text:
    MARINE SERVICES, INC. v. A-1 INDUSTRIES, INC.
    No. 8850.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.

      Jackson & Stovall, James E. Stovall, New Orleans, for plaintiff-appellant.
    Albert B. Koorie, New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and GAR-SAUD, JJ.
   GARSAUD, Judge.

Plaintiff-appellant brought this suit for damages for breach of an exclusive agency agreement against defendant, A-l Industries, Inc. An amended petition was filed after the trial court maintained defendant’s exception of vagueness. ■ Subsequently, defendant filed an exception of no cause of action, alleging that the agreement in question was a joint venture agreement between plaintiff and defendant, and accordingly plaintiff’s remedy would be first in a suit to dissolve or liquidate the joint venture under partnership law.

After a determination that the agreement was a joint venture, the exception of no cause of action was maintained by the trial judge, thereby dismissing plaintiff’s suit. Plaintiff appeals from that dismissal, contending that the agreement was not a joint venture, but rather that the relationship between the parties was that of principal and agent. Defendant has answered the appeal, asking for damages for loss of credit and reputation as well as for prosecution of a frivolous appeal.

The agreement in question is labeled a joint venture by the parties, and its provisions are as follows:

“1. Marine Services and A-l will mutually agree on any bid proposal before submission to Litton.
“2. All estimates will be based on $4.00 per manhour plus 70% maximum overhead applicable to total direct labor costs. Any reduction in the 70% allocated overhead percentage will be considered to be profit. Any dispute in the actual determined overhead percentage relative to direct labor will be settled by an arbitrator representing a mutually agreed-upon accounting firm.
“3. All estimates will contain a 10% profit figure for A-l and a 7V2% profit figure for Marine Services. All additional profits realized over and above those specifically indi-' cated in each estimate will be divided on the ration [sic] of 10% — llk or 54.8% for A-l and 45.2% for Marine Services.
“4. Upon completion of each contract, cost will be ascertained and if any losses are sustained by A-l in relation to the estimate, these losses will be deducted from any profits any any [sic] remaining profits will be divided 54.8% (A-l) and 45.2% (Marine Services). By the same token, any savings throughout the estimate will be designated as profits and divided similarly.
“5. All payments will be made by Litton on monthly progress payments against percentage of work completed.
“6. Checks received against any contract will be made payable to both companies.
“7. This agreement will remain in force for the Farrell-APL, LHA and 30 Destroyer programs.
“8. A-l will be responsible for furnishing all necessary facilities, labor, supervision and financing.
“9. Marine Services will furnish supervisor and quality control personnel for the length of all contracts and also will do all estimating, sales, engineering and liaison work.”

This agreement was entered into for the purpose of bidding on subcontracting work for Litton Industries. It has been alleged that defendant lacked the good will and business contacts to procure subcontracts from Litton on its own reputation. Thus, under this agreement plaintiff provided the good will, etc., for the procurement of the contracts and defendant would perform the work necessary for the completion of the contracts. After a contract had been bid upon and received from Litton by these parties, plaintiff alleges that defendant bid directly with Litton for future work, which was in violation of the terms of the agreement.

The sole issue presented is whether these provisions constitute and establish a joint venture, as defendant maintains, or an agency relationship, as the plaintiff maintains. There is no dispute between the parties here that if this is a joint venture arrangement then partnership law applies, and the exception of no cause of action was properly maintained.

The parties are correct that joint ventures are governed by the law of partnership. The comparison between a joint venture and a partnership was spelled out in McCann v. Ladd, 203 La. 631, 14 So.2d 469 (1943), quoting from Daily States Publishing Co. v. Uhalt, 169 La. 893, 126 So. 231 (1930):

“The relations between joint adventures are assimilated to those of partners inter se. Ludeau v. Avoyelles Cotton Co., [164 La. 275, 113 So. 846] supra. As respects the character of the business undertaken, the principal difference between a partnership and a joint adventure ‘is that, while a co-partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint adventure is usually, but not necessarily, limited to a single transaction, although the business of conducting it to a successful termination may continue for a number of years.’ ”

14 So.2d at 471.

It is clear that so long as a partnership exists, undissolved and unliquidated, there can be no cause of action by one partner against another for matters arising from the partnership. The remedy is in dissolution of the partnership with division of the assets. Fossier v. American Printing Co., Ltd., 130 So.2d 529 (La.App. 4th Cir. 1961), and cases cited therein.

Regarding the basic issue, the written agreement was identified as a joint venture, and it should be noted that the agreement was drawn up by plaintiff, Marine Services, so that the designation and terms are to be construed against plaintiff, rather than against defendant. C.C. Arts. 1957, 1958. Kuhn v. Stan A. Plauche Real Estate Co., 249 La. 85, 185 So.2d 210 (1966). However, it is well-established that the label given to an agreement is of no consequence in and of itself. In order for there to be a valid joint venture, the requisite elements of a joint venture must be present. Hodges v. Decoteau, 314 So.2d 500 (La.App. 1st Cir. 1975); Sas Jaworsky v. LeBlanc, 239 So.2d 176 (La.App. 3d Cir. 1970); Darden v. Cox, 240 La. 310, 123 So.2d 68 (1960). This principle was well-stated by the First Circuit Court of Appeal in Fiesta Foods, Inc. v. Ogden, 159 So.2d 577 (La.App. 1st Cir. 1964):

“It is settled jurisprudence that even if parties in an enterprise call the relationship a partnership and agree they will give their mutual consent to form it, it will not be considered a partnership in law as between them unless it is evident they share the losses as well as profits and that the property or stock of the undertaking forms a community of goods in which each party has a proprietary interest.”

159 So.2d at 583.

There are three major requirements for the existence of a joint venture or partnership to be found. First, all the parties must consent to the formation of a partnership. C.C. Art. 2805. Second, there must be a sharing of the losses of the venture as well as the profits. C.C. Arts. 2811, 2813, 2814. And last, each party must have some proprietary interest in, and be allowed to exercise some right of control over, the business. Westenberger v. State Dept. of Education, 333 So.2d 264 (La.App. 1st Cir. 1976); Vignes-Bombet Co., Inc. v. Rowe, 288 So.2d 889 (La.App. 1st Cir. 1973); Roberson v. Maris, 266 So.2d 488 (La.App. 4th Cir. 1972); Hauth v. Iacoponeili, 251 La. 410, 204 So.2d 767 (1967).

The sharing-of-losses provision has been held to be essential for a joint venture to be found. Hodges v. Decoteau, supra. The provisions in the instant agreement lack clarity as to details, particularly on this point. However, Paragraph 4 provides that the “losses sustained by A-l in relation to the estimate . . . will be deducted from any profits” to be divided between plaintiff and defendant. This can be read only to mean that plaintiff, Marine Services, will share in the losses by reduction of the profits. It is noted, however, that, although clearly a profit was anticipated by the parties, there is no provision for the division of a net loss on the venture. In the defendant’s favor here is the language found in Fossier v. American Printing Co., Ltd., supra, at 532, 533:

“Nothing is mentioned about liability for partnership debts, but when two or more persons make such an agreement which the law defines as a partnership, it is a partnership, and the liability of the parties for the partnership debts is determined by the law relating to partnership even though the parties may not have thought of such consequence.”

Plaintiff, on the other hand, contends that this was actually an agency relationship, rather than a joint venture. Defendant was to do all of the construction and work once the bids had been obtained, whereas plaintiff was only to use its name and reputation to secure bids from Litton and to provide supervisory personnel. Thus, plaintiff argues that it was to be compensated for its role by a share of the profits, but that it had no proprietary interest in the operation, nor was it to share in any net losses.

Because of the incompleteness of the terms of this agreement, we cannot know precisely what was intended by the parties at the time they executed this agreement. As was said in Guilbeau v. Liberty Mutual Insurance Company, 324 So.2d 571, 575 (La. App. 1st Cir. 1975), affirmed 338 So.2d 600 (1976),

“[wjhether or not an agreement to cooperate in the execution of a particular work project constitutes a ‘joint venture’ in the legal significance of that term is determined by the circumstances and all aspects of the agreement of the parties and not by any label which the parties themselves may place upon their agreement.”

Thus, in this case, the real question becomes one of the intent of the parties, both as expressed in their agreement, and as implied from their agreement and their conduct. Essential for the creation of a joint venture is an intent by the parties that the business relationship between them shall have the characteristics of a partnership. Sas Jaworsky v. LeBlanc, supra; Roberson v. Maris, supra; Hauth v. Iacoponelli, supra; Walker v. Delahoussaye, 116 So.2d 884 (La.App. 1st Cir. 1959). On balance, then, it is our view that due to the ambiguity of the written agreement, the intent of the parties here cannot be determined without an evidentiary hearing. The interests of justice require the resolution of this dispute by a trial on the merits. For this reason, it was error for the trial court to have maintained the exception of no cause of action.

Accordingly, we reverse and remand for a trial on the merits. Because of the merit of plaintiffs appeal, defendant’s petition and answer to this appeal are hereby dismissed.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    James P. COUSINS v. The LUMMUS COMPANY and the Travelers Insurance Co.
    No. 8875.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Writ Granted May 12, 1978.
    Badeaux, Diseon, Cumberland & Barbier, J. Michael Cumberland, New Orleans, for James P. Cousins, plaintiff-appellant.
    Michael A. Britt, of Leach, Paysse & Baldwin, New Orleans, for the Lummus Co. and The Travelers Ins. Co., defendants-ap-pellees.
    Before REDMANN, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is a suit for workmen’s compensation. The plaintiff while working for Lum-mus, fell off a scaffold injuring his head and neck. Suit was brought for the maximum benefits of $65 per week for 500 weeks, plus 12% penalty and attorney’s fees, alleging permanent disability. Judgment was rendered below granting benefits of $65 for 100 weeks only, and plaintiff appeals.

The sole question before us is whether the plaintiff is permanently disabled under the Workmen’s Compensation Law so as to get maximum benefits.

It was stipulated that plaintiff had previously been paid $1,750.00 for a partial (7V¿ %) permanent hearing loss. The nature of his complaint in the present suit is recurrent dizzy spells and related inability to climb or scale heights, and the wearing of glasses to compensate for cataracts which may have been caused by the fall. Plaintiff works as an electrician and is able to perform well all job related tasks except for working off the ground. Working out of the Union Hall, plaintiff in the year prior to trial had never been turned down for a job, but upon hiring out to Sharp Electric for a job at the U. S. Naval Hospital in Algiers, found he could not handle the job of laying electrical pipes in a ditch because of his condition, and was transferred to another Sharp Electric job at Kaiser Aluminum’s plant. He now works as electrician at the same pay as before, equal to other electricians of the same class and experience, but his supervisors limit him to nonclimbing duties.

Although plaintiff testified that he may not be able, in the future, to obtain work since it is necessary on most jobs for electricians to climb or work at heights, Mr. Ted-esco, his foreman at Sharp Electric, testified that there are jobs available where electricians need not climb. In fact, plaintiff’s evidence showed that he has worked satisfactorily at several such jobs over the year prior to trial.

The rule of law is that a worker is totally and permanently disabled when he is unable to do work of the same character as that which his training, education, and experience qualify him to perform, without unusual difficulty or danger. The worker who cannot perform a substantial portion of the work incident to his special occupation is thus considered totally disabled within the intendment of the law. Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (1969), affirming 209 So.2d 749 (La. App., 2nd Cir. 1968); Lindsey v. Continental Casualty Co. 242 La. 694, 138 So.2d 543 (1962).

All the evidence indicates that plaintiff continues to work at his same occupation and for the same wages. Although he cannot climb, the evidence as outlined above clearly shows that he can and, in fact, has performed substantially the same work as before his accident. This was the finding of the trial judge below who denied benefits for permanent disability, and we see no manifest error in this finding of fact. Absent same the judgment below must be affirmed on appeal. Canter v. Koehring, 283 So.2d 716 (La.1973).

It having been stipulated to by the parties that plaintiff has received some payment for partial disability, the statutory penalties do not apply.

Accordingly, the decision below is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Emma Mae BAHAM v. SOUTH CENTRAL BELL.
    No. 8958.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.

      Murray, Murray, Ellis & Braden, Julian R. Murray, Jr., New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   SCHOTT, Judge.

Defendant has appealed from the judgment awarding plaintiff Workmen’s Compensation benefits for total disability for a period of 21 weeks between January and June, 1975. The issue is whether or not plaintiff carried her burden of proof in the trial court.

Plaintiff, employed as a typist, slipped and fell in defendant’s office at the end of the day’s work on January 16,1975. On the following day she reported this accident to her supervisor and an appointment was made for her to see Dr. Williams, the company orthopedic physician. He examined her on that day and found slight tenderness in the lumbar muscles but no spasm and a superficial abrasion over the right knee. He was of the opinion that she had a mild lumbosacral strain with mild contusions and abrasions. However, he did not consider her disabled and referred her back to work. According to the supervisor, she returned to work on that day and performed her duties, although plaintiff testified she was then in pain.

On Monday, January 20, plaintiff called in to the supervisor stating she was still suffering with pain in her knees, legs and back, so that another appointment was made for her to see Dr. Williams. On that occasion he found tenderness in her low back and gave her an injection but was still of the opinion that she could return to work. She returned to work and sat at her desk a short while but stated she was not feeling well, whereupon she spent the remainder of the day in the sick room. On January 21 plaintiff again called in and stated she was suffering with pain. She declined to see Dr. Williams whose services she was again offered but stated that she would see her own physician, Dr. Pusateri, another orthopedic surgeon. She was told that she would not be paid for the time she was away from the job.

Plaintiff saw Dr. Pusateri for the first time on January 21. He testified that she had no spasm and a full range of motion of the lumbar spine. All tests were negative except one which indicated some pain on the left side of her sacroiliac joint and tenderness over the kneecap. He could not account for her complaints of severe pain on the basis of his tests but gave her the benefit of the doubt placing her on pain medication and bed rest for one week. She returned to him a week later with the same complaints. He found nothing abnormal and advised her to see a general physician, thinking that she may have some kidney or other internal problem.

In the meantime on January 23 plaintiff called her supervisor saying that she was in great pain, so that the supervisor again made an appointment for her to see Dr. Williams. Once again his examination disclosed no spasm but only tenderness. He still thought she was able to work.

Plaintiff did not return to work except on one day in March, following a conversation with her supervisor in which she stated she was still suffering with pain but wanted to work anyway. According to the supervisor, when plaintiff was absent from her desk in the midafternoon for an unusually long time she went looking for plaintiff and found her in the ladies lounge crying. She told the supervisor she had pain in her back and was placed in the sick room where she remained for the rest of the day. On the following day plaintiff called the supervisor stating she had pain in her back with nausea and that she had contacted her family physician, Dr. DeMatteo. On March 16 plaintiff contacted the supervisor and asked to be allowed to work half days, but this request was refused. She was scheduled for a reevaluation by Dr. Williams for March 20.

In the meantime Dr. Williams had seen plaintiff on February 19 when he discovered a three-quarter inch mass just below her right knee joint. This he diagnosed as a thrombosis in a small vein or a tumor, and he recommended its removal, but he did not consider it disabling. Plaintiff’s visit to Dr. Williams on March 20 was her last to him. She again complained of back pain when sitting but again his examination revealed no muscle spasm but tenderness in her low back. He explained that while muscle spasm is an objective finding as is severe restriction of motion, tenderness “is in the gray zone” between subjective and objective. Following this final examination with Dr. Williams plaintiff contacted the supervisor on March 24 complaining of pain and requesting that she be permitted to take vacation, which was denied, and on March 27 she was informed that unless she reported for work on March 31 her employment would be terminated.

In the meantime on February 17 she returned to Dr. Pusateri and found that her back was normal despite her complaints of pain. He found the thrombosis vein in the right knee in connection with which he asked that she return the following week. Her final visit to Dr. Pusateri was on February 25 when the vein was smaller and he felt that no surgery was indicated.

After being terminated by the company plaintiff consulted her attorney who recommended her to Dr. Henry Braden, III, a general practitioner and surgeon, who saw her on April 10 and treated her until June when he discharged her. When Dr. Braden examined plaintiff he found muscle spasm in the lumbosacral region with limitation of motion, pain and tenderness. He also found the small mass behind the right knee. He diagnosed lumbosacral sprain and prescribed moist heat and exercise. Because she was one month pregnant at the time he did not prescribe muscle relaxants. He testified that during her treatment she was prevented from work which required bending, stooping and lifting, and consequently was disabled.

Defendant’s primary contention centers around the fact that Dr. Braden found muscle spasm on April 10 whereas no muscle spasm had been picked up by the previous physicians who examined plaintiff, and all of the doctors, including Dr. Braden, testified that if the spasm in April was caused by the January accident there would have been spasm during the intervening time.

The trial judge found and the testimony of Dr. Braden surely supports the finding that plaintiff was disabled from April 10 until he discharged her in June. Thus, the only explanation for her disability at that time, other than the accident of January, would be some intervening trauma to the back. Plaintiff specifically testified that she had no other injury to the back after her accident of January. She also testified that her pain was continual from the time of the accident. It is essentially a question of credibility. The judgment of the trial court represents a credibility call in favor of plaintiff that she had no intervening trauma, and for us to hold that her disability between April and June was not caused by the accident would essentially constitute a substitution of our evaluation of plaintiff’s credibility for that of the trial judge.

The testimony of the physicians that spasm would have been present between the time of the accident and April 10 had the April 10 spasm been related to the accident must have been considered by the trial judge in the light of the fact that plaintiff repeatedly sought medical treatment, not only from her own physicians, but from Dr. Williams on several occasions. If she were a malingerer and were in no distress whatsoever it seems unusual that she spent so much time returning to the same physician who had previously told her that nothing was wrong with her, especially considering that he was the company physician. Perhaps the trial judge was impressed with the supervisor’s testimony that she found plaintiff crying in the ladies room on that day in March when she returned to work, or by the fact that plaintiff even offered to work half days while claiming she was in pain. Finally, he may have been impressed with the fact that this plaintiff had worked for defendant from 1972 until 1975 and had missed only four days work during that time. Whatever may be the explanation he believed her testimony to the effect that she was in continual pain to the extent that she could not work for that period, and there is sufficient, albeit weak, corroborating evidence to support his judgment.

Finally, defendant argues that plaintiff’s failure to produce Dr. DeMatteo creates a presumption that he would have testified adversely to her. While this creates another element of suspicion as to plaintiff’s case we cannot say that it compels the reversal of the judgment of the trial court in view of the fact that he could draw his own conclusions from that fact. He may have concluded that Dr. DeMatteo was not an orthopedic surgeon and consequently could shed no light on plaintiff’s back trouble or he may have concluded that Dr. DeMatteo, if called, would have simply testified that he found nothing wrong with plaintiff, as did Drs. Williams and Pusateri. Plaintiff’s failure to call Dr. DeMatteo more likely raises a presumption that Dr. DeMatteo would not have helped plaintiff’s case rather than a presumption that he would have actively or positively damaged her case. We cannot say that the weight of this presumption is such that it destroys plaintiff’s credibility as a matter of law.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: BEER, Judge.

text:
    Mr. W. Clayton SIMS v. Mr. and Mrs. James C. USSERY.
    No. 9048.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.

      Lucius A. Hornsby, Jr., Lafayette, and Ernest Barrow, III, Gretna, for plaintiff-appellant.
    Edward F. Wegmann, Fred P. Westen-berger and Fiasconaro & Fiasconaro, Joseph A. Fiasconaro, Jr., New Orleans, for defendants-appellees.
    Before REDMANN, BOUTALL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, the prospective seller of residential real estate, appeals from the trial court’s dismissal of his claim for forfeiture of the deposit and damages. The purchase agreement contained a stipulation making the sale conditional upon the ability of the prospective purchaser to obtain a loan of $37,850 at 9% for thh’ty years and became null and void in the event that neither purchaser, seller or agent was able to obtain such financing within forty-five days from the date of the agreement.

The stipulated time period passed without a loan being obtained, and appellant filed this suit for forfeiture of the deposit and, also, sought injunctive relief against Wag-uespack Pratt, Inc. to prevent the return of the deposit, alleging that appellees had not attempted to obtain the loan but had, in fact, entered into another contract through Waguespack Pratt, Inc. to purchase a different residential property prior to the expiration of the forty-five days. Appellant further contended that Waguespack Pratt, Inc. was also responsible for the appellees’ failure to obtain financing.

The issues before us are: (1) Did the trial court err in its determination that appellees made a good faith effort to obtain a loan; and (2) Did the trial court err in its determination that Waguespack Pratt, Inc. was not at fault (and thus liable to plaintiff) for appellees’ failure to obtain a loan.

A contract to sell contingent upon the purchaser’s ability to obtain financing is a contract subject to a suspensive condition. Woods v. Austin, 347 So.2d 897 (La.App. 3rd Cir. 1977). Thus, the court must make factual determinations in order to reach the ultimate conclusion as to whether or not a good faith effort to obtain the loan has taken place.

Here, after a very complete hearing, the able trial judge observed as follows:

“This is a relatively simple case and it’s unfortunate that some parties were possibly inconvenienced economically and otherwise by it.
The agreement to purchase and sell is a valid binding contract and is the law between the parties. The pertinent portions of such agreement is reflected insofar as this case is concerned in lines thirteen, fourteen and fifteen of said agreement and as the Court read them an equal burden is placed upon the purchaser, the seller, as well as the agent to obtain the financing in connection with this sale.
I’m satisfied that each of the parties involved made some effort to obtain financing but because of the economic conditions existing at that time, that said financing was impossible.
Under the terms of the agreement, said agreement became null and void and expired by its own terms on August the 20th, 1974.”

He further noted:

“Insofar as the third party demands, other demands against Waguespack-Pratt, I
find that there has been no preponderance of evidence to indicate that they are responsible in any manner. And, the action, both actions against them are dismissed.”

The record clearly supports the factual determinations of the trial court, as does the jurisprudence support the court’s ultimate conclusions based thereupon.

Finding no manifest error and, indeed, being in agreement with the trial court’s judgment, we affirm, at appellant’s cost.

AFFIRMED.


text:
    LOUIS DREYFUS CORPORATION v. CONTINENTAL GRAIN COMPANY.
    No. 9395.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Charles Kohlmeyer, Jr., and Earl S. Ei-chin, Jr., New Orleans, for relator.
    W. Malcolm Stevenson and Michael R. O’Keefe, III., New Orleans, for respondent.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

We grant certiorari on the application of Continental Grain Company (Continental) in order to consider a judgment of the trial court which denied Continental’s rule for permission to file an amended reconventional demand.

The case involves a contract for the purchase and sale of grain between the parties and has already been before us on an appeal by Louis Dreyfus Corporation (Dreyfus) from the judgment dismissing its application for a preliminary injunction. Louis Dreyfus Corp. v. Continental Grain Co., 348 So.2d 1286 (La.App. 4th Cir. 1977). Following our previous action Dreyfus in September filed a supplemental petition alleging specific amounts of damages it was seeking and the case was scheduled for trial on February 21, 1978.

On December 22, 1977, Continental’s Westwego grain elevator was destroyed by an explosion. As can be seen from our previous opinion the performance of the contract between the parties involved the operation of this facility so that its destruction has an effect on the obligations undertaken by the parties.

Continental filed an answer and recon-ventional demand in response to Dreyfus’ original petition in which it alleged that it was prevented from accepting tender of barges from Dreyfus in the Midwest because of freezing conditions and prayed for judgment declaring the contract suspended pursuant to the Force Majeure clause of the contract.

The amended reconventional demand sought to be filed by Continental contains in the tenth article the threshold allegation that its Westwego grain elevator was destroyed on December 22 and it is entitled to a judgment declaring the contract terminated as of that date, pursuant to the Force Majeure clause, so that it was no longer required to perform thereafter and would not be liable for any damages with respect to acceptance, storage or delivery of grain as a result of tenders by Dreyfus on or prior to December 22, 1977.

In the thirteenth article of Continental’s amended reconventional demand, it alleged that it had “purchased” from Dreyfus grain of which only a portion had been “sold” back to Dreyfus before the elevator was destroyed. Because Dreyfus insisted that their remaining 3.5 million bushels be handled in accordance with the contract requirements Continental sold it elsewhere and is thus entitled to judgment declaring that its action was proper and it has no liability to Dreyfus with respect to their 3.5 million bushels. The fourteenth article is directly related to this 3.5 million bushels in that Continental had paid interest on the amount it paid Dreyfus for the 3.5 million bushels at the rate stipulated in the contract, namely, 1% over the prime interest rate and when Dreyfus refused to accept this grain back from Continental it also refused to pay Continental the interest it had paid.

As to these three articles, namely, the tenth, thirteenth and fourteenth, they are directly related to the destruction of the Westwego elevator and its effect on Continental’s performance of its obligations. Furthermore, it is alleged that the explosion was another Force Majeure just as the freezing conditions were alleged to be in Continental’s original reconventional demand. An interpretation of this same article of the contract is involved in both instances.

LSA-C.C.P. Art. 1155 provides that the trial judge “may permit” the filing of a supplemental answer pleading defenses which have become exigible since the date of filing the original answer and which are related to the original defense. Dreyfus is seeking injunctive relief and damages with respect to a contract scheduled to expire in September, 1978. Continental originally defended, based on an alleged Force Maj-eure occurring in January, 1977, and now defends on an additional one occurring in December. It would seem incongruous for the case to go to trial with Continental unable to allege the destruction of the elevator with the conceivable result that Continental would be ordered to perform with a facility that has been destroyed. We have concluded that the trial judge improperly refused to permit the filing of amending articles tenth, thirteenth and fourteenth.

The eleventh amending article contains allegations with respect to paragraph 8.2 of the contract concerning the charges by Continental to Dreyfus for elevation of the grain. It is alleged that Continental informed Dreyfus in February that it was raising this charge from five to seven cents per bushel, effective April 1, 1977, and Dreyfus objected. But they agreed to an interim charge of six cents without prejudice to either side. Continental, in this eleventh article claims entitlement to the additional one cent on the 22,810,239 bushels put through the elevator from April 1 to the date when the elevator was destroyed.

As to this eleventh article, we are not convinced that the trial judge abused his discretion in refusing the amendment. If the explosion had not occurred and the agreement run its course to September, 1978, it would have done so with the understanding that the dispute over the one cent per bushel would be worked out one way or another in court or otherwise. The fact that the amount is now fixed because of the elevator’s destruction does not require that this particular dispute be resolved at this time. The question here has nothing to do with the weather in January or the explosion in December. It concerns an interpretation of portions of the contract regulating the elevation charges to be made.

The fifteenth amending article alleged a dispute between the parties over commercial contracts, unrelated to the contract primarily in dispute. Here Continental claims $437,000 based on the difference between the price it would have paid Dreyfus for corn purchased pursuant to the throughput agreement and the price it had to pay for the corn from other sources in order to load two ships tendered by Dreyfus under the unrelated commercial contracts.

Here again, we are not convinced that the trial judge abused his discretion in disallowing the addition of this fifteenth amending article because it appears to involve issues unrelated to the throughput agreement. In its application for writs, Continental states that this claim came about because “Dreyfus is liable to Continental for damages occasioned by the increased cost of grain loaded aboard vessels nominated by Dreyfus during January and February, 1977, for the purpose of receiving grain which Dreyfus had previously tendered to Continental in ice-bound barges.” But the amending article itself begins with an allegation that “in May and June, 1976, Continental and Dreyfus entered into commercial contracts, unrelated to the throughput agreement . . Based on the wording of this amending article the trial judge may have felt that the trial of the case would become unnecessarily complicated by adding issues arising out of these “unrelated” commercial contracts.

As to both articles, eleventh and fifteenth, there is much to be said for the proposition that these disputes should all be resolved at one time in the interests of judicial economy. However, the trial judge undoubtedly considered this advantage but in the exercise of sound discretion refused to permit the addition of these somewhat unrelated matters to an already complex law suit.

Accordingly, the judgment of the trial court which made the rule absolute with respect to the twelfth article only of the amended reconventional demand and related sub-paragraph (v) of the prayer is amended so as to make the rule absolute additionally with respect to the tenth, thirteenth and fourteenth articles and related sub-paragraphs (iii), (vi), and (vii) of the prayer.


author: PER CURIAM.

text:
    Charles E. McCREARY v. COMMERCIAL UNION INSURANCE COMPANY et al.
    No. 9350.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 16, 1978.
    Manard & Schoenberger, Robert L. Ma-nard, III, New Orleans, for plaintiff-respondent.
    Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for defendant-relator.
    Before REDMANN, LEMMON and BAILES, JJ.
   PER CURIAM.

This matter came before us on an application for supervisory writs, complaining of an order rendered by the trial court on a pre-trial motion. Defendant had moved to present to the jury an agreement of compromise executed in settlement of plaintiff’s claim arising out of an accident which occurred after the accident here in litigation. The trial court refused to allow evidence of the settlement or the amount thereof. This court granted supervisory writs and issued the following order:

MANDAMUS

IT IS ORDERED that the Honorable Melvin G. Duran, Judge, vacate his ruling of November 22, 1977, on the admissibility of the fact of the settlement between plaintiff and Hartford Accident & Indemnity Company.

The fact of a second accident (possibly causing damages similar to those complained of in a first accident) and any medical evidence relating thereto is admissible because relative to quantum of damages caused by the first. That a claim arising out of the second accident has been settled is also admissible for the purpose of showing that there is no longer a pending claim against the second tortfeasor (or, as here, a solvent uninsured motorist insurer answerable for him).

Existence of two claims against solvent defendants tends to keep the claimant unbiased in his testimony of complaints relative to either accident. Settlement of one claim so as to exclude one of the solvent defendants might tend to make the claimant, even subconsciously, shade his testimony to attribute complaints to the accident in which the claim is still pending. The fact of the settlement therefore bears on credibility and is admissible.

Unless the remaining solvent defendant is liable to the other for, or is entitled to credit for, some portion of the settlement, the amount of the settlement is irrelevant. The amount represents the judgment of persons who are not the triers of fact in the case being tried.


author: DUPLANTIER, Judge.

text:
    George ANDRY v. CANADA DRY CORPORATION, DIVISION OF NORTON SIMON, INC., Lastarmco, Inc., and Glass Container Corporation.
    No. 8631.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1978.
    Rehearing Denied March 14, 1978.
    Writ Refused May 5, 1978.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., New Orleans, for plaintiff-appellant.
    Bernard, Micholet & Cassisa, Jerry L. Sa-porito, Metairie, for Canada Dry Corp. and Lastarmco, Inc., defendants-appellees.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for Glass Containers Corp., defendant-appellee.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   DUPLANTIER, Judge.

This case presents proper facts for consideration of Louisiana’s position concerning a manufacturer’s liability for his manufactured product which, when used as intended by the manufacturer, performs defectively and, as a result, causes injury to the user. Plaintiff, injured while opening a bottle of soda, filed this suit against the bottler of the beverage and the manufacturer of the bottle.

Plaintiff, George Andry, was in the process of mixing a drink (Scotch and soda) for himself at his home, intending to pour the soda portion of the drink from a previously unopened bottle of Canada Dry Club Soda which he had purchased from a beverage home delivery service. The beverage had been mixed and bottled by defendant, Las-tarmco. The bottle had been manufactured by defendant, Glass Containers Corporation, and purchased from it by the bottler, Las-tarmco. Lastarmco also purchased from another manufacturer (not joined as a defendant) a plain, soft metal cap with no side wall threads. As part of the bottling operation by Lastarmco, this cap was converted to a screw-type cap by a machine, the function of which is to place a plain cap on a filled bottle, force the soft metal side walls to conform with the threads on the bottle, and seal the cap to the bottle.

The bottle and the metal cap are designed in such a manner that the bottle is to be opened and the contents made available to the consumer by the exertion of a twisting force applied to the cap in a counterclockwise direction. The metal cap is intended to be reusable if only a portion of the bottle contents are poured after the bottle is first opened.

As plaintiff was opening the previously unopened bottle of soda in the usual manner, after he had turned the cap counterclockwise slightly, he heard a sharp popping noise and, almost simultaneously, felt a severe pain in his right eye. His wife, who was nearby, assisted plaintiff to a chair, telephoned a physician, and immediately took plaintiff to a hospital where he received medical treatment of an eye injury.

Shortly thereafter, plaintiff’s son found the soda bottle cap and the uncapped soda bottle nearby, both in the room where the incident had transpired.

The district court dismissed plaintiff’s suit against both defendants, the bottler and the manufacturer of the glass bottle. In his written reasons, the trial court, after finding that the accident occurred as set forth above, concluded that plaintiff had the burden of proving negligence on the part of defendants and that plaintiff had failed to carry that burden. Because we disagree with the trial court’s legal conclusion that the manufacturer is not liable absent proof of specific negligence, we reverse with respect to the bottler, Lastarm-co, awarding plaintiff damages in the amount set forth hereafter. For the reasons first discussed hereafter, we affirm the dismissal of plaintiff’s suit against Glass Containers Corporation, the manufacturer of the bottle.

The manufacturer of the bottle does not occupy the status of a manufacturer of a total product under the circumstances of this case. Rather, the bottle manufacturer is responsible for only one component of the total product. Where there is no proof that a particular component malfunctioned, that component’s manufacturer is not liable in the absence of proof of negligence. There is no evidence that the bottle involved in this case, which was the only component manufactured by the defendant, Glass Containers Corporation, malfunctioned in any way. Since there is no proof of negligence on the part of the bottle manufacturer, and no proof of malfunction of the component manufactured by it, the bottle manufacturer, Glass Containers Corporation, is not liable to plaintiff.

The situation however is different as to defendant Lastarmco. Lastarmco manufactured the total product, a bottle of soda water. This completed product malfunctioned when used as intended by the manufacturer, and the malfunction caused bodily injury to plaintiff.

We hold that the manufacturer of a product who places the product on the consumer market is liable for the foreseeable consequences (including bodily injury) of a malfunction of the product if the product reaches the user in substantially the same condition in which it was sold and if the product is used in the manner intended by the manufacturer. To state it another way, we hold that a plaintiff injured as a foreseeable consequence of a product malfunction is entitled to recover if he proves:

(a) that the defendant manufactured the product;
(b) that defendant placed the product on the consumer market;
(e) that the product reached the user in substantially the same condition in which it was when defendant placed it on the consumer market;
(d) that at the time the injury was caused, the product was being used in the manner intended by the manufacturer.

Proof of negligence on the part of the manufacturer is not a prerequisite to recovery.

When plaintiff carries the burden of proving these facts, as he has in this case, it is no defense that defendant has exercised all possible care in the manufacture of the product.

While we express the principles involved in somewhat different language, we view our conclusions as consistent with the oft-quoted Louisiana Supreme Court decision of Weber v. Fidelity & Casualty Insurance Co. of N. Y., 259 La. 599, 250 So.2d 754 (1971). In discussing Weber and other opinions of Louisiana appellate courts, the Fifth Circuit Court of Appeals, United States District Courts, and commentators have observed that these Louisiana decisions are in agreement with the concepts embodied in the Restatement of Torts, 2d, § 402. Khoder v. AMF, Inc., 539 F.2d 1078 (5th Cir. 1976); Welch v. Outboard Motor Co., 481 F.2d 252 (5th Cir. 1973); Hastings v. Dis Tran Products, 389 F.Supp. 1352 (W.D.La.1975); and Robertson, Manufacturers’ Liability For Defective Products in Louisiana Law, 50 Tul.L.Rev. 50 (1975).

Having found liability on the part of defendant, Lastarmco, we briefly summarize the evidence upon which we base our determination of the amount of damages to which plaintiff is entitled.

Plaintiff’s vision had been impaired for a number of years prior to this injury, due to a progressive cataract condition in both eyes. A few days prior to the injury, plaintiff’s physician had recommended that both cataracts be removed surgically, preferably within six months, at the longest within 18 months. No date for the surgery had been set.

After being struck in the right eye by the bottle cap, plaintiff was taken immediately to a hospital specializing in eye problems. The emergency examination showed that plaintiff was completely blinded in the right eye from a massive hemorrhage which filled the anterior chamber of the eyeball with blood. Plaintiff was confined to hospital bed rest, with both eyes covered, from March 18 (the day of the accident) to April 3, 1973.

Plaintiff was told of the problems caused by the injury and was quite apprehensive over the possible loss of the sight of his right eye. The forced immobilization for more than two weeks after the accident led to further anxiety and additional stress. Plaintiff’s injury was described by his physician as serious and painful. However, medication relieved plaintiff from any acute pain during his hospitalization and afterwards. When the blood cleared from his eye, plaintiff was discharged from the hospital with instructions to rest at home and refrain from physical activity.

The blow from the bottle cap tore the attachments in the upper portion of the lens, which fell back partially into the vitreous fluid of the eye. As a result, prompt cataract surgery became essential, to prevent the lens from completely falling into the vitreous fluid and perhaps being lost. Plaintiff’s physician had to use an unorthodox method of removing the cataract by incision from below the lens to prevent loss of the vitreous fluid itself.

Three months after the accident, the cataract from plaintiff’s injured right eye was removed surgically. Two weeks later, while he was still in the hospital, the cataract in the left eye was removed. Plaintiff’s left eye was not affected by the accident in any way.

About two months after the second surgery, plaintiff was fitted with eye glasses, which corrected his vision to the same extent as if he had not received the injury. At this time he was able to return to his former employment as a stockbroker.

Plaintiff’s gross income, derived entirely from commissions from stock purchases and sales by his customers, was $41,773 during 1971, and $31,022 for 1972. In 1973, the year of his injury, he grossed $17,685.

Plaintiff’s claim for lost earnings is of course not subject to exact mathematical computation. To a large extent, his earnings depended upon stock market and economic conditions generally, and upon decisions of his clients. This is demonstrated by a decline of over $10,000 (in excess of 25%) in plaintiff’s income between 1971 and 1972. Moreover, even without the injury plaintiff would ultimately have had to undergo cataract surgery, with a resultant loss of work time and income. While it is impossible to determine accurately what his income would have been in 1973 had he not been injured, it is certain that he suffered a substantial loss due to his inability to work due to his injury. Considering all factors, we award plaintiff $7,500 to compensate him for loss of income.

Plaintiff’s total medical expenses were $5,720. Some portion of the hospital, surgical, and other expenses were for treatment of his uninjured left eye. These expenses and those which would have been involved in any event for routine cataract surgery on the right eye would have been incurred even without the injury. Consequently, we award plaintiff the sum of $3,000 for medical expenses related to the injury.

Plaintiff’s injury, though serious and temporarily disabling, did not permanently impair his vision. We award plaintiff general damages for pain, suffering, mental anguish and disability in the amount of $12,500.

For the reasons assigned, the judgment appealed from is reversed insofar as it dismissed plaintiff’s suit against Lastarmco, and judgment is hereby rendered in favor of plaintiff, George Andry, and against Las-tarmco, Inc., in the amount of $23,000, together with interest from judicial demand until paid and all costs.

AFFIRMED IN PART; REVERSED IN PART.

      . The beverage deliverer was not made a defendant.

      . We do not have here a claim against a seller of a product who is not a manufacturer. Some authorities would treat a manufacturer-seller and a non-manufacturing seller alike. See, for example, Restatement of Torts, 2d, § 402(A). We suppress the temptation to “dictumize” as to the liability of a non-manufacturing seller.

      . In this respect we take a similar position to that expressed in Restatement of Torts, 2d, § 402(A)(2)(a).


author: PRESTON H. HUFFT, Judge ad hoc. LEMMON, J., GULOTTA, Judge, BOUTALL, Judge, BEER, Judge, LEMMON, Judge,

text:
    Mrs. Lillian Schon SMALL v. S. (Samuel) Sanford LEVY, presently sitting as Judge, Division “D”, of the Civil District Court for the Parish of Orleans, State of Louisiana.
    No. 8989.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 27, 1978.
    Rehearing Denied March 1, 1978.
    Writ Refused May 5, 1978.
    Glenn L. Morgan, New Orleans, for plaintiff-appellant.
    Darleen M. Jacobs, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOUTALL, SCHOTT, BEER and HUFFT, JJ.
   PRESTON H. HUFFT, Judge ad hoc.

Plaintiff, appearing alone and solely in her capacity as a citizen and not as a claimant to the office, brought this application for a Writ of Quo Warranto under LSA-C. C.P. Art. 3901 to direct the defendant, a duly elected and sitting judge of the Civil District Court for the Parish of Orleans, to show by what authority he was holding public office. Plaintiff alleged the defendant was past the age of 75 and Article 7, § 8 of the Constitution of 1921, which was controlling with respect to the defendant, provided for compulsory retirement at the age of 75. The defendant filed an exception of no right of action contending the plaintiff did not have the right to bring the action alone and solely in her capacity as a citizen. On the merits, the defendant admitted he was past the age of 75 but contended that the provisions of Article 7, § 8 of the Constitution of 1921 permitted him to serve until he reached the age of 80.

The district court referred the exception of no right of action to the merits and on the merits found that the defendant was permitted to serve until he reached the age of 80 under paragraph (b) of Article 7, § 8 and dismissed the Writ of Quo Warranto. The plaintiff appealed this dismissal.

During oral argument before this court, counsel for the defendant waived the exception of no right of action and expressed the defendant’s desire to have this court decide the issue on the merits. Assuming this oral request constituted a waiver of the exception of no right of action, this court on its own motion under the provisions of LSA-C.C.P. Art. 927 raises the right of the plaintiff to bring this action. We recognize that the defendant wishes to have the matter decided in this proceeding on the merits, since his right to hold office is under attack but for this court to permit a litigant, who does not possess the right, to bring an action such as this against a public officer would in the future place every public officer, who put at issue the right of a plaintiff to bring such an action, in the position of appearing reluctant and hesitant to defend his right to office on the merits. No public officer should be put in that position. If the litigant does not possess the right to bring the action, he should not be permitted to do so. This brings us to the threshold issue in this case — does the plaintiff possess the right to bring the action?

This exact question was presented to this court in Lelong v. Sutherland, La.App., 134 So.2d 627 (1961), and the court in the following language, on pages 629 and 630, held that a litigant appearing alone and solely as a citizen did not possess the right to bring an action testing the right of a public officer to hold office:

“Defendants first challenge plaintiff’s right, solely as a taxpayer or citizen, to institute this suit, contending that the right to try title to public office is governed exclusively by LSA-R.S. 42:77, as follows:

LSA-R.S. 42:76

‘An action shall be brought in the name of the state in any of the following cases;
‘(1) When any person usurps, intrudes into, or unlawfully holds or exercises or attempts to remain in possession of any public office or franchise within this state.
* * * sfc ‡ *
‘This action shall be brought by the attorney general of the state or by the parish district attorney of the parish in which the case arises against the offender, and the suit shall be filed in the district court of that parish.
‘The action may also be brought by the governor appearing in proper person or through the attorney general of the state or other counsel he may select.’

LSA-R.S. 42:77

‘In the cases provided in R.S. 42:76(1) and 42:76(2), the action may be brought by any person demanding possession of the office against any person claiming or exercising the functions of the office.’
On the other hand, counsel for plaintiff urges that LSA-C.C.P. Art. 3901, Chapter 4, verbo ‘Quo Warranto,’ which reads as follows, authorizes this proceeding:
‘Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.’
* * * * j}s *
The Intrusion into Office Statute makes it clear that a taxpayer, as such has no standing to challenge the right of an incumbent to hold and perform the duties of such public office. LSA-C.C.P. Art. 3901, Chapter 4, under ‘Quo Warran-to,’ might appear to give such authority. While there is nothing in the text of Art. 3901 to justify such conclusion, the editorial comment under the Article (par. b), explains that the provision referring to ‘public office’ was incorporated on the theory that the Intrusion into Office Act does not give an individual the right to file suit except when he is claiming the office.
# sfi # # * *
The Intrusion into Office Statute is a special statute, limiting to those named the right to challenge incumbents of public office to hold and exercise the duties of such office. LSA-C.C.P. Art. 3901 is a general procedural statute defining the character of a writ of ‘Quo Warranto,’ and establishes an immediate, direct, adequate and speedy remedy only for those who, by substantive law, have the right to challenge public and private corporate officers in their right to hold and perform the duties of such office.
Where there is an apparent conflict between a general law and a special law on the same subject, the special law must prevail in the particular matter to which it applies, and even though the general law has been enacted subsequent to the enactment of the special law, the special law is not thereby repealed by implication; and is only affected if reference is made to it expressly. Hewitt v. Webster, La.App., 118 So.2d 688, and authorities therein cited.
Plaintiff, then, appearing as a taxpayer only, without any claim to the office challenged, has no right to remedy; hence, has no right of action herein.”

Under Lelong, it is clear that the plaintiff has no right of action herein. However, plaintiff, in her brief and in oral argument, urged this court to overrule Lelong for the following reasons:

(1) that the Lelong court in arriving at its decision did not consider the holding of the Supreme Court in Slater v. Blaize, 204 La. 21, 14 So.2d 872 (1943);

(2) that the Lelong court was not aware of the legislative history of quo warranto in general and the quo warranto provisions in the Code of Civil Procedure in particular;

(3) that in Aucion v. Spencer, 135 So.2d 105, La.App., (1961), and Tabor v. Siracusa, La.App., 135 So.2d 121 (1961), which were decided about the same time as Lelong, quo warranto was recognized as a proper procedure to test the right of a public officer to hold or exercise office;

(4) that the Lelong decision denied a citizen access to the courts and violated his right to due process under the 14th Amendment to the Constitution of the United States.

Because some members of this court feel to the contrary with respect to Lelong, we will consider the foregoing contentions:

(1) Slater v. Blaize, supra, had no bearing on the decision reached in Lelong. The Slater decision — although refusing the application as being moot since the injunction proceeding was dismissed prior to the filing of the application — contained the following language:

“Under the express provision of our law, the proper procedure in cases where the person claiming title to an office is not in actual possession thereof is by quo war-ranto or intrusion-into-office proceedings (Article 867, etc. of the Code of Practice and Section 2593, etc., of the Revised Statutes, as amended by Act No. 102 of 1928) * * 14 So.2d at p. 872. (emphasis ours).

Before C.C.P. Art. 3901 an individual claiming title to “an office” had a right to bring either a quo warranto or an intrusion into office proceeding depending on the nature of “the office”. Articles 867 and 868 of the Code of Practice of 1870 pertaining to Quo Warranto provided as follows:

“This is an order rendered in the name of the State by a competent court, and directed to a person who claims or usurps an office in a corporation, inquiring by what authority he claims or holds such office.” Art. 867.
“This mandate is only issued for the decision of disputes between parties in relation to the offices in corporations, as when a person usurps the character of Mayor of a city, and such like.
With regard to offices of a public nature, that is, which are conferred in the name of the State by the Governor, with or without the consent of the Senate, or by election, the usurpations of them are prevented and punished in the manner directed by special laws.” Art. 868.

Lelong is in agreement with Slater and further recognizes that since C.C.P. Art. 3901 a person claiming title to a “public office” may bring either a quo warranto or an intrusion into office proceeding — such a person possesses the substantive right to bring the action and may select the procedural device he wishes.

(2) The Lelong decision recognized the history of the common law writ of quo warranto and the presence of the writ in the Codes of 1825 and 1870 but it recognized also that since Act 156 of 1868 there has been in existence a “special law” relative to the testing of the right of an individual to hold or exercise a public office — the Intrusion Into Office Statute. Section 11 of Act 156 provided as follows:

“That all laws or parts of laws in this State touching on the subject of quo war-ranto, conflicting directly or indirectly with any of the provisions of this act, be and the same are hereby repealed.”

Act 156 became Sections 2593-2605 of the Revised Statutes of 1870 and has remained unchanged to the present except for its amendment by Act 102 of 1928, which, if anything, made the statute even more special in nature. Prior to the Code of Civil Procedure, the courts consistently recognized that the testing of the right of an individual to hold or exercise a “public office” was governed by the Intrusion Into Office Statute.

For the very first time, Art. 3901, in very general terms, defined quo warranto as a writ directing an individual to show by what authority he claimed or was holding “public office”. Art. 3901 provided another procedural device for testing the right to hold “public office” — either the ordinary proceedings of the Intrusion Into Office Statute or the summary proceedings of Quo Warranto. Lelong merely held that either of these two procedures would be available provided the individual bringing the action possessed the substantive right to so proceed. The general provisions of Art. 3901 cannot be construed as repealing the special provisions of the Intrusion Into Office Statute. While the Lelong court recognized that the official Law Institute Comments may be used in interpreting and construing the provisions of the Code of Civil Procedure, see Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963) and State v. Gremillion, La.App., 168 So.2d 270 (1964), it did not hold that an official comment may be considered as positive legislation repealing a special statute that has been a part of the statutory law of Louisiana for 100 years. Neither do we.

(3) The Court in Aucion and Tabor did not make any comment whatsoever as to the right of an individual acting alone and in his capacity as a citizen to bring a summary procedure under Art. 3901 to test the right of a public officer to hold and exercise public office — in fact, Art. 3901 is not specifically mentioned or referred to in either decision. Each case was a quo warranto proceeding but the issue never arose as to the substantive right to bring such an action. In Tabor no question was raised as to the right of the individual to bring the action and in Aucion the plaintiff filed an Exception of No Right or Cause of Action but it was referred to the merits by the District Court and was not discussed in any way in the decision handed down. Tabor and Aucion merely hold that if the substantive right to bring an action to test the right of a public officer to hold and exercise public office is not pursued by the defendant and the exception is not raised by the court on its own motion, the court may decide the- matter on the merits. This does not do violence to Lelong and in fact, in the instance before this court, if the court did not raise the right of the plaintiff to bring the action, we would proceed to decide the case on the merits.

(4) Lelong does not violate the dué process provisions of the 14th Amendment. In its wisdom, the Legislature has granted the substantive right to test the right of a public officer to hold public office to the Attorney General, the District Attorney of the parish where the case arises, the Governor appearing in proper person or through the Attorney General or other counsel he may select or an individual who is claiming the office. The limitation of the substantive right, as enunciated above, prevents a citizen from rushing to the courthouse to file an action testing the public officer’s right to hold public office, every time the citizen is aggrieved by a decision made by the public officer in the performance of his duties. However, this does not deny the individual citizen access to the courts to test the right of a public officer to hold office. An individual, acting alone and in his capacity as a citizen, may file a mandamus proceeding against the Attorney General or the appropriate District Attorney to compel said officer to file the action to test in accordance with his responsibility under the Intrusion Into Office Statute. These legal officers represent the interest of all citizens with regard to the right of a public officer to hold office and under the proper circumstances, mandamus will lie. Thomas v. Fuller, 166 La. 847, 118 So. 42 (1928) and State ex rel Kilbourne v. Dugas, La.App., 180 So.2d 440 (1965).

For the reasons assigned, we hold the plaintiff has no right of action and, accordingly, her suit is dismissed. Plaintiff is to pay costs in both courts.

AFFIRMED.

GULOTTA, BOUTALL and BEER, JJ., concur with written reasons.

STOULIG, J., would dismiss appeal and assigns written reasons.

LEMMON, J.,

with whom REDMANN and SCHOTT, JJ., join, dissenting.

GULOTTA, Judge,

concurring.

I concur in the result affirming the trial court’s dismissal of plaintiff’s suit.

Although a liberal construction of pleadings is favored to afford a litigant his day in court, nevertheless, plaintiff’s suit is not one in “Quo Warranto”. LSA-C.C.P. art. 3901. This article provides a party the right to question “by what authority” one holds office. In our case, Judge Levy’s authority is his commission issued after having been duly elected. Judge Levy is not without authority to hold office.

Plaintiff’s complaint is that the judge has remained in office beyond the mandatory retirement age. This complaint comes within the provisions of LSA-R.S. 42:76, the intrusion in office statute. The Attorney General or the District Attorney is the proper party to bring this action. A citizen, moreover, may mandamus the appropriate law enforcement officer to bring the suit. See State ex rel. Kilbourne v. Dugas, 180 So.2d 440 (La.App. 1st Cir. 1965).

BOUTALL, Judge,

concurring.

I concur in the affirmance of the judgment appealed and in the dismissal of the plaintiff’s suit on the exception of no right of action on the basis of Lelong v. Sutherland, 134 So.2d 627 (La.App. 4th Cir. 1961) and the opinions expressed by Judges Hufft and Samuel. However I am troubled by the apparent waiver of that issue in argument before us. For that reason I feel compelled to address myself to the merits of the case as an additional reason for affirming the trial court.

This quo warranto proceeding questions the right of Judge Samuel Sanford Levy to continue in office as Judge, Civil District Court for the Parish of Orleans, beyond the age of 75 years under the provisions of La. Constitution of 1921, Art. 7 § 8. Plaintiff, Mrs. Lillian Schon Small, appeals from a judgment dismissing her suit. On this appeal there are no procedural issues presented, the relevant facts are not in dispute, and the issue is solely one of law.

Judge Levy’s service as judge began in 1964, and he has continuously served as a judge of a court of record to date, his last reelection being in 1972 for a term ending December 31, 1984. The pertinent law covering his service is Art. 7 § 8 of the Constitution of 1921 which had been amended by Acts 1960, No. 592, adopted Nov. 8, 1960, stating in part:

“§ 8 (a) The provisions of this section shall apply to judges of the Supreme Court, the Courts of Appeal, District Courts, including the Civil and Criminal District Courts for the Parish of Orleans, City Courts, Municipal Courts and Traffic Courts which are courts of record, and Juvenile and Family Courts.
“The term ‘Judge’ as used hereinafter in this section, means a judge of one of the courts to which this section is applicable.
“(b) Every judge shall retire upon reaching the age of 75 years. If he has served as judge of a court of record for 20 years, he shall receive full pay for life.
“However any judge now serving who, on attaining the age of seventy five years, has served less than twenty years, may remain in the service until he has served for twenty years or until he has attained the age of eighty years, whichever shall occur first and shall then retire. If he has served for twenty years he shall receive full pay for life and if he has served for less than twenty years he shall receive that proportion of his pay which the number of years served on a court of record bears to twenty.”

The Constitution of 1921 has now been superceded by the Constitution of 1974. Although the mandatory retirement age has been lowered to seventy, the retirement benefits and judicial service rights of Judge Levy under the 1921 Constitution are still in effect. Article 5 § 23 of the 1974 Constitution states:

“§ 23. Judges; Retirement
“Section 23. (A) Retirement System. Within two years after the effective date of this constitution, the legislature shall provide for a retirement system for judges which shall apply to a judge taking office after the effective date of the law enacting the system and in which a judge in office at that time may elect to become a member, with credit for all prior years of judicial service and without contribution therefor. The retirement benefits and judicial service rights of a judge in office or retired on the effective date of this constitution shall not be diminished, nor shall the benefits to which a surviving spouse is entitled be reduced.
“(B) Mandatory Retirement. Except as otherwise provided in this Section, a judge shall not remain in office beyond his seventieth birthday.”

Judge Levy reached his 75th birthday on January 27, 1977, but his term does not expire until December 31, 1984. Referring to Art. 7 § 8 quoted above, it is readily seen that he is beyond the mandatory retirement age stated in the first paragraph of Subsec. (b) unless he is able to continue in office under the provisions of the second paragraph. It is equally apparent (and this is the point of contention here) that the exception provided in the second paragraph is dependent upon the meaning of the words “now serving” in the first line. Without these words, the exception clearly applies to Judge Levy.

Appellant contends that we should restrict the meaning of “now serving” to only those judges who were serving at the effective date of the approval of the amendment. I disagree for several reasons.

Under our system of law, a new law or an amendment to an existing law does not have retrospective effect on substantive matters. Its provisions are contemplated to take effect at its effective date and to control its substantive matters during its existence until it is amended or repealed. See C.C. Art. 8, R.S. 1:2, Const.1921, Art. 4 § 15 and Art. 1 § 2, Const.1974, Art. 1 §§ 2 and 23. It is not limited in time unless it plainly says so.

Words used in our laws are to be given their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words. C.C. Art. 14. Similarly R.S. 1:3 requires words to be construed according to the common and approved usage of the language. The most common usage of “now” is as an adverb meaning “at the present time”. See Webster’s Third New International Dictionary, Unabridged, 1971 Ed.

Considering these factors, the phrase “judge now serving” means a judge in office during the effective period of the law at whatever point in time the law is referred to. To limit the meaning of “now” to mean only November 8,1960, the date of approval; only December 18, 1960, the effective date; or any other particular past date is to restrict its meaning from “at the present time” to “at some particular time”. Can anyone say that Mr. Carter is not “now serving” as President of the United States, or that any member of this court is not “now serving” today as well as when this case was heard?

The only way in which we can limit the meaning of “now serving” to “serving at the effective date of this law” is by judicial legislation, that is, by adding words to the law that the legislature did not add. Unless we should supply some additional words, we would have a confused time frame. Would “now serving” mean at the time the legislature passed the act, or the time the electorate approved it, or the time the constitutional amendment was promulgated and became effective? When the legislature intends to attach such a retrospective effect to an act or to limit its effect to a particular time it says so. We have no further to look than the constitutional article which succeeded this one, Art.

5 § 23, supra. Note the limitations: “Within two years after the effective date”; “a judge taking office after the effective date”; “a judge in office at that time”; “a judge in office or retired on the effective date”. Can they be equated to “any judge now serving”? Certainly not.

I conclude that “any judge now serving” means simply what it says, a judge who is serving during the present period the law is in effect, from its first effective date forward. If further support for this proposition is needed, it is found in the recent case of Swift v. State, 342 So.2d 191 (La.1977) which involved the interpretation of a statute in relation to these same two constitutional provisions and which affirmed the principle that pension statutes must be liberally construed in favor of the intended beneficiaries. I find no confusion or inconsistencies in the constitutional sections pertinent here. To limit the meaning of the law as urged by appellant would require us to abandon that rule of liberal construction. “No compelling reasons are offered for us to adopt that stance.” 342 So.2d 196.

An additional reason for liberal interpretation in favor of appellee is the restrictive nature of the constitutional requirement that an elected officeholder is thus required to retire from office before he fulfills the term for which he was elected. No other elected official in this state is required to resign his office solely on the basis of attained maximum age. It is not my purpose here to raise any federal constitutional questions of discrimination or unfairness, but simply to point out that one of our fundamental constitutional precepts expressed in that same Constitution of 1921, Art. 7 § 40, is that no elected judge shall be affected in his term of office, except as otherwise provided in that Constitution. This justifies liberal interpretation.

I conclude that Judge Levy comes within the exception to the mandate of retirement at age 75 and is not now required to retire; accordingly, I would affirm the judgment appealed.

BEER, Judge,

concurring.

I respectfully concur in the result reached in the opinion of Boutall, J., being of the view that the quo warranto proceeding, which is an extraordinary proceeding, prerogative in nature [see Black’s Law Dictionary 1417 (4th ed. 1951)], entitled Honorable S. Sanford Levy to a liberal construction of the term “judge now serving.” Though I do not share Judge Boutall’s view in a general sense with respect to this phrase, I do perceive that a liberal interpretation thereof supports affirmance of the trial court’s judgment.

STOULIG, Judge, would dismiss appeal and assigns written reasons.

This is an appeal from a judgment dismissing the quo warranto proceeding filed by appellant, Lillian Schon Small, to remove appellee, Judge S. Sanford Levy, from the office of district judge, Civil District Court for the Parish of Orleans. Appellant’s action is based upon the premise that appellee is over 75 years of age and is constitutionally mandated to retire.

For the reasons stated later, neither this court nor the district court has jurisdiction to entertain this proceeding. Jurisdiction vests initially and exclusively in the Supreme Court of the State of Louisiana and its investigative arm, the Judiciary Commission.

Quo warranto by definition requires the individual against whom it is directed to “show by what authority he claims or holds public office.” Obviously Judge Levy’s authority is the commission issued to him by the Governor of the State of Louisiana attesting to the fact that he was duly elected to the office of district judge for a term as fixed by law. Judge Levy was re-elected in 1972 for a 12-year term ending on December 31, 1984. Appellant by pleading these facts of both the election and term of office has judicially acknowledged the authority by which Judge Levy claims or holds his office. Unquestionably the writ of quo warranto has been satisfied.

As I view the appellant’s pleadings she does not question the right or authority by which Judge Levy acquired the office but contests his right to remain in office. In substance she contends that Judge Levy is in violation of La-Const.1921 Art. 7, § 8 as amended in 1960 by refusing to retire. Her contention is then directed to Judge Levy’s inaction and therefore her complaint addresses itself to the Judiciary Commission.

Under Article 5, Section 25(A) of the Louisiana Constitution of 1974, the Judiciary Commission is established and Section 25(C) confers on it the authority to recommend to the Supreme Court the removal, censure, or retirement of any sitting judge for “failure to perform his duty.” The rule promulgated by the Commission pursuant to Section 25 and Rule XXIII of the Supreme Court of the State of Louisiana sets up a procedure by which any individual may enter a complaint against any sitting judge. Its investigation affords a thorough and expedited hearing clothed with such confidentiality as protects both the complainant and the judge until such time as the Supreme Court is required to act.

The Supreme Court under the general supervisory jurisdiction it exercises over all courts of this State (which encompasses the judiciary) under La.-Const.1974 Art. 5, § 5(A) is the forum of original jurisdiction in all proceedings before the Judiciary Commission.

The Constitution of 1974 by creating the Judiciary Commission and empowering it with the authority to hear all complaints of misconduct lodged against any member of the judiciary of this State takes precedence over the provisions of C.C.P. art. 3901 (quo warranto) and the comments thereunder. By setting up this special procedure for the hearing of complaints of judicial misconduct, it has removed such grievances from the scope of quo warranto and placed them under the exclusive jurisdiction of the Judiciary Commission and the Supreme Court.

The wisdom of the Constitutional Convention in establishing the Judiciary Commission is apparent for quo warranto affords a vehicle to every disgruntled litigant with an imagined or fancied grievance to put a judge to the expense and inconvenience of defending his right to remain in office, even though the petition for his removal may be totally without merit. Abuse of quo warranto could result in judges becoming more involved in defending law suits than trying them.

Finally, I do not feel that Lelong v. Sutherland, 134 So.2d 627 (La.App. 4th Cir. 1961), is apposite to the facts of this case. In Lelong members of the school board and not judges were involved and there was not a constitutional or statutory commission vested with the exclusive authority to hear Lelong’s complaint.

For these reasons, I am of the opinion that the appeal should be dismissed for the lack of jurisdiction by this court to entertain it.

LEMMON, Judge,

with whom RED-MANN and SCHOTT, JJ., join, dissenting.

Exception of No Right of Action

Although the exception of no right of action was waived in oral argument (apparently because both parties desired an expeditious final decision on the merits), the court has raised the issue of a citizen’s right to use C.C.P. art. 3901 to question defendant’s authority to continue to act as a judge of the Civil District Court for the Parish of Orleans after reaching the mandatory retirement age of 75.

C.C.P. art. 3901 provides:

“Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.” (Emphasis supplied)

In Lelong v. Sutherland, 134 So.2d 627 (La.App. 4th Cir. 1961), the court conceded that C.C.P. art. 3901 “might appear to give such authority” to challenge one’s right to hold and perform the duties of a public office, but declined to allow such a challenge. The Lelong decision was severely criticized as being contrary to the clear wording of the article. See 23 La.L.Rev. 371, 373 (1963).

A citizen has the right to question judicially the authority of one who exercises governmental powers or of one who sits in judgment over the citizen’s rights. C.C.P. art. 3901 expressly provides a statutory method for exercising this right, and Official Revision Comment (b) notes that the provision specifically authorizing a challenge of an individual’s right to hold public office was incorporated to complement the Intrusion into Office Act (R.S. 42:76 et seq.), which allows such an action by an individual only when he is claiming the office.

There is no compelling reason why a citizen must follow the two-step procedure of bringing a mandamus to require the Attorney General or District Attorney to raise the substantive question which C.C.P. art. 3901 authorizes the citizen to raise. Plaintiff properly employed C.C.P. art. 3901 to require defendant “to show by what authority he (continues to) claim or hold public office,” and Lelong v. Sutherland should be overruled.

Merits

Defendant first became a judge in 1964. At the time La.Const.1921, Art. 7, § 8, relating'to retirement, provided in part pertinent to this case as follows:

“(b) Every judge shall retire upon reaching the age of 75 years. If he has served as judge of a court of record for 20 years, he shall receive full pay for life.
“However any judge now serving who, on attaining the age of seventy five years, has served less than twenty years, may remain in the service until he has served for twenty years or until he has attained the age of eighty years, whichever shall occur first and shall then retire. If he has served for twenty years he shall receive full pay for life and if he has served for less than twenty years he shall receive that proportion of his pay which the number of years served on a court of record bears to twenty.” (Emphasis supplied)

That wording of the Constitution resulted from a 1960 amendment which reduced mandatory retirement age from the previous 80 years to 75 years. Defendant argues that the exception in Section 8(b), which renders the general provision of the section inapplicable to any judge “now serving” who has served less than 20 years, does not apply to him, because he is “now serving” and was when he became 75 in January, 1977.

A review of the history of constitutional provisions for mandatory judicial retirement is in order.

Prior to 1921 there was no provision for mandatory retirement in the Constitution. Section 8 of the Constitution of 1921, in its original form, provided in part:

“Any judge of the Supreme Court, Courts of Appeal, or District Courts may retire on two-thirds pay when he shall have reached the age of seventy years, and shall have served continuously as a judge of a court of record for twenty years immediately preceding the date of retirement; provided, all judges hereafter elected shall retire on reaching the age of seventy-five years, but shall not receive pay thereafter, unless they shall have served for the required length of time”. (Emphasis supplied)

The “hereafter elected” limitation on mandatory retirement was evidently intended to except judges elected under the prior constitution.

In 1928 Section 8 was amended to provide in part as follows:

“Any judge of the Supreme Court, Courts of Appeal, or District Courts, may retire on two-thirds pay when he shall have reached the age of seventy years, and shall have served continuously as a judge of a court of record for twenty years immediately preceding the date of retirement; provided, all judges hereafter elected shall retire on reaching the age of seventy-five years, but such judges shall, nevertheless, continue to serve, unless physically or mentally incapacitated, until their successors shall have been duly elected and qualified; such election to be held at the next general judicial or congressional election following the date when such judges shall have attained the age of seventy-five years. Such judges shall not receive pay after retirement unless they shall have served as judges of courts of record for the required length of time”. (Emphasis supplied)

The 1928 amendment thus repeated the basic mandatory retirement language, but added a provision for continuance in office.

In 1936 Section 8 was again amended to provide that “all judges hereafter elected or presently serving shall retire on reaching the age of eighty years”, with the same provisions for continuation of service until election of a successor and for prohibition of pay unless there was the required length of service. The 1936 amendment specifically referred to subsequently elected judges, as well as those presently (or now) serving, in order to confer on all judges an increase in rights of service.

In 1938 Section 8 was again amended to require that “(a)ny judge hereafter elected shall retire, and any judge presently serving shall retire, on reaching the age of eighty years”, basically repeating the wording of the 1936 amendment on this point. The former provision for continuation of service until the election of a successor was omitted, and further provision was made to allow retirement at the .age of 70 with 15 years of service or at any age with 23 years of service.

The 1956 amendment to Section 8 was not pertinent.

In 1960 Section 8 was extensively rewritten. Section 8(b), quoted above, required every judge to retire at 75, thus reducing the mandatory retirement age from 80 and (if no exception had been made) taking away from judges then serving the right to serve until age 80 and to earn retirement pay. However, an exception was made for any judge now serving (with less than 20 years of service) to serve until age 80 or until he attained 20 years.

When the 1974 Constitution was adopted, Section 23(A) of the judiciary article provided that “(t)he retirement benefits and judicial service rights of a judge in office or retired on the effective date of this constitution shall not be diminished, nor shall the benefits to which a surviving spouse is entitled be reduced”. Section 23(B) further reduced the mandatory retirement age to 70.

In summary the mandatory retirement age was first set at 75, with no provision for pay for judges who had not served 20 years. The mandatory provision, however, applied only to judges “hereafter elected” until 1936, when the provision raising the mandatory retirement age to 80 was made applicable to all judges “hereafter elected or presently serving”. The 1960 amendment reduced the mandatory retirement age, but excepted from this reduction “any judge now serving” who upon reaching the lowered mandatory retirement age would not have served the time necessary for retirement at full pay.

As amended in 1960 the first paragraph of Section 8(b), applicable to “every judge” without either of the previously used qualifying phrases “hereafter elected” or “presently serving”, was obviously intended to apply generally to every judge, in whichever category. The second paragraph of Section 8(b), applicable to “any judge now serving”, was obviously intended as an exception to the general requirement for mandatory retirement, applicable only to judges “now serving” (and thus not to judges “hereafter elected”). The historical use of the term “presently serving” in conjunction with or as opposed to “hereafter elected” demands this interpretation.

If, as defendant contends, the term “any judge now serving” applies generally to every judge [as does the term “every judge” in the first paragraph of Section 8(b)], then the term “now serving” has no meaning whatsoever. Such an argument for universal application of a term obviously intended for particular application requires that the phrase “now serving” be ignored completely-

Of general and common knowledge is the fact that age often takes its toll on even the keenest of human minds and the healthiest of human bodies. Recognizing this fact, and apparently believing that a maximum age was as important and valid an element in required qualifications for judges as was a minimum age, the drafters of the Constitution of 1921 included a provision for mandatory retirement of judges.

The purpose of the constitutional provision was to insure not only that judges were qualified when elected, but also that they remained qualified during their terms of office. By placing an objective and absolute requirement in the Constitution instead of a subjective standard for judging the qualifications of each judge upon reaching a certain age, the drafters of the provision declined to place an awesome responsibility on an aging judge’s colleagues to determine his continued qualifications.

By the same reasoning which dictated that an aging judge’s colleagues should not have such a burden, this constitutional provision (whose intent and purpose is obvious) must not be interpreted so as to allow to remain in office a judge who has reached the mandatory age, regardless of the condition of his physical and mental faculties. The provision must be interpreted in accordance with its apparent intent and clear wording, without reference to the continued competency of the particular judge whose qualifications are under consideration in a particular case.

We conclude that the term “any judge now serving” means any judge serving at the time of the adoption of the amendment in 1960. Because defendant was not serving at the time of the adoption of the 1960 amendment, he does not come under the exception in Section 8(b).

Defendant further contends that La. Const.1974, Art. 5, § 22(C) allows him to serve through the remainder of his term, which ends in 1984. Section 22(C) provides as follows:

“(C) END OP TERM. A judge serving on the effective date of this constitution shall serve through December thirty-first of the last year of his term or, if the last year of his term is not in the year of a regular congressional election, then through December thirty-first of the following year. The election for the next term shall be held in the year in which the term expires, as provided above.”

Section 22(C) was intended to make all judicial terms throughout the state end on December 31 in congressional election years, inasmuch as some terms ended on other dates under the prior constitution. This intention is indicated by the title of the paragraph “End of Term” and by resort to reason. Indeed, a constitution which decreases the mandatory retirement age from 75 to 70 cannot reasonably be interpreted to allow (much less to require) a judge above 75 to serve until the end of his term.

Furthermore, defendant’s contention that Section 22(C) allows him to serve through the end of his term is inconsistent with the use of the mandatory word “shall”. The logic that the Constitution obviously did not intend to require a judge to serve through the end of his term (if otherwise eligible for retirement) militates against defendant’s argument that Section 22(C) was intended to allow him to do so. Moreover, Section 22(C) cannot reasonably be construed to constitute an exception to the general law stated in Section 23(B). As specifically stated in Section 23(B), the exception to mandatory retirement at 70 is “except as otherwise provided in this section”, referring to Section 23 and not to Section 22.

Section 22(C) cannot reasonably be construed to allow defendant to serve the remainder of his term after he has reached the mandatory retirement age.

Finally, the statement in Swift v. State, supra, that pension statutes should be liberally construed in favor of intended beneficiaries, does not avail defendant. This case does not involve the interpretation of a statute providing pension benefits, but rather the interpretation of a provision for the date of mandatory retirement. The incidental fact that defendant’s continuing in service enhances his retirement benefits does not serve to bring this case under the rationale of the Swift decision.

The judgment of the trial court should be reversed and the writ of quo warranto made peremptory in accordance with C.C.P. art. 3902.

      . Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297 (La.1973).

      . La.-Const.1921 Art. 7, § 8 as amended in 1960.

      . The expedited process of the Commission avoids the time-consuming process of quo war-ranto as it progresses through the district court, the Court of Appeal, and ultimately comes to rest with the Supreme Court where it was destined to be finally decided from the moment of its filing.

      . Section 8(c) eliminated the requirement for a specific length of service in order to receive pay after retirement and allowed retirement with pay at the age of 70 years, in addition to other provisions for retirement with pay after a specific length of service or a combination of service and age.

      . Section 23(B) provides:
      “Except as otherwise provided in this Section, a judge shall not remain in office beyond his seventieth birthday.


author: LEMMON, Judge.

text:
    MONTELEPRE, INCORPORATED v. Gerald G. PFISTER et al.
    No. 9286.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 1, 1978.

      Philip Montelepre, New Orleans, for plaintiff-respondent.
    Harry A. Burglass, Metairie, for defendants-relators.
    Before LEMMON, GULOTTA and BAILES, JJ.
   LEMMON, Judge.

This matter is before us on an application for supervisory writs. The application questions a judgment which overruled Gerald Pfister’s exceptions of improper venue and no cause of action.

This case originated as a suit on a promissory note against Pfister, a St. Tammany resident, and another defendant, who resided in Orleans Parish. The Civil District Court for the Parish of Orleans rendered judgment against both defendants.

After the delay for a suspensive appeal elapsed, plaintiff obtained issuance of a writ of fieri facias and then, alleging it had been unable to satisfy the judgment, filed (in this same suit) a petition for injunction pursuant to R.S. 12:637, seeking to enjoin Pfister from transferring or encumbering certain shares of corporate stock.

The trial court issued a temporary restraining order and set a hearing on the preliminary injunction. Pfister filed exceptions of improper venue and no cause of action and a motion to dissolve the restraining order. When the court at the scheduled hearing preliminarily overruled the exceptions of improper venue and no cause of action, Pfister announced his ■ intention to apply for supervisory writs, and the court continued the other pending matters until disposition of the writ application.

As to the exception of improper venue, the initial inquiry is whether it is necessary to make the Orleans judgment executory in St. Tammany in order to seize the stock there.

There is no specific codal requirement that a judgment of a Louisiana court be made executory in another parish for the purpose of execution. C.C.P. art. 2781 provides the time and conditions for making a judgment executory, and C.C.P. art. 2782 provides the procedure for doing so, but neither article requires this as a prerequisite to execution under a writ of fieri facias. Indeed, C.C.P. art. 2417 specifically requires that a judgment be made executory in the parish of execution when a garnishment under a writ of fieri facias is filed in the parish of execution (because the garnishee is domiciled there — see venue provision in C.C.P. art. 2417). That special requirement suggests that there is no general rule requiring a judgment to be made executory in the parish of execution, since there would be no need for a special rule if a general rule existed.

Furthermore, C.C.P. art. 2253, which provides that the clerk of the court which rendered the judgment shall issue a writ to the sheriff of the parish where the judgment is to be executed, makes no mention of the necessity of making the judgment executory. And if the judgment necessarily had to be made executory, then the clerk in the parish of execution could issue the writ, and C.C.P. art. 2253’s authorization for issuance by the clerk in the parish of rendition would be unnecessary.

We conclude in the present case that it was unnecessary to make the judgment .executory in St. Tammany Parish. Since the judgment could, be executed by the court in Orleans Parish, that court could, in' aid of its jurisdiction to execute the judgment, issue an injunction authorized by R.S. 12:637.

As to the exception of no cause of action, R.S. 12:637 specifically authorizes the procedure employed here, and the statute makes no requirement of irreparable injury. The statute; however, does not dispense with the necessity of security, and the issuance of the temporary restraining order should have been conditioned upon the furnishing of security in an amount fixed by the trial court. C.C.P. art. 3610. The trial court erred in issuing the restraining order without requiring security, and the order is therefore invalid.

Accordingly, the application is denied insofar as it questions the overruling of the exceptions of improper venue and no cause of action. As to relator’s complaint of the trial court’s failure to require security, it is ordered that the trial court recall the temporary restraining order as improperly issued.

APPLICATION DENIED WITH ORDER TO RECALL TEMPORARY RESTRAINING ORDER.

      . R.S. 12:637 provides:
      “A creditor whose debtor is the owner of a certificate shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such certificate or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which can not readily be attached or levied upon by ordinary legal process.”

      . The Official Revision Comments under C.C.P. art. 2781 note that there is usually no necessity, except when required by a special statute, to make the judgment of another Louisiana court executory, and that the court rendering the judgment normally executes by issuing a writ of fieri facias to the sheriff in the parish of execution.
      In Pounds v. Chicago Ins. Co., 298 So.2d 134 (La.App. 1st Cir. 1974), cert. den. 302 So.2d 19 (stating “no error in the judgment”), the court held that seizure of a tort claim in Tangipohoa Parish could be accomplished without making the judgment of another Louisiana court execu-tory in Tangipohoa Parish.

      . Another special rule as to which court shall execute a judgment is C.C.P. art. 2452, which requires that an examination of a judgment debtor be conducted in the parish where the debtor is domiciled.


text:
    Kermit C. RUCKER v. Kay R. RUCKER.
    No. 50209.
    Supreme Court of Mississippi.
    Aug. 10, 1977.
    Laurel G. Weir, Philadelphia, for appellant.
    Covington & Roberts, Larry E. Roberts, Meridian, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.