text:
    COLLECTOR OF REVENUE, Shirley McNamara v. MURPHY OIL CORPORATION. COLLECTOR OF REVENUE, Shirley McNamara v. TENNECO OIL COMPANY.
    Nos. 8398, 8399.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      H. Paul Simon, Thomas R. Blum, Deutsch, Kerrigan & Stiles, New Orleans, for Tenneco Oil Co. and Murphy Oil Corp., appellees; Deutsch, Kerrigan & Stiles, New Orleans, of counsel.
    Linda S. Paine, Houston, for Tenneco Oil Co.
    Thomas P. James, El Dorado, for Murphy Oil Corp.
    W. Steven Mannear, Baton Rouge, for Collector of Revenue, State of La., defendant-appellant.
    Before STOULIG, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This case arises from the attempt of the Collector of Revenue to assess Murphy Oil Corporation and Tenneco Oil Company for alleged deficiencies in gasoline taxes paid by them during the years 1971 through 1973. In 1974, the Collector sought to make the assessments against the two oil companies who then, pursuant to R.S. 47:1431, petitioned the Board of Tax Appeals for relief. After a consolidated hearing, the Board vacated and set aside the assessments. Pursuant to R.S. 47:1434-36, the Collector sought review in the Civil District Court, Orleans Parish. That court affirmed the decision of the Board of Tax Appeals, and the Collector has appealed to us.

In this court the Collector urges two specifications of errors, the first that the district court erred in its determination of the scope of review of the case, and the second that the Board of Tax Appeals and the Civil District Court erred as a matter of law in determining that the oil companies may pay gasoline taxes on an adjusted temperature basis at a time prior to their actual “sale” or “transfer” to a purchaser. We first consider the procedural aspects.

The Collector of Revenue is the administrator of a department of the executive branch of the government of Louisiana charged with the collection of taxes, including the taxes at issue herein. His decision on such a tax claim is appealable to the Board of Tax Appeals, which was created as an independent agency in the executive branch of the state government by R.S. 47:1401 to act as an appeal board to hear and decide questions of law and fact arising from disputes between tax payers and the Collector in the enforcement of certain taxes. Judicial review of decisions of the board is afforded by R.S. 47:1434, which provides that the original transcript of the record, together with all exhibits and evidence thereto attached, shall be the basis for any action on review and the decision of the district court shall be rendered upon the said record as made up before the board. § 1435 grants exclusive jurisdiction to the district courts to review the decisions of the board, and the court shall have the power to affirm or, if the decision or judgment of the board is not in accordance with law, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings as justice may require.

It should be noted that judicial review is the exercise of the district court’s exclusive original jurisdiction under Constitution of 1921, Article 7, § 35, and is not considered as an appeal in the same sense as an appeal from the district court to the appellate courts of our state. Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971). It is apparent from a reading of the statutes above cited conferring jurisdiction upon the district courts that the scope of review is limited by the provisions of those statutes, and is not unlimited. The statutes provide that the record of the proceeding before the board shall be the basis for any action on review, and this, coupled with the provision that the court has the power to modify or reverse a decision if not in accordance with law, by implication limits the scope of review to facts on the record and questions of law.

The scope of judicial review of the Board of Tax Appeals is not governed by the administrative procedure law set out in R.S. 49:951, et seq., except for its rule making powers described therein. R.S. 49:967 specifically exempts the Board in its consideration of cases such as this where a decision is required on a particular matter as applied to a specific set of facts. In this type of case, the Board acts as a trial court, its findings of fact should be accepted where there is substantial evidence in the record to support them, and should not be set aside unless they are manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. If the Board has correctly applied the law and adhered to correct procedural standards, its judgment should be affirmed.

While there appeared to be some confusion in the limitations of review announced by the trial judge, to-wit: “Whether that Board acted arbitrarily or capriciously in reaching its decision” (which would seem more appropriate to the action of the Collector or to the Board’s rule making authority), we think his overall statement of reasons for judgment indicate that he has in fact given the review proper consideration and has reached a correct result. We note in this case that there is really no problem with relevant facts. They are almost entirely conceded or uncontested. Indeed the trial was conducted on the premise that the Board would first decide the legal problems involved, and if it were felt that other facts would become necessary, the parties could reach a determination of those facts.

We now pass to the second issue, the basis of computation or assessment of the gasoline taxes provided in Louisiana Constitution of 1921, Article 6-A and R.S. 47:711. It is the position of the Collector that the law imposes the gasoline taxes upon the sale, or the use or consumption of gasoline and that the type of measurement of gallons sold at this last transaction is the correct basis for imposition of the tax. On the other hand, the two gasoline companies contend that the tax is imposed upon the gasoline at the time of its manufacturing, or upon its importation into the state, and that the tax should be imposed upon the amount of gallons adjusted at 60 °F. temperature.

The dispute stems from the fact that the volume of gasoline varies considerably in relation to atmospheric temperature, and thus a given amount of gasoline at a low atmospheric temperature will contain less gallons than that same gasoline at a higher temperature. For this reason it is conceded that the industry in general in handling bulk gasoline adjusts the amount of gallons sold to the computed amount of gallons at standard 60 °F. temperature. Louisiana, being a state with rather warm climate, has an average temperature in excess of 60 °F. and if gasoline were sold at atmospheric temperatures it would result in more gallons and more tax.

The state has long recognized the application of this industry standard, and its taxes are being collected on the basis of the net gallons computed at 60°. The precise problem that arises in this case, is that the Collector recognized that these two dealers, in their sales to others, could compute the gasoline tax upon the adjusted net gallons withdrawn from their holding tanks. However, these two dealers also owned individual gas stations which sell to customers at retail, and although they computed the tax in the same manner, the gasoline is merely transferred in bulk from their holding tanks, and it is not actually sold until it is pumped from the gasoline station into a customer’s tank for consumption. This latter transaction takes place at the atmospheric temperature, and would result in more gallons sold. The parties have agreed on the amount of additional tax that would be assessed in the event that this sale to the ultimate customer from the gasoline station should be the basis for imposition. In that light we proceed to examine the applicable statutory and case law.

R.S. 47:723 states that the tax shall be “due and payable immediately upon the producing, refining, manufacturing, blending or compounding of any gasoline or motor fuel for sale, use or consumption within the state”. Constitution of 1921, Article 6-A § 4 requires every dealer “shall immediately upon the producing, refining, manufacturing, blending or compounding of any gasoline, benzine, naptha or other motor fuel pay to the Collector of Revenue the tax levied herein, which is hereby made due and payable immediately upon said producing, refining, manufacturing, blending or compounding.” Similarly importers of gasoline are required to pay the tax, made due and payable immediately upon the same coming within the boundaries of this state. In considering the application of this law, the courts have found that the tax was an excise tax imposed upon the dealer (defined as producer, etc. or importer) for the right or privilege of selling, using, or consuming gasoline in this state, and was due and payable immediately upon the manufacture or importation of the product before transportation, sale or other disposition actually occurred. See State v. Sinclair Refining Company, 195 La. 288, 196 So. 349 (1940); Standard of Louisiana v. Fontenot, 198 La. 644, 4 So.2d 634 (1941); State v. Standard Oil Company of Louisiana, 190 La. 338, 182 So. 531 (1938).

Despite this, the Collector contends that the assessment of the tax may be deferred in some instances. The Collector refers us to those sections of the law permitting a dealer to furnish a bond, Const, of 1921, Art. 6-A § 4 and R.S. 47:722, 723, by which procedure the dealer may make a report monthly and delay payment of the tax until the report is made, not later than the 20th day of the next month. However, those provisions do not change the requirement that taxes be paid on the amount of gasoline refined or blended, but simply provide a method whereby the dealer may delay payment from immediately upon production or importing, (presumably daily reports) to one monthly payment when the report is to be filed as provided. State v. Sinclair Refining Company, supra. The time of imposition of tax and its payment is based upon production or importation, not final sale.

We note that the constitutional and statutory provisions then in force did not provide a basis for the measurement of the gallons upon which the tax is imposed. Additionally, under the evidence adduced in this case, it does not appear that the Collector of Revenue under his rule making authority has promulgated any such regulation. Indeed, the evidence shows that the Collector has generally accepted the common, industrywide practice of measuring gasoline by adjusting gross standard gallons to gallons at 60 °F. The Collector does not dispute this standard of measurement for bulk sales to others, but simply contends that it should not be used when a dealer transfers bulk gasoline to its own stations selling at retail to the public.

It was obvious to the Board of Tax Appeals, that such a scheme would unduly penalize dealers who operated their own stations in that they would be required to pay the tax on a higher basis than sales made to other customers. The Collector has offered no evidence to show the factual justification for any classification or distinction in the imposition of the tax, and simply relies upon the wording of the statutes relative to collection, ‘which he contends is the time of ultimate sale, not of production or importation. We have already decided that point adversely. It is not within our authority to change the wording of the Legislative provisions.

For the reasons assigned, the judgment appealed is affirmed.

AFFIRMED.

      . R.S. 47:723 was later amended by Act 609 of 1976 effective January 1, 1977, which specifically provided the dealer with the option to pay on gallons adjusted to 60° as well as other bases of assessment.


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    Mrs. Gladys Marie C. DAVIS et al., Plaintiffs-Appellants, v. RELIANCE ELECTRIC COMPANY et al., Defendants-Appellees.
    No. 11402.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Johnnie A. Jones, Baton Rouge, of counsel, for plaintiffs-appellants Mrs. Gladys Marie C. Davis et al.
    Harmon Roy, Lafayette, of counsel, for defendants-appellees Reliance Electric Co., et al.
    Daniel R. Atkinson, Baton Rouge, of counsel, for defendants-appellees Pittman Const. Co. and Aetna Cas. & Sur. Co.
    A. G. Seale, Baton Rouge, of counsel, for defendants-appellees United Elevator Co., and Continental Cas. Co.
    Lee C. Kantrow, Baton Rouge, of counsel, for defendant-appellee Nolan, Norman & Nolan Continental Cas. Co.
    Allen Danielson, New Orleans, of counsel, for intervenor-appellant Houston Gen. Ins. Co.
    Emile C. Rolfs, III, Baton Rouge, of counsel, for defendants-appellees Montgomery Elevator Co. and Employers Commercial Union Ins. Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

In this wrongful death action, the surviving widow, Mrs. Gladys Marie C. Davis, and major children, Sheryl Lyn Davis and George R. Davis, of George C. Davis (decedent) appeal from an adverse jury verdict. We affirm.

On November 30,1971, decedent suffered fatal injuries in an elevator shaft at Jones Hall on the campus of Southern University at Baton Rouge, Louisiana. On that date and at all times pertinent to this litigation decedent was employed by the University as a custodial janitorial employee at Jones Hall, a dormitory for male freshmen.

The defendants are Pittman Construction Co., Inc. (Pittman), the contractor of Jones Hall; Nolan, Norman & Nolan, (architects); Haughton Elevator Co. (Haughton), the manufacturer-installer of the elevator; United Elevator Co. (United), a coinstaller of the elevator; Montgomery Elevator Co. (Montgomery), maintenance contractor of the elevator; and, the liability insurers of the above.

Houston General Insurance Company, Southern’s workmen’s compensation insurer, intervened for sums paid to decedent’s widow.

The jury, as evidenced by its response to the interrogatories, found that each of the above named defendants was without fault. As a consequence of these initial determinations, the jury did not have to address itself to the issues of contributory negligence or assumption of risk on the part of the decedent.

Appellants on appeal contend that the verdict of the jury is “contrary to the law and evidence and in utter disregard” of the trial court’s charge to it with respect to the duty owed to the decedent under the theories of products liability as to the manufacturer and traditional negligence as to the remaining defendants. Further, they urge that inasmuch as there were no eyewitnesses to the accident, a presumption of due care rests with the decedent and that defendants have failed to rebut there (appellants’) prima facie showing of a defect in the elevator and negligent conduct in its maintenance.

Jones Hall is a six-story building which is serviced by two automatic elevators. These elevators are located parallel to one another. One was used by the students and the other was used almost exclusively by custodial or janitorial personnel. The latter elevator was not in use; it was kept locked. The subject accident involved the student elevator.

By way of background information, it should be noted that in compliance with the National Elevator Safety Code, the elevator doors at the first and sixth floors were each equipped with a latching device which permitted the door to be manually opened to gain access to the pit and to the top of the elevator in each shaft. The latch is operated by a device called a lunar key which is inserted through a small hole near the top of the door. This hole is covered by an “escutcheon plate” which is about the size of a nickel. The key is inserted through the escutcheon plate and triggers a release mechanism which then permits the door to be opened manually. Access to the elevator shaft in this manner is essential for necessary repairs and fire protection. Considerable portions of the record concern the absence of an escutcheon plate on the date of the accident, the general use and operation of the student elevator.

The testimony reveals that the elevators were accepted in the latter part of September, 1969, at which time they were found to have been correctly installed and working properly. For the following six months, Haughton and United were responsible for its routine maintenance and inspection. Thereafter and up to the time of the accident, Southern had a contract with Montgomery for the maintenance and required inspections of the elevators.

The student elevator was the source of constant concern. The record is replete with evidence as to its misuse and abuse by students. During the first six to nine months of its operation, Southern expended between $3,000.00 and $4,000.00 to repair damage inflicted by students. Push buttons on the various floors were missing. There were times when naked wires were evident. Lights were removed. A burning trash can was placed in one and it was started on its way. Students would use the emergency switch to stop the elevator and leave it with the warning bell ringing. This occurred so frequently that at times the custodial personnel would pay no attention to the alarm. Apparently, notices and directives from the University served little or no useful purpose for this practice continued in similar fashion up to the date of the accident.

On many occasions, the student elevator would stop between floors. Personnel from the University would open the doors at either the first or sixth floor level to determine its location. They would then go to the “penthouse” and manually “jack-up” the elevator to the nearest floor so the passengers could exit.

For some time prior to the date of the accident, the escutcheon plates had been removed. In lieu of the lunar keys, a pencil or screwdriver would be used to trip the latch so as to permit the opening of one of the doors. The door having been opened in this manner, the attendant would then look into the elevator shaft to determine where the elevator had stopped. This eliminated the necessity of going from floor to floor.

Decedent was familiar with this procedure and had often engaged in the same.

Personnel from defendants stated that it was unwise to follow this procedure and that they had not sanctioned it. Witnesses for plaintiffs stated that they were instructed in this procedure by Van J. Gau-din, an employee of Montgomery.

On the day of the accident Flanders Hall, a cocustodial employee of decedent, was told that Davis was in the elevator shaft. He went to the sixth floor and opened the door of the student elevator with the aid of a pencil and in the manner outlined above. He saw that decedent was on top of the elevator with his body wedged in between a counterweight and a cable. The top of the elevator was then located some six to eight inches below the fifth floor level. He then went to the roof and manually operated the controls to release the weights. He assisted in removing decedent and carrying him to the first floor. Decedent had not lost consciousness and told Hall, “that he (Davis) was looking for the elevator to see where it was located at and slipped and fell into the shaft.” There were no occupants in the elevator itself. It was later determined that the cause of the stoppage on this particular occasion was “blown fuses . .” in the “. . . main line power switches.”

Turning now to the proof of support and allegations seeking to impose liability on the various defendants, we note a complete absence of any creditable evidence with respect to the building contractor (Pittman) and the architects (Nolan, Norman & Nolan).

With respect to Haughton, plaintiffs seek to impose liability on the basis of a defect in the elevator itself under the theory of products liability. To be successful, plaintiffs must prove (1) a defect in the elevator, (2) that at the time of its failure it was in normal use, (3) that it was unreasonably dangerous in that use, and (4) that the defect caused the injuries. Weber v. Fidelity & Casualty Insurance Co., 259 La. 599, 250 So.2d 754 (1971); Dixon v. Gutnecht, 339 So.2d 1285 (La.App. 1st Cir. 1976), writ denied, 342 So.2d 673 (La.1977).

Plaintiffs argue that the repeated failures of the student elevator over a period of two years is sufficient to show that the elevator itself was defective.

Defendants contend that these repeated failures were the consequences of the constant abuse the elevator was subjected to by the student residents, who “systematically destroyed” the elevator equipment. If this latter contention be correct, it cannot be said that the subject elevator was or had been in normal use at the time of its failure, a prerequisite to liability, noted above. Frey v. Travelers Insurance Co., 271 So.2d 56 (La.App. 4th Cir. 1972), application denied, 273 So.2d 840 (La.1973); Annot., 41 A.L.R. 1253.

In any event, the question is one of fact to be resolved by the jury based on the evidence presented by each of the parties in support of their respective claims. We find no manifest error in the result reached by the jury which undoubtedly concluded that the noted failure resulted from student abuse. Perrin v. St. Paul Fire & Marine Insurance Co., 340 So.2d 421 (La.App. 4th Cir. 1976).

The remaining issue, that is the liability of Montgomery based on its failure to properly maintain and service the elevator, centers on the absence of the escutcheon plate and the legal consequences flowing therefrom. It is conceded by Montgomery that its absence should have been noted and that plate replaced immediately. However, Montgomery strongly argues that the absence of the plate was not a cause in fact of the accident. They contend that the half moon opening in the plate was to restrict access to the latching device to the use of the lunar key. They point out that even with the plate in place, the device could still be triggered with a thin screwdriver or a wire coat hanger. Further, that the lunar keys were furnished to university personnel for emergency use and that had Davis desired a key he could have obtained one from the office.

We note that the record stands uncontra-dicted to the effect that when the latching device is triggered the door can only be opened by force and will remain open only when held open. When the door is released, springs attached to its back side will force it to close. Graphic proof of this is the fact that when Davis was discovered by Hall the door was closed.

We find no manifest error in the jury’s determination that Montgomery was free from fault under the particular facts noted above. Perrin v. St. Paul Fire & Marine Insurance Co., above. Stated another way, we like the jury find that the absence of the escutcheon plate was not a cause in fact of the accident. In considering the extent to which legal consequences flow from an alleged act of negligence, the Supreme Court in Hill v. Lundin & Associates, Inc., stated: (260 La. 542, 256 So.2d 620 at 623)

“. . . The same policy considerations which would motivate a legislative body to impose duties to protect from certain risks are applied by the court in making its determination. ‘All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.’ Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956).”

See also : Robertson: Reason Versus Rule in Louisiana Tort Law, Etc., 34 L.L.Rev. 1 (1973).

Finally, we must reject plaintiffs’ contention that the instant controversy, both as to the law and the facts, “is on all fours” with Barnett v. Trinity Universal Insurance Company, 286 So.2d 770 (La.App. 2d Cir. 1973), writ refused, 287 So.2d 528 (La.1973). We do not find that plaintiffs established a prima facie case of negligence. In Barnett, the court found, both originally and on rehearing, that the elevator door did not contain an automatic locking device and more particularly, that the door when pushed open would remain open. At issue was the operation of a manually-operated elevator without an operator, where the elevator shaft could be left exposed without “modern safety devices.” Such are not the facts in the case at bar. While we recognize the rule that absent any evidence to the contrary a person is presumed to have acted with due care, Barnett, above; Gant v. Aetna Casualty & Surety Co., 234 So.2d 776 (La.App. 1st Cir. 1970), certiorari denied, 256 La. 736, 236 So.2d 503 (1970); Finn v. Employers Assurance Corporation, 141 So.2d 852 (La.App. 2d Cir. 1962); the absence of an eyewitness to an accident does not in and by itself establish a prima facie case of negligence against an alleged tort feasor. The presumption may well, and it often does, inure to the benefit of an injured decedent but this generally is in defense of a claim of contributory negligence.

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

AFFIRMED.


text:
    PARISH NATIONAL BANK, Plaintiff-Appellant, v. Willie J. BLAIR, Sheriff and Ex-Officio Tax Collector, Washington Parish, Louisiana.
    No. 1142.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Charles M. Hughes of Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff-appellant.
    Herbert R. Alexander, Bogalusa, for defendant-appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This suit was filed December 22, 1976 by Parish National Bank (Parish) against Willie J. Blair in his capacity as Sheriff and Ex-Officio Tax Collector of Washington Parish. Parish is now seeking a writ of mandamus or alternatively an injunction to compel Blair to déposit funds in his hands in “accordance with law.”

Defendant Blair maintains four separate accounts in his official capacity in three banks in Washington Parish. A sheriff’s fund account is maintained at Parish National Bank, a bond fund account is maintained at Washington Bank & Trust Co., and both a tax collection account and a salary fund account are maintained at First State Bank & Trust Co. These accounts include funds to be distributed to local governing bodies or to be retained by the sheriff for his official use. None of the accounts included funds belonging to the state.

Blair maintains that R.S. 39:409 gives him authority to deposit funds in his hands in any bank in the parish which has been designated as either a fiscal agent of the state or of the particular parish. Parish maintains that funds held by the sheriff which belong to the state are to be deposited in a state fiscal agency bank pending their transmission to the state treasury, funds belonging to local governing bodies are to be deposited in the parish fiscal agency bank, and funds of the sheriff are to be deposited in a bank selected by him through a bid procedure (R.S. 39:1214).

R.S. 39:409 provides, “All public funds received by and in the hands of sheriffs and tax collectors, pending their transmission to the state treasurer, or public body for whose account they are collected, shall be deposited by the receiving officer daily, whenever practicable, with a fiscal agent bank domiciled in the parish where the funds are collected which has been selected in the manner provided by law as the fiscal agency or agencies either of the state or of the particular parish . .

Blair asserts that this statute allows him to deposit all public funds which he receives in either a state or parish fiscal agent bank. However, this reading overlooks the fact that the phrase “[a]ll public funds” is qualified by the phrase “pending their transmission . . .” The statute is meant to apply to funds collected by the sheriff for the state or a local governing body. It has no application to the sheriff’s own funds. To determine where these funds are to be deposited one should then look to R.S. 39:1211, et seq. (originally Act 39 of 1934). This statute sets up a procedure for local depositing authorities (which includes sheriffs) to use in selecting a fiscal agent bank.

But it is contended that the preamble and repealing clause of Act 265 of 1938 (presently R.S. 39:409) indicate a legislative intent that Act 265 was intended to cover all public funds in the hands of the sheriff. Both of these provisions include language that the act is meant to “repeal all laws or parts of laws in conflict herewith, particularly the provisions of Act 39 of 1934 relating to sheriffs and ex-officio tax collectors.” This only repeals laws in conflict with Act 265. Since Act 265 does not by its terms cover funds held by the sheriff for his own account, the provisions of Act 39 covering this situation remain effective. Repeals by implication are not favored. Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576, 587 (La.1975). Therefore Blair cannot maintain his salary fund account in First State Bank & Trust Co. He must follow the bid procedure given in R.S. 39:1214.

As to the parish funds held by the sheriff, he does have the discretion under R.S. 39:409 to deposit them in a state fiscal agent bank. The law says that parish or state funds may be deposited in either a parish or state fiscal agent bank. Although it would be logical to require parish funds to be placed in a parish agency bank and state funds in a state agency bank, the statute does not say this. “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.” C.C. Art. 13.

The funds in Washington Bank & Trust Co. cannot be maintained there. R.S. 39:409 has no application to this account because the Washington Bank is neither a state or a parish fiscal agent.

For the reasons assigned, the judgment appealed from is affirmed in part and reversed in part. As to the parish funds deposited in the First State Bank & Trust Co., the judgment is affirmed; as to the funds in the Washington Bank & Trust Co., the judgment is reversed; and, as to the sheriff’s funds in the First State Bank & Trust Co., the judgment is reversed. The case is remanded to the lower court for further proceedings consistent with this opinion. All costs of this appeal are assessed equally between the parties.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


author: COVINGTON, Judge.

text:
    Beth Bozeman HYRNE v. Herbert C. HYRNE.
    No. 11561.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    James B. Doyle, Baton Rouge, of counsel, for plaintiff-in-rule-appellant, Herbert C. Hyrne.
    Durward L. McLaughlin, Baton Rouge, of counsel, for defendant-in-rule-appellee, Beth Bozeman Hyrne.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

The husband, Herbert C. Hyrne, has appealed the judgment of the Family Court, Parish of East Baton Rouge, State of Louisiana, reducing alimony payments from $200.00 to $100.00 per month. The plaintiff in rule sought to have the alimony payments to his wife dispensed with, or in the alternative, reduced. We affirm.

The parties married on March 3, 1966, and divorced on September 15, 1976. The divorce judgment also awarded Beth Boze-man Hyrne, the former wife, the sum of $200.00 per month in alimony.

The plaintiff in rule asserts that since the date of the divorce, the financial circumstances of each party has changed, with Mr. Hyrne having remarried, and with Mrs. Hyrne having inherited a sum of money from a deceased aunt. At the hearing on the rule, Mr. Hyrne testified to his having married again and to his expenses being about $809.00 per month. Mr. Hyrne also testified that his net earnings as a printer for the local newspaper amounted to $783.60, after the usual deductions; and that the second Mrs. Hyrne is not presently employed.

The plaintiff in rule’s primary contention is that the amount inherited by his former wife removed her from the position of “necessitous circumstances” as required by LSA-C.C. art. 160, so that she is no longer entitled to receive any alimony payments.

In the case of Procell v. Procell, 226 So.2d 590 (La.App. 2 Cir. 1969), the former wife had a current income of $350.00 per month, plus some income from her bank deposit of $8,500.00, the latter sum representing proceeds from the sale of her share of the community property. The husband had an income of $7,900.00 annually. He had remarried and had one child of that marriage. The court found that the amount of income available to the former wife did not constitute sufficient means for her support, and that she did not have to deplete all her capital in order to be entitled to permanent alimony. Consequently, it awarded her $100.00 per month alimony, a reduction from $170.00 per month.

The opinion in Procell, supra at 591, summarizes the applicable law, as follows:

“We recognize the rule that an award of alimony assessed against a husband for the maintenance of his former spouse is within the sound discretion of the trial court and should not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Lockwood v. Lockwood, 175 So.2d 313 (La.App., 2d Cir. 1965). The jurisprudence is likewise well settled to the effect that a wife is not required to deplete the entire sum received from the community in order to be entitled to permanent alimony. Loe v. Loe, 131 So.2d 106 (La.App., 2d Cir. 1961). However, alimony is in the nature of a pension and is calculated at an amount that will provide a wife with sufficient means for her maintenance. By maintenance is meant primarily food, shelter, and clothing, and the amount is determined by the facts and circumstances of each case within the limits prescribed by LSA-C.C. Art. 160 and as dictated by the sound discretion of the trial court. Rader v. Rader, 126 So.2d 189 (La.App., 4th Cir. 1961).”

The words “sufficient means” has been construed by the Supreme Court in Ward v. Ward, 339 So.2d 839 (La., 1976), as follows:

“As used in Article 160, means refers to available resources, such as property or money, from which the wants of life may be supplied. The term is, of course, broad enough to include income, for from it the wife’s needs may be met. Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950). As to income, there is no difference between the interpretation of ‘means’ here and in Article 148, referring to the means of the husband. .
“Insofar as current earnings of the wife are concerned, they are treated no differently than other income. When she receives earnings, they become means for her support. Such earnings must be taken into account in awarding alimony. “If the wife is unemployed, however, and receives no earnings, her earning capacity or potential income is not a proper basis for rejecting alimony. Earning capacity alone does not fall within the definition of ‘means’ in Article 160.”

We find no merit in appellant’s contention that the trial judge failed to take into consideration both the means and needs of the former wife in fixing alimony as required by LSA-C.C. art. 160. The record amply supports the Family Court’s judgment.

The amount necessary for the support of a former wife must be determined by the circumstances of each particular case. Frederic v. Frederic, 302 So.2d 903 (La., 1974). In the instant case, the defendant in rule is unable to work at her former job as proofreader on the same newspaper for which Mr. Hyrne works, because of her poor eyesight. She resides in the former community residence, with her minor son by a former marriage. She has recently inherited, from a deceased aunt, a sum of money and two promissory notes on which monthly payments are made.

The record supports a conclusion that while the former wife has $6,000.00 in cash in the bank, she can not conveniently make use of this full amount since she will need it to pay taxes and debts on succession property, which may allow her to build up an estate. At some future date, this may produce sufficient “means” by which the former husband may be relieved of any further obligation to support his former wife. Now, however, the only “means” actually available to her are $25.00 per month from rent of a camp, $150.00 per month from a mortgage note and $80.00 per month from a demand note, totalling $255.00 per month. Her expenses were set at $450.00 per month.

Absent manifest error, we will not disturb the findings of the trier of fact, if there is a reasonable factual basis for such findings. Steber v. Steber, 346 So.2d 315 (La.App. 4 Cir. 1977). We find no manifest error; to the contrary, the evidence clearly warrants the judgment of the lower court under the provisions of LSA-C.C. art. 160.

Therefore, the judgment is affirmed at the appellant’s costs.

AFFIRMED.

      . Mr. Hyrne also testified to $270.00 per month expenses incurred on behalf of the second Mrs. Hyrne.


text:
    ECONOMY CARPETS MANUFACTURERS & DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE AREA, INC., et al.
    No. 11748.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Writ Refused Dec. 9, 1977.
    D. Bert Garraway, Bart Eaton, Baton Rouge, of counsel for plaintiff-appellant' Economy Carpets.
    Anthony J. Clesi, Jr., Donald T. Phelps, Baton Rouge, of counsel for defendant-appellant Better Business Bureau of Baton Rouge Area, Inc. and St. Paul Fire and Marine Ins. Co.
    Maurice J. Wilson, Baton Rouge, of counsel for exceptor Breazeale, Sachse and Wilson.
    William J. Guste, Jr., Atty. Gen. of Louisiana, Stephen M. Irving, Ronald F. De-francés, Staff Attys., Baton Rouge, of counsel for State of Louisiana.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This matter comes before this Court on a Motion to Dismiss Appeal of Defendants as premature, filed by Economy Carpets Manufacturers & Distributors, Inc. and on a Motion to Dismiss Appeal of Plaintiff as untimely, filed by Better Business Bureau of Baton Rouge Area, Inc. and St. Paul Fire & Marine Insurance Company.

The events leading up to the present motions are as follows: This case was tried by jury before Judge Melvin A. Shortess from January 31, 1977 through February 4, 1977, with the jury returning a verdict in favor of the plaintiff on February 4, 1977. On February 7,1977, the trial judge signed the judgment in conformity with the jury verdict. The question of coverage was reserved to the trial judge by Stipulation of Counsel, and was decided by Judge Shortess in written reasons on February 8, 1977, with supplemental judgment being signed on February 10, 1977. On February 10, 1977, the plaintiff devolutively appealed from the judgment of the court signed on February 7, 1977. Then, the defendants timely moved for a new trial on February 11,1977. The plaintiff filed a supplemental motion for appeal and appeal bond on February 15, 1977. This action resulted in the trial judge declining to consider the defendants’ motion for a new trial, holding on February 25,1977, that the appeal divested the court of jurisdiction.

Thereafter, this Court dismissed on March 10, 1977, the plaintiff’s appeal as premature inasmuch as the trial court had not yet considered the defendants’ motion for new trial. On the same date this Court recalled the alternate writs of mandamus, certiorari and prohibition commanding the trial court to hear and rule on the pending motion for new trial. On March 18, 1977, Judge Shortess granted a partial new trial limited to quantum, with the order therefor being signed on March 25,1977. On March 21, 1977, the plaintiff filed a motion to vacate the granting of the new trial. On March 23, 1977, the defendants appealed the judgments of February 7, 1977 and February 10, 1977. Subsequently, on April 1, 1977, the trial judge, after considering oral argument and written memoranda, denied the Motion to Vacate and Set Aside Order Granting Partial New Trial.

We find that we must pretermit a decision on the two motions to dismiss the respective appeals in this case, because the case is not in a proper posture for an appeal The granting of the partial new trial had the effect of making the judgment below a partial judgment. The judgment as it now stands has decided only the issue of liability; the question of quantum is yet to be decided by the jury after the granting of a partial new trial on this issue only.

The law is settled that a partial judgment of this type is not appealable. LSA-C.C.P. arts. 1841, 1915; Bettencourtt v. Boyd, 209 So.2d 339 (La.App. 1 Cir. 1968).

In Celestine v. Hub City Motors, Inc., 327 So.2d 700, 702 (La.App. 3 Cir. 1976), the Court said:

“(W)e reaffirm the rule that cases are not to be tried piecemeal in the trial court and that appeals will not be entertained from judgments in such instances.”

We take this opportunity to iterate the position we stated in Powell v. Continental Insurance Company, 212 So.2d 739, 742 (La.App. 1 Cir. 1968):

“(W)e make it-crystal clear that regardless of the outcome below^no . case will be considered by this tribunal unless both liability and quantum have been fully tried in the Court below, irrespective of the Lower Court’s ruling on liability. . . . (A)ny cause appealed to this Court after trial on the issue of liability alone, will be remanded for taking of evidence on the question of quantum.”

The case is remanded to the trial court for further proceedings to consider the question of quantum. After such proceedings, if an appeal is sought by either the plaintiff or the defendants, this Court will be in a position to consider the entire case and thereby avoid more than one appeal. Costs of these appeals are assessed equally against the plaintiff and the defendants, and all other costs are to await final disposition.

REMANDED.


author: LOTTINGER, Judge.

text:
    David McKOWEN, M.D., Individually and for the use and benefit of the minor, Feltus B. McKowen v. GULF STATES UTILITIES COMPANY et al.
    No. 11693.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Roger M. Fritchie, Baton Rouge, of counsel, for plaintiff-appellee David McKowen, M.D., Individually and for the use and benefit of the minor, Feltus B. McKowen.
    Boris F. Navratil, Baton Rouge, of counsel, for defendant-appellant American Home Assurance Co.
    Robert J. Vandaworker, Baton Rouge, of counsel for defendant-appellant Gulf States Utilities Co.
    James E. Moore, Baton Rouge, of counsel, for third party defendant-appellee Aetna Cas. and Sur. Co. and Asset Owners, Inc.
    Robert L. Kleinpeter, Baton Rouge, of counsel, for third party defendant-appellee South Carolina Ins. Co.
    Dermot S. McGlinchey, New Orleans, of counsel, for third party defendant-appellee Ins. Co. of North America.
    H. Lee Leonard, Lafayette, of counsel, for third party defendant-appellee Audubon Ins. Co.
    W. Paul Anderson, New Orleans, of counsel, for third party defendant-appellee Chicago Ins. Co.
    R. Gordon Kean, Jr., Baton Rouge, of counsel, of J. S. Dougherty, Thomas P. Sin-gletary, M. Stewart Dougherty, Jr.
    Before LANDRY, LOTTINGER and CHIASSON, JJ.
   LOTTINGER, Judge.

Relators, Gulf States Utilities Company and American Home Insurance Company, applied to this Court for alternative writs of mandamus, certiorari and prohibition complaining of the Trial Judge’s order declaring their appeal bond filed as insufficient for failure of a countersignature of a Louisiana resident agent for the surety. Alternative writs were issued on July 25, 1977 “commanding the Honorable Eugene W. McGehee, Judge of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, to recall and vacate his order declaring the appeal bond insufficient for failure of a countersignature of an agent for the surety, who is a Louisiana resident, and to declare the appeal bond valid and sufficient.” The respondents have taken the alternative.

The appellate courts of Louisiana have the authority and duty to determine whether what purports to be a bond is in fact a bond. Guilliot v. City of Kenner, 326 So.2d 359 (La.1976).

It is argued by respondents that the failure of the surety bond issued by New Hampshire Insurance Company, as surety, to Gulf States Utilities Company and American Home Insurance Company, as principal, to be countersigned by an agent of New Hampshire Insurance Company who is also a Louisiana resident renders the bond invalid under the provisions of LSA-R.S. 22:1171 which in part provides:

“All policies of insurance, including powers of attorney attached to bail bonds, for or on behalf of any insurer, covering any property, or insurable interests, or business activities, located within, or transacted within this state shall be signed or countersigned by an agent licensed under this part who is a resident of this state and who is compensated on a commission basis.”

We do not agree. LSA-R.S. 22:1171 had its origin with Act 348 of 1938, Regular Session. Section 4 of Act 348 provided “that no insurance contract herein referred to shall be valid in Louisiana except when signed in Louisiana by a Resident Agent, or by a representative or attorney-in-fact as provided in the above section.” When the insurance laws of Louisiana were codified into the Insurance Code by Act 195 of 1948, Regular Session, Section 4 of Act 348 of 1938, Regular Session, was not carried forward, and we can find no counterpart to Section 4 of Act 348 in the Insurance Code. Additionally, by the adoption of Act 195 of 1948, Regular Session, Act 348 of 1938, Regular Session was expressly repealed. Therefore, we must conclude that the Legislature expressly intended to repeal that section of the insurance law that declared those insurance contracts invalid which were not signed in Louisiana by a resident agent. Additionally, our brethren on the Third Circuit Court of Appeal have held that an agent’s failure to countersign the policy would not be grounds for invalidation. Fowler v. Gulf Insurance Company, 306 So.2d 406 (La.App. 3rd Cir. 1975).

Therefore, for the above and foregoing reasons the writ issued by this Court is made preemptory. This matter is now remanded to the Trial Court for the purpose of allowing the Trial Judge to recall and vacate his order. All costs of this proceeding before this Court are taxed to respondent.

WRIT MADE PREEMPTORY.

      . LSA-R.S. 22:1, et seq.


author: LANDRY, Judge.

text:
    Lucy Percy MADDOX v. Elena PERCY.
    No. 11479.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      Alexis A. St. Amant, Baton Rouge, for plaintiff and appellant.
    Ashton L. Stewart, Baton Rouge, for defendant and appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment ordering partition in kind of a 941.52 acre tract of rural land situated in West Feliciana Parish, which Appellant owns jointly with defendant (Appellee). Appellant’s request for partition by licitation was rejected because the trial court found no merit in Appellant’s contentions: (1) that the proposed division created tracts of unequal value and diminished the value of the land as a whole; and (2) that any division in kind will diminish the value of the land as a whole, because of its peculiar characteristics. We affirm.

The parties are sisters. They acquired the land by donation from their parents in 1965. The land is part of Ellersley Plantation which contained about 1150 acres before approximately 200 acres was severed from the plantation prior to the aforementioned donation. The tract is bounded south by Highland-Plettenberg Road (Highway), a paved two lane highway, and has a frontage of 5,716 feet on the north side of said Highway. On the north it is bounded by lands of Edward Percy, west by lands of C. Carter Percy, and east by the meanderings of Little Bayou Sara. Division into two tracts of equal value is rendered difficult by the presence of a ravine forming a natural dividing line between the northern and southern parts of the tract. The ravine runs from the eastern boundary on Little Bayou Sara, beginning about 2000 feet north of the Highway and runs northwesterly to a point approximately three-fourths of the tract’s east-west width. At its western end (beginning), the ravine is a mere shallow depression easily crossed by animals and farm machinery. In its meandering south-easterly course toward Little Bayou Sara (into which it empties), the ravine becomes progressively wider and deeper, and becomes impassable at a point slightly west of the center of the tract. Its estimated maximum depth is 50 feet and maximum width about 200 feet. The eastern portion of the land north of the ravine is inaccessible from the land below. It is economically unfeasible to bridge the ravine at any point east of the center of the tract. The western one-fourth of the tract is unaffected by the ravine.

Appellant sued for a partition in kind and, alternatively, by licitation. Appellee resisted partition in any form. The trial court ordered partition and appointed a notary public to effect the division. The notary appointed a surveyor and appraiser to assist him and proposed a division into two tracts designated A and B on a plat of survey made by the surveyor. Tract A contains 624.66 acres, being in effect all of the western one-fourth of the land and all of the eastern part lying north of the ravine. Tract A has no highway frontage except an access route about 50 feet wide on the Highway by a depth of about 1000 feet, connecting the southwest corner of A to the Highway. Tract B contains 316.86 acres, all of the land south of the ravine and all of the Highway frontage except the access route to Tract A. The notary found the tracts to be of equal value, namely, $160,291.50. Appellant drew Tract B and Appellee was allotted Tract A. Appellee filed a rule to homologate the proees verbal of partition. Appellant opposed on the ground the land could not be divided in kind without diminishing its value as a whole and also claiming the tracts were of unequal value.

Appellant contends the trial court erred in: (1) Qualifying Appellee’s witness, W. C. Snyder, as an expert appraiser; (2) Awarding greater weight to the testimony of Ap-pellee’s experts Snyder and C. C. Redell than to Appellant’s experts Karl Snyder and George Platt; (3) Holding Tract B’s best and highest use to be for homesites and thereby finding that Tract B is equal in value to A which is twice as large as B; (4) Holding it unnecessary that the tracts be exactly equal in value when it is possible to make them equal and also holding the alleged inequality was due to an error in computation; and, (5) Finding that the land can be divided equally without diminishing its value as a whole.

W. C. Snyder is a registered surveyor and real estate broker. He has surveyed numerous large farms in West Feliciana Parish. For 10 years he was woods superintendent for a lumber firm operating in the parish. As a real estate broker he purchased four large tracts between 200 acres and 1150 acres in size, for a utility company and made one or two sales of timber tracts. He surveyed subject tract for the notary appointed to make the partition. The survey took 20 days. He considered the land best suited for cattle farming and deemed a north-south division impracticable because of the ravine. He appraised the land in June, 1975, using as a comparable the sale of 271 acres taken from nearby Rosebank Plantation which he did not consider as good land as subject property. He considered also the sales of four small tracts of 52 acres or less but relied mainly on the Rosebank sale. He found Tract A contained 280.50 acres of open pasture valued at $350.00 an acre, or $98,175.00; 318.02 acres of woods and ravine worth $150.00 an acre, or $47,685.00; 23.17 acres of pasture and woods valued at $450.00 an acre, or $12,676.50; and 2.97 acres road frontage (the access road) at $600.00 an acre, or $1,782.00, inaccurately computed at $160,-291.50, actually $158,086.50. He found Tract B worth $160.291.50, consisting of 118.03 acres of pasture and woods with road frontage valued at $600.00 an acre, or $70,-818.00 and 198.83 acres of pasture and woods without road frontage at $450.00 an acre, or $89,473.50. He conceded it is usual to divide property according to road frontage, but that procedure was not followed in this case because it was stipulated the ravine would be the boundary and, so divided, the property could not be separated into parcels with equal road frontage and value. He conceded the land could be divided otherwise in kind but that the proposed division was the most sensible and practicable because any other equal dollar division would leave the eastern sector of the land without access to the portion north of the ravine.

The partition was effected in April, 1976, subsequent to Snyder’s appraisal. On being apprised of sales of highway frontage, between the time of his appraisal and the partition, at prices up to $1,200.00 per acre, he stated that if he had had such information at the time of his appraisal, he would have decreased the acreage in Tract B to equalize values. He believed both tracts to be of equal value; that the combined value of the separate tracts equalled the value of the whole; that the division did not diminish the value of the separate tracts; and, that the sale of the whole would not bring more than the separate sale of the two parcels.

C. C. Redell, 80 years of age, testified in answer to interrogatories because he was unable to attend trial. He had many years experience appraising farm land as loan officer and appraiser for the Federal Land Bank and in such capacity had appraised subject tract several times. A licensed real estate broker, he had sold five large tracts in West Feliciana Parish, varying in size from 200 to 1,025 acres. He considered the tract as a whole, and also Tracts A and B separately, as best suited for agricultural purposes. He classified the land as containing open pasture with road frontage, open pasture without road frontage, woods and ravine, and woods and open pasture. He considered the tracts of substantially equal value except that he deemed Tract B exceeded the value of A by $2,295.00 and recommended that the owner of B refund A’s owner $1,147.50 to equalize values. He conceded other divisions in kind were possible, but that for agricultural purposes, the recommended division was best. Redell believes the values of A and B separately equal the value of the whole, and that a sale of the whole would not exceed the sale value of A and B separately.

Karl Snyder, testifying for Appellant, has developed several subdivisions and sold numerous properties but never sold land in West Feliciana Parish. He had appraised three or four small tracts in the parish and also appraised one 1200 acre tract for a pipe line servitude. He had little experience with farm land and had never sold farm land anywhere. Snyder considered the land as a unit, and Tracts A and B separately, as farm land. He agreed with W. C. Snyder’s land classifications of the types of land comprising A and B. In valuing the whole, he considered the aforementioned sale of Rosebank for $500.00 an acre; a sale in December, 1975, of 320 acres at approximately $500.00 an acre; a sale in December, 1975, of 328 acres for $501.00 per acre; and, an August, 1976 sale of 1,064 acres of timberland for $250.00 per acre. He used separate comparable for valuing A and B. In valuing A, he used a sale of 1,035 acres of timberland having a 100 X 3000 foot long access from a public road, for the sum of $169,206.00 in April, 1973; a sale of 442 acres, in May, 1976, for $400.00 an acre; and, a sale of 200 acres with no road access, in May 1976, for $200.00 an acre. In valuing B, he used the Rosebank sale. He valued A’s 624.66 acres at $350.00 an acre, rounding out his total to $219,000.00, and valued B’s 318.86 acres at $550.00 an acre, reaching a round total of $174,500.00, thus finding A’s value $44,500.00 greater than B’s. In valuing B’s road frontage at $550.00 an acre, he utilized sales from the Wilcox property indicating sales of road frontage at prices of $850.00 and $1,000.00 per acre. He discounted the value of B’s road frontage because he felt that the irregular depth to the ravine would cause problems in dividing B into 5 and 10 acre tracts with road frontage. He valued the land as a whole at $424,000.00 and A and B at $393,500.00 if sold separately, thus finding a diminution of $30,500.00 resulting from separate sales. He reached this conclusion on the ground that A’s inaccessibility to road frontage diminished its separate sale value. He believed the ravine prevented division in kind without diminution of the whole value.

George Platt, on behalf of Appellant, testified he has appraised small tracts in the parish for a Building and Loan Association, but never sold a large tract in the parish. He appraised numerous parcels in the parish for expropriation by the State Highway Department. In 1973, he appraised Ellers-ley Plantation as a whole. He appraised subject property, as a whole, in April, 1976, and also appraised A and B separately, after traversing the land completely. He found the land as a whole best suited for agricultural purposes, but felt the highway frontage could' be divided and sold as small parcels. Tract A he felt was best suited, separately, for agricultural purposes and Tract B likewise, except that B held some speculative investment potential because of its highway frontage. Using W. C. Snyder’s land classifications and employing comparables, he valued A at a rounded out figure of $196,000.00, consisting of 280 acres open' land at $500.00 an acre, $140,250.00; 318 acres woodland at $150.00 an acre, $47,-703.00; 23.17 acres of pasture and woods at $300.00 an acre, $6,951.00; and pasture with road frontage (the access route to the highways) 2.97 acres at $500.00 an acre, $1,485.00. He valued B’s 118.03 acres of open pasture with road frontage at $700.00 an acre or $82,621.00, and its 198.3 acres of woods and pasture at $500.00 an acre or $99,415.00, a rounded total of $182,000.00, and thus arrived at a $14,000.00 greater valuation of A over B. He believed the part of A situated north of the ravine to be more valuable as part of the whole because it thus had road frontage and could be reached, even if by a circuitous route. As a separate tract, he felt A suffered a loss of value because of the absence of highway frontage. As a whole, he valued the land at $440,000.00, but found the combined totals of A and B’s value to be only $378,-000.00, the difference of $62,000.00 being the lesser value of A without road frontage.

We find no merit in the contention that W. C. Snyder was improperly qualified as an expert and that the court did not qualify him as an expert appraiser. The qualification of an expert witness rests within the sound discretion of the trial court. The exercise of such discretion will not be disturbed save in a case of showing manifest error. The experience related by Snyder and the showing of his previous qualification as an expert in expropriation and land use cases in the trial court, other courts of this state and the federal courts, amply supports his qualification as an expert. It is obvious that the trial court qualified him as an expert appraiser considering the trial court’s reliance on Snyder’s appraisal in reaching a conclusion as to the values involved.

We also find no merit in the argument that the trial court erred in assigning more weight to the testimony of Appellee’s appraisers than those of Appellant. The trial court found that while Appellant’s appraisers were well qualified as appraisers in general, Appellee’s appraisers were more experienced in dealing with local lands, were more familiar with the local market, and had considerably more experience in selling and appraising large tracts of farmland.

It is well settled that a trial court may give more weight to the testimony of one expert over another depending upon the degree of experience in the local market, familiarity with local conditions and experience with property of the type involved. City of Baton Rouge v. Bridge City Realty Company, 260 So.2d 131 (La.App. 1st Cir. 1972); State Through Department of Highways v. Singletary, 185 So.2d 642 (La.App. 1st Cir. 1966); State Through Department of Highways v. Jenkins, 207 So.2d 380 (La.App. 3rd Cir. 1968); Dixie Pipeline Company v. Barry, 227 So.2d 1 (La.App. 3rd Cir. 1969).

The right of a co-owner to demand partition of property held in common is absolute, unqualified and imprescriptible. La.C.C. Article 1337.

The law favors partition in kind whenever possible, provided such division is convenient and does not result in diminution in value of the property or cause loss or inconvenience to one of the owners. La.C.C. Article 1340; Welch v. Pitre, 216 La. 980, 45 So.2d 363 (1950).

An owner opposing a proposed partition in kind bears the burden of showing that the property cannot be divided conveniently in kind, or that such a division will diminish its value as a whole, or occasion loss or inconvenience to one of the owners. Babineaux v. Babineaux, 237 La. 806, 112 So.2d 620 (1959).

Partition in kind requires that the property be divided into parcels of equal or nearly equal value. When lots are of unequal value, the inequality is compensated for by the return of money which the owner of the more valuable parcels pays his co-owner. Aucoin v. Greenwood, 199 La. 764, 7 So.2d 50 (1942); DeLee v. DeLee, 328 So.2d 763 (La.App. 1st Cir. 1976).

The trial court found that the appraisals of W. C. Snyder and Redell valuing Tracts A and B at $160,291.50 each resulted from an erroneous calculation of the value of the 318.02 acres of woods and ravine and the 23.17 acres of pasture and woods of Tract A, at unit prices of $150.00 and $450.00 per acre respectively. The corrected totals of these categories result in a total valuation of $158,086.50 for Tract A, $2,205.00 less than Tract B. He deemed this difference inconsequential and ordered partition in kind without a return of said amount by Appellant.

Appellant complains that the trial court improperly found an equality of value based on the higher value of Tract B as having a best and highest use for sale as acreage homesites. While the trial court did mention this possibility, it is clear that it based its values on the appraisals of W. C. Snyder and Redell, which were made on finding the highest and best use of the land to be for farm and cattle lands. It was on this basis the court found B to be of insignificantly higher value than A. In any event, Appellant may not complain inasmuch as she is receiving the more valuable tract and Appellee does not urge refund of the difference.

Appellant’s final complaint is that the trial court accepted the opinions of Ap-pellee’s appraisers to the effect that division in kind would not diminish either the value of the property as a whole or the value of either parcel. In so urging, Appellant submits that the testimony of her experts is more credible. The trial court made this determination adverse to Appellant on the testimony of experts he deemed the more reliable. The record contains ample evidence to support this conclusion. We find no error in this respect. City of Baton Rouge v. Bridge Realty Company, above; State Through Department of Highways v. Singletary, above.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    B. E. WELCH, Plaintiff-Appellant, v. CROWN ZELLERBACH CORPORATION, Defendant-Appellee.
    No. 11483.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Charles B. W. Palmer, Amite, for B. E. Welch, plaintiff appellant.
    Charles M. Hughes, Bogalusa, for Crown Zellerbach Corp., defendant appellee.
    L. H. Coltharp, Jr., Deridder, for Robert Campbell, Inc. and Southern Cas. Ins. Co., third party defendants.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is an appeal from a judgment maintaining exceptions of prescription, peremption, and res judicata and dismissing plaintiff’s suit against defendant. This workmen’s compensation action alleging an injury sustained by plaintiff on May 20, 1970, was filed on October 11, 1973.

It is undisputed that this suit is barred by either the one year or the two year peremptions found in R.S. 23:1209 unless there has been an interruption. Plaintiff contends that his suit filed in April, 1971 against Robert Campbell, Inc. was such an interruption. It is argued that Campbell is a solidary co-debtor with defendant, Crown Zellerbach Corporation, and that, therefore, under Art. 2097 of the Civil Code, the first suit interrupted prescription against Crown Zellerbach.

However, this contention is without merit. In the Campbell suit this court held that Campbell was not plaintiff Welch’s employer and therefore was not liable for workmen’s compensation benefits. Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App. 1st Cir.) writ denied 321 So.2d 523 (La.1975). Suit against Campbell could not have interrupted prescription against Crown. Art. 2097 has no application in such a situation. In the similar case of Trahan v. Liberty Mutual Insurance Co., 314 So.2d 350 (La.1975), the Louisiana Supreme Court held to this effect. There the first suit was brought against certain executive officers of a company and their insurers. They were exonerated from liability. More than one year after the accident a second suit was brought against other executive officers and the same insurer. The second suit was held to be barred. Since the officers in the first suit were not liable at all they could not be liable in solido with the officers sued in the second suit — prescription was not interrupted.

In the Campbell suit, Austin Carpenter was joined as a defendant on August 19, 1971. Carpenter was held liable to plaintiff for workmen’s compensation. But the suit against Carpenter could not have interrupted prescription since it was filed more than one year after the accident and it is not alleged that plaintiff was unaware of the injury when it occurred. R.S. 23:1209.

We affirm the trial court’s judgment sustaining the peremptory exception of per-emption. It is, therefore, unnecessary to consider the exception of res judicata. All costs are assessed against plaintiff-appellant.

AFFIRMED.


text:
    In re the Interdiction of Mrs. Minnie Foster REDMOND. Willie Floyd REDMOND, Appellant, v. Mrs. Janie Redmond DAVIS, Appellee.
    No. 11489.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      W. Hugh Sibley, Greensburg, for mover in rule.
    Walton J. Barnes, II, Baton Rouge, for defendant in rule.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This appeal arises from a rule to show cause why the curator of an interdict should not be removed and a new curator appointed. Mrs. Minnie Foster Redmond was judicially interdicted on September 26,1974 and her son, Willie Floyd Redmond, was appointed curator. Her son-in-law, Mr. Wilmer Davis, was appointed under-curator. The daughter of the interdict, Mrs. Janie Redmond Davis (wife of Wilmer Davis), filed the instant rule on October 26, 1976, asking that the curator be removed and that she be appointed in his stead. She alleged as grounds for removal that the curator had not paid certain necessary expenses of the interdict, had not filed an annual account in his two years as curator, and had committed other acts of mismanagement. The rule was made absolute and Mrs. Davis was substituted as curator and Mr. Willie Floyd Redmond was appointed under-curator. We affirm.

It is recognized that, absent specific codal provisions to the contrary, the relationship between an interdict and his curator is the same as that between a minor and his tutor. C.C.P. Art. 4554.

C.C.P. Art. 4234, as amended by Act No. 429 of 1976, provides in pertinent part:

“Art. 4234. Removal of tutor
The court may remove any tutor who is or has become disqualified; is a nonresident who has not appointed, or has left the state permanently without appointing, an agent to represent him as required by Article 4273; has become incapable of discharging the duties of his office; has mismanaged the minor’s property; has failed to perform any duty imposed by law or by order of court; or if such removal would be in the best interests of the minor.” (emphasis ours)

* # * * ifs *

The last sentence, emphasized above, was added by the 1976 amendment.

It is clear from a reading of the petition and the testimony adduced during the course of the hearing on the motion that the basis upon which Mrs. Davis sought the removal of Mr. Redmond was the averred mismanagement of the interdict’s estate by the latter. We note that the rule was filed very shortly after the effective date of the amendment and counsel for both parties have failed to address themselves to its significance.

In adopting the amendment, we think the legislature intended that in addition to the specific grounds for removal listed in the article the court should also be vested with a certain degree of discretion and that the interests of the interdict should be paramount.

We affirm the decision of the trial court not on the grounds of any mismanagement of the interdict’s estate by the deposed curator but on the discretionary grounds that it is in the best interest of the interdict. We are not favored with either written or oral reasons from the trial judge and therefore do not know the reasons for his decision. Nonetheless, the curator (Mr. Willie Floyd Redmond) in the instant cause should not be branded as failing to have properly administered his mother’s affairs for the evidence does not justify such an indictment.

However, the evidence does support the conclusion that the day to day responsibility of tending to the personal needs of the interdict has been satisfied by Mrs. Davis. For several years Mrs. Minnie Foster Redmond has been confined in a nursing facility. Mrs. Davis has visited her on a very regular basis, has taken her to doctors when the occasions have required, lives in close proximity to the nursing home where her mother presently resides, and in general, has had far more personal contact with her mother than has Mr. Redmond who resides in another area of the state.

Further, the estate of the interdict is rather small and does not require any particular expertise. The income consists of social security and retirement cheeks. The real estate consists of a home on small acreage which is almost contiguous to property owned by Mrs. Davis and her husband.

Under the above circumstances, we do not find that the decision of the trial judge is manifestly erroneous and affirm. All costs of these proceedings are assessed against the estate of the interdict.

AFFIRMED.


text:
    NETTLES EXCAVATORS, INC., et al., Plaintiffs-Appellants, v. CERTAIN-TEED PRODUCTS CORPORATION et al., Defendants-Appellees.
    No. 11495.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    As Modified on Denial of Rehearing Nov. 21, 1977.
    Karl Cavanaugh, Denham Springs, of counsel for plaintiff Nettles Excavators, Inc. and William C. Sandoz, as Trustee in Bankruptcy, appellant.
    Charles Franklin, Baton Rouge, of counsel for plaintiff and defendant in reconvention St. Paul Fire and Marine Ins. Co., appellant.
    W. Shelby McKenzie, Baton Rouge, of counsel for defendant Certain-Teed Products Corp., appellee.
    Andre Broussard, Baton Rouge, of counsel for defendant Musco, Inc., appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This is an action based on theories of redhibition, warranty and negligence. Plaintiffs appeal from an adverse judgment in all respects. We affirm.

Nettles Excavators, Inc. (Nettles), a utility system contractor, entered into a contract with the Board of Commissioners of Water District No. 2, Cameron Parish, on July 31, 1971, for the construction of the Hackberry water system. Plans and specifications required the use of plastic pipe joined by a solvent weld technique.

Nettles purchased the pipe which was manufactured by Certain-Teed Products Corporation (Certain-Teed), through the latter’s sales representative, Musco, Inc. (Musco), at a cost of $79,742.00.

St. Paul Fire and Marine Insurance Company (St. Paul) bonded the project for Nettles.

Construction was commenced in September of 1971 and was nearly completed by July of 1972. Specifications for the project required that the system be capable of withstanding water pressure of one hundred sixty pounds per square inch.

However, after Nettles tested approximately two-thirds of the system and attempted large scale repair work, it became obvious that the system could not meet the required specifications. The engineers for the District rejected the system in its entirety and Nettles was placed in default.

Eventually a compromise was reached between the District, Nettles and St. Paul. This suit followed. Musco reconvened for $33,507.56, the balance due on the purchase price of the pipe.

In his extensive written reasons for judgment the trial judge acknowledged that the instant dispute presented “ . . . a most difficult case factually on the issue of causation, but the ultimate decision is relatively simple: Was defective pipe responsible for the failure of the system? Or, was poor workmanship and contractor’s negligence responsible for the failure?” He concluded that plaintiffs had failed to bear the burden of proving the pipe to be defective and that the resulting failure in the system was due to faulty workmanship.

In an effort to prove that the plastic pipe was defective, the plaintiffs called upon Dr. Benjamin Mosier. Defendants’ expert was Dr. James Spigarelli. As to be expected, their respective opinions varied considerably.

Dr. Mosier testified that the pipe was overplasticized which caused it to become very brittle and to split or shatter under pressure. His assertions are based on his analysis of pipe samples by infrared spectroscopy. This particular analytical procedure, according to Dr. Mosier, revealed the presence of carbonyl compounds ranging up to 17.6 percent on the six and eight inch pipes. Dr. Spigarelli’s quantitative analysis of the samples submitted to him indicated carbonyl ranging from .6 percent to .8 percent.

It is not disputed that excessive amounts of carbonyl elements render the pipe defective. In resolving the conflict in the expert testimony and accepting the opinion of Dr. Spigarelli over that of Dr. Mosier, the judge a quo stated:

“The tremendous discrepancy between Spigarelli’s findings and Mosier’s findings was not explained. Spigarelli brought his calibration curves to court with him. However, Mosier’s data were not available. This gap in data is crucial from an evidentiary point of view. Both chemists possess outstanding credentials and are obviously leaders in their field. The discrepancy between their findings, considering its magnitude, must be explainable. Without the calibration curves, Mo-sier’s findings cannot be fully explained. This fact must be considered together with two other very important factors: (1) the DeBell and Richardson tests, while only physical in nature, were very significant. If carbonyl in the quantities found by Mosier as per P-21.4 had been present in DeBell’s samples, the test results would have been affected as the samples probably would have failed the tensil or impact strength test; and (2) carbonyl of Mosier’s proportions would have affected the very extrusion of the pipe at Waco. In 1971, when the pipe in question was extruded, the raw material for same had been shipped to Waco from Social Circle, Georgia. The composition of the batch was approximately 95 parts of PVC resin. The micro-ingredients were added to the resin apparently by hand. These ingredients included the tin stabilizer, methyl, methacrylate, oxidized polyethylene, titanium dioxide, calcium stearate and paraffin wax. All these ingredients were blended in a blender and then run into the extruding process from which ultimately the PVC pipe was extruded. Had tin stabilizer been present in quantities estimated by Mosier, same would have had a dynamic effect upon the extrusion process itself. Tests run by Heilmayr indicated a 33% decrease in amperage when an 8% tin stabilizer was incorporated into the formula. If tin was present in the quantities found by Mosier, it would have been readily observable during the extrusion process. Waco’s records indicated that no extrusion problems were encountered during the manufacture of this pipe.
“The DeBell-Richardson tests for wall thickness or dimensions (ASTM 2241) indicated no problem with the six and eight-inch pipe. Mosier’s tests indicated variations in wall thickness but his field notes were not available. The six and eight-inch pipes were the only significant samples taken.
“For the reasons set forth above, the court is of the opinion that plaintiffs have failed to show by a preponderance of the evidence that there was any defect in the pipe which was manufactured by defendant’s Waco plant and sent to the Hack-berry construction site.”

The purpose of expert testimony is to assist the court in making its determination of the facts and issues. Bonilla v. Arrow Food Distributors, Inc., 202 So.2d 438 (La.App. 4th Cir. 1967), writs refused 251 La. 399, 204 So.2d 577 (1967).

The weight expert testimony is entitled to receive may be determined by the professional qualifications and experience of the expert and the facts and studies upon which his opinion is based. In the instant matter, the trial judge accorded lesser weight to Dr. Mosier’s testimony because that witness did not produce the basic supportive data upon which his opinion was based. Under these circumstances, we find no manifest error. State, Department of Highways v. McPherson, 261 La. 716, 259 So.2d 33 (1972).

The lay testimony pertains primarily to the manner in which the pipe was installed. Like that of the expert testimony it, too, was contradictory.

The proper procedure for the solvent welding of the pipe was outlined by several witnesses. First, all dirt, dust and moisture is removed from the mating surfaces of the two lengths of pipe. Then no. 10 welding solvent is brushed on the inside of the socket (female) end. This same solvent is also applied to the outside of the bell (male) end of the pipe to the socket depth. This particular solvent “cuts” into the pipe surfaces. No. 25 solvent cement is then applied to the male end while the female end is again brushed with no. 10. The two ends of pipe are then pushed together, turned a quarter turn, and permitted to “set-up” (chemically weld). Fifteen minutes to three hours setup time, depending on the size and fit of the pipe and temperature, should be allowed before disturbing the joint.

Plaintiffs rely on the testimony of George Bailey, the engineer for the system, Albert Prater, his inspector, and certain Nettles employees to show that proper installation procedures were used. However, there was testimony from others who had observed the installation that poor practices were routinely engaged in by the Nettles crews. Harold Courmier, who was employed by the District to supervise the maintenance of the completed system, in order to familiarize himself with the workings of the system, made numerous observations of the installation. He testified that on occasion he had seen the workmen join the large diameter pipe by placing a board across one end and driving it home with an eight pound sledge hammer. The superintendent on the job for Nettles, W. E. Brown, also testified to being present when this installation procedure was used.

There was also testimony that the required set-up time was not allowed to pass before the pipe was placed into the ground on numerous occasions. A set-up time of five minutes was common; on occasion less than one minute set-up was allowed. These serious deficiencies in proper installation procedures could easily have caused the problems encountered in this system. The trial judge did not commit manifest error in accepting the testimony that these practices occurred. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

For the above reasons, the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.


author: ELLIS, Judge.

text:
    Loquita SMITH v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.
    No. 11500.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Roy Maughan, Baton Rouge, of counsel for plaintiff-appellant Loquita Smith.
    Judith Atkinson Chevalier, Baton Rouge, of counsel for defendants-appellees United States Fidelity & Guaranty Co., et al., and H. J. Wilson Co., Inc.
    O’Neal Walsh, Baton Rouge, of counsel for defendant-appellee Woodrow Wilson Const. Co., and Safeco Ins. Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

This is a suit by Loquita Smith for damages for personal injuries allegedly suffered when she fell in the parking lot at Wilson’s Jewelers and Distributors in Baton Rouge. The case was tried on its merits before a jury, which found that plaintiff was guilty of contributory negligence. Pursuant thereto, a judgment was rendered, dismissing plaintiff’s suit, and she has appealed.

The record shows that plaintiff was employed by Vinson’s Guard Service as a security guard, and was assigned to the parking lot on the west side of Wilson’s store on Florida Boulevard. She worked in this capacity for about two months prior to the accident which is the subject hereof. During this time, she patrolled the 60 foot by 300 foot parking lot on foot, by day and by night, for 50 to 60 hours per week.

Mrs. Smith testified that on the night of the accident, while walking across the parking lot with a friend, she tripped over a board which protruded from a joint in the concrete slab about an inch above the surrounding surface. She and her friend, Shirley Moore, both testified that they saw the board by the light of a flashlight carried by Mrs. Smith, immediately after the accident.

Neither Mrs. Smith nor Miss Moore were able to identify the site of the accident. Mrs. Smith’s testimony at the trial of the case was different in a number of important respects from that given in the pre-trial deposition. These included the location of the board, the direction in which she was walking, how fast she was walking, and where Miss Moore was when she fell. She testified that it was dark where she fell, although it was established by expert testimony that the floodlights on the side of the building made it bright enough to read a newspaper in the general area where plaintiff said the accident happened.

None of the other witnesses ever saw the board over which plaintiff claimed to trip, including the construction people who had poured the concrete originally, who were doing other concrete work in the vicinity, and who were walking through the west parking lot on a daily basis around the date that plaintiff fell.

The jury, after receiving their instructions, was given a series of interrogatories to answer, and were instructed inter alia, that, if they found Mrs. Smith to be con-tributorily negligent, they did not have to answer any of the other interrogatories. Since they made that finding they made no findings relative to the negligence of the various defendants.

In this court, plaintiff complains that the instructions given the jury were deficient in a number of respects. We need not consider these assignments of error in detail, since, in our opinion, the result reached by the jury was correct, regardless of any alleged error by the trial judge.

We are of the opinion that a person who is familiar with an area, who traverses it many times daily, and who is charged with its security, must be deemed to observe any hazardous conditions which exist there. If such a person fails to avoid a hazard of which he is aware, and is injured thereby, he is guilty of negligence proximately causing his injury and is barred from recovery. Regardless of the merit of plaintiff’s case against the defendants, we are of the opinion that the record clearly demonstrates plaintiff’s own negligence in the above respects, and that she cannot recover.

The judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    John B. ARMANT v. HOUSING AUTHORITY OF NEW ORLEANS, New Orleans, Louisiana.
    No. 11505.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      James E. Young, Jr., New Orleans, for appellant, John B. Armant.
    Ronald P. Nabonne, New Orleans, for appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an appeal by appellant, John B. Armant, seeking review of a ruling by the State Civil Service Commission dismissing appellant’s appeal from his termination of employment with the Housing Authority of New Orleans by that agency. The Commission dismissed appellant’s appeal for failure to file a written notice of appeal within thirty (30) days of receiving written notice of his removal, that the appellant was a probationary employee and had no right of appeal, and that the appeal was devoid of any specific facts to support appellant’s charge of discrimination.

Appellant was given a probationary appointment on March 8, 1976, and by letter dated July 19, 1976, he was notified that he was being separated from his position effective the close of business on August 1,1976.

On August 31, 1976, appellant forwarded his notice of appeal, which was received by the Commission on September 1, 1976.

In arguing against the dismissal of his appeal because of its untimeliness, appellant cites Smith v. Board of Commissioners of Port of New Orleans, 262 La. 96, 262 So.2d 383 (1972) and Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963). Emmons was an automobile accident case wherein the court repeated the often stated general rule that appeals are favored. In Smith, the Supreme Court cited Emmons and applied this rule to reverse a civil service appeal that had been dismissed by the Commission for failure of the notice of appeal to contain a clear and concise statement of the action complained of and the basis of the appeal. Though this is one of the reasons this appeal was dismissed, the Commission first mentioned untimeliness. We, therefore, find neither of these cases applicable or controlling.

Civil Service Commission decisions are reviewable on appeal to this Court on both law and fact. Art. 10, § 12, La.Const. (1974). The scope of review is the same as that accorded appeals from the Trial Courts. Art. 5, § 10, La.Const. (1974) and Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App.1st Cir. 1977), writ refused, 343 So.2d 1078 (La.1977).

Civil Service Rule 13.12 in part provides:

“(a) No appeal shall be effective unless a written notice ... is received in the office of the Director in the Department of State Civil Service at Baton Rouge, Louisiana.
“(1) Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based

In its written opinion, the Civil Service Commission determined that the appeal was not timely filed. Appellant does not contest this fact finding, and therefore, we find no error on the part of the Civil Service Commission in dismissing the appeal.

Therefore, for the above and foregoing reasons the judgment of the Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.


author: BLANCHE, Judge.

text:
    Stephen Merrill DEPNER v. Dorothy Paxon BARKER.
    No. 11511.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Leroy A. Hartley, New Orleans, for plaintiff and appellant.
    John T. Bourgeois, Thibodaux, for defendant and appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This is an appeal from a trial court judgment granting alimony of $200 per month to the defendant-appellee-wife (hereinafter referred to as “wife”).

Plaintiff-appellant-husband (hereinafter referred to as “husband”) and his wife were divorced on April 9, 1976. Husband stipulated his fault. On May 29,1976, a community property settlement was perfected granting wife $7,500 and granting husband full title to all other community assets. On February 24, 1977, wife filed a rule for alimony. Judgment was rendered on March 14, 1977, granting wife alimony of $200 per month.

Two errors are submitted by husband-appellant, and they both center around the sufficiency of the wife’s means for her support.

Article 160 of the Louisiana Civil Code places an obligation on the husband to pay alimony to a faultless wife when she does not have sufficient means for her support.

The record reflects that the wife would have sufficient means for her support, as she is a registered nurse and when employed on a full-time basis earns from $1,200 to $1,300 per month. The evidence also shows that from the time of their separation until after their divorce she never made any demand for money for her support from her husband. It is fair to conclude from the evidence that it was not until the wife decided to leave her employment at the Doctors Memorial Hospital in Baton Rouge, Louisiana, to return to Louisiana State University with the purpose of obtaining a degree, and possibly in the future a degree from a medical school, that she demanded alimony. Thus, it is apparent that she has and can support herself without the help of her husband, except for the fact that she would like to further her education.

The record supports a finding that the wife is in necessitous circumstances as a result of only working part time and that an award of $200 per month would not be an abuse of the trial judge’s discretion considering the husband’s financial circumstances.

We are unable to consider the wife’s earning capacity and ability to support herself, for our Supreme Court has held that a wife has no analogous duty to earn her own livelihood, thus relieving her husband of his liability for alimony, and that the earning capacity of an unemployed divorced wife does not bar her from collecting alimony under Article 160 of the Louisiana Civil Code. Ward v. Ward, 339 So.2d 839 (La.1976); Favrot v. Barnes, 339 So.2d 843 (La.1976).

Thus, under the present state of the jurisprudence, the husband ought to feel grateful that his wife is at least working part time, therefore, lessening the amount which he would have to contribute to her support. This Court has seriously considered the argument of the husband-appellant where in his brief he has written:

“I believe it is time that our courts follow the example set by the Mississippi Supreme Court in the matter of Charles B. Taylor v. Bonnie Taylor. In that decision, the Mississippi Supreme Court ruled that a divorced wife should not expect automatic alimony awarded, because most women are capable of supporting themselves. The court said that conditions have changed in recent years and no more reason exists for the husband to pay alimony to a divorced wife than there is for a divorced wife to support her former husband. The court went on to say that each of the parties is capable of earning and actually is earning a livelihood and their respective economic circumstances are substantially equal. The time appears to [be] rapidly approaching, if it has not already arrived, when a wife should be considered to occupy a status equal to that of her former husband with respect to a claim for support in the nature of alimony following divorce. Alimony, long considered the exclusive prerogatory [sic] of the wife, had its origin in a less complicated era and evidenced a real concern of society that a divorced wife should not become a public charge. In earlier days, this apprehension was fully warranted by the many disabilities, legal, educational, social and moral, with which the wife was encumbered. The court went on to say that these handicaps almost inevitably left her unable to support, herself and thus constituted the basis upon which she was able to receive alimony from her former husband. The court went on to recognize that all of these disabilities have been altered today beyond recognition. The court did not take away the wife’s right to alimony completely; it went on to say that the wife must continue to have a right to alimony when she can not support herself. * * *

The force of this argument is almost irresistible, and though it may portend the future law in this state, according to our understanding, it is not now the law.

For these reasons, we affirm the alimony judgment granted by the trial court and assign costs to the plaintiff-appellant.

AFFIRMED.


text:
    Lee Ward LeBOEUF v. AETNA LIFE AND CASUALTY COMPANY.
    No. 11513.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Laurence E. Best, Houma, for plaintiff and appellee.
    Robert L. Morris, Houma, for defendant and appellant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Aetna Life Insurance Company, defendant-appellant, appeals from a judgment by the trial court ordering it to pay the plaintiff-appellee back payments due him and commence the monthly payments under a group long-term disability plan carried by the plaintiff-appellee’s employer.

The case turns upon the facts and expert opinion collected in four depositions and the testimony of two witnesses before the trial court as applied to the definitions of “reasonable occupation” and “total disability” as defined in the group policy.

The policy definitions are:

“(b) ‘Reasonable occupation’, as to any employee, means any gainful activity for which the employee is, or may reasonably become, fitted by education, training, or experience, but shall not mean any such activity if it is in connection with an approved rehabilitation program.
“(c) ‘Total disability’ or ‘totally disabled’ means, during the first twenty-four months of any period of disability, that the employee is unable, solely because of disease or injury, to work at his own occupation; and, thereafter during the continuance of such period of disability, that the employee is unable, solely because of disease or injury, to work at any reasonable occupation.” (Exhibit D-4, p. 6)

The question before the trial court was whether the plaintiff-appellee’s back condition was so disabling, in fact, as to meet the test under the “reasonable occupation” and “total disability” definitions. The answer to this question depends largely on the terms of the foregoing policy provisions defining the disability and the nature of plaintiff’s disability.

The evidence shows that the plaintiffs disability is of such a nature and degree that he cannot meet the reasonable demands of an employer who would otherwise consider the plaintiff as a prospective employee. The witnesses stated that because of his age, his necessity for frequent rest periods and other factors he is unemployable and cannot engage in any gainful occupation for which he is fitted by education, training and experience. Thus, we can only conclude that by the testimony we have reviewed, the plaintiff has proved his claim of total disability.

Absent a showing in the record of manifest error by the trier of fact, this Court will affirm the trial court’s factual determination.

The defendant-appellant is to pay all costs of this appeal.

AFFIRMED.