author: COLE, Judge.

text:
    John Kenneth GRAHAM et al. v. Mazzie RUDISON et al. COMMERCIAL UNION INSURANCE COMPANY v. Mazzie RUDISON et al. Hollis PEARSON et al. v. Mazzie RUDISON et al.
    Nos. 11412-11414.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      James R. Coxe, III, Baton Rouge, for plaintiff Graham.
    Wm. J. Doran, Jr., Robert J. Jones, Dept, of Highways, Baton Rouge, for defendant Highway Dept.
    Carey J. Guglielmo, Baton Rouge, for plaintiff Commercial Union Ins.
    Jerry E. Bunch, Denham Springs, for plaintiff Pearson.
    Richard B. Nevils, Baton Rouge, for Maz-zie Rudison.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

On July 20, 1973, at approximately 5:15 P. M., an accident occurred on Louisiana Highway 1028 in Livingston Parish involving a truck owned by Major Robinson and driven by Mazzie Rudison and an automobile driven by Bernice B. Pearson. The Rudison vehicle was proceeding in a southerly direction and the Pearson vehicle was proceeding in a northerly direction. Traveling with Mrs. Pearson in the automobile was her husband, Hollis Pearson, and their eleven-month-old son. As a result of injuries sustained in the accident, Mrs. Pearson died.

The trial court rendered judgment against the Department of Highways and in favor of Hollis Pearson, individually, in the sum of $60,000 and on behalf of his minor son, for $45,000. Judgment was also rendered against the Department of Highways in favor of John Kenneth Graham and Aline Graham, Mrs. Pearson’s children by a previous marriage, for $32,500 each. Judgment was additionally rendered against the Department of Highways and in favor of Commercial Union Insurance Company, Pearson’s subrogee, for the property damage sustained. All claims against Robinson, Rudison and their alleged insurers, were dismissed. The Department of Highways appeals from the judgment rendered. We affirm.

Louisiana Highway 1028, a narrow, two-lane, hard-surfaced road, curves at the approximate location of the accident. At the time of the accident, approaching the curve in the northbound lane there existed a large hole where the hard surface had been torn up. Photographs indicated that the hole covered practically the entire width of the northbound lane. The depth of the hole was estimated by witnesses to be from over six inches to fifteen inches. The hole was unmarked and shells had been used in an apparent attempt to effect a temporary repair of the defect. However, photographs taken at the scene indicated that the shells had been extensively pushed out of the hole by traffic.

At the time of the accident there was a hard rain characterized as a storm which caused both vehicles to reduce their speed to approximately thirty to thirty-five miles per hour. Both vehicles had their lights on at the time of the accident.

Rudison testified that Mrs. Pearson tried to “duck” the hole which, according to him, covered her whole side of the road. He said that when she tried to get back on her side, her vehicle started sliding sideways, colliding with his truck on his side of the road. He further testified that there was nothing he could do to avoid the accident. He stated that although it appeared to him that she attempted to miss the hole, she may have, in fact, hit part of it. His testimony is substantiated by the fact that the front of his vehicle collided with the left side of the Pearson vehicle.

Hollis Pearson testified that his only recollection of the accident was that he saw the Rudison vehicle and that it “seemed” that it was over the yellow line. He claimed that he warned his wife and grabbed the baby. He further testified that he did not see the hole until after the collision. When pressed by opposing counsel as to the movement of the truck prior to collision, he said he could not swear that it crossed the yellow line. Mr. Pearson attributed his lack of specificity about the details of the accident to the fact that he was paying attention to the baby and not to his wife’s driving. The evidence preponderates to establish that Mr. Pearson had been indulging in the consumption of alcohol prior to the accident.

The physical evidence at the scene was not of probative value with respect to establishing a point of collision. James Jackson, a state trooper who investigated the accident, testified that he could not determine the “point of collision” because of the lack of debris at the scene. However, he said the “area” of collision appeared to be in the northbound (Pearson) lane. Some broken glass was located in the northbound lane about three feet from the shoulder. Also, Mr. Pearson, by his own admission, removed some pieces of chrome from the highway. Rudison testified that the chrome moved by Pearson was in the southbound (Rudison) lane.

State Representative Julius Blount testified that prior to the accident, upon a complaint by one of his constituents, he contacted the Livingston Parish Superintendent for the Department of Highways and personally escorted him to the location of the hole. At the time of the accident, however, no attempt to repair the hole in the road, beyond the earlier placement of shells in it, had been accomplished. Also, no attempt had been made to mark the road to warn motorists of the hazard. The record discloses that approximately three weeks earlier a small car had hit the hole causing it to overturn and injure its occupants. Appellant concedes that the hole was there, that it constituted a defect, and that actual notice of the defect had been received prior to the accident.

Although the trial court did mot provide written reasons for judgment, it is evident that it determined that the accident was caused by the hole in the highway and not by any negligence on the part of either Rudison or Pearson. The Department of Highways contends that the trial court erred in determining that the hole in the highway was a cause-in-fact of the accident. In the alternative, the Department claims that the court erred in failing to find contributory negligence on the part of Mrs. Pearson barring the recovery of the plaintiffs herein. It is well established that:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. * * * ” (Canter v. Koehring, 283 So.2d 716, 724 [La. 1973])

The trial court in the instant case obviously considered Rudison’s testimony as to the cause of the accident to be credible, especially in face of the obvious inferences drawn by the proximity of the accident to the large, dangerous hole in the northbound lane. On the other hand, the trial court apparently disregarded the unsubstantiated testimony of the state trooper as to the “area” of collision. Also, the testimony of Mr. Pearson was vague as to the details of the accident and was not conducive to instill in the trier of fact a belief in its reliability. Certainly, it was not established by a preponderance of the evidence that Rudison was negligent.

There is reasonable evidence in the record upon which to base a conclusion that the hole was the cause-in-fact of the accident. Whether Mrs. Pearson lost control of her vehicle after hitting the hole or after attempting at the last moment in the rainstorm to avoid the hole, does not affect the question of causation.

In Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975), the Court said:

“ * * * The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. [Citations omitted]” (309 So.2d at 385)

The record contains sufficient evidence to establish that a hazardous and obviously dangerous condition existed and that the conduct of Mrs. Pearson was reasonably careful. Mrs. Pearson was driving slowly in a hard rain. Visibility was impaired and it was not an unreasonable response for her to swerve the vehicle at the last moment when confronted suddenly with such an obviously dangerous hazard which covered practically her entire lane of travel. Moreover, it is clear that the Department failed within a reasonable time after notice to correct the hazardous condition.

The Department also contends that the amounts awarded plaintiffs in damages are excessive. The evidence establishes that Mrs. Pearson was thirty-seven years old and employed as a school bus driver by Livingston Parish earning $300 per month. At the time of the accident, she was on leave because of the birth of her baby but was planning to go back to work.

Aline and John Graham were approximately sixteen and seventeen years old, respectively, and were living with their mother at the time of her death. Because they had lived alone with her for several years prior to her remarriage to Hollis Pearson, they had developed a very close relationship. Moreover, they had been and were being supported by their mother. After her death, they had to commence living with their grandmother and to discontinue plans for college.

In connection with the survival action, it was shown that Mrs. Pearson lived for two days after the accident, during which time she was in considerable pain from a broken leg and experienced pain and difficulty breathing from the extensive injuries to her left side.

The evidence establishes that the awards of the trial court are not an abuse of the discretion granted it in the assessment of damages. La.-C.C. art. 1934 (3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976).

For the foregoing reasons, we conclude that the judgment of the trial court is not manifestly erroneous and, therefore, is affirmed. The costs of these proceedings are assessed to the appellant to the extent permissible by law.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    David J. CARVILLE, Jr., et ux. v. The TRAVELERS INSURANCE COMPANY et al.
    No. 11417.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    David W. Robinson, Baton Rouge, of counsel, for plaintiffs-appellees David J. Carville, Jr., et ux.
    Eugene R. Groves, Baton Rouge, of counsel, for defendant-appellant Travelers Indemnity Co.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This is an appeal from a judgment awarding David J. Carville, Jr., and his wife, Cameron C. Carville, plaintiffs-appel-lees herein, the sums of $7,000 and $10,000, respectively, in general damages resulting from injuries sustained in an automobile accident which occurred on August 22,1975. The vehicle driven by Mr. Carville and occupied by Mrs. Carville was struck by a vehicle driven by Mary Stuart, the insured of The Travelers Indemnity Company, defendant-appellant. It is conceded that Ms. Stuart ran a stop sign controlling the intersection where the accident occurred. Liability was not contested by defendant at trial.

The only issue presented on appeal is whether the amounts awarded for general damages to Mr. and Mrs. Carville are excessive.

The trial court, in written reasons, discussed in detail the injuries and medical treatment of the plaintiffs:

“The accident occurred about 6:15 in the evening. Mr. Carville stated that immediately after the accident he felt stressed, and that his muscles felt knotted, both knees were hurting and he had a knot on his forehead. He saw Dr. John Thomas in the emergency room of the Baton Rouge General Hospital, was treated and released. The following morning he was very sore, and testified that he experienced rather severe pain that day, which was Saturday, and part of Sunday. By Monday, his knees felt better so he went to work, but with considerable difficulty. He saw Dr. Thomas that Monday because his neck had started hurting. He saw Dr. Thomas on two more occasions, about a week apart. By the first week in September his knees were all right, but his neck was hurting and he had noticed some sensitivity on his hand. At this time, he got a neck collar and wore it daily.
“He next saw Dr. Thomas in November, 1975, complaining that his neck was about the same and that his arm was very sensitive. He sought no further medical attention until April, 1976, when he saw Dr. Thomas at the suggestion of his attorney, about a month before trial. He testified that between November and April there was only slight improvement, if any, in his neck but the area of sensitivity in his arm had decreased. He is conscious of guarding his neck at work. He can turn it with some pain. He now has occasional flare-ups with acute pain that subsides in about two days.
“Dr. Thomas testified by deposition that his initial impression was bruised extremities and contusion of forehead, with no fractures. He found quite a few abrasions of the arms, legs and forehead. Soreness in the left arm was noted and the doctor stated that plaintiff could not make a tight fist without discomfort. The injury to both knees was described as a bruise-type injury.
“When the doctor saw this plaintiff three days after the accident, he reported moderate tenderness in the left forearm with weakness of grip and considerable skin sensitivity in lower left forearm. He had begun to complain of pain in the neck area. By the time of the September 2nd visit, plaintiff’s neck complaints had increased, and Dr. Thomas noted limitation of motion in all directions. On September 22nd, Dr. Thomas found his neck considerably improved, with some tenderness on either side and pain and discomfort when he attempted to turn his neck to the right as if to look over his right shoulder. He next saw Mr. Carville on November 4th at which time he was complaining of aching soreness in his shoulder, with occasional sharp pains in neck and right shoulder with strenuous activity. At this time, home traction was recommended. Dr. Thomas noted that pain from working long hours as an accountant would result in the type discomfort described by plaintiff. He did not see this patient again until April, 1976. At that time, he found some remaining tightness and tenderness of the neck. Dr. Thomas diagnosed the injury as cervical sprain syndrome, and classified it as moderate to moderately severe. Dr. Thomas testified that this condition would probably gradually resolve itself within a year (Deposition, Pages 32-34).
“The impact knocked Mrs. Carville into the right door, and injured her right arm and shoulder and the right side of her head. The arm was immobilized; initially she couldn’t raise it higher than her shoulder. It gradually got better where she could raise it higher. It now aches during cold weather and she has trouble with such chores as putting up dishes, cleaning tile, vacuuming and ironing. She stated that her arm was no better at the time of the trial in May than one week after the accident the previous August. She was seen and treated by Dr. Thomas and by Dr. Thomas Campanella, an orthopedic surgeon.
“Dr. Thomas saw her in the emergency room on the day of the accident with primary complaint of pain in the right shoulder, with severe pain on attempts to move the arm. On August 25th, she was severely limited in her attempts to move her arm above ninety degrees. On September 2nd, she had some increase in motion. Dr. Thomas’ examination on September 22nd revealed a grinding or abnormal friction associated with shoulder motion. On a visit of November 4th, she complained of continued aching pains in the right shoulder. He did not see her again until April 4, 1976, when she complained of intermittent pain that was occasionally severe when she attempted to elevate her arm parallel to the floor and above. Dr. Thomas said that prior to the April visit he had thought she had only a badly bruised shoulder. Because of the April complaints, he gave serious consideration to whether she had a rotator cuff injury. He concluded his testimony, however, with the opinion that the proper diagnosis was a deep contusion of the shoulder. He did not recommend surgery and said the condition was not likely to be permanent. He said the condition would probably resolve itself but had no idea how long it might take to resolve (see Deposition, Page 45).
“She first saw Dr. Campanella on March 4, 1976, about six and a half months after the accident. On this examination, she could not raise her arm above ninety degrees. He found ‘damage’ to the rotator cuff, and explained that if a contusion is severe enough, scar tissue formations can be a source of the type pain being experienced by Mrs. Car-ville. The present disability of ten percent of the shoulder should ‘straighten itself out in a year or two’ (Page 7 of Deposition).
“Dr. Campanella saw the patient on one other occasion, April 28, 1976, and noted some traumatic arthritis. He, too, saw no need for surgery.”

The standard of appellate review on quantum questions has been the subject of recent discussion by the Louisiana Supreme Court. See Coco v. Winston Industries, 341 So.2d 332 (La.1976). In Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), in addressing the subject, the Court, said:

“The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. * * * [A]n abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.” (304 So.2d at 352).

When we test the record before us against the admonition that an abuse of trial court discretion must be clearly demonstrated before we can tamper with the awards, we are left with the conclusion that the awards of $7,000 and $10,000 to the plaintiffs in this case are reasonably supported by the record as characterized above and are not violative of the “much discretion” given the trial judge on such issues. LSA-C.C. art. 1934(3). Having found that the record does not support the conclusion that the lower court abused its much discretion, this Court is without prerogative to adjust the awards downward in accordance with the guidelines set forth in Coco v. Winston Industries, supra.

For the foregoing reasons, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    The AETNA CASUALTY & SURETY COMPANY v. Joseph MELANCON.
    No. 11421.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Carlos E. Lazarus, Jr., Henderson, Hane-mann & Morris, Houma, for plaintiff and appellant.
    Stanley L. Perry, Galliano, for defendant and appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

The Aetna Casualty & Surety Company (Aetna), plaintiff-appellant, brought suit against Joseph Melancon, defendant-appel-lee, to recover the alleged double payment of a claim made by the defendant. The trial court rendered judgment in favor of the defendant, dismissing the plaintiff’s claim. We reverse.

On October 1, 1974, an automobile accident occurred involving the defendant and Aetna’s insured. Aetna’s liability resulting from the accident is undisputed. Pursuant to an appraisal of the defendant’s property damage to his automobile, Aetna issued a check on October 10, 1974, to the defendant in the amount of $694.03. Since the defendant had not received this check by October 15, 1974, Aetna issued a stop-payment order. Aetna then issued a second check on October 30, 1974, in the amount of $694.03 payable to the defendant and his attorney, Stanley L. Perry, and sent the second check to the defendant’s attorney. At some point after Aetna had informed the defendant it would issue a second check, the defendant received the first check.

After the accident, the defendant’s automobile was turned over to AAA Body and Fender Works (AAA). Upon completion of the work, the defendant picked up his vehicle and endorsed the first Aetna check (dated October 10) and gave it to AAA in payment of the work done. When AAA presented the check for payment, it was not honored due to the stop-payment order previously issued by Aetna.

AAA informed Aetna that the check had not been honored. Aetna issued a third check dated December 3, 1974, in the amount of $694.03 payable to AAA. Aetna wrote a letter to the defendant’s attorney on December 3 informing him of the situation and requested that the defendant return the second check issued (on October 30). On December 9, 1974, the defendant’s attorney responded to Aetna and claimed that the repair work had been done unsatisfactorily and protested the payment by Aet-na to AAA. It was later discovered by Aetna that the second check (dated October 30) had been previously endorsed by the defendant and deposited to his attorney’s account. Aetna wrote several letters to the defendant’s attorney requesting payment of the amount of $694.03, claiming that the defendant had received double payment of the property damage claim. When no reimbursement was forthcoming, Aetna filed suit against the defendant.

It is undisputed that the defendant is entitled to payment of $694.03 for the property damage he sustained in the accident with Aetna’s insured. It is also undisputed that Aetna made two payments of $694.03. The question presented on appeal is whether Aetna may recover from the defendant one of the two payments.

In reaching a decision in favor of the defendant, the trial court basically reasoned that Aetna was without authority to pay AAA with the third check (dated December 3). The trial court held that the payment to AAA did not constitute payment to the defendant and that the suit to recover $694.03 should have been brought against AAA. The trial court reasoned that because the defendant did not authorize Aet-na to honor the October 10 check, the payment by Aetna was a gratuity. However, the defendant negotiated the October 10th check to AAA as payment for the repairs.

The sequence of events involved in this case arose in 1974. Therefore, the rights and obligations of the parties involved herein are governed by the former Negotiable Instrument Law, Title 7 of the Louisiana Revised Statutes, which remained in effect until January 1, 1975.

All of the evidence presented at trial establishes that the check issued by Aetna on October 10, 1974, was a valid negotiable instrument. See La.R.S. 7:1, et seq. At the time of the defendant’s negotiation by his endorsement and delivery of the check to AAA in payment of his obligation to AAA, AAA was unaware of the stop-payment order. See La.R.S. 7:30. Under these circumstances, AAA became a holder in due course. La.R.S. 7:52.

As a holder in due course, AAA had a right to enforce payment of the check against either the defendant (as endorser) or Aetna (as drawer). La.R.S. 7:57. Any dispute between the defendant and AAA as to the quality of the repairs has no bearing on Aetna’s obligation to AAA as holder in due course of the check.

Upon demand by AAA, Aetna issued a third check (dated December 3) to honor its obligation as drawer of the October 10 check to the holder in due course, AAA. La.R.S. 7:151, 185.

The defendant (or his attorney) were issued two checks, both of which were negotiated for value. When the defendant received the October 10th check, he negotiated it to AAA as payment for the repairs to his vehicle. When he received the October 30 check, he endorsed it and it was deposited to his attorney’s account. Clearly, the defendant was paid twice, once when he negotiated the October 10 check in payment of the repairs, La.C.C. art. 2145(1), and he was paid again when he negotiated the October 30 check to his attorney. Consequently, Aetna has a right to recover the payment of the amount not due. La.C.C. arts. 2133, 2294, 2301.

Therefore, for the foregoing reasons, the judgment of the trial court is reversed and judgment is now rendered in favor of plaintiff, The Aetna Casualty & Surety Company, and against the defendant, Joseph Me-lancon, for the sum of $694.03, plus legal interest thereon from the date of judicial demand until paid. The costs of all proceedings herein are assessed against the defendant.

REVERSED AND RENDERED.


text:
    Emily SMITH et al. v. M. B. GAUTREAU et al.
    No. 11476.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    James A. Gray and William J. Jefferson, Baton Rouge, for plaintiffs and appellants.
    Vincent J. Sotile, Victor Marcello, Don-aldsonville, for defendants and appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This is an appeal from an order of the trial court granting the defendants’ motion to strike certain paragraphs from the plaintiffs’ petition. This Court denied the defendants’ motion to dismiss the appeal of the interlocutory order. It was held that the order may cause irreparable injury, citing Louisiana Code of Civil Procedure Article 2083 in support thereof. Smith v. Gautreau, 342 So.2d 1177 (La.App. 1st Cir. 1977). That decision of this Court is final and thus, as between the litigants, is the law of the case. We, accordingly, accept the result. However, in retrospect, we question whether the concern expressed therein in regard to a remand should serve as the basis for finding that the order to strike may have caused irreparable injury and was, therefore, appealable. See Brown v. Brown, 185 So.2d 286 (La.App. 1st Cir. 1966); Stevens v. Patterson Menhaden Corporation, 191 So.2d 692 (La.App. 1st Cir. 1966), and Mauterer v. Tillery, 328 So.2d 755 (La.App. 1st Cir. 1976).

The plaintiff-appellant, Emily Smith, brought suit both individually and on behalf of her minor daughter, Brenda Onezine, against M. B. Gautreau, Superintendent of the Ascension Parish school system, and against John Oubre and Gerald Alexander, Principal and Assistant Principal of Donald-sonville High School, respectively. Damages were demanded for injuries resulting from various alleged acts of tortious conduct including assault and battery, false arrest, and the wrongful expulsion of the minor plaintiff from school without good cause or due process.

Under Louisiana Code of Civil Procedure Article 964, the defendants filed a motion to strike the following paragraphs from the plaintiffs’ petition on the grounds that they represented an insufficient demand and were immaterial and impertinent:

“XVI.
“Despite these facts, petitioner and her sister were bodily taken from the school, under the direction of the defendants, Alexander and Oubre, by the two (2) police officers aforementioned. Petitioner, Brenda Onezine’s arm was twisted behind her back by one of the police officers and she was thrown against and into a police vehicle. When this occurred, petitioner’s sister, Glenda, attempted to break free of the policeman who was holding her in an effort to assist her sister and to remove her from what was a situation of apparent danger. For her efforts in this regard, Glenda was slapped around and roughly treated by the policeman who was attempting to control her.
“XVII.
“Petitioner, Brenda Onezine, who has suffered with a nervous condition, became extremely frightened and because of rough treatment and abuse they were receiving by defendants and police officers, attempted to jump out of the police vehicle on the side opposite the side she had been pushed into.
“XVIII.
“As petitioner jumped out of the police vehicle, however, the police officer driving the car pulled off and ran over defendant’s [sic] left foot, causing severe pain and suffering to petitioner.
* * * * * *
“XX.
“Petitioner and her sister were taken to police headquarters and detained there for several hours where intensive interrogations were undertaken and were required to remain for the interrogation and was not free to leave without the consent of the police interrogators.”

Louisiana Code of Civil Procedure Article 964 provides:

“The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent or scandalous matter. The motion of a party shall be filed within ten days after service of the pleading upon mover, except that a defendant may move to strike any matter from the petition at any time within fifteen days of the service.”

Since a motion to strike under Code of Civil Procedure Article 964 is interlocutory and not properly appealable except upon a showing of irreparable injury, very few Louisiana appellate cases deal with a motion to strike. Because the source of Code of Civil Procedure Article 964 is Federal Rule of Civil Procedure 12(f), we look to federal jurisprudence as persuasive authority for an analysis of Article 964. Looking to federal jurisprudence pertaining to Rule 12(f), it is clear that because motions to strike, based on the assertion that allegations are immaterial or impertinent, are often used as a dilatory tactic, they are disfavored and will be denied, unless it is clearly shown that the allegations at issue have no possible bearing on the subject matter of the litigation and are prejudicial to the movant. See e. g., FRA S. p. A. v. SURG-O-FLEX OF AMERICA, INC., 415 F.Supp. 418 (S.D.N.Y.1975); Town of East Troy v. Soo Line Railroad Company, 409 F.Supp. 326 (E.D.Wis.1976); Hare v. Family Publications Service, Inc., 342 F.Supp. 678 (D.Md.1972); Climatrol Industries, Inc. v. Home Indemnity Company, 316 F.Supp. 314 (N.D.Ga.1970); Gleason v. Chain Service Restaurant, 300 F.Supp. 1241 (S.D.N.Y.1969).

Except for the first sentence of paragraph XVI which states, “Despite these facts, petitioner and her sister were bodily taken from the school, under the direction of the defendants, Alexander and Oubre, by the two (2) police officers aforementioned,” the facts alleged in the stricken paragraphs deal with the conduct of police officers while the minor plaintiff was exclusively in their custody. The petition alleges no basis of liability on the part of the defendants who are school administrators for any wrongful conduct by the police officers. The petition does not allege that the defendants had control over or conspired with the police officers in committing the alleged wrongful acts, nor does the petition establish any duty on the part of the defendants to protect the minor plaintiff from the harm encountered while she was exclusively in the custody of police. Therefore, the allegations of paragraphs XVI (exclusive of the first sentence), XVII, XVIII and XX are immaterial to the plaintiffs’ cause of action against the defendants. To the extent that the plaintiffs attempt to plead a cause of action for false arrest in the paragraphs in question, paragraph XIX is sufficient for that purpose.

Also, the paragraphs in question are obviously prejudicial to the defendants to the extent that they allow the admission of evidence of the alleged rough treatment and injuries at the hands of the police, who are not parties to this action, and for which the defendants would not be liable.

Therefore, for the foregoing reasons, the order striking paragraphs XVI, XVII, XVIII and XX from the plaintiffs’ petition is affirmed, except to the extent that it is amended to reinstate the first sentence of paragraph XVI. The costs of these proceedings are assessed to the appellants.

AMENDED AND AS AMENDED AFFIRMED.


author: SARTAIN, Judge.

text:
    Anthony N. COLLETTE, Plaintiff-Appellee, v. Theodore B. BLANCHARD, Defendant-Appellant.
    No. 11358.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      C. Jerome D’Aquila, New Roads, for plaintiff-appellee.
    Joseph W. Cole, Jr., Port Allen, for defendant-appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a suit by Anthony N. Collette, Lessee, against Theodore B. Blanchard, Lessor, for wrongful eviction and the value of improvements placed on the leased premises. Blanchard appeals from an adverse judgment. We affirm.

The uncontested facts are: In February of 1972, Blanchard leased a two and one-half acre tract of land to one Ivy Bonaventure. The property then contained a block building which was used as a lounge. The lease granted the Lessee the right to construct a service station on the property provided that such improvements remained on the land and became the property of the Lessor upon the termination of the lease.

In May of 1972, Bonaventure sublet an unimproved portion of the property to plaintiff. This instrument contained a similar provision as to the ownership of any service station subsequently erected on the premises. Shortly thereafter, Collette constructed a service station on the leased property and conducted a business operation therefrom through a manager.

In December of 1972 and January of 1973, Blanchard instituted suits against Bonaventure seeking to cancel the primary lease on the basis of Bonaventure’s breach of the lease agreement. Collette intervened in both suits. The dispute between Bonaventure and Blanchard was apparently settled upon the execution of a Release of Lease, dated April 18, 1973, wherein the subject property and improvements were surrendered to Blanchard.

Under date of April 13, 1973, a letter agreement was signed by both parties, which agreement we quote in its entirety:

“This letter is intended to express the terms of an agreement reached this day between the parties concerning the service station known as I — 10 Texaco.
“We agree that A. N. Collette has built the station on property leased from Ted B. Blanchard and that the Department of Highways will build a new highway along the route of present Highway 415, and that the parties do not know what effect this will have on the value of the station.
“It is agreed, however, that from this date until the date of the new highway taking the station, less the cafe, will be rented to A. N. Collette for $200.00 per month.
“As of the time of the taking, the parties agree that if the station is taken completely, then Collette will be entitled to recover the sum of $20,000.00 for the value of his improvements, to come from the award in any such suit.
“In the event the station is not taken by the highway, but is damaged, then Collette will have the option to continue to occupy the premises at a rental which will be reduced to reflect the then value of the premises or to share in the award of severance damages awarded by the court for said station in the proportion of % to Collette and 14 to Blanchard, provided that in this event Collette’s recovery shall not exceed $20,000.00.
“It is further agreed that after the filing of the new expropriation suit, then the parties will enter into a long term lease to reflect the agreements expressed in this letter agreement.
“It is understood that the tanks and pumps at the station belong to Texaco.
“It is further agreed that this agreement is conditioned upon Ivy Bonaventure executing a release of the lease between himself and Theodore B. Blanchard dated February 10, 1972 recorded in C.B. 117, entry 127.
Yours very truly,
/s/ Theodore B. Blanchard
Theodore B. Blanchard
“If the above correctly reflects our agreement, please signify by signing the duplicate original and return the same to me.
“Approved April 16, 1973.
/s/ A. N. Collette
A. N. Collette”

Collette sublet the leased property to Petroleum Transportation Company on February 4, 1974.

By letter dated July 9,1974, Collette was advised by Blanchard’s attorney that his lease was cancelled as of June 5,1974. The reason given was Collette’s “. . . leasing of the property as a truck terminal.” Enclosed with the notice of cancellation were Collette’s rent checks for the months of June and July of 1974. Blanchard thereafter leased the same property and improvements to Petroleum Transport.

The facts which are in dispute relate to the ownership of the improvements placed on the leased premises by Collette and the intention of the parties upon the signing of the letter agreement of April 13, 1973.

In his written reasons for judgment, the district judge held that the letter agreement of April 13, 1973, constituted a month to month lease between Blanchard and Col-lette, that Blanchard wrongfully evicted Collette from the leased premises and converted the same to his own use, that the purported sublease between Bonaventure and Collette was invalid because prior written consent from Blanchard was not obtained, and that under C.C. Art. 2726 Collette was entitled to judgment for the fair market value of his improvements.

Blanchard contends on appeal that the decision of the trial judge with respect to the ownership of the improvements is contrary to the written provisions of Collette’s sublease with Bonaventure; and alternatively, that in the event Collette is declared to be the owner of the improvements, he (Blanchard) elects to have Collette remove said improvements.

C.C. Art. 2726 provides:

“Art. 2726. The lessee has a right to remove the improvements and additions which he has made to the thing let, provided he leaves it in the state in which he received it.
But if these additions be made with lime and cement, the lessor may retain them, on paying a fair price.”

However, notwithstanding the language in the above article, our courts have consistently enforced lease agreements providing that improvements placed on leased premises would become the property of the landowner on the expiration or termination of the lease. Salem v. Haggart, 189 So.2d 283 (La.App. 3rd Cir. 1966).

The trial judge held that Article 2726 was applicable and that the reversionary clause was inapplicable on the premise that the sublease between Bonaventure and Collette was invalid because Bonaventure had not obtained Blanchard’s prior written consent. The judge a quo then further reasoned that in the absence of a valid reversionary clause, the option rested with Blanchard to retain the improvements under the authority of Art. 2726. The district judge further reasoned that Blanchard optioned to retain the improvements by not having given Col-lette notice to remove them before he (Blanchard) terminated the lease contrary to law and leased the property to Petroleum Transportation Company.

While we agree with the result reached by the district judge, we do so for different reasons.

The sublease between Bonaventure and Collette was a valid lease. Neither Collette nor Blanchard have urged its invalidity. Blanchard knew of the construction of the building. He voiced no complaint. Further, Collette can not be heard to reject the clear terms of his lease agreement, i. e., that the improvements placed on the land by him would remain thereon and become the property of the landowner at the termination of his sublease.

However, we do find that Blanchard has either waived or relinquished any reversion-ary rights he may have had to the improvements. The record reflects that a dispute arose as to Blanchard’s right to cancel the Bonaventure lease. Collette testified that the letter agreement of April 13, 1973, was the result of a compromise to end the Bonaventure litigation and to quiet the issue of ownership to the improvements. The record and the agreement support this assertion. The agreement itself is conditioned on Bonaventure’s surrender of the premises. It recognizes that Collette constructed the building and, more importantly, places the value of Collette’s interest at three-fourths of any sum received by Blanchard in an impending expropriation suit, not to exceed $20,000.00.

We now turn to the issue of payment for the improvements. Under Art. 2726, above, the lessee is privileged to remove any improvements placed on the leased premises by him. However, when these improvements are made “with lime and cement,” the option rests with the landowner to “retain them, on paying a fair price.”

Blanchard testified that he rejected the option afforded to him under the article by repeatedly telling Collette to remove the improvements. Collette, of course, denies that he did. The trial judge found that Blanchard had failed to prove this claim. The record amply supports the district judge in this determination.

As to compensation for the improvements, Blanchard argues that in the event it is determined that C.C. Art. 2726 is applicable, i. e., that Collette owns the improvements, that he (Blanchard) elects to have Collette remove them. He contends that inasmuch as the ownership thereto was in doubt, he should not be called upon to exercise the option the article grants him until the court determines whose property it is. We think this argument comes too late. Blanchard asserted ownership of the improvements up to the time this controversy was heard on the merits. He deprived Col-lette of the peaceful possession of the premises, arbitrarily declared the lease terminated, refunded two rent checks, and leased the property, with improvements, to a third party. Under these circumstances, the trial judge held that Blanchard is deemed to have elected to retain the improvements and owes Collette for their fair value. We also agree with this determination.

Evidence as to the value of the improvements was solicited through expert testimony of an appraiser offered by the plaintiff. It is the only evidence in the record with respect to value. The trial judge accepted this witness’s opinion that the market value of the improvements was $26,385.00. We also find his testimony to be reasonable and that this sum constitutes a “fair price” within the intent of C.C. Art. 2726.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Henry Louis DAVIS, Plaintiff-Appellee, v. Milton L. STERN et al., Defendants-Appellants.
    No. 11408.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    William D. Grimley, Baton Rouge, of counsel for plaintiff-appellee, Henry Louis Davis.
    Wm. Steven Mannear, W. Frank Gladney, Baton Rouge, of counsel for defendants-appellants, Milton L. Stern et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

In this suit for damages for breach of contract, the defendant, Damco Maintenance, Inc. (Damco), appeals from an adverse judgment. We affirm.

On November 19, 1974, plaintiff, Henry L. Davis, entered into a contract of employment with Damco whereby plaintiff was to operate and manage a carpet cleaning business in the Baker area of East Baton Rouge Parish to be known as “Karpet King of Baton Rouge”. Plaintiff obligated himself to devote full time to the business. As compensation he was to receive a certain percentage of the net profits of the operation to be computed in accordance with a schedule attached to the contract.

Damco, as employer, was obligated to furnish the necessary equipment and supplies upon plaintiff furnishing a cash bond therefor in the amount of $2500.00. The contract also contained the provision that its validity, construction, interpretation and enforcement would be governed by the laws of Texas.

It appears from the record that the contract was signed in Dallas, Texas, and that plaintiff posted a $2500.00 cash bond at the same time.

Upon the execution of the contract, plaintiff attended a course of instruction on November 19 and 20, 1974, at Damco’s home office in Dallas, Texas. The course included the various techniques of carpet cleaning, the chemicals to be used, operation of the equipment, and the general operation of the business. The latter instructions pertained to advertising, office management and bookkeeping.

During the course of instruction, plaintiff was told that an area supervisor would immediately follow him to Baton Rouge and that his equipment would be shipped without delay.

Upon returning to Baton Rouge plaintiff immediately began to prepare for the business. He enclosed his carport for an office, obtained a telephone, hired someone to answer it, advertised in the local newspaper, purchased a van truck, and distributed some two thousand circulars (door knockers). Within the first two weeks he had obtained approximately one hundred inquiries and had measured twenty-five to thirty homes for carpet services.

The equipment was not received until two or three weeks after the Dallas meeting. A supervisor to whom plaintiff was responsible did not come to Baton Rouge until a month after the Dallas meeting and he possessed no more expertise in the business than did plaintiff.

Crucial to the operation of the business was the obtaining of an occupational license. This was not done by Damco until January 22, 1975, some two months after plaintiff was told to start work immediately. In the meantime, plaintiff’s previous contacts had either gotten someone else to clean their carpets or had lost interest. Nonetheless, plaintiff continued in his efforts until March of 1975 with little or no cooperation from the home office. He then ceased trying and this suit followed.

The trial judge, in his oral reasons for judgment, clearly found that plaintiff had asserted every reasonable effort to conduct the business but “didn’t get any support from them (Damco) at all and, in fact, they violated the contract by not helping him in the business like the contract called for.”

Plaintiff’s testimony as to the instructional school and the assurances given to him (as related above) stands basically un-rebutted. The testimony of Milton L. Stern, Damco’s president, was offered by deposition over the objection of plaintiff’s counsel. We, like the trial judge, find it of little probative value.

Damco assigns as error (1) the failure of the trial judge to follow the law of Texas, (2) the admission of parol evidence to vary the terms of a written contract, and (3) the assessment of damages based on the evidence presented.

The first assignment of error is without merit. There has been no showing that the law of Texas is different from that of Louisiana or, if it is, that a different result would have followed.

With respect to the second assignment of error, our Code provides that where the terms of a contract are clear, that is, the intent of the parties is clearly shown, parol evidence is inadmissible to vary its terms. C.C. Art. 2276. However, there are notable exceptions. One such exception is that where the contract itself is incomplete or silent in respect to the obligations assumed by one of the parties, parol evidence may be admitted to show the complete agreement.

If there was a meeting of the minds with respect to the assurances made by Damco, which are the object of the contract, they are not contained within the four corners of the agreement and parol evidence must be resorted to in order to determine the true intent of the parties. Damco’s argument as to the inadmissibility of this evidence would lead to the absurd conclusion that plaintiff was expected to advance $2500.00, go to Dallas to learn how to conduct a business as an employee of Damco, devote his full time to such business, and Damco was expected to do nothing. All of these factors, except the cash bond, are not mentioned in the agreement. Under these circumstances, it was not a violation of the parol evidence rule to admit evidence to supply this deficiency. Martin v. Martin, 233 So.2d 718 (La.App. 4th Cir.1970). Further, this evidence was not offered to invalidate or destroy the agreement, but to support it. Collins v. Brunet, 239 La. 402, 118 So.2d 454 (1960). See also: 35 La.L.Rev. 779 (1975).

The trial judge awarded plaintiff the sum of $12,000.00 for loss of income and $2500.00 for the bond. Damco argues that the award of $12,000.00 is an arbitrary figure without any evidentiary basis.

As stated above, attached to the contract were schedules of “PROJECTED FIGURES FOR 12 MONTH PERIOD”. These are defendant’s own estimate and they show estimated commission profits for the manager in amounts ranging from $25,000.00 to $40,-000.00. The lower figure is based on the work of two crews. Obviously, the trial judge considered plaintiff as one crew and based his award accordingly. Conceding that these are projected figures only, the question remains as to their reasonableness. Based on the initial efforts of plaintiff and the response he received thereto, the trial judge found the estimates to be reasonable. We find no error in this conclusion and affirm the award.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . Stern was initially cited as a co-defendant but was dismissed on an exception of lack of personal jurisdiction.


author: COVINGTON, Judge.

text:
    Arlene USIE v. Lawrence BONVILLAIN.
    No. 11427.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Keith M. Whipple, Houma, for plaintiff and appellee.
    Warren J. Daigle, Jr., Houma, for defendant and appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is an appeal by Lawrence Bonvillain from a judgment of the district court granting his wife, Arlene Usie, a final judgment of divorce on grounds of adultery. The judgment also granted her custody of the two teenage minor children, alimony and child support, dismissed the husband’s reconventional demand for a judicial separation, and cast the community for attorney’s fees for the wife’s attorney. The plaintiff-appellee answered the appeal, asking that we increase the award for attorney’s fees from $1,500.00 to $3,500.00, that the appellant be condemned to pay all medical and dental bills of the children, and for damages for the alleged frivolous appeal. We affirm in part, reverse in part, and remand.

The primary issue presented is whether the district court applied the proper standard of proof of adultery and whether the plaintiff-wife discharged the burden of proof required by the jurisprudence to prove adultery.

That standard of proof has been set out in Pugh v. Pugh, 283 So.2d 844 (La.App. 2 Cir. 1973), as follows:

“The well-established and often-quoted rule on the standard of proof required in adultery cases is that adultery may be established by indirect or circumstantial evidence because, in the nature of things, adulterous acts can seldom be proven by direct or positive testimony. However, the circumstances and facts established must be such as to lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition. The circumstantial proof in these cases must be so convincing as to exclude any other reasonable hypothesis but that of guilt. Pilgrim v. Pilgrim, 235 La. 112, 102 So.2d 864 (1958).”

Plaintiff’s evidence consisted of her own testimony and that of her sister, Clara Bell Dufrene, and a friend, Rose Verdin. They testified in substance that on the night of June 5, 1976, they followed the defendant-husband to a motel room which he entered accompanied by the co-respondent; that after a short period of time the lights in the room were turned out; that they waited for about 20 minutes before seeking entry in the room; that the wife identified herself, but they got no response until the wife’s sister broke the window in the room; that when they entered the room the co-respondent was in the bathroom adjusting her clothing. Defendant’s evidence was his own testimony and that of the co-respondent. Both denied that they committed adultery. They had gone to the motel room to talk over her problems because she was in a crying mood, according to their testimony.

The district court resolved the direct conflicts in the evidence in favor of the plaintiff. In this instance, the trial judge who saw and heard the witnesses directly is in the best position to determine their credibility and he concluded that adultery had been established. The trier of fact in matters of domestic relations is vested with much discretion. Lapeyrouse v. Lapeyrouse, 331 So.2d 69 (La.App. 1 Cir. 1976).

Conclusions of fact by a trial judge are entitled to great weight; they are not to be disturbed on appeal in the absence of manifest error, especially when predicated on evaluation of the testimony of conflicting witnesses. Breaux v. Breaux, 323 So.2d 486 (La.App. 1 Cir. 1975).

We find no manifest error, and from our review of the evidence we conclude that the plaintiffs evidence meets the jurisprudential standard of proof.

The appellant next contends that the district court erred in awarding his former wife alimony and child support in the same amount that had been previously agreed upon by the parties for pendente lite purposes.

The question of the wife’s fault was raised by the husband in his reconventional demand. Our review of the evidence discloses no manifest error on the part of the district court in finding the wife was not at fault and in dismissing that demand.

The trial judge, in a consent judgment reflected in the minutes of July 23, 1976, later reduced to writing and signed, awarded “alimony and child support”, pen-dente lite, in the amount of $350.00 every two weeks, and this sum was also decreed to be paid in the divorce judgment dated October 28, 1976. However, the record before us reflects that the wife’s needs and the means of the husband to pay alimony were not dealt with in sufficient depth by the district court. We, therefore, have nothing before us upon which we can determine those issues. The case will be remanded for further trial to determine those specific issues with regard to alimony and for such judgment as will be appropriate in the factual situation then determined.

The issue of fault is not to be relitigated on remand. Rather, the wife’s financial needs and the ability of the husband to pay alimony are the sole issues to be determined in order to enable the district court to properly fix the amount thereof.

The judgment of the district court is affirmed in all other respects, including the district court’s fixing of attorney’s fees of plaintiff’s attorney at $1,500.00. There was no abuse of discretion.

Obviously, we do not find the appeal by the defendant to be frivolous.

Accordingly, the judgment of the trial court is affirmed in part, reversed in part, and the case remanded for further proceedings in accordance with this opinion. The costs of this appeal are to be borne by the appellant.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Alimony pendente lite is covered by C.C. art. 148, while article 160 governs permanent alimony; their purposes, and the standards used in determining them, differ. See Wood v. Wood, 289 So.2d 211 (La.App. 1 Cir. 1973). This record does contain general statements by the wife to the effect that her financial circumstances were not as good on the date of the divorce trial, October 27, 1976, as they were when the consent award was made on July 23. However, there is no allocation made between alimony and child support; neither is there any evidence whatsoever in the record as to the cost of food, clothing, shelter and other items envisioned by Civil Code article 160.


author: COVINGTON, Judge:

text:
    Horace Wayne VOWELL v. Joyce Fulford VOWELL.
    No. 11-428.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Eddie N. Pullaro, Houma, for plaintiff and appellant.
    Ernest A. Kelly, Houma, for defendant and appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

The appellant neither filed a brief nor appeared when the case was called for argument. Therefore, under Rule VII, Section 5(b), the appeal is considered abandoned and it is dismissed at the appellant’s cost.

DISMISSED.


text:
    Darrell Glenn SHRINER v. Henrietta Domangue SHRINER.
    No. 11-433.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Cleveland J. Marcel, Jr., Houma, for defendant and appellant.
    Jerry H. Schwab, Houma, for plaintiff and appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

The appellant neither filed a brief nor appeared when the case was called for argument. Therefore, under Rule VII, Section 5(b), the appeal is considered abandoned and it is dismissed at the appellant’s cost.

DISMISSED.


text:
    Urie F. BUECHE v. ALVIN ROYS, INC., et al.
    No. 11436.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Sam J. D’Amico, R. Michael Caldwell, Baton Rouge, of counsel, for plaintiff-appellant, Urie F. Bueche.
    Kenneth E. Barnette, John G. Morgan, Baton Rouge, of counsel, for defendants-ap-pellees, Alvin Roy’s, Inc., et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This matter involves a claim for damages for personal injuries, medical expenses and loss of wages sustained by Urie F. Bueche which he asserts were incurred as a result of the negligence of Alvin Roy’s, Inc. (Roy), in maintaining dangerously slippery steps and floor in its sauna and steam bath known as Alvin Roy’s Nautilus and Aerobic Center. Suit was filed against Roy and its insurer, Western World Insurance Company, Inc.

Plaintiff alleged that in order to enter the steam bath area he had to go up a set of steps, and that when he was coming back down the steps, which were wet, he slipped because of the accumulated moisture, resulting in injuries to his left elbow and right foot.

Defendants answered and denied the allegations of negligence, asserting that the proximate cause of the accident was the negligence of the plaintiff. Alternatively, defendants alleged contributory negligence and assumption of the risk in bar of recovery.

Following a trial on the merits, judgment was rendered in favor of the defendants, and from that judgment the plaintiff has appealed.

In his oral reasons for judgment, the trial judge found that the plaintiff did, in fact, fall and that it resulted in injuries to him. However, the district court found that the plaintiff failed to prove that there were any foreign or extraneous substances on the floor or the steps which caused him to slip and fall, and that the plaintiff also failed to establish any lack of adequate maintenance or inspection of the premises by the defendant, Roy, or its employees. The trial judge remarked:

“According to the plaintiff’s own testimony, he visited the club usually a minimum of twice a week or a total of some one hundred times during the course of a year. He failed to show that on September 30, 1974, that the steps that he’s alleged to have fallen on were unusually slippery or dangerous or that the facility was unsafe for customers using ordinary care.”

All of the witnesses testified that the steps were wet all of the time due to the patrons going to and from the steam room. The plaintiff admittedly was well aware of the wet condition of the steps. He testified:

“Q. . . . (W)ere you acquainted with the condition of those steps in that area?
A. I know that they, they were wet all the time. People dripping up and down, climbing from this thing to this thing with their perspiration and everything that causes a tremendous amount of moisture here. When they are going back to this thing, this tile, this old steam room, to pick up whatever they got, towels, or whatever they got.
Q. In other words, what you’re saying, moisture accumulates on the tile between the steam room steps and on the steps?
A. Yes, sir, by people constantly coming and dripping sweat, plus the accumulated steam in the whole area.”

The evidence establishes that the step area in question was inspected and washed down, approximately six to eight times a day, with a cleaning solution which was used to prevent the accumulation of soap residue or grease on the surface areas. Henry Stokes, the cleaning man, testified that he personally cleaned the steps on the day of the accident before the plaintiff arrived at the club.

We find the decision of the trial court in the instant case consistent with cases relied upon by the appellant. See Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Molaison v. West Brothers of Thibodaux, 338 So.2d 726 (La. App. 1 Cir. 1976); Rosensweig v. Travelers Insurance Company, 333 So.2d 334 (La.App. 4 Cir. 1976); Calecas v. Great Atlantic and Pacific Tea Co., Inc., 330 So.2d 619 (La.App. 4 Cir. 1976). The rationale of the cited cases is that the plaintiff has the burden of establishing by a preponderance of the evidence a prima facie case of negligence on the part of the defendant, after which the burden is on the defendant to go forward with the evidence to rebut the inference of negligence. The duty of a proprietor of a business establishment toward those who use his premises is to exercise reasonable care to keep his floors, aisles, passageways and travel-areas in a reasonably safe condition. This duty necessarily includes the taking of reasonable protective measures to keep the travel-areas clear of foreign substances which might give rise to a slip and fall. Kavlich v. Kramer, 315 So.2d 282 (La. 1975).

Where a customer claims to have sustained an injury due to a foreign substance on the floor or in the travel-area, he has the first burden, i. e., that of establishing the presence of the foreign substance on the surface upon which he walked; then the burden shifts to the proprietor to establish that he took reasonable protective measures in order to exculpate himself from .negligence. In Gonzales, supra, the customer established an oil spill in the aisle where Mrs. Gonzales was shopping for groceries. It was then incumbent on Winn-Dixie to show that its protective measures were reasonable under the circumstances. The court stated:

“In the present case, the defendants’ evidence was minimal. The defendants offered no evidence to show that an employee did not drop the oil. Because he was not on duty at the time of the fall, the afternoon manager testified only as to general managerial procedures. He was unable to testify that the morning inspection had actually been conducted. His own inspection, as we have noted, had not yet been made at the time of the plaintiff’s fall. Neither the morning manager nor other employees were called to establish the protective measures actually taken during the morning.”

The court then concluded that the fall would not have occurred if the olive oil had been removed; and, that if adequate inspections had been made by the proprietor, he would have discovered the oil spill and removed it; thus, the proprietor had failed to exculpate itself.

In Calecas, supra, Mrs. Calecas established that she stepped on one or several bunches of shallots in the aisle as she walked along the produce counters. A & P failed to establish that it maintained an adequate inspection and cleaning program commensurate with the circumstances. The only evidence offered by the proprietor was that the floor was clean when the store opened at 8:00 a. m., and the accident occurred in the afternoon. The assistant produce manager who assisted the customer when she fell was not called as a witness. The produce manager was unable to testify as to what inspecting or cleaning was done before the accident. A & P offered evidence showing that the floor was mopped and buffed by the night crew after closing-hours, the produce section was stocked in the morning and the floor swept and cleaned by the time the store opened, there was no regularly scheduled inspecting or cleaning during daytime business hours, the store manager patrolled the store hourly as his other duties permitted, and all employees had instructions to pick up foreign objects from the floor and to clean the area if necessary. The court concluded that the defendant had failed to exculpate itself from negligence.

When the instant case is viewed in light of the foregoing jurisprudence, we find that the plaintiff has failed to establish a prima facie case of negligence on the part of the defendant, Roy. The trial court found as a fact, and the evidence amply supports his finding, that moisture on the steps adjacent to the steam room was not a foreign substance; “wet” was the normal condition of the steps during business hours. Steps in such close proximity to the steam room are going to be wet and slippery to some extent. The occurrence of the accident, by itself, does not establish that they were unusually slippery or unsafe for customers using ordinary care. There is no presumption of fault of the proprietor from the mere fact of injury to a customer.

The facts of Gatti v. World Wide Health Studios, 323 So.2d 819 (La.App. 2 Cir. 1975), are similar to those in the instant case. In both cases the injured person was a longtime member of the club; the injured person was familiar with the wetness of the steps; the injured person slipped and fell down some steps in or near the steam room; there was no proof of a foreign substance causing the slip and fall; there was evidence of proper inspection and maintenance; there were no special safety devices or adhesive strips used on the premises.

In Gatti the court said:

“Plaintiff likewise failed to establish that the surface of the steam room was unusually slippery or dangerous or that the facility was unsafe for customers using ordinary care. The occurrence of the accident, by itself, does not establish that fact. The one inch ceramic tiles formed a semi-rough surface. A steam room, necessarily and to plaintiff’s knowledge, is going to be wet and slippery to some extent. A person using such a facility assumes the obvious, normal and ordinary risks attendant thereto. Coquille v. Expressway Bowling, Inc., 183 So.2d 347 (La.App. 4th Cir. 1966). It may be that the room would have been safer if defendant had provided adhesive strips, handrails, or other safety devices, but it is not shown that such devices are normally or customarily employed in steam rooms. Nor was it shown that the use of such devices would have prevented this accident. The failure of defendant to provide these items was not demonstrated to be substandard or to be a cause-in-fact of the accident. Defendant did not breach any duty owed to plaintiff.”

For the reasons discussed above, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . Parenthetically, not only was the plaintiff a long-time member and a frequent, regular user of its facilities prior to the accident; the testimony on trial, over two years after this mishap, showed that he was a habitue at that time.

      . In the instant case, there was a hand-rail provided, but the plaintiff did not use it.


text:
    NATIONAL PACIFIC CORPORATION et al. v. AMERICAN COMMONWEALTH FINANCIAL CORPORATION et al.
    No. 11456.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Virgil M. Wheeler, Jr., New Orleans, of counsel for plaintiff-appellant, National Pacific Corp. and Joseph Hauser.
    Van R. Mayhall, Jr., Baton Rouge, of counsel for defendant-appellee, American Commonwealth Financial Corp.
    Frank M. Coates, Jr., Baton Rouge, of counsel for defendant-appellee, Louisiana Nat. Bank Bldg.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

On June 15, 1976, American Commonwealth Financial Corporation and Roger J. LeBlanc, sold 578,444 and 18,125 shares, respectively, of common capital stock in National American Life Insurance Company to National Pacific Corporation for the price of $6,031,718.75, which was paid by a cash down payment of $2,031,718.75, and the giving of a promissory note of National Pacific Corporation for the balance of $4,000,000.00. The note was payable by one $1,000,000.00 non-interest bearing payment due on or before December 1, 1976, and by five $600,-000.00 installments, with interest, due in succeeding consecutive years.

The sale was evidenced by a stock purchase agreement dated June 15, 1976, and, as security for the payment of the note, the transferred stock, represented by Certificate No. 111991 of National American, was delivered to and pledged with American Commonwealth under a collateral pledge agreement dated the same day. In addition, Joseph Hauser, Chairman of the Board of National Pacific, personally endorsed the note. After delivery to American Commonwealth, the pledged stock was placed in escrow with Louisiana National Bank to be held until the note was paid or until some act of default occurred as a result of which the escrow agent was to deliver the stock to American Commonwealth as pledgee.

On September 29, 1976, the American Commonwealth filed suit for the unpaid balance on the promissory note in a suit entitled “American Commonwealth Financial Corporation v. National Pacific Corporation and Joseph Hauser,” Number 195,-919, Nineteenth Judicial District Court, East Baton Rouge Parish, in which American Commonwealth claimed that certain of the covenants of the collateral pledge agreement had been violated.

Thereafter, National Pacific Corporation and Joseph Hauser filed the instant suit against American Commonwealth and Roger J. LeBlanc, demanding rescission of the stock purchase because of the alleged breach of representations and warranties and of redhibitory vices. In connection with the suit for rescission, National Pacific and Hauser sought a preliminary injunction to prevent the Bank from delivering the pledged stock to American Commonwealth.

In response to the plaintiffs’ suit, American Commonwealth and LeBlanc asked that the plaintiffs’ injunctive relief be denied; further, defendants sought an injunction directing the Bank to deliver the stock certificate to the pledgee under the pledge agreement.

After hearing on the cross-applications for preliminary injunctive relief, the trial court denied both applications. From the denial of their application, National Pacific and Hauser have appealed; American Commonwealth and LeBlanc have answered the appeal. We affirm.

A preliminary injunction is a procedural device which is interlocutory in nature, designed to preserve the existing status of the litigants until a determination can be made on the merits of the controversy. Employers Overload Company v. Employers Overload Company of New Orleans, Inc., 266 So.2d 546 (La.App. 4 Cir. 1972), writ refused 263 La. 375, 268 So.2d 260 (La.1972).

A preliminary injunction may issue only on a prima facie showing by the applicant that he is entitled to the relief sought, and that he would suffer irreparable injury if it is not granted. Melancon v. Assumption Parish Police Jury, 231 So.2d 690 (La. App. 1 Cir. 1970).

Irreparable injury for which a preliminary injunction will lie is that for which an injured party can not be compensated adequately in money damages, or for which damages can not be measured by a pecuniary standard. Wood v. Gibson Construction Company, 313 So.2d 898 (La.App. 2 Cir. 1975), writ refused 320 So.2d 549 (La.1975). Absent a showing of irreparable injury, a preliminary injunction is an inappropriate remedy. McBride v. Duckworth, 232 So.2d 122 (La.App. 2 Cir. 1970).

The trial judge has broad discretion in determining whether to grant or refuse a preliminary injunction and his decision will be disturbed only in cases where a clear abuse of this discretion has been shown. Picard v. Choplin, 306 So.2d 918 (La.App. 3 Cir. 1975).

The crucial question presented here is whether the respective applicants will suffer irreparable injury, loss, or damage in the absence of injunctive relief; LSA-C. C.P. art. 3601. From our review of the record, we conclude that the trial court has not abused its discretion in denying the requests for preliminary injunctions. Rather, considering all of the above rules applicable to such relief, we find that the trial judge acted within the bounds of his discretion in refusing them. There is nothing in the record to indicate that irreparable injury will be sustained by either applicant absent injunctive relief,

The plaintiffs-appellants, National Pacific Corporation and Joseph Hauser, have sued to rescind the sale and purchase of the stock and they pray for a certain money judgment. Under their allegations and prayer, it is obvious that their alleged damages can be measured by a pecuniary standard and that they can be adequately compensated in money damages if they prevail on the merits. Moreover, they do not even allege that they will suffer an irreparable injury, loss or damage under the circumstances.

It is equally obvious that defendants-ap-pellees, American Commonwealth Financial Corporation and Roger J. LeBlanc, are not entitled to a preliminary injunction directing the Louisiana National Bank to deliver the pledged stock to American Commonwealth as pledgee. The basis for their seeking of a preliminary injunction is their alleged concern that if the stock is not delivered into American Commonwealth’s possession as pledgee, the appellants might make some attempt to gain possession of the stock from the Bank, thus destroying the security rights of the appellees. The letter escrow agreement adequately protects the appellees. There is no allegation, or evidence, that the Bank has even the remotest intention of breaching its fiduciary duties to either party. Any supposed fear on the part of the appellees that the Bank will, out of hand, turn the escrowed stock over to the appellants appears to be without foundation.

The judgment of the trial court is affirmed. Since both appellants and appel-lees are equally responsible for this appeal, we think that the interest of justice will be best served by allowing each party to share equally in the costs thereof. All other costs are to await the final disposition of the case on the merits.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Earl GAUTHREAUX v. The TRAVELERS INSURANCE CO. et al.
    No. 11437.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Joseph B. DuPont, Sr., Plaquemine, of counsel for plaintiff-appellant, Mrs. Earl Gauthreaux.
    John W. Barton, Jr., W. Arthur Aber-crombie, Jr., Baton Rouge, of counsel for defendant-appellee, The Travelers Ins. Co.
    David W. Robinson, Baton Rouge, of counsel for defendant-appellee, Government Employees Ins. Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This suit arises out of an automobile accident which occurred in Biloxi, Mississippi on August 23,1974 when the automobile which plaintiff was operating was struck by a car driven by Samuel Peyton. At the time of the accident Peyton was insured by Southern Farm Bureau Casualty Company. The automobile driven by Mr. Gauthreaux was owned by Iberville Motors, Inc., and insured by The Travelers Insurance Company. Mr. Gauthreaux was also personally insured with two policies issued by the Government Employees Insurance Company.

On August 13, 1975, plaintiff executed a “final release and settlement of claim” with Southern Farm Bureau Casualty Company and Samuel Peyton for the consideration of $11,000.00 for injuries incurred by Mr. Gau-threaux in the August 23, 1974 accident. In the release and settlement, Mr. Gau-threaux in addition to releasing both Southern Farm Bureau and Samuel Peyton further agreed to indemnify and hold harmless Southern Farm Bureau and Samuel Peyton from all claims and demands arising out of the accident.

Mr. Gauthreaux sued both The Travelers Insurance Company as well as Government Employees Insurance Company under the uninsured and underinsured motorist coverage provisions of the policies alleging the accident was caused solely by the negligence of Peyton, and that his settlement with Peyton was not sufficient to cover his losses. Both insurers moved for summary judgment on the grounds that the prescriptive period in Mississippi for a tort action arising out of an automobile accident is 6 years from the date of the accident, and that by plaintiffs release of Peyton as well as Southern Farm Bureau, plaintiff had destroyed the right of the defendants to recover from the tort feasor. From a judgment granting the summary judgments, plaintiff has appealed.

In appealing, plaintiff-appellant basically contends that there was a genuine issue of material fact as to whether there was another tort feasor who caused the accident, thus allowing to the uninsured motorist coverage insurers an opportunity to be indemnified. In filing the motions for summary judgment, defendant insurers submitted copies of the insurance policies, a true copy of the release between plaintiff and the tort feasor and his insurer, an affidavit by an attorney who was a member of the bar of Mississippi setting forth the 6 year prescriptive period, as well as the deposition of Samuel Peyton setting forth that he is a resident of the state of Mississippi. In addition, the insurers filed an affidavit setting forth that no consent to settle had ever been sought by the plaintiff from the defendants. Defendant did not file any countervailing affidavits in opposition to the motion for summary judgment. In his petition against the defendants, plaintiff contends that the accident was caused by the sole negligence of Peyton. Therefore, we do not find there to be any genuine issue of material fact so as to disallow a summary judgment.

LSA-R.S. 22:1406D(4) provides an absolute right to an insurance carrier who pays out funds under its uninsured or unde-rinsured provisions to collect the amount of said payment from the uninsured or unde-rinsured tort feasor. The release and hold harmless agreement creates a circuitous series of events whereby the insurers pay the plaintiff, then the insurers recover this amount from Peyton who is then indemnified by the plaintiff, who must in indemnification give to Peyton that which he has received from the insurers. In essence, the release and indemnification agreement has destroyed the right of the insurers to recover from the tort feasor. Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960).

Secondly, appellees contend that plaintiff did not receive their “consent to settle” in violation of express provisions of the policies. There is no factual dispute that consent was neither sought nor granted, and thus this voided the uninsured motorist coverage of both policies. Griffin v. Aetna Casualty and Surety Co., 189 So.2d 324 (La.App.3rd Cir. 1966).

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed; all costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.


text:
    Lillie JACKSON v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.
    No. 11462.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.

      Walton J. Barnes, Baton Rouge, of counsel, for plaintiff-appellee, Lillie Jackson.
    Foye L. Lowe, Jr., Associate Gen. Counsel, Dept, of Public Safety, Baton Rouge, of counsel, for defendant-appellant, Department of Public Safety.
    Arthur H. Andrews, Baton Rouge, of counsel, for defendant-appellee, Fireman’s Fund Ins. Co. and East Baton Rouge School Bd. et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

The State of Louisiana through the Department of Public Safety, Drivers License Division, appeals herein from judgment on its third party demand in favor of the third party defendant, Associated Indemnity Corporation, dismissing its third party demand against said insurer. Associated Indemnity Corporation answered the appeal asking for damages from the appellant for frivolous appeal.

The action was originally commenced by the plaintiff, Lillie Jackson, against the East Baton Rouge Parish School Board and the State of Louisiana through the Department of Public Safety, Drivers License Division, for personal injuries allegedly sustained by her when she slipped and fell at the Department of Public Safety Drivers License Renewal Facility in Baton Rouge, Louisiana. Said facility was housed in Valley Park Continuing Education Center which is owned by the East Baton Rouge Parish School Board but is only partially occupied by that entity, being used by it as part of an adult education project. East Baton Rouge Parish School Board settled its differences with the plaintiff with a reservation of the plaintiff's rights to proceed against the Department of Public Safety. The Department of Public Safety then third partied Associated Indemnity Corporation as the insurer of the East Baton Rouge Parish School Board claiming that the Department of Public Safety was an insured under the School Board's policy of insurance. Associated Indemnity Corporation moved for and was granted summary judgment as to the third party demand.

The only issue on appeal is whether the relationship between the Department of Public Safety and the School Board is such that the Department would be insured under the omnibus portion of the insurance policy.

The policy names the East Baton Rouge Parish School Board as insured, and provides comprehensive liability coverage to the named insured and others, as provided in Part II, Person’s Insured.

We are concerned with two provisions, Paragraphs 11(c) and 11(d) which state:

“(c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designate and any executive officer, director or stockholder thereof while acting within the scope of his duties as such;
“(d) any person (other than an employee of the named insured) or organization while acting as real estate manager for the name insured; ” (emphasis supplied).

In light of the above, the real question is whether the Department of Public Safety was a “real estate manager’’ or “executive officer” under the insurance contract.

Appellant contends that the trial judge erred in granting the summary judgment where there were genuine issues of material fact. This contention is based on the determination of whether an agreement between the School Board and the appellant for use of the premises made the appellant executive officers of the School Board or real estate managers responsible to the School Board. These are questions of law and not of fact. Savoy v. Action Products Company, Inc., 324 So.2d 921 La.App. 3rd Cir. 1975) writ refused, 329 So.2d 463 (La. 1976).

The Department of Public Safety cannot be an executive officer, director or stockholder of the East Baton Rouge School Board for the reason that the department is not a human being.

It is further clear to us that though the Department of Public Safety managed the real estate in question in some manner, it did so to serve its own purposes and not acting as a real estate manager for the name insured, the East Baton Rouge School Board. At most, the Department of Public Safety was a lessee of the School Board.

Therefore, we find that the trial court was correct in granting the motion for summary judgment,

The only issue remaining is appel-lee’s demand for damages for frivolous appeal, The basis of the request for damages for frivolous appeal is appellee’s assertion that the “standard policy” of the Attorney General’s office is to attempt to seek contribution from all sources no matter how remote, to appeal every judgment, and then to seek writs if possible, in the event of an adverse judgment, Article 2164 of the Code of Civil Procedure authorizes a claim for damages for frivolous appeal, but its provisions are penal in nature and must be strictly construed, Appeals are favored, and the imposition of penalties for a frivolous appeal will not be granted unless they are clearly due. Damages for frivolous appeal will not lie unless it manifestly appears that the appeal was taken solely for delay or that appealing counsel does not seriously believe in the position he ■ advocates, even though the appeal lacks serious merit. Avondale Shipyards, Inc. v. Larose Shipyard, Inc., 289 So.2d 192 (La.App. 1st Cir. 1973), Conques v. Hardy, 337 So.2d 627 (La. App. 3rd Cir. 1976), and Franklin v. Franklin, 338 So.2d 1199 (La.App. 3rd Cir. 1976).

This case presents a legal question on the issue of who were insureds under the policy in question. Therefore, we reject plaintiff’s demand for damages for frivolous appeal.

For the reasons assigned, the judgment of the District Court is affirmed. Appellant is to pay all costs of this appeal legally taxable to it.

AFFIRMED.


text:
    Roma Marie Hernandez EMMONS, Plaintiff-Appellee, v. Spencer Ray EMMONS, Jr., Defendant, State Bank & Trust Co., Intervenor-Appellant.
    No. 11160.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    See also, La.App., 348 So.2d 745.
    Glynn A. Long, Donaldsonville, of counsel, for intervenor-appellant State Bank & Trust Co.
    Ralph W. Brewer, Baton Rouge, of counsel, for plaintiff-appellee Roma H. Emmons Eichelberger.
   SARTAIN, Judge.

The common legal issue presented in the above captioned cause and two other suits is whether antenuptial obligations which have been reduced to judgment can stand as liens against and be satisfied out of immovable property acquired by the second community during the interim period between the decisions in United States Fidelity and Guaranty Co. v. Green (1968) and Creech v. Capitol Mack, Inc. (1973).

The facts are not in dispute and shall be related herein. However, separate judgments will be rendered in the companion suits.

On September 3, 1969, Spencer R. Em-mons, Jr. and his wife, Roma Marie Hernandez Emmons, executed a special mortgage on Lot 371, Melrose Place Subdivision, in East Baton Rouge Parish, Louisiana, in favor of The Equitable Life Assurance Society of the United States of America (Equitable), to secure the payment of $17,000.00, plus interest.

The marriage between Spencer R. Em-mons and Roma Hernandez Emmons was judicially dissolved on November 6, 1971. Mrs. Emmons was awarded the care, custody and control of the couple’s minor children and Mr. Emmons was condemned to pay alimony and support for his former wife and minor children.

During the course of the marriage and thereafter numerous judgments were rendered against Mr. Emmons including two in favor of his former wife, (now Mrs. Ray Eichelberger) for accumulated arrearages of alimony and child support payments.

Mr. Emmons then married Jean P. Em-mons.

Shortly following the second marriage Equitable foreclosed on its mortgage covering Lot 371, which was seized and ordered sold at Sheriff’s sale on April 4, 1973. To convey clear title to any prospective purchaser at the Sheriff’s sale, the Clerk of Court, Ex-Officio Recorder of Mortgages, was directed to cancel from the mortgage records all inferior liens, including judicial mortgages recorded against Mr. Emmons insofar as the same affected Lot 371.

In the Sheriff’s sale on April 4, 1973, the property was purchased by Mrs. Jean P. Emmons, the second wife, for the sum of $22,110.00. The funds used by Mrs. Em-mons for the purchase price were obtained from Mr. Gerald Fryou.

On June 25, 1973, Mrs. Jean P. Emmons conveyed the property to Mr. Fryou.

Fryou, on October 15, 1973, executed a collateral mortgage in favor of any future holder or holder in the amount of $25,-000.00. This mortgage was payable at and given to State Bank & Trust Company (State Bank), Donaldsonville, Louisiana.

The first suit, Fryou v. Jean P. Emmons et al., La.App. (our No. 10,910) is an action for declaratory judgment wherein Fryou, under the authority of Green, seeks to have Lot 371, declared free and clear of those judgments rendered against Mr. Emmons prior to his marriage to Mrs. Jean P. Emmons. Fryou now appeals from an adverse judgment.

Shortly after the Fryou suit was filed, Fryou defaulted on the mortgage held by State Bank. The second suit was then instituted, viz, State Bank & Trust Company v. Fryou, La.App., 348 So.2d 745. This action is a foreclosure suit by ordinary process accompanied with a rule to have plaintiff’s mortgage declared superior to the judgments obtained by Mrs. Eichelberger. State Bank also relies upon the Green decision and now appeals from an adverse judgment.

In the meantime, Mrs. Eichelberger was proceeding to execute on her two judgments, This prompted the third suit, the above captioned Emmons v. Emmons (our No. 11,160). State Bank intervened in an effort to halt the seizure and sale of Lot 371 on the grounds that the judgments sought to be executed upon were the antenuptial obligations of Mr. Emmons and did not attach to Lot 371 when it was purchased by Mrs. Jean P. Emmons, the second wife. Green, above. The trial judge declined to enjoin the sale but did grant a stay order in the proceedings and State Bank appeals suspensively.

With respect to the first suit, Fryou v. Emmons et al., above, the record in the State Bank suit reflects and counsel agree that Fryou no longer has an interest in the property. Lot 371 was seized by and sold to the bank in satisfaction of its judgment against him. The issues therein raised as between those litigants are now moot and this suit must be dismissed.

With the dismissal of Fryou v. Emmons et a L, the legal issue has been substantially narrowed because in that suit all judgment creditors of Mr. Emmons were before the court. Now the only litigants in the remaining two suits are Mrs. Eichelberger and State Bank. Mrs. Eichelberger’s judgments represent accrued alimony and child support. We are no longer concerned with the rights of general mortgage creditors. Accordingly, our opinion herein is, therefore, limited to a consideration of alimony and child support judgments, vis a vis, immovable property of the second community.

In Green, an antenuptial judgment creditor of the husband attempted to satisfy his claim by garnishing the salary of the second wife and a joint bank account of the second community. Under consideration was the application of C.C. Art. 2403. In rejecting the creditor’s right to proceed, the court stated:

“ * * * Furthermore, we fail to appreciate the logic of the court’s reasoning that just because under the law of this state the husband is designated the head and master of the community and endowed with the power of alienating the community effects without the consent of his wife, that would give the creditors of the husband existing before his marriage any right to seize the effects of the community to satisfy these claims in face of the positive pronouncement of the Code that the ‘debts of both the husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects.’ ” (Emphasis ours)

Previous cases indicative of or holding to the contrary were overruled. Under similar facts, this court followed Green in X-L Finance Co. v. Courns and the Supreme Court, with two justices dissenting, refused writs.

However, Green was reversed in Creech v. Capitol Mack, Inc. The court, at some length, by “resorting to a complete study of our Code, its sources and the evaluation of those sources, as well as our own case law,” stated:

“We conclude that the wife’s interest in the community is imperfect ownership without use, and consists of certain acquired rights including suit for separation of the community, acceptance or renouncing of the community, and a full accounting upon dissolution of the community. As to third persons, her patrimony then consists of her separate property in perfect ownership and the imperfect ownership without use of one-half of the community with certain acquired rights. We further hold that the husband’s patrimony consists of his separate property and the community of acquets and gains. His use of the community property is restricted only by the express and specific legal requirements attaching to the contract of marriage. We thus finally conclude that since the community of gains is a part of the husband's patrimony, it is subject to creditor’s rights, Civil Code Articles 3182 and 3183, however, the husband must account for the enrichment of his separate estate by the discharge of antenup-tial debts upon dissolution of the community.” (Emphasis ours)

State Bank argues that its rights were acquired in 1973 during the reign of Green and that it was entitled to rely on that decision and that under the public records doctrine it should be declared the owner of Lot 371 free and clear of the judicial mortgages sought to be enforced by Mrs. Eichelberger.

State Bank’s contentions must be rejected. While judicial opinion will undoubtedly vary as to the extent to which Green should be applied, as evidenced by our original decision in Fryou v. Emmons et al., its applicability as to antenuptial obligations for alimony and child support was determined prior to Fryou’s acquisition of the property.

The precise issue now before us was raised in White v. Klein. In that case, as here, the judgment sought to be satisfied out of the assets of the second community was for antenuptial past due child support payments. There, we held that such payments are not “debts” within the meaning of C.C. Art. 2403. Further, their subsequent reduction to an executory judgment did not have the effect of changing their status as an obligation or duty imposed by law. In denying the husband’s writ application, the Supreme Court found “No error of law.”

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . 252 La. 227, 210 So.2d 328 (1968).

      . 287 So.2d 497 (La. 1973), rehearing denied Jan. 24, 1974.

      . One judgment (May 4, 1971) in the amount of $1,585.00, and a second judgment (April 20, 1972) in the amount of $400.00.

      . C.C. Art. 2403.
      “In the same manner, the debts contracted during the marriage enter into the partnership or community óf gains, and must be acquitted out of the common fund, whilst the debts of both husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects.

      . 210 So.2d 328, 331.

      . 260 So.2d 751 (La.App. 1st Cir. 1972).

      . 261 La. 1051, 262 So.2d 38 (1972).

      . Note 2, above.

      . 287 So.2d 497, 510.

      . 263 So.2d 496 (La.App. 1st Cir. 1972).

      . 262 La. 1097, 266 So.2d 223 (1972). The lone dissent was by Justice Barham who subsequently authored Creech v. Capitol Mack, Inc., note 2, above.


text:
    STATE BANK & TRUST COMPANY v. Gerald FRYOU.
    No. 11166.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Glynn A. Long, Donaldsonville, of counsel, for plaintiff-appellant State Bank & Trust Co.
    Ralph W. Brewer, Baton Rouge, of counsel, for defendant-appellee Gerald J. Fryou.
   SARTAIN, Judge.

For reasons this day assigned in Emmons v. Emmons, La.App., 348 So.2d 742, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.