author: SARTAIN, Judge.

text:
    Don FERGUSON, Plaintiff-Appellant, v. Howard A. PORTER, Defendant-Appellee.
    No. 11928.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    James A. Wood, Baton Rouge, for plaintiff and appellant.
    Leopold B. Babin, Houma, for defendant and appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

The issue presented in this litigation concerns the rights of a conventional mortgagee of real property following the mortgagor-debtor’s discharge in bankruptcy. From a judgment decreeing his mortgage cancelled, the mortgagee has appealed. We reverse and remand.

The record on appeal does not contain a transcript of the evidence, a narrative of fact, nor oral or written reasons by the trial judge. However, from the pleadings, two exhibits, and briefs of counsel, the following occurred:

On July 5, 1973, Terrebonne Bank and Trust Company (Terrebonne Bank) recorded a collateral mortgage on certain real property owned by Howard A. Porter (Porter). On this same date, Don S. R. Ferguson (Ferguson) recorded a second mortgage covering the same property. On July 28, 1975, Porter and his wife were discharged in bankruptcy in the United States District Court. Following recordation of the order of discharge, the Clerk and Recorder of Mortgages for the Parish of Terrebonne (Clerk of Court) on February 19, 1976, can-celled the above mortgages. On March 17, 1976, Porter executed a new mortgage in favor of Terrebonne Bank.

By letter dated July 16, 1977, Ferguson’s counsel forwarded his petition for executo-ry process. He requested the Clerk of Court to certify as true an enclosed copy of the mortgage and present the documents to the district judge for the issuance of the customary writ of seizure and sale.

Shortly thereafter Terrebonne Bank filed its petition of intervention and asserted that by virtue of the cancellation of the prior mortgages Ferguson’s claim is unenforceable and that its mortgage of March 17,1976, constituted a first mortgage on the property sought to be seized by Ferguson.

The matter proceeded to a hearing on companion rules directing Ferguson to show cause why his request for executory process should not be denied and the bank’s mortgage of March 17,1976, should not be designated as the first and only mortgage recorded against the subject property as of March 17, 1976.

Judgment thereon was rendered recognizing the bank’s mortgage of March 17, 1976, as the only uncancelled mortgage of record as of that day and rejecting Ferguson’s petition for the writ of seizure and sale.

On appeal, Ferguson argues that the trial judge erred (1) in holding that a discharge in bankruptcy voided his in rem rights against the subject property; (2) in holding that the Clerk of Court may cancel the subject mortgages on the authority of the discharge in bankruptcy; and (3) in failing to find that the new note and mortgage of Terrebonne Bank extinguished its prior mortgage of July 5, 1973, elevating Ferguson’s second mortgage of that date to a first lien.

Terrebonne Bank urges the correctness of the decision appealed and, alternatively, contends that in the event the earlier mortgages were erroneously cancelled, then both mortgages should be reinstated according to their order of recordation.

A copy of Porter’s discharge in bankruptcy was not offered in evidence. However, it appears from the arguments in brief of both counsel that the discharge was a general one and that the property was disclaimed by the Trustee in Bankruptcy. Further, it is abundantly clear that the Clerk of Court relied upon R.S. 9:5165 as his authority to cancel the two mortgages recorded on July 5, 1973. If the Clerk of Court has relied upon a general discharge in bankruptcy, he has misconstrued the statute.

R.S. 9:5165 provides:

“No clerk of court and ex officio recorder, and no recorder of mortgages, of the State of Louisiana, and no deputy of such officers, who cancels and erases from the records of his office any mortgage, judgment, lien or other encumbrance upon the written order or judgment of any judge, sheriff or United States referee in bankruptcy shall be liable in either his individual or official capacity to any person or persons for any damages as the result of such cancellation. This exemption from liability shall extend likewise to any surety on the official bond of such officer.”

There is nothing in the statute which states that a general discharge in bankruptcy automatically permits and/or requires the cancellation of all liens and mortgages recorded against the property of a bankrupt. The orders referred to in the statute are such orders as are specific and direct a Clerk of Court to cancel a given mortgage(s) so that property sold through bankruptcy sales may be conveyed with a clear title.

It has been the settled jurisprudence of this state for many years that prior recorded mortgages retain their viability in rem against the encumbered property. Schnailder v. Fontenot, 147 La. 467, 85 So. 207 (1920) and Socony Mobile Oil Co. v. Burdette, 309 So.2d 655 (La.1975). While most of the cases involved judicial mortgages the above rule is just as applicable to conventional mortgages.

The argument advanced by Terrebonne Bank, i. e., that a general discharge in bankruptcy authorizes the cancellation of all prior recorded mortgages, would not only relieve the bankrupt of all personal liability but would also release his property. Thus, the bankrupt would then be free to remortgage or even sell his property to a third party free and clear of any encumbrances.

In W. K. Investment Co. v. Tyler, 303 So.2d 777, 779 (La.App. 1st Cir. 1974), we stated:

“When mortgaged property is disclaimed by the Bankruptcy Court, title to the property reverts in the bankrupt, subject to the mortgage, and a subsequent discharge in bankruptcy releases the bankrupt’s personal liability on the indebtedness, but the mortgage remains intact.”

In Excel Finance Mid City, Incorporated v. Williams, 205 So.2d 846, 847 (La.App. 4th Cir. 1968), the court said:

“Since the trustee in bankruptcy has disclaimed the chattel mortgaged property, the plaintiff-creditor may enforce his claim by foreclosure in the state courts. See Excel Finance Camp, Inc. v. Tannerhill, La.App., 140 So.2d 202. His rights against this property are limited to the ranking of his chattel mortgage along with privileges belonging to other creditors in this property and the amount for which his claim is secured. These rights are theoretically valid until prescribed, but are of practical value only so long as the property has a market value greater than the interests of all creditors who precede this chattel mortgage holder in the ranking of privileges and security rights against this property.”

See also, Excel Finance Camp, Inc. v. Tannerhill, 140 So.2d 202 (La.App. 4th Cir. 1962). For a general discussion relating to the effect of an adjudication in bankruptcy on prior existing mortgages against the property of the bankrupt, see 8B C.J.S. Verbo Bankruptcy, §§ 201(C) and 582(2).

If Porter’s discharge in bankruptcy was general in nature and if the mortgaged property was not administered but was disclaimed by the bankruptcy court and the Clerk of Court relied upon this instrument as his authority to cancel prior recorded mortgages, then same was done in error. This, however, does not diminish their legal effect. Zimmerman v. Fryer, 190 La. 814, 183 So. 166 (1938) and Davis-Wood Lumber Company v. DeBrueys, 200 So.2d 916 (La.App. 1st Cir. 1967).

It is therefore necessary to remand this cause so the legal effect of Porter’s discharge may be determined with certainty. If the evidence adduced on remand is to the effect that the discharge was in fact general, then the prior mortgages must be reinstated and Ferguson is entitled to proceed with his executory process in accordance with law.

We do not pass upon Ferguson’s third assignment of error, above, that the mortgage of March 17, 1976, constituted an ex-tinguishment of its prior mortgage of April 5, 1973 under C.C. Art. 3411(4). The circumstances surrounding the March 17,1976, transaction are not in the record and this issue can best be resolved if and when it is determined that Ferguson’s second mortgage is enforceable.

Accordingly, for the above reasons, the judgment of the district court is reversed insofar as it recognized the $24,700.00 mortgage of Terrebonne Bank & Trust Company recorded on March 17, 1976, as the only uncancelled mortgage as of that date on the following described property:

“A certain lot of ground located about ten (10) miles above the City of Houma, on the West side of Bayou Terrebonne, part not fronting thereon, in Section 4, T16S, R16E, and Section 4, T16S, R17E, and being a portion of the North one-half (V2) of the old ‘Half-Way Plantation’; said lot being more fully shown and described on a plat entitled ‘Map Showing Property of Alvin P. Landry, Et Al, Made by Douglass S. Talbot, C. E., on November 10, 1965’; said plat being recorded in the office of the Clerk of Court, Terrebonne Parish, Louisiana, in COB 410 at Folio 268, Entry No. 290,498; the Southeast corner of said lot being designated by point ‘H’ on said plat, said lot measuring a distance of eighty (80') feet front on the North side of Merlin Street, commencing at point ‘H’ and thence traveling in a westerly direction along the northernmost boundary of Merlin Street, between equal and parallel lines measuring One Hundred Sixty-Six and Thirty-Hundredths (166.30') feet, said lot being bounded on the South or in front by Merlin Street, North or in the rear by Fairlane Subdivision, on the West by other property of mortgagor and on the East by property belonging to Cecil McDonald, or assigns; together with all buildings and improvements thereon and with all rights, ways, privileges and servitudes thereunto belonging or in anywise appertaining.”

and this matter is remanded for further proceedings consistent with the views herein expressed.

All costs of this appeal are to be borne by Terrebonne Bank & Trust Company with final costs to await final determination.

REVERSED AND REMANDED.

      . We note that Ferguson’s copy of the mortgage was not certified by the Clerk of Court as requested. This oversight can be easily corrected on remand if the mortgages warrant reinstatement.


source: Caselaw Access Project

license: Public Domain

text:
    Succession of Luke M. DANOS.
    No. 11942.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearing Denied June 12, 1978.
    Johnny X. Allemand, Thibodaux, for petitioner and appellee.
    Carlton J. Cheramie of the Law offices of Edward T. Diaz, Golden Meadow, for defendant and appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This action arises on the petition of Ode-nelle J. Danos as the Administrator of the Estate of Luke M. Danos (Administrator) seeking to obtain from Mrs. Enola Danos Autin (appellant) certain assets which are averred to belong to the decedent’s estate. From an adverse judgment Mrs. Autin has appealed. We affirm.

The particular assets in controversy are: Item No. 1: Certificate of Deposit No. 1789 issued by State Bank & Trust Company in the name of Luke Danos or Mrs. Enola Danos Autin, in the amount of $10,793,56.
Item No. 2: Certificate of Deposit No. 896 issued by Citizens Bank & Trust Company in the name of Luke Danos or Mrs. Enola Danos Autin in the amount of $14,-437.41.
Item No. 3: Money order No. 3850, issued by Citizens Bank & Trust Company, payable to Luke Danos or Mrs. Enola Danos Autin in the amount of $816.00. (Interest on Certificate of Deposit No. 896, above.)

The origin of these funds is not in dispute.

The Administrator contends that these assets are incorporeal rights and cannot be the subject of a manual gift. C.C. Art. 1536, below.

Appellee, on the other hand, contends that the certificates were given to her by the decedent in consideration of services rendered to him by herself and her husband, which gift constituted a remunerative donation, not subject to the rules peculiar to donations inter vivos. C.C. Art. 1526, below.

The trial judge, in well considered written reasons, found that it was a remunerative donation but that the donation was void as to form because the value of the gift ($26,091.97) exceeded by one-half the value of the services, which he found to be $12,110.00.

The issues thus presented are was there a donation and, if so, what type? If it was a remunerative donation, is it void as to form because the value of the gift exceeded by one-half the value of the services?

We note, as applicable here, the following articles of our Civil Code:

“Art. 1523. There are three kinds of donations inter vivos:
The donation purely gratuitous, or that which is made without condition and merely from liberality:
The onerous donation, or that which is burdened with charges imposed on the donee;
The remunerative donation, or that the object of which is to recompense for services rendered.”
“Art. 1525. The remunerative donation is not a real donation, if the value of the services to be recompensed thereby being appreciated in money, should be little inferior to that of the gift.”
“Art. 1526. In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half that of the charges or of the services.”
“Art. 1536. An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.”

Thus, our Code provides for three types of donations inter vivos, i. e., gratuitous, onerous and remunerative. Art. 1523. If it is a remunerative donation and the gift is a corporeal movable there are no form requirements and the services may be of lesser value than the gift. Art. 1525. However, if the gift is an incorporeal and its value exceeds by one-half that of the services then the rules applicable to donations inter vivos must be complied with. Art. 1526. In which case, the donation must be by notarial act before two witnesses. Art. 1536.

The trial judge was correct in holding that it was a remunerative donation.

The decedent died intestate on July 13, 1973. He is survived by collateral heirs (and their descendents) only. From early 1965 until his death, decedent resided in the home of appellant and her husband, Eves Autin. The Autins added a bedroom, bath and garage to their home for his exclusive use, paid all of the utility bills, paid for and prepared all of his meals, laundered his clothes, cleaned and maintained his quarters. All of this was done without charge to or any contribution from decedent.

The certificates are dated July 24, 1972. Appellant and her husband testified that the decedent presented appellant with the certificates and stated that he wanted her to have them for “services she had done for him.” While there are no other witnesses to the verbal act of donation than appellant and her husband, the trial judge was impressed with her testimony and accepted it as truthful. We agree.

However, the Code is very clear in its requirement that a remunerative donation is not subject to the rules peculiar to donations inter vivos “except when the value of the object given exceeds by one-half that of the services.” Thus, crucial to the validity of the instant act of donation is the requirement that the value of the certificates not exceed by one-half the value of the services rendered by the donees, else the act itself is void for lack of authentic form.

It has been observed that the correct mathematical meaning of Article 1536 has been the source of considerable confusion in the jurisprudence. See Comment, Personal Services About the Home, 23 La.L.Rev. 418, 432, N.78 (1963). As noted in the cited Comment, Whitman v. Whitman, 206 La. 1, 18, So.2d 633, 639 (1934), seems to present the clearest jurisprudential example of the correct application of the article, viz: a remunerative donation is not subject to the rules peculiar to donations inter vivos if the value of the services is in excess of two-thirds of the value of the gift.

In the instant case, for the subject donation to stand, the value of the services would have to equal or exceed the approximate sum of $18,000.00.

The trial judge found that the value of the services rendered by appellant and her husband to the decedent with “every possible leeway” accorded appellant was far less than the value required to avoid the necessity of the requirement of Article 1536. He therefore held the donation void. We are compelled to agree.

Appellant has argued that the trial judge failed to give her credit for services rendered to the decedent during the years of 1950 through 1965 when she and her husband resided with the decedent in his home. The value of these services was not urged in the court below nor were they alleged to constitute any part of the consideration for the donation.

Appellant further urges the applicability of C.C. Arts. 1513 and 1514. The trial judge was correct in rejecting this contention because these articles presuppose a valid donation.

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

AFFIRMED.


author: ELLIS, Judge:

text:
    Hugh H. ADAMS et al. v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS. Patricia Adams BERGERON v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS.
    Nos. 11923, 11924.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearings Denied June 12, 1978.

      John L. Lanier, c/o Pugh, .Lanier & Pugh, Thibodaux, for plaintiffs and appellees.
    Robert J. Jones, Asst. Gen. Counsel, Baton Rouge, for defendant and appellant.
    Jerome Barbera, III, Thibodaux, for third party defendant, Lafourche Parish Police Jury and appellee.
    Robert E. Barkley, Jr., c/o Sessions, Fish-man, Rosenson, Snellings & Boisfontaine, New Orleans, for third party defendant United States Fire Ins. Co. and appellee.
    Jerald P. Block, Thibodaux, for plaintiff, Patricia Adams Bergeron, appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

These two consolidated cases arise out of an automobile accident between an automobile owned and operated by Patricia Adams Ganier, now Bergeron, and an automobile owned and operated by Leonard L. Landry. Mrs. Audrey Trahan Adams, mother of Mrs. Bergeron, who was a guest passenger in her vehicle, died as a result of injuries received in the accident, and Mrs. Bergeron was seriously injured. The accident happened at the intersection of State Highway 3107 and the West Thibodaux Bypass, a parish road.

Plaintiffs in the first suit are the husband and all of the children of Mrs. Adams, except for Mrs. Bergeron, seeking damages for her wrongful death, as well as for Mrs. Adams’ pain and suffering prior thereto. Mrs. Bergeron is plaintiff in the other suit, seeking damages for her personal injuries, as well as for the wrongful death and pain and suffering of Mrs. Adams. The defendant in both suits is the State of Louisiana, through the Department of Highways.

The State answered, denying any negligence on its part, and alleging the negligence of both Mr. Landry and Mrs. Berger-on as the cause of the accident. It also third partied the Lafourche Parish Police Jury, alleging that the Police Jury was responsible for regulating traffic on parish roads, and asking for indemnification or contribution in the event the State should be found liable. It is further alleged that plaintiffs have settled all claims with Mr. Landry, and that any judgment rendered against the State should be reduced proportionately.

The Police Jury answered, denying liability, and pleading the negligence of Mr. Landry and Mrs. Bergeron. It third partied United States Fire Insurance Company, alleging that United was its insurer, and asking for judgment for any amount it might be condemned to pay. United answered, denying that it insured the Police Jury, and alternatively alleging the negligence of Mr. Landry and Mrs. Bergeron.

Subsequently the State third partied Mrs. Bergeron, asking for contribution, and the Police Jury reconvened against the State, asking for indemnification. United then third partied Mrs. Bergeron and the State. Finally, the Police Jury third partied Mrs. Bergeron.

After trial on the merits, judgment was rendered in favor of plaintiffs and against the State, and all third party demands were dismissed. From that judgment, the State has appealed. Answers to the appeal were filed by Mrs. Bergeron, seeking certain stipulated medical expenses; and by the Police Jury and United, seeking to preserve their third party demands, should the judgment in their favor be reversed.

At the intersection, Highway 3107, an 18- or 20-foot wide blacktop road, runs east and. west, and the West Thibodaux Bypass, a 25-foot wide blacktop road, runs north and south. Traffic surveys show that Highway 3107 is the more heavily traveled. At the time of the accident, traffic approaching the intersection on the Bypass was faced with two “Stop Ahead” signs, located 750 to 1,000 feet from the intersection, and a standard 30-inch stop sign at the intersection itself. Highway 3107, the favored road, had no traffic controls other than a warning sign indicating an intersection ahead. Both drivers testified that they were familiar with the intersection. Mr. Landry stated that he had been through the intersection, on the Bypass some 15 times before the accident, and had always observed and obeyed the stop sign.

On the date of the accident, Mr. Landry was driving north on the Bypass and Mrs. Bergeron was going east on Highway 3107, approaching the intersection at the same time. On this occasion, Mr. Landry did not observe or obey the stop sign, drove into the intersection and the two vehicles collided.

Plaintiffs claim that the State is liable to them because of its alleged failure to place adequate traffic controls at the intersection, rendering it unsafe for reasonably careful drivers using Highway 3107.

The record reveals that the Bypass, also known as Julia Road, had been upgraded from a gravel road to a 25-foot blacktop road during 1971, 1972 and 1973, the improvement having been completed on about July 1, 1973. At that time, the traffic controls on the Bypass consisted of a red “Stop Ahead” sign some distance before the intersection and a standard 30-inch Stop sign at the intersection. There were no controls on Highway 3107. The record further shows that between January 1, 1971, and September 1, 1973, nine accidents took place at the intersection, in each of which one of the parties ran a stop sign. These accidents took place on November 28, 1971; October 18, November 14, and December 27, 1972; and January 7, January 23, February 27, July 9 and August 22, 1973.

On August 23,1973, the Lafourche Parish Police Jury requested that the State make a survey at the intersection, and “do whatever is necessary to make this a safer intersection.” On September 28, 1973, a traffic survey was made, and as a result thereof the following recommendations were made:

“It is recommended that the Department install 20-inch wide stop lines on both approaches of the West Thibodaux Bypass Road and replace the substandard 24-inch “Stop” signs with 30-inch “Stop” signs. In addition to this, it is recommended that the Department install crossroad warning signs on both approaches of La 3107 (see attached sketch).”

On November 6 and 7, 1973, the recommendations were carried out. The 24-inch signs referred to were found to be standard 30-inch signs, and were not replaced. The crossroad warning signs were installed, and, because they were shown on the sketch which accompanied the order, “Stop Ahead” signs were installed about 1,000 feet from the intersection on the Bypass. The “Stop Ahead” signs already installed by the Police Jury were left in place. The stop bars, which are white stripes on the road surface indicating where a vehicle stopping for the sign should come to a halt, were placed on the Bypass.

Although plaintiffs argue to the contrary, there is no credible evidence in the record to show that there were any accidents at the intersection after August 22, 1973, until June 14, 1973. The accident in this case happened on June 23, 1973.

The main thrust of plaintiffs’ argument is that the action taken by the State on November 6, 1973, was not enough to protect vehicles traveling on Highway 3107. Both by expert testimony and by reference to the Traffic Control Devices Manual of the Department of Highways, they argue that the control that should have been installed was a “Four Way Stop”, which would require all vehicles on both roads to stop before entering the intersection.

Section 2B-6 of the Manual, entitled “Multiway Stop Signs”, provides:

“Any of the following conditions may warrant a multiway STOP sign installation (sec. 2B-4):
“2. An accident problem, as indicated by five or more reported accidents of a type susceptible of correction by a multiway stop installation in a 12-month period. Such accidents include right- and left-turn collisions as well as right-angle collisions.”

It is pointed out that, in the 12-month period immediately before the survey, seven accidents took place at the intersection.

The State argues that a four-way stop was not indicated because of the low volume of traffic at the intersection, and because most of the accidents took place during the construction period and could not be necessarily considered as indicating that the intersection was hazardous. They point out that for one month before the survey and for almost nine months thereafter, and for over seven months after the new traffic controls were installed on November 6, 1973, there were no accidents whatsoever at the intersection.

Plaintiffs’ traffic expert testified that the minimum control which he would have recommended at this intersection on September 28,1973, would be “standard Stop signs on all approaches and proper notice given to the motorist in effect with Stop Ahead signs.” He further stated: “This would not necessarily stop the violation rate or lower the violation rate on Julia Road, but the probability of a simultaneous violation on the two roadways would be much more remote.” He based his opinion on the information available to the State on September 28, 1973. On the other hand, when asked a hypothetical question, based on the facts of the case as above stated, as to the adequacy of the controls installed in November, 1973, in view of the fact that there were no accidents for seven months thereafter, he stated that, under the facts given, he would assume that the controls were functioning adequately.

The trial judge found that the State failed in its duty to warn travelers on Highway 3107 of a hazardous condition at its intersection with the Bypass, and was therefore liable for the injuries suffered by Mrs. Adams and Mrs. Bergeron. Apparently he was of the opinion that Mr. Landry was also negligent, since he reduced the award against the State by one-half. The judge found no negligence or contributory negligence on the part of Mrs. Bergeron.

It is obvious that Mr. Landry was negligent. He failed to observe and obey a stop sign of which he was aware, and which he had observed and obeyed on many prior occasions. His negligence is certainly the proximate cause of the accident.

As to the alleged negligence of the State, we note the following principles of law, on which the trial judge properly relied:

“It is generally accepted that ‘the Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The Department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the Department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.’ Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ refused 303 So.2d 182 (La.1974).” Breaux v. Louisiana Department of Highways, 347 So.2d 1290, 1293 (La.App. 1st Cir. 1977).

We note that the State was notified of the existence of the alleged hazardous condition by the August 23, 1973, resolution of the Police Jury, and that it conducted a study and made certain changes in the traffic controls at the intersection. Thereafter, there were no accidents at the intersection for over seven months, and only two during the next year.

Under those circumstances, we find that the State has met the duty imposed on it by the law. We think that the evidence of what actually happened at the intersection after the additional controls were put in place far outweighs the opinion of plaintiffs’ expert. We further note that the trial judge stated in his reasons for judgment that there had been eight accidents at the intersection in the eight months preceding the accident. The record clearly shows that there was only one accident, and his conclusion in that respect is manifestly erroneous. We therefore hold that the sole proximate cause of the accident was the negligence of Mr. Landry in the respects hereinabove set forth.

Since we are of the opinion that the State was not guilty of negligence which was a cause in fact of this accident, we need not consider the questions raised by the various third party demands.

The judgment appealed from is reversed and set aside, and there will be judgment in favor of the State, dismissing plaintiffs’ demands at their cost and dismissing all third party demands.

REVERSED AND RENDERED.


text:
    James A. WAGUESPACK et al. v. Judith M. WAGUESPACK et al.
    No. 11929.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Calvin H. McBride, New Orleans, for plaintiffs and appellants.
    Rene L. Randon, Metairie, Kenneth Watkins, Houma, for defendant and appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

By acts of dation en paiement dated March 29, 1930, and June 14, 1930, Joseph A. Waguespack transferred two oarcels of ground to Judith M. Waguespack, wife of George M. Landry. Mr. Waguespack died in 1943 and his widow, Justine Watkins Waguespack, died in 1964. They left five children: Joseph A. Waguespack, Jr., James A. Waguespack, Felix J. Waguespack, Louis Waguespack and Judith Waguespack Landry. Joseph A. Waguespack, Jr., died in 1969. In 1970, Mrs. Landry transferred the parcel of ground received in the March 29, 1930, dation en paiement to Victor C. Vybiral and Marcel P. Randon.

This suit was filed on December 10,1973. Plaintiffs are Felix Waguespack and James A. Waguespack, who appears individually and as administrator of the successions of his parents and his deceased brother. The petition alleges that the two dations en paiement were simulations, and asks that they be annulled. Alternatively, they ask that the two dations be declared donations in disguise, and that the properties be collated to the successions of the decedents.

The defendants herein are Mrs. Landry, Mr. Vybiral and Mr. Randon. Louis Wag-uespack is not a party to the suit. All filed exceptions of prescription of five, ten and thirty years. After a hearing at which no evidence was received, judgment was rendered sustaining the exceptions and dismissing plaintiffs’ suit. Prom the judgment of dismissal, plaintiffs have appealed.

It is settled law that the action en declaration de simulation is imprescriptible. Article 2239, Civil Code; Smelley v. Ricks, 174 La. 734, 141 So. 445 (1932); Schalaida v. Gonzales, 174 La. 907, 142 So. 123 (1932); Pounds v. Yancey, 224 So.2d 1 (La.App. 1st Cir. 1969). The exception of prescription should have been overruled as to the main demand.

The action for collation prescribes in ten years from the death of the person to whose estate collation is sought. Article 3544, Civil Code; Successions of Webre, 247 La. 461, 172 So.2d 285 (1965); Pounds v. Yancey, supra. If, therefore, there should be a finding that the dations en paiement were, in fact, donations in disguise and that collation was due, prescription would have run as to the succession of Joseph A. Waguespack, who died in 1943, but not as to the Succession of Mrs. Waguespack, who died in 1964.

Defendants Vybiral and Randon argue in this court that the petition states no cause of action as to them, since they are innocent third party purchasers, against whom the action in simulation will not lie. They have filed no pleadings to that effect in either court, and did not appeal from the judgment herein, nor answer plaintiffs’ appeal. We cannot, therefore, consider their argument.

Except as to the alternative demand for collation to the Succession of Joseph A. Waguespack, the judgment appealed from is reversed and set aside, and the case remanded to the trial court for future proceedings in accordance with law. Defendants are granted 15 days from the date this judgment becomes final to file their answers. All costs of this appeal shall be paid by defendants, with all other costs to await final disposition of the case on its merits.

REVERSED AND REMANDED.


author: ELLIS, Judge.

text:
    Doris B. FLANAGAN et al. v. William J. GUSTE, Jr., Attorney General, et al.
    No. 11932.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.

      John D. Kopfler, Maurice D. Robinson, Hammond, of counsel for plaintiff-appellant Doris B. Flanagan, et al.
    David Henderson, Carmack Blackmon, Baton Rouge, of counsel for defendant-ap-pellee William J. Guste, Jr., Atty. Gen., et al.
    Robert Tillery, Ponchatoula, of counsel for defendant-appellee Tangipahoa Parish School Board.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

Plaintiffs bring this appeal from a judgment sustaining an exception of no cause of action filed by William J. Guste, Jr., Attorney General, and dismissing this suit as to him.

The essential allegations of the petition, as amended, which we accept as true for purposes of the exception, are that the “Tangipahoa Parish School Board has paid funds to the firm of Robbins, Schwartz, Nicholas and Lifton, Ltd. for special litigation since June, 1976, without approval of a resolution for that purpose from the Attorney General and the Governor.”

It is further alleged that the School Board failed to follow the procedures set forth in R.S. 42:263 relative to the hiring of special counsel, and have paid in excess of $60,000.00 to the said counsel, without having received the approval of the Attorney General. Plaintiffs allege that in July, 1977, the School Board adopted a resolution attempting to ratify their action in retaining special counsel and in making payments to them, and that the resolution has been sent to the Attorney General for his approval.

Plaintiffs pray, inter alia, that the Attorney General be enjoined from giving his approval to the said resolution, because of the failure of the School Board to comply with the requisites of R.S. 42:263.

The Attorney General filed an exception of no cause of action to the petition, alleging that the petition does not set forth “any facts to support an allegation of irreparable injury and in fact plaintiffs pray for a combination of injunctive and monetary relief.” The exception was maintained, and this appeal followed.

In this court, plaintiffs correctly argue that they need not allege irreparable injury if the action sought to be enjoined is reprobated by law. Whalen v. Brinkmann, 258 So.2d 145 (La.App. 1st Cir. 1972). They argue that the Attorney General would be doing an illegal act if he approved the resolution of July, 1977.

R.S. 42:263 provides:

“No parish governing authority, levee board, parish school board, city school board or other local or state board shall retain or employ any special attorney or counsel to represent it in any special matter or pay any compensation for any legal services whatever unless a real necessity exists, made to appear by a resolution thereof stating fully the reasons for the action and the compensation to be paid. The resolution shall then be subject to the approval of the Attorney General and shall, if and when approved by him, be spread upon the minutes of the body and published in the official journal of the parish.”

The question before us is whether plaintiffs have a cause of action to enjoin the Attorney General from carrying out the discretionary duty imposed on him by the above section. We do not believe that the question of the validity of the actions taken by the School Board, or the consequences of the eventual decision of the Attorney General are presently before us.

The presumption is that the Attorney General will do his duty in accordance with law, and we do not believe that plaintiffs can enjoin him from doing what the law directs, simply because they fear that he will make a decision adverse to their interests. We disagree with plaintiffs’ arguments that the approval of the Attorney General to an otherwise invalid resolution can render it valid. Neither do we agree that the Attorney General must approve the resolution. R.S. 42:263 clearly grants to the Attorney General the discretion to either approve or disapprove the resolutions presented to him pursuant to that section.

We find, therefore, that no irreparable injury .can be caused plaintiffs by the actions of the Attorney General, and we do not find that, in carrying out his duty under R.S. 42:263, the Attorney General is performing an act prohibited by law.

The judgment appealed from is therefore affirmed, at plaintiffs’ cost.

AFFIRMED.


text:
    Jimmie D. OUBER v. Judith Ratcliff OUBER.
    No. 11936.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.

      Hobart O. Pardue, Jr., Springfield, for defendant.
    Samuel M. Cashio, Baton Rouge, for plaintiff.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

This is an appeal by Jimmie D. Ouber from a judgment fixing child support and visitation rights. Mr. Ouber’s former wife, now Mrs. Judith Ratcliff Ouber White, has custody of their two minor daughters, age seven and eight years.

The judgment awarded Mrs. White the sum of $350.00 per month as child support. In the record is a financial statement, made in July, 1977, showing that Mr. Ouber and his present wife had a net monthly income of $900.00, and expenses; including the $150.00 per month in child support currently being paid by Mr. Ouber to Mrs. White, of $1247.34, showing a deficiency of $347.34 each month. No effort was made to discredit Mr. Ouber’s testimony as to his current living expenses or to show them to be unreasonable.

At the trial, which took place on September 22, 1977, Mr. Ouber testified that in July, he had been on a salary basis in his employment as an automobile salesman, but that in August, he had been put on full commission basis. He estimated that he was averaging about $1400.00 per month gross income. There is no testimony as to income tax or social security withheld. If no taxes or social security are withheld from Mr. Ouber’s income, he and his wife together would be making $1550.00, which, after deducting his living expenses, would leave approximately $303.00 available for child support, in addition to the $150.00 already being paid. Under those circumstances, an award of $350.00 per month would not be excessive.

We note, however, that the financial statement filed by Mr. and Mrs. White shows that out of a total gross monthly income of $1487.04, $310.12 in taxes and social security is withheld. If the same deduction is applied to the somewhat greater income enjoyed by Mr. Ouber and his present wife, only $1240.00 would be left for all living expenses, including the $150.00 child support being paid.

The statement of the income and living expenses of Mrs. White and her husband, Barry J. White, also shows a net monthly income of $1176.92, not including the $150.00 per month child support which was being paid by Mr. Ouber. Expenses for the family total $1234.00, leaving a monthly deficit of $57.00 before receipt of any child support.

In the recent case of Parent v. Parent, 327 So.2d 576 (La.App. 1st Cir. 1976), we said:

“It is now the law of this state that the court must consider all of the circumstances surrounding the parties in making determinations of this kind. This includes considering income from all sources, including that of second husbands and wives, child support payments coming in, and special needs of the parties, including the expenses of subsequent marriages. Marcus v. Burnett, 282 So.2d 122 (La.1973).”

Considering all of the above circumstances and the applicable law, we are of the opinion that the award of $350.00 per month child support is so excessive as to constitute a breach of the discretion afforded the trial judge in cases of this nature. We think that the highest award which can be justified under the circumstances is $250.00 per month, and the judgment will be modified accordingly.

Mr. Ouber also asks for certain changes in the visitation rights granted him, but advances no reasons to support his request. We find no abuse of discretion, after a full examination of the record.

The judgment appealed from is therefore amended so as to reduce the amount of child support to $250.00, payable in semimonthly installments of $125.00 each on the 1st and 15th days of each month, and as amended, it is affirmed. The parties hereto shall share all costs, both in this court and the court below.

AMENDED AND AFFIRMED.


text:
    Bobby BOLIN v. NATIONAL TEA COMPANY.
    No. 11958.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearings Denied June 12, 1978.
    John deGravelles, Baton Rouge, of counsel, for plaintiff-appellee Bobby Bolin.
    William M. Barnett, New Orleans, of counsel, for defendant-appellant Nat. Tea Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This suit arises out of a slip and fall accident which occurred in the parking lot outside of a National Supermarket in Baton Rouge. Plaintiffs are Mrs. Ethel Fannette Godwin Bolin and her husband, Bobby J. Bolin. Defendant is National Tea Company, owner of the store. After trial on the merits before a jury, a verdict was returned in favor of Mrs. Bolin for $10,000.00 and Mr. Bolin for his special damages. Judgment was signed accordingly, and defendant has appealed. Plaintiffs have answered the appeal, asking for an increase in the award.

The accident happened on January 19, 1975, at the National Supermarket on Plank Road. In front of the main entrance to the store is a wide sidewalk, which is covered by the roof of the building. On the sidewalk, about one foot from the curb, and parallel thereto, abutting the parking lot, is a wall which acts as a windbreak. At either end of the wall, the top of which is constructed of glass, and the bottom of some opaque material, are two cart ramps, about four feet in width, which lead from the sidewalk to the surface of the parking lot.

When Mrs. Bolin and her husband arrived at the store, they parked their car immediately in front of the wall, walked to their right around the end of the wall, and thence into the store. Mrs. Bolin left the store before her husband, and started back to the car, following the same route around the end of the wall. Instead of descending the ramp, she stepped off the curb at the end of the wall, where the ramp and curb join to form a comer. As she did so, her foot struck a 16-ounce Coca Cola bottle which was lying on its side in that corner. The bottle rolled out from under her foot, and she fell, causing the injuries complained of.

Plaintiffs contend that this case should be governed by the same rules which apply to slip and fall cases which take place inside a self-service grocery store. In such eases, the storekeeper, although not the insurer of the safety of his patrons, is required to exercise reasonable care to keep the aisles in his store in a safe condition, and must make a reasonable effort to keep the floor free of objects or substances which might cause someone to slip and fall. Once a customer has shown that there was a foreign substance on the floor which caused him to slip and fall and that he was injured as a result, a presumption that the storekeeper was negligent arises. The storekeeper then has the burden of exculpating himself from the presumption, which he can do by proving that he was reasonably prudent in his efforts to keep the floors in a reasonably safe condition and free from foreign objects and substances. Kavlich v. Kramer, 315 So.2d 282 (La.1975).

Defendant argues that the heavy burden placed on the storekeeper in the Kavlich case is not applicable to cases which take place away from the display areas of the store, such as in the parking lot.

We think that a storekeeper has the same duty to keep such areas in a reasonably safe condition, and he may not permit hazardous conditions of which he has actual or constructive notice, to exist. Miller v. Broadmoor Village, Inc., 321 So.2d 925 (La.App. 1st Cir. 1975); Lecompte v. State, Dept. of Pub. Saf., 343 So.2d 449 (La.App. 3rd Cir. 1977). On the other hand, the patron in such areas is charged with using reasonable care for his own safety, and must see and avoid obvious hazards. The patron in the display areas does not have this burden because his attention is attracted to the items displayed on the shelves of the store.

In this case, the evidence shows that the entire parking lot was cleaned .at 2:00 a. m., the night before the accident. The store manager testified that he arrived at the store at 7:00 a. m., and inspected the area of the accident, as was his custom. He stated that the Coca Cola bottle was not there. Vanda Bailey, a cashier at the store, arrived at about 8:00 a. m., and entered the store via the ramp at the right hand end of the wall. She testified that the area was clean, and that, if she had seen anything, she would have picked it up. Except for the lot being swept twice a week, and the manager’s morning inspection, no other regular inspection or clean-up measures were taken. All employees, including the bag boys, were instructed to look for foreign objects and substances both inside and outside the store, and to remove any which they might see. There is no testimony touching on how long the bottle had been on the surface of the parking lot, except for that of the manager and Mrs. Bailey.

Since Mrs. Bolin proved that she slipped and fell on a foreign object, and was injured thereby, a presumption of negligence arises as to the defendant. We think that the jury could reasonably have found that the efforts of the defendant to keep the parking lot in a reasonably safe condition were not sufficient to exculpate it from the presumption of negligence and we find no manifest error in that conclusion.

A more difficult question is presented as to the contributory negligence of Mrs. Bolin. It cannot be disputed that a 16-ounce Coca Cola bottle is a large and readily observable object. Mrs. Bolin testified that, when she stepped down onto the surface of the parking lot, she was not looking down to see where she was stepping, but was looking ahead at her automobile. Plaintiffs point out that the bottle was lying at the edge of the curb, at the corner formed by the ramp, and could not be readily seen by one approaching from the store because of the partition and the curb. The jury must have concluded that the bottle was not readily observable by a reasonably prudent person approaching from the store because of its location. We find no manifest error, since there is some evidence from which théir conclusion could reasonably be reached.

On the question of quantum, we note that Mrs. Bolin fell and was injured on January 19, 1975. She was seen the same day by Dr. F. C. McMains, an orthopedic surgeon. He found that she had suffered a sprain of one foot and of the low back. The foot injury cleared up in about ten days, but her back symptoms got steadily worse and she was admitted to the hospital on March 20, 1975, for conservative treatment. When she did not respond, Dr. McMains consulted with Dr. Thomas B. Flynn, a neurosurgeon, who first saw her on March 31, 1975.

Dr. Flynn performed a myelogram and on April 2, 1975, operated on Mrs. Bolin and found a ruptured disc. She was discharged from the hospital on April 6, 1975. Dr. Flynn felt that Mrs. Bolin’s recovery was good, despite her continued complaints of pain, which he thought to be psychosomatic in origin. In February, 1976, he readmitted her to the hospital for conservative treatment because of her complaints of leg and back pain. She was discharged on February 9, 1976, in improved condition.

On April 21, 1976, she was still complaining of back pain, but presented no objective symptoms. On August 16, 1976, she was complaining of severe right leg pain and back pain, and Dr. Flynn suggested a mye-logram, which was not done.

On September 10, 1976, Mrs. Bolin suffered a fall, and was admitted to the hospital with a concussion, and complaining of pain in the right hip and leg. A myelogram was performed, which indicated a recurrence of the herniation of the disc. Disc surgery was again performed by Dr. Flynn. Mrs. Bolin’s recovery from that surgery was uneventful.

She was left with a permanent disability variously estimated by the physicians at from ten to 25 per cent. Dr. McMains was of the opinion that Mrs. Bolin would have to greatly curtail her activities as a result. Dr. Flynn did not feel that the disability was functional, and that Mrs. Bolin could lead a normal life.

Both Dr. McMains and Dr. Bernard Ma-nale, an orthopedic surgeon who evaluated Mrs. Bolin on two occasions, were of the opinion that all of her difficulty and both of her operations were caused by the fall on January 19, 1975. Dr. Flynn was of the opinion that Mrs. Bolin had recovered from the first operation by the end of 1975. He testified that her subsequent difficulties were either psychosomatic or caused by the fall of September 10, 1976. He did not relate the second operation to the accident of January 19, 1975.

The jury awarded Mrs. Bolin $10,000.00 for her pain, suffering and disability. Obviously, Dr. Flynn’s testimony was accepted by the jury in its entirety, and such a finding is not manifestly erroneous. We think the award of $10,000.00 is low, but not so low as to constitute an abuse of the great discretion accorded the finder of fact.

The judgment appealed from is therefore affirmed. Defendant shall pay all costs.

AFFIRMED.


author: LOTTINGER, Judge. PONDER, Judge,

text:
    HAUGHTON ELEVATOR DIVISION, RELIANCE ELECTRIC CORPORATION v. STATE of Louisiana, Through DIVISION OF ADMINISTRATION.
    No. 11959.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearing Denied June 12, 1978.

      Frank Simoneaux and Henry D. Salassi, Jr. of Breazeale, Sachse & Wilson, Baton Rouge, of counsel, for plaintiff-appellant Haughton Elevator Division, Reliance Elec. Co.
    William' Carruth, Asst. Atty. Gen., Baton Rouge, of counsel, for defendant-appellee State of Louisiana, through Division of Administration.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an appeal by Haughton Elevator Division, Reliance Electric Company (Haughton) from the dissolving of a temporary restraining order and the denial of a preliminary injunction against the State of Louisiana, through Division of Administration, in order to halt the award of elevator maintenance and repair contracts.

The facts are undisputed that Haughton was the lowest bidder on numerous contracts; however, Haughton was disqualified and denied the award of any contract. The Division of Administration concluded that Haughton was not the lowest “responsible” bidder based on its past performance of an elevator maintenance contract which Haughton had with the State at Charity Hospital in New Orleans.

During the Charity contract covering approximately 40 elevators, an inspection was conducted in September of 1976 by Mr. Fournet, a consulting engineer to the Department of Health and Human Resources who was inspecting all elevators maintained by the State. Haughton was informed of the inspection, was given an opportunity to participate, and was given the chance to rebut the contents of an unfavorable report resulting from the inspection. A follow-up inspection was made prior to the opening of the bids. Based on these reports and Haughton’s rebuttal, the Division of Administration decided that Haughton was not a responsible bidder and thus disqualified. LSA-R.S. 38:2211.

Haughton argues that the trial judge erred in (1) failing to require the State to give Haughton a fair chance to disprove the charge of irresponsibility and (2) finding the State had sufficient evidence for declaring Haughton not to be a responsible bidder.

ERROR NO. 1 .

Haughton argues that the lowest bidder should be given notice and a fair chance to disprove charges of irresponsibility, citing Housing Authority of Opelousas, La. v. Pittman Construction Co., 264 F.2d 695 (5th Cir. 1959).

The initial question therefore is whether the lowest bidder must be given notice and a fair chance to rebut charges against it?

As a general rule, courts will not substitute their judgment for that of an administrative agency or awarding authority unless the agency or authority has acted arbitrarily and capriciously. Tide Equipment Co. v. Pointe Coupee Par. Police Jury, 312 So.2d 154 (La.App. 1st Cir. 1975), writ denied 315 So.2d 38 (1975); T. L. James & Co., Inc. v. Jefferson Parish Council, 161 So.2d 597 (La.App. 4th Cir. 1964).

In Housing Authority of Opelousas, La. v. Pittman Construction Co., supra, the Fifth Circuit in part said:

“This case can be sliced down to the Board’s deciding that the low bidder was not a responsible bidder — without giving the low bidder a fair chance to disprove the charges of irresponsibility.
* * * * * *
“We do not expect such, a Board to conduct FBI investigations, hold elaborate hearings, adhere to legal rules of evidence, and function as a judicial body. Members of public boards, however, have as well developed bumps of fairness and reasonableness as judges. In the light of what fair-minded, reasonable laymen would do, we think that before a Board disqualifies the lowest bidder as not responsible, the lowest bidder has the right to be heard and the Board has the duty to listen on the subject of responsibility.”

We agree with this language. The refusal or failure of the administrative agency or awarding authority to give adequate notice, including the content of damaging information and the chance to rebut unfavorable charges prior to the disqualification of the lowest bidder and awarding of the contract is arbitrary and capricious sufficient to cause a court to enjoin the awarding of the contract. See St. Landry Lumber Co. v. Mayor and Board of Alderman, 155 La. 892, 99 So. 687 (1924), wherein the Supreme Court implied that in order for an agency to fairly disqualify the lowest bidder, the bidder should be given the opportunity to respond to the charges. This court cannot hand down any hard and fast rule as to the amount of time that must elapse between notice and the opportunity to refute the charges. The time afforded must be sufficient to allow for preparation of rebuttal, and yet not bring to a halt the operations of government. Each situation must be governed by its own peculiar circumstances.

Haughton argues that proof that it was not given a fair chance is shown by the fact that the September, 1976 inspection team was overloaded with representatives of Otis Elevator; that Otis had at least one week’s notice of the inspection; that Haughton was only informed of the inspection that morning; that a copy of the report of the September inspection critical of the manner in which Haughton was performing was never officially forwarded to Haughton, and that it received a copy by accident; and that it was never given a hearing prior to disqualification.

We find no fault on the part of the State in not informing Haughton sooner than the morning of the September inspection, nor do we find fault with the composition of the inspection team. It stands to reason that if the State wants to determine if its maintenance contractors are performing under the terms of the contract, it will not give very much advance warning. Otherwise, it is logical to assume that if the contractor knows sufficiently in advance when the inspection will take place, he will correct any deficiencies. Since a majority of the elevators being inspected at Charity Hospital were manufactured and installed by Otis Elevator, we find no error in members of the inspection team being employees of Otis Elevator.

Considering the position of this court as above announced, i. e. that an administrative agency or awarding authority must give notice of unfavorable charges, we are of the opinion that the State had the duty to forward to Haughton a copy of any and all uncomplimentary reports on the performance of Haughton under the contract as soon as same were available, so as to afford to Haughton the opportunity of rebutting any critical findings. However, since Haughton did receive a copy of the report, though not officially from the State, and responded thereto, we find that the breach of this duty has been cured.

It is, however, lastly argued that the State breached its duty to Haughton by not notifying Haughton of the inspection which took place immediately prior to the opening of the bids and of the disqualifying evidence found on that inspection, and of not affording Haughton an opportunity to be heard prior to disqualification. Considering all of the facts in this ease, particularly the Fournet report that Haughton responded to, that the deficiencies continued and were again noticed in the follow-up inspection, that a representative of Haughton was present at the office of the state official on July 1, when the disqualification was discussed, that same was conveyed to him, that we are left with the impression that he was not caught by surprise, and was allowed to rebut this evidence, we are of the opinion that the State has fulfilled its obligation of affording Haughton a fair chance to be heard.

This is not to say however that we entirely approve of the manner in which this contract letting was handled. Certainly it would have been better if Haughton had received official notice of the Fournet report, of the results of the second inspection, and had been officially invited to rebut the evidence turned up by both inspections. The importance however is that the lowest bidder be apprised of the charges and be given an opportunity to rebut. Here, this has been done.

ERROR NO. 2

Without cataloging all of the defects the State found in the past performance of Haughton under the existing maintenance contract, and after a thorough review of the record, we are convinced, as was the trial judge, that the State had sufficient evidence to justify its disqualification of Haughton.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

PONDER, J., dissents and assigns written reasons.

PONDER, Judge,

dissenting.

I agree with the majority that the awarding authority should give adequate notice and a fair hearing before disqualifying the lowest bidder.

I disagree with the conclusion that plaintiff was given sufficient notice and hearing. After deficiencies were found in the September inspection, Haughton’s response was received without comment or further action. Additional contracts were awarded to Haughton. Haughton’s representative, who was present for the signing of the contract, was first informed his company was being disqualified on the day of the signing. The awarding officer testified he came to a conclusion only on that day. Haughton was lulled into the feeling that nothing was amiss and then informed at the last minute that it would not be given the contract.

Without affording a brief for the quality of Haughton’s work, I feel that the requirements and spirit of LSA 38:2211 were not complied with. The approval of the state’s action can lead to easy evasion of that statute.

I dissent.


author: LOTTINGER, Judge. LANDRY, Judge,

text:
    Runyon C. RICHARD v. Barbara Price RICHARD.
    No. 11895.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.

      John Olds and George S. Womack, Baton Rouge, of counsel, for plaintiff-appellee Runyon C. Richard.
    John G. Munoz, Baton Rouge, of counsel, for defendant-appellant Barbara Price Richard.
   LOTTINGER, Judge.

This is an appeal from a judgment awarding a separation a mensa et thoro in favor of the plaintiff, Runyon C. Richard, and against the defendant, Barbara Price Richard, specifically finding mutual fault. Plaintiff-appellee was awarded the custody of the minor child, Jesse J. Richard, and defendant-appellant was awarded alimony pendente lite. Defendant has appealed.

In the absence of oral or written reasons for judgment we make the following findings of fact. Plaintiff and defendant were married on August 5, 1972. Of that marriage one child was born, Jesse J. Richard, on August 31, 1974. Plaintiff and defendant ceased living together as man and wife on November 6, 1976, and have failed to reconcile since that date. Runyon Richard filed for the separation from bed and board alleging abandonment, and defendant reconvened alleging cruel treatment in the form of physical abuse.

Throughout their marriage the record reveals the defendant-appellant suffered from psychiatric problems resulting in hospitalization in 1973 and 1974. The record reveals indications of infidelity on the part of the defendant-appellant and drug abuse by both of the parties. It is also evident that the plaintiff has inflicted some physical abuse on the defendant during their marriage. However, at the time of the abandonment of the matrimonial domicile, there is nothing in the record to indicate physical abuse upon the defendant prior to her departure.

Defendant-appellant argues that the Trial Judge erred in (1) failing to provide written reasons for judgment after requested by a motion filed after the rendition of the judgment, (2) granting the separation to the plaintiff based on mutual fault, (3) awarding custody of the minor child to the plaintiff, and (4) awarding an insufficient amount of alimony pendente lite.

ERROR NO. 1

Appellant argues that the failure of the Trial Judge to provide written reasons for judgment in response to a motion filed subsequent to rendition of the judgment is error. We disagree. Fontenot v. State, Department of Highways, 300 So.2d 864 (La.App. 3rd Cir. 1974).

ERRORS NO. 2 AND 3

The record reveals that there was fault on the part of both parties to the marriage; thus the separation granted on mutual fault is justified. LSA-C.C. art. 141. It is also clear with regards to the custody of the minor child that because of the unstable mental condition of the mother, the best interest of the child is served by placing him in the custody of his father. Miyagi v. Miyagi, 279 So.2d 718 (La.App. 1st Cir. 1973), writ refused, 281 So.2d 758 (La.1973).

ERROR NO. 4

It is further argued by appellant that the award of the alimony pendente lite is insufficient. There is, however, no showing of abuse of discretion by the Trial Judge making the award, thus we find no error. Hall v. Hall, 348 So.2d 707 (La.App. 1st Cir. 1977).

Additionally it is argued by the defendant-appellant that the trial judge erred in awarding alimony pendente lite from date of judgment rather than from date of her judicial demand, December 8, 1976.

Heretofore in Stansbury v. Stansbury, 258 So.2d 170 (La.App. 1st Cir. 1972) we held that the discretion granted the trial judge in determining the amount of alimony pendente lite did not also grant to him the discretion of determining the date of the commencement of the alimony pendente lite, which must be the date of judicial demand. In arriving at this rule we misinterpreted the statement in Coney v. Coney, 215 La. 667, 41 So.2d 497, 499 (1949) “that alimony pendente lite is only due and payable from the date of judicial demand”. In Coney, plaintiff-wife requested alimony retroactive to the date of separation rather than from the date of judicial demand.

The better rule is that expressed by our brethren on the Second Circuit in Cumpton v. Cumpton, 283 So.2d 846, 848 (La.App. 2nd Cir. 1973) when they refused to follow Stansbury v. Stansbury, supra, and said:

“Compelling reasons may be presented to the court leading to a conclusion it would be impractical and inequitable to commence accrual of alimony ordered in the decree at the retroactive date of judicial demand. We know of no reason why a trial judge should not be accorded the same discretion in specifying a commencement date for alimony payments as he is given in determining the needs of the wife and ability of her husband to pay.”

See also Hatch v. Hatch, 335 So.2d 707 (La.App. 2nd Cir. 1976), writ refused, 338 So.2d 113 (La.1976). Accordingly, Stansbury v. Stansbury, supra, is overruled only as to the determination of the date upon which alimony pendente lite is to commence.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

LANDRY, Judge,

dissenting.

The holding of this court in Stansbury v. Stansbury, 258 So.2d 170 (1972), was based on Coney v. Coney, 215 La. 667, 41 So.2d 497 (1949). Although the language in Coney does not afford particularly strong support to Stansbury, as noted by the majority opinion herein, it is my opinion, nevertheless, that La.C.C. Article 148 dictates an award of alimony pendente lite commencing with date of judicial demand. Article 148 provides: “If the wife has not sufficient income for her maintenance pending the suit . . . the judge shall allow her . a sum for her support . . ..” (Emphasis by the court).

In my judgment, pending the suit means from the time the suit is instituted. The only discretion concerning the time of commencement of the award should be based on a finding that the wife had sufficient income for certain months during the penden-cy of the suit or had access to community funds during this time. Of course, broad discretion is permitted in determining the amount, depending upon the circumstances of each particular case.

Assuming arguendo that such discretion does exist, as held by the majority, upon a finding of “compelling circumstances” as held in Cumpton v. Cumpton, 283 So.2d 846 (La.App. 2d Cir. 1973), (relied upon by the majority herein), no such compelling circumstances have been found by the majority herein.


author: LOTTINGER, Judge.

text:
    Johnny WINSLOW, Sr. v. GOODYEAR TIRE AND RUBBER CO. et al.
    No. 12046.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Alfred S. Landry, New Iberia, for appellant.
    R. Scott Ramsey, Berwick, for appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

ON MOTION TO DISMISS

From a judgment compelling inspection of one of the defendants’ premises plus awarding attorney’s fees and expenses, the defendant, Heldenbrand, Inc., has appealed.

Prior to oral argument, plaintiff-appellee filed a motion to dismiss the appeal arguing that there is no right of appeal from an interlocutory judgment absence the showing of irreparable injury.

Defendant-appellant very forcefully argues that whereas a money judgment has been rendered and signed against it, and same can be executed, that irreparable injury will result if an appeal is not allowed.

The jurisprudence is clear that a judgment from an order compelling discovery is an interlocutory judgment which is non-appealable, absent a showing that irreparable injury will result. LSA-C.C.P. arts. 1841 and 2083, Roy v. Moity, 225 So.2d 315 (La.App. 3rd Cir. 1969).

We fail to see where irreparable injury will result since this matter can be raised on appeal following a trial on the merits or by application to this court for the exercise of its supervisory jurisdiction including the issuance of necessary orders staying the execution of this judgment. The purpose of discovery devices is to facilitate proceedings at the trial level, and this court will not interfere with the orderly proceedings in the trial court and entertain appeals from interlocutory decrees absent a clear showing of irreparable injury.

Accordingly, the motion to dismiss is granted and appellant is to pay all costs.

APPEAL DISMISSED.

PONDER, J., dissents.


author: EDWARDS, Judge.

text:
    FIRST GUARANTY BANK v. C. D. ALFORD et al.
    No. 11973.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearing Denied June 12, 1978.
    Writ Granted June 30, 1978.
    John Feduccia and Tom H. Matheny, Hammond, for First Guaranty Bank, plaintiff-appellant.

      Arthur W. Macy, Hammond, for Dr. C. D. Alford, defendant-appellee.
    E. Wade Shows and Ben Miller, Jr., Baton Rouge, for Mrs. Margaret W. Alford, defendant.
    Before LOTTINGER, EDWARDS, and PONDER, JJ.
   EDWARDS, Judge.

The pleadings, exhibits, affidavits and depositions in the record establish the following pertinent facts, which are not in dispute.

On April 30, 1973, Dr. C. D. Alford and Mrs. Margaret W. Alford (husband and wife) both signed three documents: a collateral mortgage note in the amount of $155,000; a collateral mortgage in the same amount on a certain piece of immovable property which was Mrs. Alford’s separate property; and a written act of pledge which pledged the collateral mortgage note as security for a hand note in the amount of $155,000. The hand note, also executed that date, was signed only by Dr. Alford and was made payable to plaintiff.

The act of pledge recited in pertinent part:

. . Borrowers declared that as collateral security for a loan extended to them this date by Bank in the amount of $155,000.00 represented by one certain promissory note of even date herewith in the amount of $155,000.00 they do by these presents pledge as security for said note the following collateral, to wit:
(1) One certain collateral note secured by a collateral mortgage in the amount of $155,000.00, dated April 30, 1973

On May 21, 1974, Dr. Alford executed another promissory note for $195,000 payable to plaintiff. Additionally, he alone executed Collateral Pledge Agreement # 149, which purported to pledge inter alia the $155,000 collateral mortgage note as security for the $195,000 hand note.

Subsequently on June 28, 1974, Dr. Alford executed another note in the amount of $275,764.67 payable to plaintiff. This note was secured by Collateral Pledge Agreement # 244, executed by Dr. Alford alone, which inter alia purported to pledge a $155,000 collateral mortgage note dated April 30, 1974.

During this time, the original $155,000 hand note and the $195,000 note were can-celled and returned to Dr. Alford.

On June 30, 1975, Dr. Alford executed another note in the amount of $28,000 payable to plaintiff. This note was also to be secured by Collateral Pledge Agreement # 244.

Difficulties arose regarding payment, and on July 21, 1976, the bank brought this suit against Dr. Alford and Mrs. Alford, in soli-do, for a money judgment and also for recognition of the mortgage. This, however, is not a foreclosure proceeding. Mrs. Alford filed a petition for a writ of mandamus, seeking cancellation of the collateral mortgage, and a motion for summary judgment. The trial court rendered summary judgment in favor of Mrs. Alford, dismissed plaintiff’s suit against her, and rendered judgment issuing a writ of mandamus. Plaintiff appeals.

Plaintiff contends that the trial court erred in two respects: 1) granting Mrs. Alford’s motion for summary judgment; and 2) issuing a writ of mandamus ordering the cancellation of the collateral mortgage executed on April 30, 1973.

Plaintiff’s argument on Mrs. Alford’s motion for summary judgment completely misses the issue.

The true basis for the summary judgment is the lack of Mrs. Alford’s personal liability on the two notes sued upon by plaintiff. In this regard, there is no dispute as to the material issues of fact. Mrs. Alford did not sign either of the two notes sued upon, in fact she did not sign any of the hand notes executed in the course of this transaction. Mrs. Alford’s only actions were the execution of: the collateral mortgage on her separate property; the $155,000 collateral mortgage note; and the act of pledge on April 30, 1973, which was specifically to secure the original $155,000 hand note. As such, she is not a debtor on either of the two notes sued upon.

However, plaintiff contends that Mrs. Alford is personally liable because the notes evidenced debts contracted during the existence of her marriage to Dr. Alford and consequently were community debts.

We find this argument of no consequence. The husband is the proper party to sue to enforce an obligation against the marital community. LSA-C.C.P. art. 735. See LSA-C.C. art. 2402 et seq. Mrs. Alford did not sign any of the debt instruments and is not a debtor on the two notes involved here.

We therefore find that the trial court properly granted Mrs. Alford’s motion for summary judgment.

Next, plaintiff contends that the trial court erred in ordering the cancellation of the collateral mortgage.

The pledge of a collateral mortgage note to secure an indebtedness is a contract. LSA-C.C. art. 3133. This pledge secures only the debt or debts contemplated in the contract between the parties. Durham v. First Guaranty Bank of Hammond, 331 So.2d 563 (La.App. 1st Cir. 1976), and cases therein cited. Also, it is fundamental that one cannot pledge something he does not own, unless with the owner’s consent. LSA-C.C. arts. 3142 and 3145.

In the instant case, the act of pledge executed on April 30, 1973, contemplated that the collateral mortgage was to act as security for one single note, the $155,000 hand note. The act of pledge did not, as plaintiff contends, contemplate that the collateral mortgage would be security for future advances made to Dr. Alford. This obligation of pledge was extinguished with the discharge of the principal obligation. Nathan and Marshall, The Collateral Mortgage, 33 La.L.Rev. 497 (1973). Cf. LSA-C.C. arts. 3137 and 3138. Accordingly, cancellation of the collateral mortgage was proper after the hand note was cancelled, unless the dormant collateral mortgage note was pledged to secure another debt. LSA-C.C. art. 3164; Nathan and Marshall, supra.

Plaintiff contends that the collateral mortgage note was indeed pledged as security for the two notes sued upon, relying on Collateral Pledge Agreement # 244 executed by Dr. Alford alone.

We find no merit in this contention. We do not reach the question as to the effect of the fact that Collateral Pledge Agreement # 244 refers to a collateral mortgage note and an act of pledge dated April 30, 1974, when the ones involved here were dated April 30, 1973.

The significant issue is the fact that Dr. Alford did not own the immovable property which was subject to the collateral mortgage. It is undisputed that the mortgage was on property which was Mrs. Alford’s separate property. Consequently, Dr. Alford alone could not validly repledge the dormant collateral mortgage note and thereby encumber the immovable property. LSA-C.C. arts. 3142, 3145 and 3300.

The trial court therefore properly issued a writ of mandamus ordering the cancellation of the collateral mortgage.

For the above reasons, the judgments appealed are affirmed at plaintiff’s cost.

AFFIRMED.


text:
    Wilfred P. DUPLESSIS v. VULCAN MATERIALS COMPANY.
    No. 11988.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.

      Donald T. Carmouche, Victor Marcello, Donaldsonville, for plaintiff and appellant.
    Wm. Jarman and R. Gordon Kean, Jr., Sanders, Downing, Kean & Cazedessus, Baton Rouge, for third party plaintiff and appellee.
    John Barton and William A. Norfolk, Taylor, Porter, Brooks & Phillips, Baton Rouge, for third party defendant and appel-lee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Wilfred P. Duplessis, filed this suit against defendant, Vulcan Materials Company, to recover damages resulting from the contamination of his herd of cattle by hexachlorobenzene allegedly emitted through Vulcan’s negligence. By an amended petition, plaintiff named Manufacturer’s Enterprises, Inc. as an additional defendant, and urged a claim ex contractu against Vulcan for breach of the pasture lease. Each defendant filed an exception of prescription of one year. The trial court sustained the exceptions and dismissed the tort portion of plaintiff’s suit, but maintained plaintiff’s contract claim against Vulcan. Plaintiff has appealed.

The sole question presented for review concerns prescription, namely when did the one year period for the action ex delicto commence?

Plaintiff’s petitions indicate the following chronology:

1. June 22, 1973 Plaintiff’s cattle quarantined by order of the Louisiana Department of Agriculture.
2. April 28,1975 Quarantine lifted.
3. April 28,1976 Suit filed against Vulcan.
4. June 22,1977 Amended petition filed, naming Manufacturer’s as a solidary obligor.

The pertinent prescriptive period for this action in tort is contained in LSA-C.C. arts. 3536 and 3537, which provide:

“Art. 3536. The following actions are also prescribed by one year:
That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses . . . ”
******
“Art. 3537. The prescription mentioned in the preceding article runs:
With respect to the merchandise injured or not delivered from the day of the arrival of the vessel, or that on which she ought to have arrived.
And in the other cases from that on which the injurious words, disturbance or damage were sustained.
And where land, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof.”

Plaintiff contends that no damage was sustained and consequently prescription did not begin to run until the quarantine was lifted and the cattle were sold at a loss. Therefore, plaintiff contends that this suit, filed within a year of the lifting of the quarantine against one solidary obligor, was timely.

We do not find this argument convincing. The alleged tortious conduct in the instant case was the emission of the offending chemical which accumulated on the pasture. The exact date of this event is not certain, though it obviously occurred prior to the quarantine. The damage caused by this alleged tortious conduct was threefold: first, plaintiff was restrained from freely disposing of his cattle; second, plaintiff was compelled to feed and maintain the cattle during the quarantine period, when otherwise they would have been sold in accordance with good husbandry practices; and third, plaintiff was ultimately damaged when he sold the cattle at a loss.

Plaintiff’s contention addresses itself to the extent of damage. In this regard, this Court in Lucas v. Commercial Union Insurance Company, 198 So.2d 560, at pages 563, 564 (La.App. 1st Cir. 1967) stated:

“. . . Even though the full extent of the damage or loss may not be immediately ascertainable, nevertheless, if the aggrieved party is aware of claim resulting from the tortious conduct, the entire claim, including that for damages not then determinable, prescribes in one year from the date of commission of the wrong . . .” (citations omitted).

Prescription therefore commenced on June 22, 1973, the date of the quarantine.

There is no evidence in the record to indicate, as plaintiff contends, that this wrongful conduct was in the nature of a continuing tort. We do not address this contention further.

For the above reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: PONDER, Judge.

text:
    Tyron JACKSON v. BISHOP COLLEGE and Shannon D. Little.
    No. 11961.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.

      Teddy Airhart, Jr., Baton Rouge, for plaintiff and appellant.
    Louis Gerdes, Jr., New Orleans, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is an action to recover damages resulting from an alleged breach of an athletic scholarship. Plaintiff effected service under the Louisiana Long-Arm Statute, LSA-R.S. 13:3201. He appeals from a judgment sustaining an exception to the jurisdiction over the persons of the defendants.

The issue is whether there is jurisdiction over the defendants within the meaning of LSA-R.S. 13:3201(a) and (c).

We reverse.

LSA-R.S. 13:3201(a) and (c) state:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident's
(a) transacting any business in this state;
* * * * * *
(c) causing injury or damage by an offense or .quasi offense committed through an act or omission in this state;
******

There are two inquiries to be made in applying the statute:

1. Is the defendants’ particular activity encompassed by the statute; and

2. Is there a violation of due process requirements. Cambre v. St. Paul Fire and Marine Insurance Co., 331 So.2d 585 (La.App. 1st Cir., 1976).

Plaintiff’s allegations are that defendant Little, an agent for defendant Bishop College, entered the state, negotiated with plaintiff and executed the scholarship agreement in Louisiana. He states that the defendants misrepresented the facts.

Not every act of an out of state resident while in Louisiana will subject him to the jurisdiction of Louisiana courts. We have been unable to find any case dealing with the precise situation here presented. However, as pointed out in the comments of Louisiana State Law Institute — 1964, the statute should be given a broad interpretation. While the solicitation of athletes by colleges is, perhaps, not within the traditional concept of transacting business, nevertheless, it fits within the legal concept.

Wilder v. Wilder, 263 So.2d 730 (La.App. 1st Cir., 1972), held that a “fraudulent misrepresentation” of the value of community property was an offense or quasi offense committed in Louisiana. Plaintiff’s petition fails to assert any basis for fraudulent misrepresentation; it, however, not too clearly, alleges facts of untrue misrepresentations made by defendant in this state. As a result of this, he asserts a claim for damages. Thus, having stated a cause of action based on fault under C.C. 2315 that occurred in Louisiana, we find that there was personal jurisdiction over defendant.

Appellees refer to the constitutional question only in passing. We find sufficient contacts to meet the due process requirement of fundamental fair play. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

For these reasons, the judgment dismissing plaintiffs action for lack of personal jurisdiction is reversed. The case is remanded for further proceedings not inconsistent with this decision. Appellees are cast with the costs of this appeal.

REVERSED AND REMANDED.

      . Riverland Hardwood Co. v. Craftsman Hardwood Lumber Co., 259 La. 635, 251 So.2d 45 (1971); Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Co., La., 283 So.2d 687 (1973).

      . LSA-R.S. 13:3201
      “A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
      (a) transacting any business in this state;
      (d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or


author: PONDER, Judge. LOTTINGER, Judge,

text:
    Luddie P. WEAVER v. Glenn J. O’BANION et al. Luddie P. WEAVER v. LOUISIANA STATE POLICE DEPT.
    Nos. 11974, 11975.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Dissenting Opinion May 2, 1978.
    Writs Refused June 30, 1978.

      Gary L. Keyser, Baton Rouge, of counsel for plaintiff-appellee Luddie P. Weaver.
    Lynn E. Williams, Baton Rouge, of counsel for defendant-appellee Glenn J. O’Ban-ion.
    Hanson Scobee and Calvin E. Hardin, Baton Rouge, of counsel for defendants-appellants Reuben’s, Inc., and Jefferson Insurance Co. of New York.
    Arthur J. O’Keefe, New Orleans, of counsel for intervenor-appellee Houston General Ins. Co.
    Before LANDRY, LOTTINGER, CHIAS-SON, EDWARDS and PONDER, JJ.
   PONDER, Judge.

One suit seeks damages for injuries received by an off-duty State Police Officer in a barroom fight. Joined as defendant were the assailant, his employer, the bar owner and its insuror. The other suit, a workmen’s compensation action, was compromised and the workmen’s compensation insuror intervened to recover the amounts paid to plaintiff.

Judgment was rendered in favor of plaintiff and intervenor and against the assailant, the bar owner and its insuror. The latter two appealed. The first did not appeal or answer the appeal; the judgment against him is final.

The issues are:

(1) The duty owed by the bar owner and its scope;
(2) The assumption of risk by plaintiff, and
(3) The amount of the award.

We reverse and render.

Plaintiff, dressed in plain clothes, entered the bar, ordered a beer, and went to the restroom. While there he heard a disturbance. Reentering the bar, he identified himself as a state police officer and attempted to quiet the disturbance. At first the assailant appeared to be leaving the premises quietly but turned and struck the plaintiff. Plaintiff arrested the assailant and turned him over to other officers when they arrived.

A bar operator owes the duty to provide the protection necessary to keep the house orderly and safe. De Hart v. Travelers Insurance Co., 10 So.2d 597 (Orl.La.App., 1942); Borne v. Bourg, 327 So.2d 607, (La.App. 4th Cir. 1976).

The statement of the duty, however, does not end the matter. The quotation in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972) from Malone, Ruminations on Cause-In-Pact, 9 Stanford L.Rev. 60, 73 (1956), is applicable here; it is not every person that is protected from every risk.

Under the above facts we find that plaintiff had ceased to be just a patron of the bar. He had voluntarily reassumed his duties as a policeman.

Counsel has cited no Louisiana cases on the subject of the duty owed to a policeman under these circumstances and we have found nothing closer than Thompson v. Warehouse Corp. of America, Inc., 337 So.2d 572 (La.App. 4th Cir., 1976) in which it was held that a fireman was not within the ambit of the duty owed by a property owner who negligently caused a fire.

Plaintiff’s contention puts a bartender in the position of being responsible to patrons for injuries he does not prevent by, among other means, calling the police and to the police if he calls them and one is injured. We therefore hold that the ambit of protection owed by the bartender does not extend to the policeman acting as such.

As a result of the above holding we do not reach the issues of assumption of the risk and quantum.

For these reasons, the judgment in favor of Luddie P. Weaver and Houston General Insurance Company and against Reuben’s, Inc., and Jefferson Insurance Company of New York is reversed, and as to them the suit is dismissed at plaintiff’s costs.

REVERSED AND RENDERED.

LOTTINGER, J., dissents and assigns reasons.

LOTTINGER, Judge,

dissenting.

I respectfully dissent from the conclusion by the majority that “plaintiff had ceased to be just a patron of the bar” and “voluntarily reassumed his duties as a policeman”.

Luddie P. Weaver entered the defendant’s establishment as a patron, and simply by announcing he was a police officer and exhibiting his badge in an attempt to quell a disturbance did not transform him into a police officer so as to deprive him of a cause of action against the defendant-bar owner. He did not enter the bar in response to a police call, and thus, I find him to be no different than a private citizen who attempts to quiet customers under similar circumstances.

The defendant-bar owner had for too long allowed a situation to continue to intensify, thus exposing his customers to an uncontrollable and dangerous patron.

I would affirm the trial judge’s decision.

Therefore, I respectfully dissent.

      . “All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.”


author: SCHOTT, Judge.

text:
    Nathan L. CARMADELLE v. Amelia Werner, wife of Sam URRATE, and Lillian Bruning, widow of Charles Boutall.
    No. 9408.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 2, 1978.
    Borowski & Menville, Ronald L. Menville, Houma, and Greenberg & Dallam, Nathan Greenberg, Gretna, for plaintiff-appellant and intervenor-appellant.
    Louis H. Schultz, Metairie, for defendants-appellees.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   ON MOTION TO DISMISS

SCHOTT, Judge.

On our own motion we noticed a probable lack of jurisdiction over this appeal.

The judgment appealed from dismissed a rule for preliminary injunction brought by plaintiff and intervenor, West Lake Development Company. It was signed on August 3,1977, and plaintiff and intervenor filed a petition for appeal on August 18. However, they did not post their appeal bond until September 19.

LSA-C.C.P. Art. 3612 provides:

“An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment.”

When the appeal bond is not filed within fifteen days, as in this case, the Court of Appeal is without jurisdiction over the matter. Torry v. Barnes, 338 So.2d 383 (La.App. 3rd Cir. 1976), Ruiz v. Succession of Viosca, 291 So.2d 527 (La.App. 4th Cir. 1974).

Appellants contend that the fifteen day period was interrupted or suspended by virtue of the fact that between the time the judgment was signed and the time the bond was filed applications for supervisory writs were made by them to this court and to the Supreme Court. The filing of applications for supervisory writs in these courts did not have the effect of interrupting or suspending the delay provided by Art. 3612 for taking an appeal. Jay v. United Packing House Workers of America, 34 So.2d 526 (Orl.La.App.1948).

APPEAL DISMISSED