sale contained the following provisions:

“The Control of Access hereinbelow referred to is limited to the fascia of the structure and access beneath the structures across the lands hereby conveyed shall be permitted, limited only to the general regulations pertaining to streets, driveways, and drives as established by the Department of Highways of the State of Louisiana.
“The vendor acknowledges by these presents that the property hereinabove described is being acquired for the purpose of constructing a controlled access highway and that all direct access to and from the adjacent property will be limited to such access as may be provided to frontage roads, if any are constructed, and this provision shall be and remain binding upon the said Vendor, his heirs, successors and assigns forever.”

On July 24, 1967, Demest Louviere sold a strip of land containing 11.444 acres, irregular in shape, to the Louisiana Department of Highways. This parcel contained the land necessary for the interchange at the intersection of I — 10 and Louisiana Highway 975, also known as the Whiskey Bay Interchange, in addition to the land necessary for the construction of the 1-10. This sale left Demest Louviere with a remainder of 66.446 acres south of I — 10 and 87.025 acres north of 1-10. Although his act of sale did not permit access beneath the I — 10 structures, it is stipulated by the state that it should have contained a provision identical to that in the Loto Louviere act of sale, supra.

All of the land involved in both cases lies within the Morganza Floodway. In order to construct 1-10, which, in this area, is a 17-foot elevated causeway built on pilings, it was necessary to dredge a construction canal, 200 feet wide, down the middle of the 1-10 right-of-way. After its completion in 1970, this canal completely traversed the land sold by Loto Louviere to the State, and it was no longer physically possible to go from the north remainder to the south remainder thereof. The western end of this canal is located on the property sold by Demest Louviere to the State, but Demest Louviere still had access between his north and south remainders across that part of the parcel not traversed by the canal.

On March 22, 1972, Loto Louviere sold to Lavern J. Girouard and Bobby Ray Norman that portion of his remaining property lying south of the Gulf States Utilities servitude. This included the entire remainder south of I — 10 and the 19.536 acres lying between 1-10 and the Gulf States servitude. The purchasers were aware of the existence of the canal, but were of the opinion they were entitled to access from their property north of I — 10 to the south remainder by going around the western end of the canal on the property sold to the State by Demest Louviere. They bought the land for the express purpose of building a campground on the south remainder, and would not have bought it without access thereto. On January 15, 1974, Messrs. Girouard and Norman transferred the south remainder to Whiskey Bay Camp ’N Aire, Inc., in exchange for stock in the corporation. They remain the owners of all of the stock therein.

The State, meanwhile, decided to put in a boat launching ramp at the western end of the canal, with access thereto from the Whiskey Bay Interchange. In connection therewith, they extended a fence designed to control access into the Whiskey Bay Interchange to the western edge of the canal, thereby cutting off all access between the north and south remainders of the Demest Louviere property.

After the State denied the request of Messrs. Girouard and Norman for access to their south remainder by letter of June 14, 1974, the first of these consolidated suits was filed. In this suit, Messrs. Girouard and Norman, and Whiskey Bay Camp ’N Aire, Inc. sought a right of passage across the property of Demest Louviere to the Whiskey Bay Interchange, alleging it to be the shortest distance to a public road. De-mest Louviere brought the State into the case as a third party defendant, alleging the circumstances of the case, and the denial by the State of access between his two remainders. He prays for rescission of the sale by him to the State of the 11.444 acres on which 1-10 and the Whiskey Bay Interchange are presently situated, or alternatively, for unrestricted access across said tract and for damages arising out of the denial of access.

On October 8 and 11,1975, Demest Louvi-ere, Messrs. Girouard and Norman, and Whiskey Bay Camp ’N Aire, Inc. compromised their differences by agreeing to grant to each other full access across their respective properties to whatever access to or across the property of the State might be forthcoming as a result of these lawsuits, leaving only the third party demand of Demest Louviere against the State to be resolved.

During the pendency of the suit, Demest Louviere transferred his property to Mazel Louviere Decoux, Cynthia Louviere Gardner and Jessie Louviere, who were substituted for him as parties in this proceeding.

The second suit was originally brought by Whiskey Bay against the State, asking for a “right of passage from its enclosed property to the Whiskey Bay Interchange at the Westernmost property line of Demest Lou-viere property.” Subsequently, in an amended petition, Messrs. Girouard and Norman were joined as plaintiffs, and prayed for “a right of access from their enclosed property to the public road at the Whiskey Bay Interchange below the elevated highway”. They also prayed for damages arising out of the alleged breach of the obligation of the State to provide such access.

After trial on the merits, judgment was signed ordering the State to grant to Messrs. Girouard and Norman, Whiskey Bay and the assigns of Demest Louviere, access from their respective tracts of land “to the Public Road at the boat landing facility at the Whiskey Bay Interchange of Interstate 10, below the elevated structure.” All claims for damages were disallowed.

From the judgment, the State has appealed, asking that the judgment be reversed and set aside. Demest Louviere has answered the appeal, asking that the sale from him to the State be rescinded, and that he be granted damages and attorney fees. The other plaintiffs have also answered, praying that they be awarded damages and attorney fees.

It is the contention of Demest Lou-viere that the State is obligated to permit him unrestricted access across the 11.444 acres sold by him, as a result of the provision as stipulated to by the State. We note that no “general regulations pertaining to streets, driveways and drives” were produced by the State, although subpoenaed by the plaintiffs. We have no difficulty in concluding that the said provision had the effect of creating a conventional predial servitude of passage on the property purchased by the State from Demest Louviere beneath the highway structures, in favor of his north and south remainders. Of course, this servitude must be exercised within the limits of the appropriate codal provisions relating to predial servitudes. See Articles 709, 722, 753, 755, 756, 757, Civil Code. We find no merit in the contention of the State that a servitude personal to Demest Louvi-ere was created.

The main contention of the State is that by constructing the fence around the interchange and the boat launching ramp, it has “appropriated” Mr. Louviere’s right of access, and his only recourse is for compensation for the taking, citing St. Julien v. Morgan L. & T. R. Co., 35 La.Ann. 924 (1883) and 39 La.Ann. 1063, 3 So. 280 (1887); and Gray v. State, Department of Highways, 250 La. 1045, 202 So.2d 24 (1967).

We cannot agree with the State’s position. We are not presented with the type of situation envisioned by the St. Julien Doctrine which covers those cases in which a landowner, whose property has not been expropriated, knowingly permits major construction to take place on his property without taking action to prevent it. In this case, the State has admittedly breached its contractual obligation to Demest Louviere to permit access across the property sold by him subsequent to the acquisition of that property by the State. We therefore hold that the State must permit access by Mr. Demest Louviere across the property sold to the State by him for the construction of 1-10, in accordance with the law applicable to predial servitude.

We do not find that Mr. Demest Louviere is entitled to the rescission of the sale of the 11.444 acres to the State. We do not believe that the actions of the State in constructing the fence and thereby denying Mr. Louviere access are sufficient to constitute a failure of consideration.

Mr. Louviere proved no damages resulting from his denial of access. His claim for attorney’s fees is based on the provisions of R.S. 13:5111, which permits the award thereof when there is a suit for compensation for the taking of property. Mr. Louviere’s suit is specifically for breach of contract, and not for compensation for a taking of the servitude. He is, therefore, not entitled to attorney’s fees.

The situation is somewhat different with respect to Messrs. Girouard and Norman, and Whiskey Bay Camp ’N Aire, Inc. They have not prayed for access across the property sold to the State by Loto Louviere, to which they would be entitled for the same reasons given in the case of Demest Louviere. What they have asked for is a right of passage to the nearest public road, under the provisions of Articles 699 — 702 of the Civil Code. They seek this right across the lands conveyed to the State by Loto and Demest Louviere, along the north and south edge of the canal, below the superstructure. We find that these three plaintiffs are not entitled to the relief sought since they are separated from a public road by the property of Demest Louviere and others and not by the property of the State, and the State owes them no access except across the property sold to it by Loto Louviere.

As to damages, these plaintiffs are attempting to recover the purchase price of the property bought from Loto Louviere, the amount expended by them in connection with the development of the campground on the south remainder, and attorney’s fees.

There can be no doubt that plaintiffs have been delayed in the construction of their campground for several years because of the denial of access to their property by the State. They allege they have suffered damages as a result thereof as follows:

“a) Land Acquisition $11,800.00
b) Engineering — Surveys 1,500.00
c) Feasibility Study and Franchise for Camping Resort 7,500.00
d) Appraisal 1,500.00
e) Purchase of Bulldozer to clear and develop land 7,345.00
f) Legal fees and expenses 5.000.00
SUBTOTAL $34,645.00
g) Miscellaneous expenses including travelling, hauling, supplies, equipment in planning Camping Resort 10.000.00
TOTAL $44.645.00”

Of course, plaintiffs cannot recover the cost of acquiring the land while they still own the land. It would further appear that the other items of damages would be recoverable only if the State were to prevent permanently the construction of the campground. In our opinion, the measure of damages occasioned by the delay in the construction of the campground, or the prevention of the construction thereof, can only be determined when the judgment herein is final and plaintiffs’ right of access is fixed.

We, therefore, find that plaintiffs’ claim for damages is premature, and same is hereby denied, reserving to them the right to proceed by separate suit at such time as the damages are ascertainable.

The judgment herein is therefore amended to order the State to grant to Mazel Louviere Decoux, Cynthia Louviere Gardner, and Jessie Louviere access across the following described property sold by De-mest Louviere to the State of Louisiana:

“One (1) certain tract or parcel of land, together with all of the improvements thereon and all of the rights, ways, privileges, servitudes, and advantages thereunto belonging or in anywise appertaining, situated in the Parish of Iberville, State of Louisiana, and in Section 56, Township 8 South, Range 8 East, Southeastern Land District, identified as Parcel No. 20-1 on the property survey map for the Lenora-Ramah Interstate Highway, State Project No. 450-07-03, Federal Aid Project No. 1-10-3(44)130, Route 1-10, Iberville Parish, Louisiana, prepared by Barnard and Burk, and Howard, Needles, Tammen and Bergendoff, Consulting Engineers, dated April 29, 1966, said map being on file in the office of the Department of Highways in the City of Baton Rouge, Louisiana, the boundary lines of which tract are more particularly described as follows:
Parcel No. 20-1: Commence at the northwest corner of Vendor’s property, said corner being the northwest corner of Section 56, and proceed South 60°16'03" East along the section line between Section 56 and Section 57 and Vendor’s West boundary line a distance of 3571.90 feet to the true point of beginning; from said point of beginning proceed North 72°47'40" East traversing Vendor’s property a distance of 104.89 feet to a point and corner; thence South 64°58'33" East a distance of 438.92 feet to a point and corner; thence South 85°18'58" East a distance of 603.51 feet to a point and corner; thence North 72°47'40" East a distance of 778.01 feet to a point on the section line between Section 55 and Section 56 and Vendor’s East boundary line and corner; thence South 60°16'03" East along said section line and Vendor’s East boundary line a distance of 410.61 feet to a point and corner; thence South 72°47'40" West traversing Vendor’s property a distance of 1158.37 feet to a point and corner; thence South 57°35'32" West a distance of 102.11 feet to a point on the section line between Section 56 and Section 57 and Vendor’s West boundary line and corner; thence North 60°16'03" West along said section line and Vendor’s West boundary line a distance of 917.03 feet to the point of beginning and containing 11.444 acres.
“Bearings herein referred to are grid bearings based on Louisiana Coordinate System (South Zone).”
“Being a portion of the same property acquired by Vendor herein from Lot Lou-viere by Act of Sale dated November 13, 1964 of record in C.O.B. 165 page 582 and by Judgment of Possession dated April 18, 1958 of record in C.O.B. 144 of page 241 both of the records of Iberville Parish, Louisiana.”

The judgment is reversed insofar as it orders the State to grant access to the public road at the boat launching facility to Lavern J. Girouard, Bobby Ray Norman, and Whiskey Bay Camp ’N Aire, Inc., reserving to said parties the right to proceed against the State for whatever rights of access they may be entitled to, and for whatever damages might have arisen from the denial of such access by the State.

Costs of this appeal shall be paid one-third by Lavern J. Girouard, Bobby Ray Norman and Whiskey Bay Camp ’N Aire, Inc., and two-thirds by the State to the extent permitted by law.

AMENDED IN PART, REVERSED IN PART AND REMANDED.


author: LOTTINGER, Judge.

text:
    Alva John GROTH, II v. INTERNATIONAL DISPENSING SYSTEMS, INC. and Federal Machine Corporation.
    No. 12110.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.

      Lynn L. Lightfoot, Houma, for plaintiff and appellant.
    George Arceneaux, Jr., Houma, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a redhibitory action filed by Alva John Groth, II, against two nonresident corporations. One of the defendants, Federal Machine Corporation (Federal), an Iowa corporation, filed a declinatory exception of lack of in personam jurisdiction, which was sustained by the trial court. A default judgment was granted against the code-fendant, International Dispensing Systems (IDS), a Texas corporation, however, we find no written judgment in the record. Plaintiff is appealing the sustaining of the exception of lack of in personam jurisdiction.

The only evidence in the record is the deposition of Louis A. Herschbaumer, president of Federal, as well as various exhibits attached to the deposition. From this brief record we find the following facts. On May 14, 1975, IDS contracted with Federal for the manufacture of vending machines suitable for the dispensing of pantyhose. In June of 1975, plaintiff-appellant contracted with IDS to supply vending machines and pantyhose for distribution in the area of Houma, Louisiana. Federal manufactured the machines, agreed to replace or repair defective parts during a 30 day period following delivery to the ultimate consumer, and knew some machines were shipped from its plant to customers in' Louisiana.

Federal has been in business since 1959. Its principal place of business is Iowa. It has neither offices, property, nor agents or employees in Louisiana, and it pays no taxes in this state. There are, however, three distributors in Louisiana who purchase machines from Federal for resale in Louisiana.

Plaintiff-appellant contends the trial judge erred in sustaining the exception.

Appellee argues that the question of whether the defendant has met the “minimum contacts” qualifications to subject it to the personal jurisdiction of Louisiana courts is a factual determination which chn only be set aside if manifestly erroneous, citing Covington v. Southern Specialty Sales Company, 158 So.2d 79 (La.App. 1st Cir. 1963) and Canter v. Koehring Co., 283 So.2d 716 (La.1973).

We are well aware of the general rule that whether the defendant meets the qualifications of minimum contacts is a matter of factual determination to be resolved in light of the facts and circumstances of each individual case, Covington v. Southern Specialty Sales Co., supra, however, this does not make the issue of jurisdiction a factual question vis-a-vis a law question. The facts as found by the trial judge are binding on the appellate court in the absence of manifest error; however, the application of the facts to the established rules of law is a legal question, thus the manifest error rule has no application in this case.

Inasmuch as the only evidence in the record was the deposition of Louis A. Herschbaumer, there is no dispute as to the facts, and it only remains for this court to determine whether under the facts presented the defendant-Federal had sufficient minimum contacts with Louisiana to subject it personally to the jurisdiction of the courts of this state.

The intent of the drafters of the Louisiana Long Arm Statute as expressed in Comment (a) to LSA-R.S. 13:3201 is to allow “the courts of this state to tap the full potential of jurisdiction in personam over nonresidents permitted by International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).”

LSA-R.S. 13:3201 in part provides:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
* , * * * * *
“(b) contracting to supply services or things in this state; * *

In a redhibitory suit the plaintiff has a right of action against the manufacturer even though he is not a party to the contract wherein the goods were supplied to the vendor. Media Production Consultants, Inc. v. Mercedes-Bentz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972).

Generally the Louisiana cases discussing minimum contacts qualifications have been those alleging an offense or quasi offense under LSA-R.S. 13:3201(d). We see no distinction between the minimum contacts required in those cases vis-a-vis the minimum contacts required in a case alleging a redhi-bitory defect under LSA-R.S. 13:3201(b).

In the instant case Federal sold its products to three distributors in Louisiana, and in fiscal years 1976 and 1977 grossed $41,127.00 from sales in this state. It is questionable whether it was Federal or IDS who shipped these machines to the ultimate consumer in Louisiana, however, we find that the machines were shipped to plaintiff from Iowa, and Federal knew of the shipment. Additionally, Federal contracted to replace or repair defective parts during a 30 day period following delivery to the ultimate consumer. We are of the opinion that Federal has sufficient minimum contacts with Louisiana to give to the courts of this state personal jurisdiction over it which does not offend the traditional concepts of fair play and substantial justice.

Appellee has cited Fidelity Credit Company v. Bradford, 177 So.2d 635 (La.App. 3rd Cir. 1965), writ refused, 248 La. 430, 179 So.2d 273 (1965) as dispositive of the jurisdictional question. In Fidelity, supra, the Third Circuit affirmed the sustaining of the declinatory exception of lack of in person-am jurisdiction. There an out of state manufacturer, who employed no personnel in Louisiana, had no salesmen or office here, and sent no representatives into this state, shipped merchandise into Louisiana for resale by a Louisiana resident. The jurisdictional question was not before the Supreme Court, thus the writ refusal does not make this case controlling.

Therefore, for the above and foregoing reasons the judgment of the trial court sustaining the declinatory exception of lack of in personam jurisdiction is reversed and remanded for further proceedings. All costs of this appeal are to be paid by defendant-appellee.

REVERSED AND REMANDED.

PONDER, J., concurs in the result believing that LSA-R.S. 13:3201(d) controls.

      . Moore v. Central La. Elec. Co., Inc., 273 So.2d 284 (La.1973); Liddell v. Hanover Ins. Co., 289 So.2d 299 (La.App. 1st Cir. 1973).


author: EDWARDS, Judge.

text:
    In re Philbert John MARTIN applying for the Adoption of Chancey Layne Gould.
    No. 12118.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    John Haas Weinstein, Opelousas, of counsel for plaintiff-appellant, Larry Allen Gould.
    Joseph R. Oelker, III, Lafayette, of counsel for defendant-appellee, Philbert J. Martin and Aliene Martin.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is an appeal by plaintiff from an order of the trial court denying his motion for a trial by jury.

We ex proprio motu notice that such an order is interlocutory and that no right of appeal exists absent the showing of irreparable injury. Triche v. City of Houma, 342 So.2d 1155 (La.App. 1st Cir. 1977); Guidroz v. State Farm Fire and Casualty Co., 334 So.2d 535 (La.App. 1st Cir. 1976). There has been no such showing in this case.

For the above reasons, the appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


text:
    In the Matter of the Interdiction of Mary Josie Reno FABRE.
    No. 12128.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.

      Ralph W. Brewer, Baton Rouge, of counsel, for plaintiff-appellee Anthony Reno.
    Margaret A. Coon, Baton Rouge, of counsel, for respondent-appellant Mary Josie Reno Fabre.
    John W. Reed & Alice M. Jacobs (A.C. L.U.) Baton Rouge, for amicus curiae.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Anthony Reno filed this suit to interdict his mentally retarded sister, Mary Josie Reno Fabre. An attorney was appointed to represent Mrs. Fabre when she did not file an answer. From a judgment pronouncing the interdiction, defendant has appealed. Reno has answered the appeal contesting the attorney’s fees and expert’s fees awarded by the trial court and contending that the appeal is frivolous.

Two causes for interdiction are stated in the Civil Code, to wit:

Art. 389. “No person above the age of majority, who is subject to an habitual state of imbecility, insanity, or madness, shall be allowed to take care of his own person and administer his estate, although such person shall, at times, appear to have the possession of his reason.” Art. 422. “Not only lunatics and idiots are liable to be interdicted, but likewise all persons who, owing to any infirmity, are incapable of taking care of their persons and administering their estates.
“Such persons shall be placed under the care of a curator, who shall be appointed and shall administer in conformity with the rules contained in the present chapter.”

In interpreting these articles, the jurisprudence recognizes that there are three prerequisites to the pronouncement of a judgment of interdiction: 1) incapacity to administer one’s estate; 2) inability to care for one’s person; and 3) an actual necessity for the interdiction. In Re Adams, 209 So.2d 363 (La.App. 4th Cir. 1968) and cases therein cited.

The question for review is whether the evidence is sufficient to support the judgment of interdiction.

Mrs. Fabre was born on February 11, 1946, and was 31 years old at the time of the trial. She was married twice, with the first marriage ending in divorce. She married her second husband, Antoine (Anthony) Olix Fabre, on July 20, 1971. One child, Charles Anthony Fabre, was born during her marriage with Mr. Fabre. In addition, Mrs. Fabre had previously borne, prior to her marriages, two illegitimate children, whose fathers’ identities are unknown. One of the illegitimate children was put up for adoption and the other was being raised by Mrs. Fabre’s mother. On August 11, 1977, Mrs. Fabre’s husband died, leaving an estate (combined with that of Mrs. Fabre) valued in excess of $47,000. The instant suit was filed on September 6, 1977.

The court appointed a psychiatrist, Dr. Francisco A. Silva, to examine Mrs. Fabre to determine whether or not she was able to care for her person and to administer her estate. Additionally, two clinical psychologists examined Mrs. Fabre: Don Lichtenstein (at Dr. Silva’s request) and Linda M. Floyd, Ph.D. (at the behest of defendant’s attorney). The evidence at trial consisted of the testimony of these three experts as well as the testimony of seven other witnesses.

Dr. Silva examined Mrs. Fabre on August 22, 1977. He stated in his testimony and in his written report that Mrs. Fabre was unable to make important decisions in her life and was unable to handle money. He found that she did not know her age, her childrens’ ages, the date, the year, her phone number or her address. He also found that she could not read, write, add, subtract or make change. He testified that she was capable of menial tasks such as keeping house, going around the neighborhood unattended and having social contact with people. However, he stated that she was “unable to abstract in a reasonable and constructive fashion when left to her own devices.”

Dr. Silva referred Mrs. Fabre to Don Lichtenstein for the administration of various IQ tests. The tests were conducted on August 24, 1977, and included the Wechsler Adult Intelligence Scale, Peabody Picture Vocabulary Test, Wide Range Achievement Test and Vineland Social Maturity Scale. Additionally, Mr. Lichtenstein interviewed Mrs. Fabre on November 7, 1977.

Mr. Lichtenstein testified and stated in his report that Mrs. Fabre’s scores on the various tests indicated work at a beginning first grade level or lower. He stated that her scores on the Wechsler test fell within the Moderate Mental Retarded Range of Intelligence 'as characterized by the DSM II. He found that she could not read, write, do arithmetic problems, make change, abstract or reason constructively when left to her own devices. He noted that she was unable to tell time, say the alphabet (even when prompted), recognize numbers beyond 10 (though she can count verbally to 15), or hold up eight fingers. He also noted that she could not describe the shape of a ball, tell how many months in a year or find a similarity between two objects (e. g., apple-orange). He stated that she would be unable to handle any financial affairs or even routine buying of things, because she could not make change or distinguish between different denominations of money above a one dollar bill.

Linda M. Floyd examined Mrs. Fabre on November 16, 1977, at Mrs. Fabre’s home. Ms. Floyd stated in her report that “there is no doubt that Mary is incapable of managing her money . . .” However, she indicated (and cited several examples to substantiate her belief) that Mrs. Fabre manages well in her home and that Mrs. Fabre demonstrates, in her opinion, some capacity to discriminate in certain situations.

In addition, Anthony Reno (the plaintiff), his wife Joyce Ann Reno, Joseph Reno, Jr. (another of Mrs. Fabre’s brothers), and Myrtle R. Chaney (a neighbor of Mrs. Fa-bre) all testified that Mrs. Fabre keeps an immaculate house, cooks, cares for her son, mows the lawn, and maintains a neat appearance. They also testified that she is always friendly and social. However, each testified regarding Mrs. Fabre’s severe inability to handle or manage money.

Mrs. Fabre did not testify at trial.

The trial judge after reviewing all the evidence concluded in his Written Reasons for Judgment:

“Judged by the codal and judicial requirements for interdiction, the Court determines that Mrs. Fabre is unable to administer her estate and her financial affairs therefore requiring the assistance of a curator. While she can care for her person in a minimal, familiar domestic environment, she cannot function in an uncontrolled, unfamiliar situation. Accordingly, the Court believes that the crucial criteria has been met and Mrs. Fabre should be interdicted.”

There can be little doubt that Mrs. Fabre is incapable of administering her estate. The three psychological experts who examined Mrs. Fabre, including her own clinical psychologist, each testified that she was unable to manage money. This conclusion is supported by the facts that Mrs. Fabre can not make change or distinguish between different denominations of money, and that she understands nothing of the value, administration or management of money. The remaining evidence preponderates conclusively in favor of this conclusion.

Regarding the second prerequisite for interdiction, the plaintiff established that Mrs. Fabre was unable to care for her person.

The evidence on this issue revealed that Mrs. Fabre had learned and was capable of performing routine household chores. She was able to cook, clean, make up beds, mow the lawn, dress and undress herself and her son, and maintain personal hygiene. All these functions were learned through imitation and repetition. However, the record also established that Mrs. Fabre’s fund of general knowledge is very limited and that her mental understanding is roughly equivalent to that of a six or seven year old. Dr. Silva and Mr. Lichtenstein each testified that Mrs. Fabre has practically no ability to abstract or reason constructively when left to her own devices.

The ability to care for one’s person has been interpreted as meaning more than the mere performance of menial tasks such as dressing, washing and household chores which inmates of insane asylums daily perform. In Re Corbin, 187 La. 968, 175 So. 636 (1937); Landry v. Landry, 171 La. 280, 130 So. 866 (1930). The court In Re Adams, supra, stated at page 367:

“ * * * The prerequisite of inability to care for one’s person encompasses more than the capacity to perform some household duties, properly robe and disrobe one’s self, and conduct one’s self at the meal table (see Landry v. Landry, 171 La. 280, 130 So. 866). A normal seven year old child is capable of doing those things. * * * »

In the final analysis, however, each interdiction must depend on its own particular facts since mental infirmities and deficiencies vary greatly in nature and degree. Accordingly it is not possible (nor will we attempt) to set down a hard and fast rule for determining whether or not one is capable of caring for one’s person.

In the instant case, we are unable to say that Mrs. Fabre, who possesses the mentality of a six or seven year old, is capable of earing for her person. On the contrary, we find that' the evidence is sufficiently clear that without assistance she can not provide for her needs or cope with the varying factors which daily affect her life. Life in its essence involves innumerable forces which invoke changes, modifications and subtle nuances in our behavior. Mrs. Fabre is not able to deal with such changes as a result of her mental deficiency and her inability to abstract and reason constructively on her own. We therefore believe that the second prerequisite has also been satisfied.

The necessity requirement is not contained in the codal provisions concerning interdiction. Rather it apparently arises from dicta in the cases of Francke v. His Wife, 29 La.Ann. 302 (1877) and Interdiction of Watson, 31 La.Ann. 757 (1879) and has been carried forward in other cases, most recently in In Re Adams, supra and Doll v. Doll, 156 So.2d 275 (La.App. 4th Cir. 1963). The Supreme Court in Pons v. Pons, 137 La. 25, 68 So. 201 (1914) expressly held that interdiction must be ordered where the dual test of inability to care for person and property is satisfied. The Court de facto overruled the Francke-Watson necessity requirement when it stated at page 209: “The necessity arises, however, from the obligation imposed upon the courts to obey the mandates of the law . . .”

Although the necessity requirement has been repeated often in cases subsequent to Pons, no case has denied interdiction because of lack of proof of necessity where the two codal requirements were satisfied.

We find that Pons did away with the necessity requirement in interdiction proceedings and that no proof was required on this issue.

We conclude that Mrs. Fabre is incapable of caring for her estate and person, and that the judgment of interdiction is justified.

Appointed counsel for Mrs. Fabre alleges as a second specification of error that the award for attorney’s fees, which was taxed against Mrs. Fabre’s estate, is inadequate and should be increased to include work performed on appeal.

We find that this issue is not properly before the Court inasmuch as it is an obvious conflict with Mrs. Fabre’s interests and should have been raised by the attorney on her own separate appeal. See LSA-C. C.P. art. 2086. We will not discuss further this contention.

Plaintiff answered the appeal. He contends that the attorney’s fees are excessive and that the expenses allowed the attorney were not properly recoverable.

The trial court awarded a total attorney’s fee of $1,920, which was $1,500 for counsel’s services and $420 for out-of-pocket expenses in connection with the litigation.

A trial judge is granted much discretion in the assessment of attorney’s fees and his determination will not be disturbed absent a showing of an abuse of this discretion. We do not find that an award of $1,920 for attorney’s fees in a case where counsel has expended more than 76 hours in defense of his client amounts to an abuse of discretion.

Plaintiff also argues that it was error to reimburse appointed counsel for her expenses, as such expenses are not recoverable under LSA-C.C.P. art. 4551.

We find that LSA-C.C.P. art. 4551 is not apposite. We believe that a consideration by the trial court of the amount of out-of-pocket expenses incurred by an appointed attorney is proper in determining the amount of a reasonable fee. We do not view the inclusion of these expenses in the total attorney’s fee as error.

Second, plaintiff contends that the trial court erred in awarding any expert witness fee for Drs. Walsh, Muffoletto, and Floyd, alleging that their testimony was irrelevant and immaterial.

We do not accept this contention. Each of the three witnesses qualified and was accepted without objection as an expert witness. Each gave opinion evidence which upon a proper evaluation would aid the trial court in determining whether a judgment of interdiction was justified. The trial court awarded each witness a fee of $75. We believe that the fees were warranted and that they were properly awarded by the trial court in the exercise of its discretion regarding expert testimony.

Finally, plaintiff contends that this appeal is frivolous and that the court should refuse to tax costs.

We do not agree. This appeal involves profound issues affecting a person’s civil freedom. Aside from plaintiff’s allegation, there is not the slightest indication that this appeal was perfected solely for the purposes of delay or that defendant does not seriously believe in her asserted contentions. Neither is there even a hint that this appeal is frivolous.

For the above reasons, the judgment appealed is affirmed. Costs are taxed against the interdict’s estate.

AFFIRMED.

      . There are four classifications of mental retardation which are, in increasing order of severity: mild, moderate, severe and profound.

      . For an excellent discussion of the origin and validity of the necessity requirement see The Work of the Louisiana Appellate Courts for the 1967-1968 Term-Interdiction, 29 La.L.Rev. 180 (1969).


author: BEER, Judge. STOULIG, Judge,

text:
    Kenneth J. DUCOTE and Deborah Ducote v. Albert KATZ and Patio Realty, Inc.
    No. 9244.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.

      Irving Novick, New Orleans, for defendants-appellants.
    Davis, Thomas & Douglas, Joseph W. Thomas, Ronald C. Davis, New Orleans, for plaintiffs-appellees.
    Before GULOTTA, STOULIG and BEER, JJ.
   BEER, Judge.

Failure to pass an act of sale pursuant to the terms of a written agreement precipitated this action by the allegedly thwarted purchasers, Kenneth and Deborah Ducote, against owner, Albert Katz, and realtor, Patio Realty, Inc. The Ducotes sought return of their deposit, an award of an equal amount as a penalty, and legal fees.

The Ducotes’ interest in certain architectural features of the house they sought to purchase, considered with the warning of friends who had heard of instances of such features being ripped out of homes just before their being sold, led the Ducotes to specify in the agreement to purchase that all mantels and lighting fixtures would be included, and that “Purchaser has right to inspect property immediately prior to act of sale.”

On May 11, 1976, the date originally set for the passage of the act of sale, the Du-cotes were advised (by the seller’s representative) of an encroachment on adjoining property, and, in accordance with the agreement, seller invoked a 45-day extension of the deadline for passage of act of sale because of the necessity of curative work.

The Ducotes heard nothing more from the owner or the realtor, or the homestead notary before whom the act of sale was to be passed, until Saturday, June 26, 1976, when they received a letter via certified mail from Bernard Freedman, president of Patio Realty, Inc., advising that the passage of the act of sale had been set for 11:00 a. m. on the following Monday, June 28 — the last day of the 45-day extension period.

Patio Realty’s employee, Ray Tolbert, contacted Mrs. Thelma Septh, the tenant of the Soniat Street property, on Saturday to arrange for an inspection by the Ducotes on Monday morning just prior to the act of sale. However, Mrs. Septh advised Tolbert that a Monday morning inspection was impossible. Tolbert advised Freedman of this development, and Freedman, in turn, contacted Maurice Katz, who acted as agent for the seller, Albert Katz. According to Freedman’s testimony, he explained to Maurice Katz that the contract called for an inspection of the premises immediately prior to the act of sale and asked his assistance in arranging the same. He testified, “At that point I turned it over to him.”

Maurice Katz contacted the tenant, Septh, and he, too, was refused a Monday morning inspection appointment. Thus, on Saturday evening, Katz went to the Ducote residence to propose some alternatives to the Monday morning inspection. On this issue, significant conflict exists in the record. Katz testified that he offered three alternatives: an inspection on Sunday; resetting of the act of sale for a later hour on Monday preceded by an early afternoon inspection; or a written extension of the deadline for passage of the act of sale. Katz claims the Ducotes would accept none of his alternatives and told him then and there that they refused to take title. The Ducotes, on the other hand, contend that Katz did not suggest a rescheduling of the act of sale for a later hour on Monday and that a Sunday inspection was not acceptable to them as it was too much in advance of the sale to suit the purpose for which the inspection was intended.

Notwithstanding the failure to resolve the inspection issue, on the morning of Monday, June 28, 1976, at 9:00 a. m., Mr. and Mrs. Ducote sought but were denied entry into the Soniat Street premises for inspection purposes. They were told by a man who answered the door (apparently tenant’s son) that they could not come in. Thereafter, at 11:00 a. m., all parties appeared at the office of Robert Jeffers, the notary who was to pass the act of sale, whereupon the Ducotes’ attorney hand delivered a letter demanding return of the deposit, an equal amount as a penalty, and legal fees, on the grounds that seller had failed to comply with his obligation.

By reconventional demand, the appellants contend that the Ducotes willfully, arbitrarily and capriciously refused their reasonable offers to set up an alternate time to inspect the house and breached their agreement. Patio Realty seeks to recover a commission of $1,215.00 with interest and attorneys’ fees, and Albert Katz seeks to recover damages in the amount of the deposit, plus interest, costs and attorneys’ fees.

Trial of the case resulted in judgment for plaintiffs, Kenneth and Deborah Ducote, against Albert Katz in the amount of $3,025.00 (deposit plus $1,000 attorneys’ fees) plus interest and costs, and against Patio Realty, Inc., in the amount of $2,025.00 plus interest and costs.

In written reasons for judgment, the trial judge found that the language of the agreement to sell reserving the right to inspect immediately prior to the act of sale was intended to permit inspection on the same day as the act of sale, and since the purchasers were told that they could not inspect on Monday, June 28, there was, then and there, a default which formed the basis of defendants’ liability. The court stated:

“When an Act of Sale is set for passage on the last day permitted by a contract, the risks inherent are obvious.
“The vendor had the obligation to permit, and arrange for the inspection of his property. He was unable to arrange for the inspection.
“The purchasers had no obligation to waive the inspection, or to extend the time for the act of sale.”

Appellants here contend that the trial court erred:

1. .In failing to find the notary and tenant were not under defendants’ control;
2. In failing to find that the refusal of the Ducotes to inspect on Sunday or to extend the contract was arbitrary and capricious;
3. In failing to find that “immediately prior to” could have meant the day before;
4. In failing to find that defendants had until sunset to meet their contractual obligations, according to La.Civ.Code art. 2057, and that purchasers breached by walking out on the deal at approximately 11:00 a. m.; and
5. In ordering the return of $2,025.00 cash in spite of the fact that plaintiffs gave $1,500 in cash and a note for $525.

Guidelines for the interpretation of the inspection clause are found in La.Civ.Code arts. 1950 and 1956:

“Article 1950.
When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.”
“ Article 1956.
When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.”

The motivation for including an inspection clause was explained by Deborah Du-cote, as follows:

“(By Mr. Thomas)
Q. Now, this document was signed by you and your husband, is that correct?
A. Yes.
Q. On March 27th, 1976?
A. 1976. We explained to Mr. Tobort (sic) the conditions of the sale. We wanted to inspect the property immediately prior to the act of sale because we personally knew of cases where the mantle (sic) piece and lighting fixtures, et cetera, had been ripped out the night before this act of sale. A friend of ours told us this.
Q. In other words would that correspond to what is on line 4 of this document?
A. That’s not what Mr. Tobort (sic) suggested at first. We did not think it was significant enough, and we repeated the same day of the act of sale we wanted to inspect and he reworded it in the form you see here and we agreed with it.
Q. The words, ‘Purchaser has a right to reinspect the property immediately prior to the act of sale’?
A. That is right.” (Emphasis ours.)

Obviously, appellees’ reason for including the clause was their knowledge that an inspection on the day of the sale would assure them that all components of the house remained intact.

Appellants further contend, however, that the inspection clause was a sus-pensive condition and that their inability to fulfill because of the tenant’s refusal to permit inspection that Monday morning relieves them of their contractual obligation. La.Civ.Code art. 2021 defines “suspensive condition” as follows:

“Art. 2021. Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition . . ..”

However, the - facts as apparently found by the trial court established an obligation on the part of the seller to provide an inspection of the property just prior to the act of sale. The clause was inserted for the benefit of the purchasers, and its nonfulfillment had the effect of suspending their obligation but not that of the vendor. See: Groghan v. Billingsley, 313 So.2d 255 (La. App. 4th Cir. 1975), writ ref., La., 318 So.2d 46.

The meeting in the. notary’s office was attended by all parties. Upon Katz’ representation that he was prepared to proceed with the sale, a letter was presented him by counsel for the Ducotes. That letter stated, in pertinent part: “Because of your failure to keep your part of the agreement, on behalf of Mr. Ducote, I hereby demand payment of double the deposit, cost, and attorney’s fees.”

The action of the Ducotes, and the terms of the letter presented by their attorney clearly indicate that they were unwilling to proceed even if the inspection took place on Monday afternoon, with the act of sale to follow immediately thereafter. Under La. Civ. Code art. 2057, vendor had until sunset of June 28, 1976, to meet the inspection condition and pass the act of sale. Although the record establishes that a Monday morning inspection was not permitted by the tenant, appellants were preempted by the actions of the Ducotes and their attorney from attempting to set up an inspection later in the day. Appellees, in reliance on the advice of an unidentified man in the tenant’s apartment, acted precipitously in refusing title without allowing appellants some sort of final opportunity to provide the requisite inspection. Specifically, the putting in default of the vendor was insufficient under the circumstances.

Thus, as of the June 28th meeting in the notary’s office at 11:00 a. m., vendor had not met his obligation of arranging for an inspection, and was in no position to put purchaser in default, and, purchasers had expressed their categoric unwillingness to proceed with the sale even if an inspection were proffered. As of that time, both the agreement to purchase and the agreement to sell ceased to be enforceable and, under these circumstances, purchasers are entitled only to recover their deposit of $2,025.00. Accordingly, the trial court judgment must be set aside insofar as it awarded return of double the deposit and $1,000 attorneys’ fees.

Appellees (who have not answered the appeal) pray for an increase in the award of attorneys’ fees for time and effort expended in connection with the appeal.

We are without authority to consider such a demand by appellees, who have not answered the appeal. See, e. g., Dumond v. Mobile Insurance Co., 309 So.2d 776 (La.App. 3rd Cir. 1975); Mattox v. American Indemnity Co., 259 So.2d 79 (La.App. 4th Cir. 1972). Also, note Luna v. Atchafalaya Realty, Inc., 325 So.2d 835 (La.App. 1st Cir. 1976), and Audubon Coin and Stamp Co. v. Alford Safe and Lock Co., 230 So.2d 278 (La.App. 1st Cir. 1969).

The judgment of the Civil District Court for the Parish of Orleans casting Albert Katz jointly liable to plaintiffs in the amount of $2,025.00 and liable in solido for $1,000.00 in attorney’s fees is reversed and set aside as is that portion of the judgment which casts Patio Realty, Inc. jointly liable to plaintiffs in the amount of $2,025.00. Patio Realty, Inc. is, however, obligated to return to Kenneth J. Ducote and Deborah Ducote their cash deposit of $1,500.00 and the demand note executed by them in the amount of $525.00. All parties are to bear their own costs in the trial court and in this court.

REVERSED IN PART, AMENDED IN PART AND RENDERED.

STOULIG, Judge,

concurring.

I concur.

Unquestionably the proposed purchasers had the right to refuse to accept title to the property until afforded the opportunity of reinspection of the premises provided for in the agreement to sell. Balanced against this right of the vendees is the right conferred upon the vendor by C.C. art. 2057 that an obligor has until sunset of the last day stipulated for performance to comply with his obligation under the contract unless this right is inhibited or restricted under the specific terms of the contract itself. In the instant matter the agreement does not contain such a restriction, therefore, the vendor has the right to reschedule the execution of the contract at a later hour mutually convenient to all of the parties involved prior to the setting of the sun on June 28, 1976.

Construing the rights and the obligations of the contracting parties, it must be concluded that the vendees had the right to insist upon reinspection prior to executing the act of sale but were required to accept title at any mutually convenient hour prior to sunset, once afforded the right of rein-spection. The vendor had the obligation of arranging with his tenant for the purchasers’ reinspection of the premises immediately preceding the sale, and if necessary to do so he should have rescheduled the inspection and/or passage of the act at a time convenient to the vendees and within the performance term of the contract.

In my opinion the attempt of the vendees to abort the agreement to sell at 11 a. m. on June 28, the time set by the notary for the passage of the act of sale, by placing the vendor in default with their written refusal to accept title, coupled with the demand for penalties, was both premature and without foundation in fact.

The alleged breach was the failure of the vendor to permit a reinspection of the premises. The record reflects that the tenant and not the vendor refused admittance to the property at 9 a. m. on June 28, but an offer was made to accommodate the purchasers later in the day. Under the terms of the agreement interpreted in the light of C.C. art. 2057, the vendor had until sunset to arrange at a mutually convenient time both the inspection and the passage of the sale, and the vendees’ attempt to withdraw at 11 a. m. was premature. Further the setting of the sale at 11 a. m. by the homestead notary designated by the contract cannot reform the terms of the agreement to sell so as to alter or reduce the time within which either party has to fulfill the obligations imposed by the contract. Therefore, the notary’s action cannot affect the vendor’s right to tender title until sunset of June 28.

With regard to the vendor’s reconven-tional demand, the record does not disclose that he rescheduled the passage of the sale at a later hour on the 28th, and therefore, he is in no position to legally place the proposed purchasers in default for failing to take title to the property. While it is admitted that the law does not impose on the party the obligation to do a vain and useless act, this does not relieve the vendor of the requirement to establish the futility of such an action. Since the purchasers had the right to reject the vendor’s tender of title at the 11 a. m. meeting because of their inability to inspect the premises, in order to place the buyers in default it was incumbent upon the seller, after affording the opportunity of inspection, to reschedule the passage of the sale within the time frame of the contract and to again tender title to the buyers.

Por these reasons I concur in the majority opinion.

      . The standard form for an agreement to purchase or sell was used, which provides for return of deposit, payment of a penalty in an equal amount, and payment of legal fees and expenses where seller defaults.

      . An act of servitude clearing title had been procured either on Friday, June 25, or on the same day as the rescheduled act of sale.

      . Art. 2057 provides:
      “Where a term is given or limited for the performance of an obligation, the obligor has until sunset of the last day limited for its performance, to comply with his obligation, unless the object of the contract can not be done after certain hours of that day.”

      . “Purchaser has right to reinspect property immediately prior to act of sale.:


author: WATSON, Judge.

text:
    Bernard B. MILLER v. SABINE PARISH POLICE JURY et al.
    No. 6788.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 2, 1978.
    Kelly, Ware & Salim, Robert L. Salim, Natchitoches, for plaintiff-appellant.
    Davis & Simmons, James L. Davis, Many, for defendant-appellee.
    Before CULPEPPER, WÁTSON and FORET, JJ.
   WATSON, Judge.

Plaintiff, Bernard B. Miller, a registered voter in the Parish of Sabine, asks an injunction to prevent a scheduled election for the office of sheriff, the primary on September 16, 1978 and the general election on November 7. Plaintiff Miller does not object to the candidacy of any particular person. He contests the election as a violation of the Louisiana Election Code, particularly LSA-R.S. 18:402.E(1), because the proclamation calling the election was issued less than fourteen (14) weeks from the date set for the election.

Plaintiff also prays that the proclamation be declared illegal and the police jury mandated to call the election in accordance with the Election Code, but the resolutory question is whether the election, as called, should be enjoined.

Two exceptions were filed to plaintiff’s petition: one of no right of action, alleging plaintiff’s lack of standing or interest to institute the suit; and one of prematurity, relying on the fact that the election has not yet been held. The exceptions were referred to the merits. The trial court sustained the exception of prematurity, concluding that the Election Code has no provision for an election to be contested prior to the time it is held.

The Secretary-Treasurer of the Sabine Parish Police Jury, J. D. Salter, testified that the election for sheriff was called in conjunction with previously scheduled elections in order to save the $40,000.00 cost of a special election. It was stipulated that the Sheriff of Sabine Parish, George Cook, died on June 21, 1978. Mike Tarver, William Neal Stracener, C.C. “Tobe” Nabors, Travis O. Bennett, James Alfice Brumley, Jr. and Guffey Lynn Pattison qualified as candidates for the sheriff’s election; all testified that they had no objection to the election being held as scheduled.

Plaintiff’s suit was properly dismissed. Plaintiff has no right of action or standing to institute the suit; as a general rule an election cannot be enjoined before it is held; and plaintiff has shown no irreparable injury which would justify an injunction.

First, plaintiff has no standing to bring this suit and thus no right of action. The Louisiana Election Code provides in LSA-R.S. 18:396 that any qualified elector may object to the candidacy of a particular person prior to an election. LSA-R.S. 18:420 allows a candidate to contest an election for irregularities or fraud which have prevented his nomination or election. Chapter 9 of the Election Code, entitled “Contests and Challenges”, provides in LSA-R.S. 18:1401.A that a qualified elector may object to the candidacy of any person in an election in which the plaintiff is entitled to vote. LSA-R.S. 18:1401.B covers a contest by a candidate who alleges that he would have been elected except for irregularities or fraud. LSA-R.S. 18:1401.C allows any person at interest to contest an election in which a proposition is submitted to the voters,'if there is an allegation that irregularities or fraud have changed the result. The statutes indicate by omission that an elector such as plaintiff Miller has no right of action to enjoin the holding of an election.

Second, the general rule in Louisiana is that an injunction will not issue to prevent the holding of an election. Rozas v. Evangeline Parish Police Jury, 211 So.2d 134 (La.App. 3 Cir. 1968).

Even if plaintiff were a proper party at interest and if the remedy of injunction were available, it would require a showing of irreparable injury. Plaintiff here has neither alleged nor shown that he would be injured, irreparably or otherwise, if the election were held as scheduled.

For the foregoing reasons the judgment of the trial court herein is affirmed at the cost of plaintiff appellant, Bernard B. Miller.

Affirmed.


author: SAMUEL, Judge.

text:
    John Jerry BLANCHARD v. Dallas Arnold PICOU, Jr., Honorable Alien L. Lobrano, Clerk of Court for the Parish of Plaquemines, State of Louisiana, and Honorable Paul J. Hardy, Secretary of State, State of Louisiana. John Jerry BLANCHARD v. Robert C. KENT, Sr., Honorable Allen L. Lobrano, Clerk of Court for the Parish of Plaquemines, State of Louisiana, and Honorable Paul J. Hardy, Secretary of State, State of Louisiana. William A. ROE and Vernon Dowdy v. Robert C. KENT, Sr., Honorable Allen L. Lobrano, Clerk of Court for the Parish of Plaquemines, State of Louisiana, and Honorable Paul J. Hardy, Secretary of State, State of Louisiana. William A. ROE and Vernon Dowdy v. Dallas Arnold PICOU, Jr., Honorable Allen L. Lobrano, Clerk of Court for the Parish of Plaquemines, State of Louisiana, and Honorable Paul J. Hardy, Secretary of State, State of Louisiana.
    Nos. 9790-9793.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1978.
    Writ Granted Aug. 15, 1978.

      Luke A. Petrovich, Buras, Chalin 0. Perez, New Orleans, Michael Kirby, Port Sul-phur, for John Jerry Blanchard, William A. Roe and Vernon Dowdy, plaintiffs-appel-lees.
    Joseph E. Defley, Jr., Port Sulphur, George M. Strickler, Jr., New Orleans, for Dallas Arnold Picou, Jr., defendant-appellant.
    Robert C. Kent, Sr., in pro. per.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

These four election contests were consolidated for trial in the lower court and for hearing in this court. Two of the suits were brought by John Jerry Blanchard, one against Robert C. Kent, Sr., and the other against Dallas Arnold Picou, Jr. The other two suits were brought by William A. Roe and Vernon Dowdy against the same defendants. All suits seek to have Picou and Kent disqualified as candidates for election to the office of School Board, Ward 5, Plaquemines Parish in the primary election to be held September 16, 1978.

Following a trial on the merits, there were two judgments disqualifying both Pi-cou and Kent as candidates for the office of School Board, Ward 5, Plaquemines Parish, and further holding that Kent had properly qualified for the office of School Board, Ward 6, Plaquemines Parish. The two defendants, Picou and Kent, have appealed from these judgments.

Prior to June 11, 1970 the School Board of Plaquemines Parish consisted of ten members from single-member election districts. However, on that date the membership of the School Board was reapportioned from ten members to five members, each from one of five wards, but each of whom was to be elected parish wide. This reapportionment was attacked in a suit filed in the United States District Court for the Eastern District of Louisiana, which resulted in a judgment enjoining the implementation of any method of electing school board members in the Parish of Plaquemines other than from the ten-ward system in effect prior to June 11, 1970. The injunction was based on Section 5 of the Voting Rights Act of 1965.

Under the ten-ward system in effect pri- or to June 11, 1970, and under state law, parish school board members were elected on a ward basis and any person who, at the time of qualifying as a candidate for the school board, had not been actually domiciled for the preceding year in the ward from which he sought election was ineligible for membership on the Board. The ward numbers under the ten-ward system differ from those under the five-ward system. At the time their qualifying papers were filed with the Clerk of the District Court, both defendants were domiciled in Belle Chasse which is in Ward 6 of the ten-ward system and in Ward 5 of the five-ward system.

The judgments appealed from, insofar as they disqualify Picou and Kent as candidates for School Board members from Ward 5 under the ten-ward system, are based on the provisions of the above cited LSA-R.S. 17:52 I, requiring that a candidate for member of a parish school board be domiciled in the ward from which he seeks election.

During the qualifying period Picou filed his “Notice of Candidacy” (his qualifying papers) in which he certified “I will be a candidate in the primary election to be held on the 16th of September, 1978 for election to the office of School Board, Ward 5, Plaquemines Parish”. Kent also timely filed his “Notice of Candidacy” certifying “I will be a candidate in the primary election to be held on the 16th day of September, 1978 for election to the office of member of Plaquemines Parish School Board, Ward 5”. Later, but also timely, Kent filed another “Notice of Candidacy” stating he was a candidate in the primary election for office of member of Plaquemines Parish School Board, Ward 6. Kent attached a letter to his second qualifying papers stating he was not running for two offices at the same time and that he had only recently discovered he would be in violation of the federal injunction if he ran for the office of School Board, Ward 5.

Thus, plaintiffs argue that, if Kent’s first qualifying papers and Picou’s qualifying papers refer to “Ward 5” of the ten-ward system, then neither is qualified because neither is domiciled in “Ward 5” of the ten-ward system. They further argue that neither can be candidates for the School Board under the five-ward system because that system is not in effect as a result of the July 28, 1976 injunction of the United States District Court mentioned above.

In this court Kent simply points out in brief that, as stated in his letter attached to his second qualifying papers, he does not want to be in violation of the United States District Court injunction and feels he should run for the Ward 6 position. However, he does state that in the event Picou is allowed to run for the Ward 5 position, then he, Kent, wants to run for and oppose Picou for that position.

In this court Picou contends:

1. Appellant’s right to due process was violated by his disqualification;
2. The Clerk of Court and the Chairman of the Board of Election Commissioners were obligated to treat all candidates equally and to inform candidates of deficiencies in their Notices of Candidacy;
3. Appellant's Notice of Candidacy was not so defective as to disqualify him as a candidate.

We do not agree with any of these contentions.

Regarding the first, his attorney argues that Picou failed to properly qualify only because of lack of notice to him of the plan under which the election was to be conducted. We know of no statutory or other legal requirement that such notice be given. In addition, the evidence establishes to our satisfaction that Picou had full knowledge of the federal court injunction and its effect. He relies on the fact that the Clerk of the District Court with whom he filed his qualifying papers did not call his attention to the improper designation of the ward office for which he was a candidate. We know of no law, and Picou’s counsel points to none, which requires the Clerk of Court to take such action or authorizes him to do so; the Clerk’s only official function in this connection was to receive the qualifying papers from those who desired to become candidates for membership on the School Board.

In addition, Picou’s argument is that he did everything reasonable to insure his qualification was proper and in that connection wrote the Secretary of State seeking information. His letter and the answer of the Secretary of State are in the record and we have examined them. We find the only question asked in Picou’s letter was “Would a candidate run from the confined 5th Ward or is the practice of a Commission Council candidate representing a Ward but running parish-wide applicable in this situation?” The Secretary of State’s reply simply says “a candidate for the office of School Board member, Ward 5, would run ward wide not parish wide.” Thus, it appears to us that the answer of the Secretary of State affords Picou no relief in this case; the opposite appears to be true, i. e., there is nothing in the reply which would tend to mislead Picou.

As we have said relative to the Clerk of Court, in answer to the second contention, we know of no authority, statutory or otherwise, obligating the Clerk of Court or the Chairman of the Board of Election Commissioners to inform candidates of deficiencies in their qualifying papers. The record does reveal that the Chairman of the Board of Election Commissioners did give assistance to some of the candidates for School Board in the preparation of their qualifying papers. But we know of no law, and counsel points to none, which prohibits the Chairman or anyone else from assisting persons they desire to assist.

In connection with the third contention, Picou relies primarily on the case of Rousseau v. Democratic Parish Executive Committee. We find that case distinguishable.

In Rousseau, candidates for several offices in St. Martin Parish, including the School Board, were disqualified by the Parish Executive Committee and by the District Court because their qualification papers did not specify the wards from which they intended to run. Each ward of the parish elected one school board member. The candidates’ qualification papers merely stated they were candidates for “parish school board.” In addition, the qualification papers contained declarations of the ward and precinct in which each candidate resided. The Court of Appeal held any ambiguity in the designation of the office for which the candidate sought to qualify was explained by the declaration of residence, since each potential candidate could only run from the ward of his residence. The court stated the declaration of residence was sufficient to give the committee all information necessary for it to certify the party as a candidate for office from that particular ward. Hence, the court reasoned the absence of a ward designation was not fatal because the required information could be obtained from the candidate’s statement of residence. In this case, Picou specifically designated the office for which he intended to run, and therefore Rousseau is not applicable.

These are actions objecting to the candidacy of Kent (under the first qualifying papers filed by him) and Picou pursuant to R.S. 18:491 and 492. They specifically qualified for the office of School Board, Ward 5, and do not meet the qualifications for that office. The judgment appealed from disqualified them as candidates for that specific office pursuant to R.S. 18:494 A. Our only alternatives are to affirm or reverse. If we were to reverse we would have to hold they have properly qualified for the Ward 5 position and there is no rational basis for reaching such a conclusion because they can legally qualify only for Ward 6 membership.

For the reasons assigned, the judgments appealed from are affirmed.

AFFIRMED.

      . Honorable Allen L. Lobrano, Clerk of Court for the Parish of Plaquemines, State of Louisiana, and Honorable Paul J. Hardy, Secretary of State, State of Louisiana, were named as additional defendants in all four suits.

      . Broussard v. Perez, 416 F.Supp. 584 (E.D. 1976), affirmed 572 F.2d 1113 (5th Circuit 1978).

      . 42 U.S.C. 1973c.

      . LSA-R.S. 17:52 A.

      . LSA-R.S. 17:52 I.

      . 164 So. 175 (La.App., 1st Circuit 1935).