text:
    LO-BAR DEVELOPMENT COMPANY, INC., Plaintiff-Appellee, v. Paul F. JOHNSON et al., Defendants-Appellants.
    No. 13072.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for appellants, Paul F. Johnson, Paul J. Johnson and Minor H. Johnson.
    Thomas, Prestridge & Burchett by Dewey E. Burchett, Jr., Bossier City, for appellees Lo-Bar Development Co., Inc., James A. Barlow, Bruce I. Logan, Don R. Logan and Oscar D. Logan.
    Smitherman, Smitherman, Lunn, Hussey & Chastain by John B. Hussey, Shreveport, for additional defendants.
    Henri Loridans, in pro. per.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiffs sued certain contiguous landowners in Bossier Parish to have common boundaries fixed by the court. Defendants answered and reconvened, asserting the real controversy was the location of a servitude of passage. The court appointed a registered surveyor to survey the boundaries in dispute and the boundaries of the servitude of passage and file a proces verbal with the court. Other landowners in the immediate area who would be affected by the boundary determinations and by the location of the servitude of passage were added as parties defendant.

The court appointed surveyor completed the survey and filed his proces verbal attaching a map of his survey which reflects the boundaries of the parties and the location of the servitude of passage. Defendants objected to the surveyor’s findings, and the case went to trial. Assigning written reasons, the trial judge accepted the survey, except for a portion of a boundary marked by a long established fence line which had been considered by the parties as the boundary at that point. The original defendants appeal. We affirm.

Defendants assign two specifications of error, both of which are attacks on the validity of the survey methods employed.

At trial, the surveyor explained the methods he used, and stated they were generally accepted methods approved by the United States Department of Interior, Bureau of Land Management. The only other expert witness, also a registered surveyor, testified the methods used by the court appointed surveyor were both proper and acceptable.

There is a presumption of correctness in favor of surveys made pursuant to court order and complying with all the formalities required by law. Brooks v. Jones, 329 So.2d 904 (La.App., 2d Cir. 1976). Defendants have offered no evidence to rebut this presumption.

The judgment of the trial court is affirmed, appellants to pay all costs of this appeal.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    Linda Carol SIMS, Plaintiff and Defendant in Reconvention, Appellee, v. Harold Allen SIMS, Defendant and Plaintiff in Reconvention, Appellant.
    No. 13075.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    James L. Fortson, Jr., Shreveport, for Harold Allen Sims.

      Colvin, Hunter, Brown & Plummer by D. Scott Brown, Mansfield, for Linda Carol Sims.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Dr. Harold A. Sims sued to increase the visitation privileges granted him with his 5V2 year old son, Hal, who is in the custody of his mother, a resident of Mansfield, Louisiana. The judgment sought to be modified was rendered February 20, 1975, and basically permitted visitation by Dr. Sims every other weekend and every other Christmas out of the presence of the child’s mother, provided, however, Dr. Sims could not take the child out of the state.

Subsequent to the judgment here sought to be modified, Dr. Sims has remarried, adopted his wife’s small child, and they have a baby of their own. He has completed his residency requirements in Nashville, Tennessee, and established his own pediatric practice in Bristol, Tennessee, where he resides in a new home with his wife and 2 children. These circumstances create a stable home environment.

Dr. Sims now seeks the privilege of having his son visit with him in his home in Tennessee from July 1 through August 15 each year and on every other Christmas and Thanksgiving holiday for the duration of the school vacation. The trial judge modified the visitation judgment to the extent of giving Dr. Sims the option of having Hal with him one week every two months in lieu of every other weekend, but otherwise rejected his request for more liberal visitation privileges. We reverse and modify the decision of the trial court.

In Litton v. Litton, 299 So.2d 458 (La. App., 2d Cir. 1974) the court set forth the rules with regard to custody and visitation rights:

“The next issue for consideration is whether the visitation rights of Mr. Litton as fixed by the trial court constitute divided custody or authority. The court in Ogden v. Ogden, 220 So.2d 241 (La. App. 1st Cir. 1969) stated the following relevant rules in regard to custody:
‘It is settled law that in the event of divorce or separation of parents with the consequent awarding of custody of children of the marriage to one parent, the other parent has the right of access to the children. This privilege of access to subject to such reasonable restrictions as the circumstances warrant within the discretion of the court. Said privilege may not be denied unless the parent has forfeited same by his conduct or the exercise thereof be injurious to the children’s welfare. Johnson v. Johnson, 214 La. 912, 39 So.2d 340.
‘Equally well established is the rule that in cases of this nature the paramount issue is the welfare of the children concerned, which consideration dictates that the control of the spouse granted custody be an undivided authority. Consequently visitation privileges accorded the spouse not having custody should never be so extensive or liberal as to constitute a divided authority or shared control of the children concerned.
‘As aptly observed by the Supreme Court in Newson v. Newson, 176 La. 694, 146 So. 472, custody should be given to one spouse, not alternatively to each inasmuch as the latter situation is not conducive to a child’s welfare but rather is likely to prove injurious to a child’s future well being.’ ” Id. p. 463

There the trial court’s award of visitation to a father of every other weekend and on Christmas and Thanksgiving every other year and four weeks of the summer vacation was reduced on appeal to one weekend each month, two weeks in the summer and Christmas every other year to avoid a divided custody award. Also see Cook v. Wingo, 281 So.2d 867 (La.App., 3d Cir. 1973).

The child in this case, 5V2 year old Hal, seems to be in every respect a fine, healthy, well-adjusted child. He is much loved by his mother and she provides excellent care for him including preschool training and church activities, as well as occasional visits with both maternal and paternal grandparents.

Dr. Sims has always shown the highest possible interest in the welfare of his son. He has made satisfactory monthly contributions towards his support without being required to do so by the court. He has always exercised his visitation privileges to the maximum amount possible considering the limitations imposed by his educational requirements and the distance between his place of study and his son’s home. The father and son enjoy an excellent relationship.

Dr. Sims offered the testimony of a child psychiatrist who examined and evaluated his son, and found the boy normal and average, fine and splendid in every respect with the single exception he felt the child needed more “male input”, i. e., the small boy needed more association with adult males in order to adequately understand his relationship with men. The psychiatrist felt that a failure to provide this need could cause psychiatric problems in the future. The child has practically no opportunity to have male companionship other than that provided by his father and occasional visits with his grandfathers.

The mother objects to the father taking the child out of the state because she feels there is a possibility he will not return him at the end of the visit. There is absolutely no justification for her fear as the father has always complied with the provisions of the visitation judgment. There is not the slightest indication he has anything but the utmost respect for the orders of the court with regard to visitation privileges obtained by him and the manner in which he is required to exercise same. He has always returned the child home at the appointed time. The father testified he had every intention of complying with the court’s visitation privileges whatever they may be.

The trial judge properly recognized the extensive time period involved in Dr. Sims’ requests for visitation privileges would constitute divided custody which is prohibited in our law as not being in the best interest of the child. The trial judge has actually awarded the father an option of one week visitation every two months amounting to six full weeks or forty-two days each year, plus two days every other Christmas. Such reduced visitation privileges avoid the prohibition of divided custody. There now remains only the issue of the correctness of the trial court finding that it is detrimental for the child’s welfare to visit his father in Tennessee. In this finding we believe the trial court abused its discretion.

The father has a right to visit with his son as he has been guilty of no conduct whatsoever to forfeit that right. The lower court’s requirement that all visitation between the father and son take place in Louisiana while the father’s home is in Tennessee is unrealistic. Visitation conducted in a motel or in the home of a Louisiana relative or friend does not allow the father and son an opportunity to enjoy their relationship with each other in the more desirable environment surrounding Dr. Sims’ own home and community where he works and lives. The establishment of a long time relationship between Dr. Sims and his son cannot possibly be attained to the same extent in Louisiana as it could if some limited visitation were permitted in Dr. Sims’ own home and surroundings in Tennessee.

There is no reason offered why it would be detrimental to the child to make the trip to Tennessee, in light of his father’s testimony that he would make these trips with his son.

Since Hal now attends school during the week, we feel the trial court award of one week every other month would be detrimental to Hal’s academic progress and is no longer appropriate. For the reasons herein expressed we modify and extend the visitation privileges awarded by the trial court as follows:

(1) 8:00 A.M. July 1 until 5:00 P.M. July 12;
(2) 8:00 A.M. December 23 until 5:00 P.M. December 26, every other Christmas;
(3) On those years when Dr. Sims does not have the child on Christmas he shall have the child from 8 A.M. on the day before Thanksgiving until 6 P.M. of the Saturday following Thanksgiving;
(4) The third weekend each month, commencing at 5:00 P.M. on Friday and ending at 5:00 P.M. on Sunday, exclusive, however, of those months wherein he has visitation privileges with his son as provided in (1), (2) and (3) above.

The visitation privileges provided in (1), (2), and (3), may be exercised by Dr. Sinis outside the State of Louisiana. Those privileges provided for in paragraph (4) must be exercised within the State of Louisiana.

We further require Dr. Sims to follow his testified intent always to be in his son’s direct company while Hal is traveling for visitation.

Dr. Sims is assessed for all costs of this appeal.


author: PRICE, Judge.

text:
    Marvin E. HARVILL et ux., d/b/a Harvill Real Estate, Plaintiffs-Appellees, v. William C. FOSTER, Defendant-Appellant.
    No. 13076.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    Smith & Lagrone by Dewey J. Smith, Shreveport, for defendant-appellant.
    Jackson B. Davis, Shreveport, for plaintiffs-appellees.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Harvill Real Estate brought this suit against William C. Foster to recover a real estate commission. The issue presented is whether an agreement terminating the listing contract relieved Foster of paying a commission on a sale made by him to a party procured by plaintiffs prior to the termination.

The trial court found the termination agreement did not have the effect of releasing the right to a potential commission under the extension provisions of the listing contract for efforts previously made by plaintiffs to sell the property. Judgment was accordingly rendered for plaintiffs for the commission earned of $3,288.20. We affirm the judgment.

Foster listed his home with the Harvill firm in October, 1975, under the standard exclusive real estate listing contract.

Harvill found a purchaser for the home, Mr. and Mrs. Hugh Ragon, who signed a written contract to purchase on October 28, 1975, for $61,700. A closing date was set for November 7th, but the purchasers did not appear, apparently due to the hospitalization of Mr. Ragon. Several telephone calls were made by plaintiffs to Mr. Ragon in an attempt to determine when the transaction could be closed. Foster was anxious to move his family to Kentucky and made frequent inquiries to plaintiffs as to when the sale would be completed. Apparently the Ragons became irritated at agents of the Harvill firm because of their persistence on closing the transaction, and gave plaintiffs written notice on November 13, 1975, that they no longer intended to purchase the home. A demand was made for the return of a $500 deposit made with Harvill.

On November 16th, Foster met with Lee and Kenneth Harvill to request the cancellation of the listing contract. Lee Harvill believed that Foster intended to sell the house to his mother and proposed a release for that purpose. Foster declined to accept Harvill’s release and produced another release dictated by his attorney. Lee Harvill signed the release which stated:

We hereby do terminate contract with William C. Foster and release him from all obligations to Harvill Real Estate on this 16th day of November, 1975.

On the following day, defendant signed a deed conveying the property to the Ragons for $57,500. This is approximately six per cent less than the original purchase price which is coincidental with the amount of the commission claimed by plaintiffs.

There is no doubt that in the absence of the purported release, plaintiffs would be entitled to their commission as their efforts were clearly the procuring cause of the Ragons purchasing the property.

The language employed in terminating the listing contract is subject to more than one interpretation. Foster contends it was intended to be an absolute abrogation of any rights and obligations between him and plaintiffs. Harvill contends the purpose of the release was to terminate their right to continue efforts to sell the property.

Harvill’s construction is the more reasonable under the circumstances presented and is in substantial accord with the evidence.

It would be difficult to understand plaintiffs’ agreeing to forfeit all rights to potential commissions earned under the extension provisions of the contract just to keep the goodwill of defendant.

The trial judge’s resolution of the conflicting testimony as to the purpose of the release is supported by the evidence and should be sustained.

The judgment is affirmed at appellant’s costs.

      . * * * Owner agrees to pay Agent 6 percent of the selling price, as his compensation, if said property is sold or exchanged: (1) During the life of this agreement, whether negotiated by Agent, Owner or any third party; or (2) Within six (6) months after termination to a vendee, or exchange recipient to whom said property was shown or submitted by anyone, (or with whom negotiations involving said property had been carried on) prior to termination hereof, if Owner has had actual knowledge of such showing, submission or negotiations or the identity of persons to whom said property has been shown or submitted (or with whom negotiations have been carried on) has been revealed to Owner in writing by Agent (or any sub-agent) within five (5) days after any termination hereof.


author: HALL, Judge.

text:
    Victoria Holloway Smith WILLIAMS, Plaintiff-Appellee, v. Iley SMITH and Willie Smith, Defendants-Appellants.
    No. 13077.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Campbell & Campbell by L. G. Campbell, Bossier City, for defendant-appellant, Iley Smith.
    Piper & Brown by Robert E. Piper, Jr., Shreveport, for defendant-appellant, Willie Smith.
    James B. Wells & Associates by James B. Wells, Bossier City, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Victoria Smith Williams, sued her former husband Iley Smith and his brother Willie Smith to set aside a purported sale by the husband to the brother of a 13.06 acre tract of land. The district court set aside the sale insofar as it affected plaintiff’s community interest in the property, and defendants appealed. We hold that the purported sale was not genuine, was a sham and a simulation, and accordingly affirm.

The tract of land in question was originally part of a larger tract belonging to the heirs of R. T. Smith. By cash deeds dated March 22, 1965, two of the heirs, G. W. Smith and Coutrell Smith, conveyed their interest in the property to Iley Smith, shown as the husband of Victoria Holloway Smith, for recited considerations of $200 cash each. By partition deed recorded August 12, 1969, entered into by all of the members of the Smith family, Iley Smith and his cousin, Sherman Smith, became the owners of a 19.6 acre tract (which included the 13.06 acre tract in question) in the proportions of % to Iley Smith and Vs to Sherman Smith, the latter having previously acquired the interest of another heir. The partition instrument recited the prior acquisition by Iley Smith of the interest of G. W. Smith and Coutrell Smith and the instrument was also signed by Alex Roy Smith, father of defendants, Iley Smith and Willie Smith, as a party thereto. By act of partition between Iley Smith and Sherman Smith recorded November 21, 1969, Iley Smith became the owner of the 13.06 acre tract in question. On the dates of each of these transactions, Iley Smith was married to and living with his wife of many years, plaintiff Victoria Holloway Smith.

In November, 1970, Iley Smith and Victoria Smith separated in fact, but no legal separation was obtained at that time. On May 29, 1971, Iley Smith executed the deed in question in this ease by which he purported to convey the 13.06 acre tract to his brother, Willie Smith, for a recited consideration of $250 cash. The evidence establishes that the property at that time was worth over $5,000. The $250 stated consideration was not paid, and Iley Smith, along with other local family members, continued to run cattle on the property. Willie Smith, a resident of Chicago, never took possession of the property. In August, 1971, less than three months after the purported sale, Iley Smith filed suit for and subsequently obtained a legal separation from Victoria Smith. The parties have never entered into a community property settlement. The instant suit to set aside the sale was filed by plaintiff in May, 1974.

Plaintiff testified she was present when her husband bought the interest of G. W. and Coutrell Smith in 1965 and that he paid for those interests with his own money. Defendants attempted to establish that the money for purchase of those interests was put up by Willie Smith, that title was carried in the name of Iley Smith all those years for convenience only, and that the conveyance by Iley Smith to Willie Smith in 1971, after Iley Smith and his wife separated, was done to vest title in the true owner, Willie Smith.

Defendants’ evidence consisted of the testimony of the two defendants and their father, a very elderly gentleman. Their testimony contains numerous inconsistencies and discrepancies, casting doubt upon their explanation. Their testimony was that the interests of G. W. and Coutrell Smith were brought in 1948 or 1949 for the benefit of Willie Smith, but the deeds from G. W. Smith and Coutrell Smith to Iley Smith were not executed until 1965. There was no real explanation of why the property was put in the name of Iley Smith. The father testified he bought G. W. Smith’s interest in the land but not that of Coutrell Smith. G. W. Smith and the two attorneys who acted as notaries on the 1965 deeds and the 1971 deed were available but were not called as witnesses by defendants. It must be presumed that their testimony would be adverse to defendants.

Defendants’ evidence is entirely inadequate to prove that the property was actually bought by Willie Smith and that title was in the name of Iley Smith for convenience only, particularly in the face of the recorded instruments showing acquisition of the property by Iley Smith while married to plaintiff, and possession and management of the property by Iley Smith for many years. Highly suspect is the purported conveyance of the property by Iley Smith to his brother for a stated consideration of less than Vso of the value of the property, which consideration was not even paid and which conveyance was made at a time when Iley Smith and plaintiff had separated and shortly before he filed a suit for legal separation. The obvious conclusion is that the purported sale was a sham and a simulation intended, as the trial judge found, to fraudulently deprive plaintiff of her community interest in the property.

A simulated contract is one which has no substance whatsoever. Such a contract may be declared null at any time at the demand of any person in interest. Spiers v. Davidson, 233 La. 239, 96 So.2d 502 (1957). A presumption of simulation may arise when the plaintiff produces facts casting serious doubt on the validity of the transaction. See LSA-C.C Art. 2480. Once the presumption arises the burden shifts to the defendants to prove the validity of the transaction. Smith v. Smith, 239 La. 688, 119 So.2d 827 (1960); Ingram v. Freeman, 326 So.2d 565 (La.App.3d Cir. 1976), writs denied 329 So.2d 755 (La.1976).

The facts surrounding this particular transaction are sufficient to create the presumption of simulation. Defendants failed to meet their burden of proving the validity of the transaction. The judgment setting the sale aside insofar as it affects the plaintiff’s community interest in the property is correct.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Percy V. MOORE, Plaintiff-Appellant, v. Marie McGinnie MOORE, Defendant-Appellee.
    No. 13079.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    Lewis Weinstein, Richard C. Goorley by Lewis Weinstein, Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for defendant-appel-lee.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Appellant, Percy V. Moore, seeks to annul a divorce, child custody and child support judgment rendered in favor of appellee, Marie McGinnie Moore, on October 30,1974. In the proceeding leading to the judgment he seeks to annul, appellant was served with process through an attorney at law appointed to represent him. The grounds for nullity alleged are that (1) he was not served with process in accordance with law in that an attorney should not have been appointed because appellant could have been served at his home or place of employment or through his attorney of record; and (2) the judgment was obtained by ap-pellee’s fraud and ill practices in not making a diligent effort to effect personal or domiciliary service on him in that proceeding. From a judgment rejecting his demands, appellant appealed. For reasons assigned in this opinion, we affirm the judgment of the district court.

On May 16, 1973, judgment was rendered granting appellee a separation from appellant, awarding her custody of the minor children, and ordering appellant to pay $80 per month child support. Appellant was represented by an attorney in those proceedings.

Three months later appellee filed a rule to increase child support and to make unpaid child support executory. Service instructions gave appellant’s correct home address and place of employment. The citation issued was returned by the sheriff marked “unable to locate.” No further action was taken on the rule.

On June 13,1974, appellee filed a petition for final divorce, permanent custody of the children, $150 per month child support, and to have past due support declared executo-ry. Service instructions again gave appellant’s correct home address and also his correct place of employment, suggesting service at home after 4:00 p.m. and at the place of employment at 4:00 p.m. On July 5, 1974, 22 days after citation was issued, it was returned marked “After due and diligent search, I fail to find the within named, because unable to locate . . . ” by the deputy sheriff. The record contains another citation addressed to appellant c/o Gould Battery (his place of employment), marked received by the sheriff’s department on August 22, but on which there is no return.

On September 10, 1974, appellee filed a supplemental petition alleging the sheriff’s department was unable to serve appellant, the appellant resided at a certain address in Shreveport but would not come to the door when deputies attempted to serve him, the appellant worked at Gould Battery but the corporation prohibited service there, that appellant was an absentee and an attorney at law should be appointed to represent him. An order was signed by the court appointing an attorney and the attorney was served with process on September 11, 1974.

The matter came up for trial on October 30, 1974. The court was advised by appel-lee's attorney of unsuccessful efforts to serve defendant. Appellee testified she reached appellant at home by telephone shortly after deputies left his house, indicating he would not come to the door when they attempted service. The appointed attorney testified he mailed certified letters to appellant’s home address and place of employment. The letter addressed to the place of employment was returned with the notation “Refused, October 3, 1974.” Neither the letter sent to appellee’s home, nor the receipt therefor, had been returned at that time. The court found appellant was evading service and the attorney had been properly appointed. Judgment was rendered granting the final divorce, awarding permanent custody, fixing child support at $150 per month, and making past due child support executory. It is this judgment that appellant seeks to annul.

Appellee subsequently caused appellant’s wages to be garnished under a writ of fieri facias issued in execution of the October 30, 1974 judgment, and received payments under the garnishment from November, 1974, to the time of trial of the action to annul.

On February 23, 1976, appellee filed a rule to make unpaid child support payments, due under the October 30,1974 judgment, executory. In response thereto, appellant filed a “motion to annul” the judgment of October 30, 1974. Trial was held on the motion to annul. Appellant testified he was living at the same address and working at the same place when the divorce suit was filed, was available for service, did not attempt to evade service, and had no knowledge of the divorce proceeding until served with the rule to make unpaid child support executory. The appointed attorney in the divorce proceeding testified the certified letter mailed to appellant’s home at that time was returned with notations that notices were left at appellant’s home on three occasions, but he refused to call for or claim the letter. A witness testified that on one occasion she saw appellant drive by his home and keep going when a sheriff’s car was in his driveway. The court again found that appellant was evading service and could not be served in spite of diligent efforts. Judgment was rendered rejecting appellant’s motion to annul.

Appellee made no objection to the procedure followed in hearing and determining appellant’s action to annul. No defense that appellant was barred from bringing the action was pled or raised in the trial court or this court. The matter was fully tried and decided on the merits without objection and we, therefore, proceed to review the issue on the merits.

Appointment of an attorney to represent a defendant is governed by LSA-C.C.P. Art. 5091. Article 5091 provides that an attorney shall be appointed to represent “a nonresident or absentee who has not been served with process, either personally or through an agent for service of process, and who has made no general appearance.”

LSA-C.C.P. Art. 5251(1) defines “absentee” as follows:

“ ‘Absentee’ means a person who is either a nonresident of this state, or a person who is domiciled in but has departed from this state, and who has not appointed an agent for the service of process in this state in the manner directed by law; or a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually present in the state; or a person who may be dead, though the fact of his death is not known, and if dead his heirs are unknown.” (Emphasis supplied)

The trial judge appointed the attorney on the basis that appellant could not “be found and served after a diligent effort.” The sheriff’s return reflected that he was unable to serve appellant after due and diligent search, even after he was given appellant’s home address and place of employment. The policy in this state is to accept the statement of the serving officer that service has been made as prima facie evidence of that fact. See LSA-C.C.P. Art. 1292; LSA-R.S. 13:3471. The return of an officer sworn to properly serve process must be given great weight. Martinez v. Silverman, 288 So.2d 88 (La.App. 4th Cir. 1974). This principle should also apply when the officer reports that he was unable to make service after due diligence. The return is necessarily prima facie evidence that a due and diligent effort was made. Appellant, therefore, has the burden of showing that he was indeed available to be served or that a diligent search was not, in fact, made. Leatherman v. Parish of East Baton Rouge, 275 So.2d 806 (La.App. 1st Cir. 1973).

Appellant failed to carry his burden of proof. The fact that his home address and place of employment were known, or that he was successfully served in other suits, does not negate due and diligent, but unsuccessful, efforts to serve him in this particular case. There is evidence supporting the finding of the trial court, made on two occasions, that appellant was attempting to evade service and, therefore, could not be found and served after diligent effort.

First, the sheriff’s return of the citation marked unable to locate after due and diligent search is significant. Another corroborating fact is that the sheriff was also unable to locate appellant to serve citation for the rule appellee filed in September, 1973. The return of the appointed attorney’s certified letters unclaimed and refused is indicative of an effort on his part to avoid service and notice. Finally, there was testimony that on one occasion about the time service was being attempted, appellant drove by his home, observed the sheriff’s car in the driveway, and did not stop. The combination of factors, together with the sheriff’s return, was sufficient to justify the trial judge’s conclusion that appellant was evading service.

Appellant relies on Wood v. Hyde, 209 So.2d 51 (La.App. 4th Cir. 1968) for the proposition that the unsupported testimony of plaintiff’s attorney is insufficient to show that the defendant is an absentee. However, the court in Wood specifically pointed out that the service return was not in the record. The return in the instant case, plus other corroborating evidence, distinguishes it from the facts of Wood. Further, in Wood, the issue was raised on appeal and not in an action to annul.

Appellant argues that service should have been made on his counsel of record in the prior separation proceeding, citing Imperial v. Hardy, 302 So.2d 5 (La.1974). This argument is not well-founded. The fact that service on the prior counsel of record might have also been valid does not make invalid the appointment of an attorney to represent the absentee. The court in that case specifically stated:

“And if the Orleans Parish Court had personal jurisdiction over the defendant, it would also have authority to appoint an attorney to represent the absent defendant under the authority of Article 5091 of the Code of Civil Procedure.” (Emphasis supplied)

We' affirm the trial court’s conclusions that service was properly made through a court appointed attorney and that there was no fraud or ill practice in connection with the October 30, 1974 judgment.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Ruben HALL, Plaintiff-Appellant, v. A. D. HUGHES, Defendant-Appellee.
    No. 13080.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan and Michael W. Beam, Shreveport, for plaintiff-appellant.
    A. C. David, Shreveport, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff, Ruben Hall, appeals from a judgment rejecting his demands against the defendant, A. D. Hughes, for damages arising out of a physical altercation between the parties. We affirm.

Ruben Hall was driving home in his truck when he saw an ex-girlfriend, Pecóla Washington, driving a station wagon. They waved at each other and pulled into an adjacent alley to talk. Shortly thereafter, A. D. Hughes drove by and saw Ms. Washington’s car. He also pulled into the alley. Ms. Washington and Hughes are not married but live together as man and wife.

Hughes got out of his car and approached Hall, who was standing by Ms. Washington’s car talking to her. Hall moved toward his own truck, Hughes followed, and they began to circle Hall’s truck. At some point Hall produced a pocket knife and Hughes obtained a 1 X 4 board. Hughes hit Hall on the wrist with the board, causing him to drop the knife. A short scuffle ensued, which Ulysis Reed (who was a passenger in Hughes’ vehicle) stopped by restraining Hughes. • Hughes then returned to his car and sat down. Hall obtained a pistol from his truck, approached Hughes with the stick in his left hand and a pistol in his right, and forced Hughes from his car. Hughes then disarmed Hall by grabbing Hall’s wrist and shaking it until he released the gun. After another short scuffle all parties left. Hall then went by the hospital and was treated for a fractured right wrist. Hughes is six feet, one inch tall and weights 260 pounds; Hall is five feet, three inches tall and weighs 150 pounds.

Hall claims his injury was sustained in the first altercation, when Hughes was the aggressor.

The trial judge listened to the testimony of Hall, Hughes, Ms. Washington, and Uly-sis Reed. In the Reasons for Judgment he found there were actually two altercations, with Hughes probably the aggressor in the first and Hall clearly the aggressor in the second. The judge then stated he could not tell from the testimony in which altercation Hall had been injured, and thus Hall had not met his burden of proof. This finding is due to the irreconcilable conflict in the evidence.

While plaintiff testified his right wrist was broken in the first altercation when defendant struck him on the wrist to make him drop the knife, this is incompatible with his own testimony that he later held the pistol in his left hand, pointed at defendant, and intended to give him a whipping with the stick which he held in his right hand. The other witnesses testified plaintiff gave no indication he was suffering any injury in his right wrist as he handled the heavy pistol with his right hand. Pecóla Washington saw defendant shake plaintiff’s right hand and wrist vigorously to compel him to drop the pistol. If the injury to plaintiff’s right wrist was the result of the second altercation where he was the aggressor he is precluded from recovery for his injury. The law is well settled that in an action for assault and battery a plaintiff may not recover damages if he is found to have been at fault in provoking the difficulty in which the injury is received. Hemsley v. Sims, 325 So.2d 877 (La.App., 2d Cir. 1976); Wilkins v. Nugent, 108 So.2d 5 (La.App., 2d Cir. 1958).

The plaintiff in a civil action is required to prove his claim by a preponderance of the evidence. Braud v. Kinchen, 310 So.2d 657 (La.App., 1st Cir. 1975). Here the trial judge found, after all testimony had been adduced, that plaintiff had not met this burden.

“ * * * It is a well established principle of law that the findings of the trial judge are to be given great weight and should be accepted by us unless there is a showing of manifest error. Particularly is this true in a matter of credibility of the witnesses wherein the trial judge has the opportunity to see and hear the witnesses and observe their demeanor, a situation which cannot reoccur in the appellate court. . . .”

[Steadman v. Sladovich, 288 So.2d 62 (La. App., 4th Cir. 1973)] Id. at p. 64.

The record amply supports the trial judge’s decision and we find no manifest error on his part. For the foregoing reasons, the trial court’s decision is affirmed at appellant’s cost.


author: MARVIN, Judge.

text:
    Morris BUSH, Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY et al., Defendants-Appellees.
    No. 13081.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Lewis Weinstein, Shreveport, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons, by G. M. Bodenheimer, Jr., Shreveport, for defendants-appellees.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff appeals from a judgment rejecting his demands for damages from a three-vehicle chain collision. The issues are factual. We affirm.

The accident occurred on a rainy afternoon on Line Avenue in Shreveport at its intersection with Dalzell. The three vehicles involved were southbound. Car one stopped at the intersection in response to a red light. Car two (plaintiff’s car) collided with car one. Vehicle three (a pickup truck) collided with car two. Only a second or two separated the two collisions, according to a guest passenger in car one.

Plaintiff’s version was that he stopped his car and was struck by the third vehicle which knocked him into car one. The version of the third driver (defendant’s insured) is the one recited above and is even supported by plaintiff’s statements to the investigating policeman and to an insurance adjuster following the accident but before trial. The testimony of these gentlemen was admitted to impeach plaintiff’s version given at the trial.

The lower court resolved the factual conflict against plaintiff and we find no error in this respect. Even assuming negligence of the driver of the third vehicle, plaintiff’s contributory negligence bars his demands against the liability insurer of the third vehicle. Flowers v. St. Paul Companies, 336 So.2d 1018 (La.App. 2d Cir. 1976).

At appellant’s cost, judgment below is

AFFIRMED.


text:
    Jackson B. DAVIS, Plaintiff-Appellant, v. MILLER BUILDERS & DEVELOPERS, INC., Defendant-Appellee, and Commercial National Bank et al., Defendants-Appellants.
    No. 13083.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Mayer, Smith & Roberts by Ronald R. Inderbitzin, Shreveport, for plaintiff-appellant and St. Paul Fire & Marine, intervenor, defendant in reconvention-appellant.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for Pioneer Bank, defendant, third party plaintiff-defendant, plaintiff in reconvention-appellant.
    Cook, Clark, Egan, Yancey & King by Edwin L. Blewer, Jr., Shreveport, for Commercial National Bank, defendant, third party plaintiff-defendant, plaintiff in recon-vention-appellant.
    Gallagher & Gallagher by John Gallagher, Shreveport, for Miller Builders, defendant, third party defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

This suit arises from errors committed by an employee of an attorney and by two banks through which an unendorsed check was paid by the drawee bank. All parties except the recipient of the largess coming from these errors appeal.

In January, 1974, Plaintiff Davis, an attorney, closed a loan for the purchase of a residence from Miller Builders & Developers (Miller). The attorney disbursed by checks to several payees, the proceeds of the sale. One check ($5,577.00) was made payable to Miller. Another check ($10,-001.00) was made payable .to Louisiana Bank & Trust Company (LB&T) to pay off and cancel a mortgage on the property sold.

Davis’ employee(s) wrote a deposit slip to deposit the Miller check in Miller’s account in the Commercial National Bank (Commercial). Negligently and inadvertently both the Miller check and the LB&T check were listed on the Commercial deposit slip. On the back of both checks the employee wrote “for deposit to account of [Miller],” and delivered the deposit slip and checks to Commercial. Commercial negligently failed to observe that the LB&T check was not properly endorsed. Commercial credited both checks to Miller’s account. Commercial stamped both checks, “all prior endorsements guaranteed,” and forwarded the checks through banking channels to the drawee bank, Pioneer Bank & Trust Company (Pioneer).

In accordance with local banking practices, Pioneer relied on Commercial’s stamped guarantee and honored both checks, debiting Davis’ account, without observing the absence of an endorsement on the LB&T check. The canceled checks were returned to Davis in his February bank statement. The error(s) came to light when LB&T foreclosed its mortgage in November, 1974. Davis learned of the foreclosure and notified the other parties of what had happened to the check he had written in January to LB&T for the purpose of canceling that mortgage. Miller’s inability to return the $10,001 erroneously paid it instead of LB&T, eventually provoked these proceedings. LB&T purchased the property at the foreclosure sale. Davis ($1,000 deductible portion) and his errors and omissions insurer ($9,960) paid LB&T for the property (principal and interest) and then conveyed it to the purchaser who had bought it in January, 1974, from Miller in the transaction out of which Davis wrote the check in question.

Davis and his errors and omissions insurer, St. Paul Fire & Marine Insurance Company (St. Paul), sued Pioneer, Commercial and Miller, in solido, for the amount paid LB&T ($10,960).

Pioneer denied liability, pleading Davis’ negligence, contributory negligence and es-toppel. Pioneer made third party indemnity demands against Commercial and Miller, and reconvened against Davis.

Commercial denied liability and made third party and reconventional demands against Miller, Pioneer and Davis.

Miller generally denied all demands made against it by the other parties.

The lower court rendered an opinion granting judgments in favor of:

Davis against Pioneer;
Pioneer against Commercial;
Commercial against Davis; and Davis against Miller,

but conditioned the judgments (“because of the circuity”) to exclude enforceability except as to Davis’ judgment against Miller. All parties except Miller appeal.

This case arose before the effective date of Act 92 of 1974, now Title 10, L.R.S., “Commercial Laws.” The applicable statutory provisions are those in force prior to January, 1975, including Titles 6 and 7, L.R.S.

No contention is made that the actions of Davis’ employee(s) involved fraudulent intent or other ill practices. The negligence of Davis’ employee was simply inattention and oversight, as was the negligence of Commercial and Pioneer. LB&T never received and never endorsed the check made payable to it. The “endorsement” was not forged, it was missing. The deposit slip and notation on the back of the check were only written, but unsigned directions, “for deposit to account of [Miller] . . .”, patently contrary to the order of the drawer on the face of the check (pay to order of LB&T).

DAVIS V. PIONEER

The relationship between Davis as a depositor and Pioneer as the depository bank, is that of creditor (Davis) and debtor (Pioneer). Pioneer was not authorized to debit Davis’ account without Davis’ authority. Pioneer’s liability is not based upon its negligence, but upon the law that a drawee bank breaches its contract with its depositor when it pays without the depositor’s (the drawer’s) authority. Fidelity National Bank of Baton Rouge v. Vuci, 224 La. 124, 68 So.2d 781 (1953); Gregory-Salisbury Metal Products, Inc. v. Whitney National Bank, 160 So.2d 813 (La.App. 4th Cir. 1964).

It is the duty of the drawee bank to require endorsement by the payee before paying a check. The drawer may assume that the drawee paid upon a proper endorsement and in the absence of gross negligence on the drawer’s part, the drawer is under no duty to discover that payment was made without proper endorsement. Trouard v. First National Bank of Lake Charles, 247 So.2d 607 (La.App. 3d Cir. 1971). Principles from cases involving forged instruments are inapplicable, but it is to be noted that even in those instances, the drawer is allowed one year in which to discover the forgery from the drawer’s bank statements. R.S. 6:53. See also Allan Ware Pontiac, Inc. v. First National Bank of Shreveport, 2 So.2d 76 (La.App. 2d Cir. 1941). Judgment was properly granted Davis as drawer, against Pioneer, as drawee.

PIONEER V. COMMERCIAL

These banks stipulated they were governed by a local clearing house agreement under which the bank stamp (“all prior endorsements guaranteed”) on the check (Commercial’s stamp in this instance), “guarantees prior endorsements even though the first endorsement is absent.” The stipulation also establishes that each bank relies on the originating bank’s guarantee of prior endorsements. The stipulations in this respect constitute an acknowl-edgement of legal principles and renders Commercial liable to Pioneer. The judgment below was correct as between Pioneer and Commercial.

COMMERCIAL V. DAVIS

Commercial contends that it did no more than Davis’ employee instructed it to do (“deposit to account of Miller . . . ”) and alternatively, that it should have judgment against Davis because of his negligence and delay. The rule of equity has been recognized in Louisiana:

“. . . where one of two innocent parties must suffer loss through the fraud of another, the burden of the loss should be imposed on him who most contributed to it.” Clark-Kelley Livestock and Auction Company v. Pioneer Bank & Trust Company, 228 La. 224, 81 So.2d 869, 874 (1955). (Emphasis ours), (citations omitted).

The lower court was impressed with Commercial’s argument. It said:

“[Davis is] . . .a well known reliable and competent lawyer, known to commercial people in the community, and any request from him to a mere bank teller would naturally incline to compliance, not scrutiny. “. . . Even after ... he had the opportunity to discover the error quickly, for it was the obligation of any lawyer to clear the mortgage, which he neglected to do, and he must have certified the title to the investor and should have been alerted by all of this. * * ”

The trial court also found that Davis, by preparing and submitting the deposit slip, made Commercial his agent, and that it “. . won’t do for the principal to ask the agent to do something and then hold the agent accountable for following instructions.”

Davis’ limited dealing with Commercial was strictly a banking transaction. Assuming Davis had a duty to cancel the LB&T mortgage on the property, this duty was not owed to Commercial. His relationship with his drawee bank (Pioneer), with respect to discovering the absence of LB&T’s endorsement has been considered. He was legally entitled to assume Pioneer paid the LB&T check on a proper endorsement and was generally under no duty to discover otherwise. Trouard, supra. This is not a case of a forged endorsement or a case of systematic and continued embezzlement by an employee to whom an employer has given ostensible or express authority to deal with the employer’s funds in a drawee bank which may make applicable doctrines such as agency by estoppel as in Clark-Kelley Livestock and Auction Company, supra. Pioneer paid the LB&T check without it being endorsed by LB&T. Pioneer did so because Commercial “guaranteed” even the missing or absent endorsement.

Davis’ instruction to Commercial (deposit to account of Miller) was inconsistent with the order on the check (pay to order of LB&T). Memoranda become part of a bill or note (check) only when they do not contradict its terms. See 11 Am.Jur.2d, Bills and Notes, § 68. A deposit slip is only an acknowledgement that an item has been received by a bank for the purpose of undertaking collection. Ash v. Livingston Bank & Trust Co., 129 So.2d 863 (La.App. 1st Cir. 1961). Assuming Davis made Commercial its agent when his employee delivered the checks and deposit slip for the benefit of Miller to Commercial, does not avail Commercial.

C.C. Art. 3003 states that the agent “. is responsible ... for ... his fault or neglect." The principal’s negligence does not excuse similar negligence on the part of an agent. See Second Restatement of Agency, Sections 376, 379, 401 (1958); 3 Am.Jur.2d, “Agency,” § 202.

Paced with inconsistent directions, Commercial as a mere agent, was negligent in following especially the deposit slip without attempting to clarify from either Davis or Miller (its customer) the inconsistency. It was the absence of the LB&T endorsement, however, which Commercial as a banking institution should have noticed, and immediately taken steps to correct the error. The deposit slip error does not relieve Commercial from following sound banking practices.

Where a bank receives a check only for collection the relationship is that of principal (depositor) and agent (bank). The bank is the agent for its depositor even though the deposit be made by another agent for the depositor. 9 C.J.S. “Banks and Banking” § 218, pp. 466-468. Where a bank credits the amount of a check to the account of a depositor and allows the depositor to immediately draw against the deposit (subject to the bank’s right to charge back should the check not be honored), the bank becomes the owner of the check and the relationship is that of debtor and creditor. In Re: Liquidation of Canal Bank & Trust Co., 181 La. 856, 160 So. 609, 610 (1935).

The receipt of the deposit here was but one step in the channel of clearing and paying (erroneously) the Davis-LB&T check. The second step was the guarantee, even of the missing endorsement, by Commercial. We cannot and do not infer that Commercial relied on the alleged “instructions” from Davis’ employee(s) as authority for not requiring LB&T’s endorsement.

Commercial in this case created its own liability and that of Pioneer by guaranteeing a missing endorsement contrary to sound banking practices, knowing that Pioneer would rely on its guarantee.

Even should we assume arguendo, equal fault on the part of Commercial and Davis (and we do not so find), so as to preclude any recovery as between Davis and Commercial or vice versa, the result would be

Davis recovers from Pioneer;

Pioneer recovers from Commercial; and Commercial recovers from Miller.

We need not proceed further.

COMMERCIAL V. MILLER

There should be judgment in favor of Commercial against its depositor, Miller.

CONCLUSION

For reasons assigned, judgment below is reversed and is hereby rendered as follows:

Davis and St. Paul are hereby granted judgment against Pioneer;

Pioneer is hereby granted judgment against Commercial;

Commercial is hereby granted judgment against Miller;

All other demands of each party litigant against other parties litigant are rejected;

Each judgment is for $10,001.00 with legal interest from judicial demand until paid;

Costs below and on appeal shall be paid by the defendant cast in each judgment.

REVERSED AND RENDERED.

      . It is ironic that Miller’s account at Commercial at any time before, but not after, October 9, 1974, contained sufficient funds from which Commercial could have deducted the $10,001 erroneously credited to the account.

      . This would be applying the equitable rule quoted supra from Clark-Kelley Livestock and Auction Company.


text:
    Virginia Thomas POTTS et al., Plaintiffs-Appellants, v. Thomas D. SPATAFORA, Defendant-Appellee.
    No. 13085.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Kidd, Katz & Strickler by Paul H. Kidd and George M. Strickler, Jr., Monroe, for plaintiffs-appellants.
    Blackwell, Chambliss, Hobbs & Henry by Frank N. Chambliss, West Monroe, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

This is a suit by the surviving spouse and heirs of Larkin Potts to have a purported sale with a subsequently granted right of redemption between Larkin Potts as vendor and defendant as vendee declared a security device and seeking reconveyance of the property upon repayment of the amount owed. Plaintiffs’ demands were rejected following a jury trial. On plaintiffs’ appeal, we hold that Larkin Potts voluntarily relinquished possession after the time for redemption expired, thereby perfecting defendant’s title to the property, and we affirm.

On January 6, 1961, Potts signed a deed conveying the land in question to defendant for $4,281.49 cash. This sum was used to pay a debt, secured by a mortgage on the land, owed by Potts to Henry Stevenson. On January 30, 1961, Potts and defendant signed an agreement that the land would be reconveyed to Potts if he paid $4,200 with eight per cent interest within four years.

Potts remained in possession of the property, living on it and farming it through 1964. In the spring of 1965 he offered to pay defendant the money owed. Defendant refused to reconvey the property because the period of redemption had expired. Potts’ son made a crop on the land in 1965, obtaining a lease from defendant for $1 per year.

Jack Adcock, a local farmer, leased the land from defendant in 1967 or 1968 and farmed it continuously since that time. He testified that Larkin Potts assisted him in obtaining the lease. Mrs. Potts denied that her husband assisted Adcock in obtaining the lease, but it is undisputed that Adcock farmed the property acting under his lease from defendant. Adcock cleared the woodland portion of the property and generally used the entire property except two to four acres on which Potts and his wife continued to live. Potts was certainly aware of Ad-cock’s possession as defendant’s lessee and did not object.

Plaintiffs correctly argue that the documents of January 6 and January 30, executed closely together in point of time, should be read together. Read together, the documents constitute a sale from Potts to defendant with Potts retaining a right of redemption. See LSA-C.C. Arts. 2566-2588. It is well settled that a sale of immovable property will be regarded as a security contract if the vendor reserves the right of redemption and retains possession of the property. Woods v. Stoma, 242 So.2d 320 (La.App. 2d Cir. 1970), writs refused 257 La. 985, 244 So.2d 857 (1971); Latiolais v. Breaux, 154 La. 1006, 98 So. 620 (1923). A delivery of possession is, therefore, necessary to perfect title in the vendee.-

The Supreme Court stated the rule applicable to the instant case in the leading case of Latiolais v. Breaux, supra:

“From the foregoing it results that the title of the purchaser is perfected by the delivery of actual possession. If that delivery takes place before the delay for redemption has expired, the vendor, of course, preserves his right of redemption. But if the vendor delivers the property after the delay for redemption has expired, obviously the sale then becomes absolute. By such delivery the vendor acknowledges that the thing belongs to the purchaser, and he cannot thereafter be heard to deny the latter’s title thereto.”

Potts’ right of redemption was preserved as long as he remained in possession of the property. The right was lost, however, and defendant’s title was perfected and became absolute when actual possession was delivered to defendant. Adcock’s possession of the property as defendant’s lessee was possession on behalf of defendant. LSA-C.C. Art. 3433. After delivery of possession to the purchaser, Potts, and plaintiffs standing in his shoes, were precluded from denying defendant’s title to the property.

Potts’ retention of possession of the house in which he lived, and a small garden, does not negate the fact of actual delivery of possession of the 93 acre tract of land to the purchaser. His continued occupancy of the house was with the permission or indulgence of defendant, and was possession on behalf of the defendant. LSA-C.C. Art. 3490.

The instant case is distinguishable from Woods v. Stoma, supra. In Woods, the only acts of possession of the vendee were the payment of taxes and execution of mineral leases. In the instant case, as in Woods, defendant paid the taxes. However, his lessee, possessing in Spatafora’s name, farmed the. property, an unquestionable exercise of corporeal possession not present in Woods.

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

Affirmed.


author: PER CURIAM.

text:
    Ellon Jacobs WATERS, Plaintiff-Appellant, v. Jerral Gray JACOBS, Defendant-Appellee.
    No. 13133.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Blackwell, Chambliss, Hobbs & Henry by Sam 0. Henry, III, West Monroe, for plaintiff-appellant.
    James D. Sparks, Jr., Monroe, for defendant-appellee.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

After a preliminary review of the record, this court notified plaintiff-appellant, through counsel, of a probable lack of jurisdiction due to failure of the appellant to timely perfect the appeal and ordered the appellant to show cause within ten days why the appeal should not be dismissed. The delay has expired and appellant has not responded.

The judgment appealed from was signed and filed on May 5, 1976, and notice of judgment was mailed that date. On May 17,1976, defendant filed a motion for a new trial. The motion for new trial was denied as not timely filed and judgment denying the motion was signed July 15, 1976. On that same date, plaintiff moved for and was granted a devolutive appeal with bond fixed at $400. Plaintiff filed a devolutive appeal bond on September 10, 1976.

The appeal bond recites that judgment was rendered against plaintiff on July 15, 1976, indicating the bond was furnished as security for an appeal from the judgment of that date denying defendant’s motion for new trial. The judgment denying the motion for new trial was in favor of, not against plaintiff. Further, in the absence of a showing of irreparable injury, not present in this case, a judgment denying an application for new trial is not appealable. State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481 (1945); Chauvin v. Nelkin Insurance Agency, Inc., 337 So.2d 1230 (La.App. 1st Cir. 1976); Price v. Price, 272 So.2d 388 (La.App. 1st Cir. 1972). The appeal taken by plaintiff must be considered as an appeal from the first judgment of May 5, 1976. y

The appeal was not timely perfected. LSA-C.C.P. Art. 2087 provides that the delay for appeal begins to run at the expiration of the delay for applying for a new trial, if no application has been filed timely. The motion for new trial was not filed within seven days of notice of judgment as required by LSA-C.C.P. Art. 1974, and was not timely. The time for applying for a new trial expired on May 14, 1976, from which time plaintiff had ninety days to perfect the appeal. The appeal bond was not filed until September 10, 1976, almost four months after the delay began to run. The filing of an appeal bond is an essential step in perfecting an appeal and unless the bond is filed timely the appellate court lacks jurisdiction to hear the appeal. Guilliot v. City of Kenner, 326 So.2d 359 (La. 1976).

For the reasons assigned, the appeal is dismissed at appellant’s costs.

Appeal dismissed.


text:
    Geraldine Brown PERRY, Plaintiff-Appellant, v. Irvin PERRY, Defendant-Appellee.
    No. 13143.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    Emmons, Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appellant.
    Baker, Culpepper & Brunson by Donnie G. Brunson, Jonesboro, for defendant-appel-lee.
    Before BOLIN, C. J., and PRICE, HALL, 'RVIN and JONES, JJ.
   PER CURIAM.

Plaintiff appeals from a judgment rejecting her demand for an increase in weekly alimony. A preliminary review of this record indicated a probable lack of jurisdiction due to appellant’s failure to timely perfect her appeal. This court notified appellant through her attorney of this fact by certified mail and ordered her to show cause within fifteen days why her appeal should not be dismissed. This delay has expired and appellant has not responded. We find that this appeal must be dismissed.

The chronology of events is as follows: the rule to increase alimony was heard on May 21, 1976; it was taken under advisement and decided on May 25, with written reasons; the judgment was signed on August 10; appellant petitioned for an appeal on August 25, and the order of appeal was granted on the same day; the appeal bond was not filed until October 20.

Articles 3942 and 3943 of the Code of Civil Procedure provide that an appeal from an alimony judgment must be taken within 30 days of the applicable date provided in C.C.P. Article 2087.

Article 1913 of the Code of Civil Procedure requires notice of judgment whenever a ease is taken under advisement. Appellant was not given notice of judgment; however, the notice requirement was waived on August 25 when appellant petitioned for an appeal. In Re: Salmon, 318 So.2d 897 (La.App. 2nd Cir., 1975). Since her bond was not filed until October 20, the appeal was not timely perfected. Thomas v. Berman, 308 So.2d 797 (La.App. 4th Cir., 1975).

Under Code of Civil Procedure Article 2088 the jurisdiction of this court only attaches “ . . . upon the timely filing of the appeal bond.” MeCarstle v. McCarstle, 317 So.2d 306 (La.App. 1st Cir., 1975).

Since defendant did not timely perfect her appeal, the case is dismissed ex proprio motu. Code of Civil Procedure Article 2162 and Uniform Rules, Courts of Appeal, Rule 7, § 5(c).

Appeal dismissed at appellant’s cost.


text:
    Anna Frances HAYES, Plaintiff-Appellant, v. Simeon H. WALL, Defendant-Appellee.
    No. 13138.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    Anna Frances Hayes, in pro. per.
    Mayer, Smith & Roberts by Charles L. Mayer, Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for appellee.
    Before BOLIN, PRICE, HALL, MARVIN, and JONES, JJ.
   PER CURIAM.

Anna Frances Hayes is appealing the rejection of her suit against Simeon H. Wall. A review of the record indicated the plaintiff’s appeal was untimely. This court ordered appellant to show cause why her appeal should not be dismissed. The appellant failed to respond.

The record shows the case was tried and decided April 7, 1975. On April 15, 1975, the case was reopened to allow the filing of an affidavit. The court reaffirmed its opinion and the judgment was signed and filed on April 15th. Appellant’s delay for applying for a new trial expired in July, 1975. Her motion for an appeal was not filed until August 24, 1976.

Article 2087 of the Code of Civil Procedure provides in part:

Except as otherwise provided in this article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within ninety days of:
(1)The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.

Since plaintiff did not perfect her appeal timely, her case is dismissed pursuant to Code of Civil Procedure Article 2162 and Uniform Rules, Courts of Appeal, Rule 7, Sec. 5(c).


author: MORIAL, Judge. SAMUEL, Judge

text:
    Mary Kathleen CLESI v. Philip John CLESI.
    No. 7737.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.

      Bordelon & Carimi, Owen J. Bordelon, Jr., Gretna, for plaintiff-appellee.
    Rodney J. Madere, New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff, Mary Kathleen Clesi and defendant Philip Clesi were married in 1969 and one child, who is now 2V2 years old, was born of the marriage. The parties separated in July 1975. Plaintiff filed this suit for separation from bed and board. She prayed for child custody, alimony pendente lite and child support. The trial judge, after hearing the evidence on the rule for alimony and child support ordered defendant to pay $400.00 alimony pendente lite, child support of $50.00 and a $229.00 monthly house note. Defendant appeals. We affirm.

Defendant argues that the trial court did not consider the debts of defendant and his clear inability to pay the amount of the award. Defendant further points out that many of his expenses are community debts.

Plaintiff argues that the award is fair under the circumstances. Plaintiff also argues that the house note is not a new obligation, but rather an existing debt defendant owes as head and master of the ■'mmunity.

At the hearing on the rule plaintiff presented a list of monthly expenses for herself and her child in the amount of $800.00. Defendant’s monthly expenses totaled $942.50. Defendant takes home $1,200.00 monthly. He testified that there are community assets of $4,000.00 in stock which could be liquidated to pay off some of the outstanding charges and medical expenses.

Where the wife’s needs exceed the ability of the husband to pay the court must fix a monthly sum which will as nearly as possible be just and fair. Reichert v. Lloveras, 188 La. 447, 177 So. 569 (1937). The trial judge is vested with wide discretion in applying these standards for support and the award will not be disturbed unless there is a clear abuse of discretion. Lewis v. Lewis, 329 So.2d 778 (La.App. 2 Cir. 1976).

In Walker v. Walker, 325 So.2d 362 (La. App. 2 Cir. 1975) the appellate court did not find that the trial court abused its discretion and affirmed an alimony award of $325.00 where the husband’s net income was $650.00 and his living expenses amounted to $605.00.

In this case, plaintiff’s alimony is only one-third (%) of defendant’s net monthly take home pay. Furthermore, it is apparent that, in view of the meager amount awarded for child support, plaintiff will be compelled to contribute to the support of her child out of her alimony award. Defendant has no basis to complain about the payment of a mortgage note. Inasmuch as the house constitutes a community asset, every payment inures to his benefit as well as to his wife. See Street v. Street, 188 So.2d 164 (La.App. 2 Cir. 1966).

We find no abuse of the trial court’s discretion. Accordingly, the judgment is affirmed.

AFFIRMED.

SAMUEL, J., dissents.

SAMUEL, Judge

(dissenting).

I agree with the law cited in the majority opinion and share their concern about disturbing a trial court award of alimony, child support or both where, as frequently happens, there is an insufficient income to support all members of the family. However, despite the fact that there is such an insufficiency of income in this case, I feel there is an answer to the problem here which justifies action on our part.

Mrs. Clesi submitted a list of monthly expenses for herself and the child which totals $808.08. Mr. Clesi submitted a list of monthly expenses for himself, including payment of various community obligations, totaling $942.50. Although some of the items in both lists are questionable, none of the items in either list is controverted. Mr. Clesi’s take-home salary is $1,200 out of which is deducted, prior to receipt by him, $225 for monthly payments on the community car he uses in his work. Thus, he has actual take-home pay of $975. Out of this $975 figure, he must pay $400 in alimony, $50 in child support, $229 in mortgage payments on the community home occupied by Mrs. Clesi and $92 on outstanding bills of $806.26 charged at local stores by Mrs. Clesi prior to the separation. Thus, he must pay $771 out of his actual take-home pay of $975, leaving a balance of $204 per month on which he must live and support himself. It appears obvious to me that Mr. Clesi cannot feed, house, clothe and otherwise support himself on that amount at today’s prices.

The one saving feature in this otherwise apparently insoluble situation is that there is now $4,000 in community funds available to the litigants. If that amount was used to pay some or possibly all of the community debts (the record does not reveal the total amount of all community debts), Mr. Clesi could be relieved of sufficient payments to enable him to exist on whatever remains of his monthly income. Although Mr. Clesi is enjoined from using any part of the $4,000 in community assets, a release of that injunction, in whole or in part and solely for the purpose of paying community debts, should be a simple matter for the trial court.

As I would set aside the judgment appealed from and remand for the purpose of the trial court taking action consistent with the views above expressed, I respectfully dissent.

      . As was stated in Reichert v. Lloveras, 188 La. 447, 177 So. 569: “If, however, the wife’s needs exceed the husband’s ability to pay, the court must fix a monthly sum which will as nearly as possible be just and fair to each." (Emphasis ours).


author: BOUTALL, Judge.

text:
    Fred T. PERRIN v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.
    No. 7739.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.

      Lawrence J. Smith and Robert J. Young, Jr., Joseph R. McMahon, Edward L. Levert, Jr., New Orleans, for Fred T. Perrin, plaintiff-appellant.
    H. Martin Hunley, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for Dr. Earl J. Rozas, Dr. Raymond E. Horn, Jr., Dr. Kenneth A. Briggs, and St. Paul Fire & Marine Ins. Co., defendants-appel-lees.
    Henry B. Alsobrook, Jr., Harold A. Thomas, New Orleans, for West Jefferson General Hospital, Argonaut-Southwest Ins. Co., Marguerite Lomonaco, Effie Danten, and Claire Smith, defendants-appellees.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This is a malpractice suit arising from the actions taken by the defendants in treating plaintiff’s severe knee injury that resulted in leg amputation of the injured leg. There was a trial by jury from which the jury returned a unanimous verdict finding the defendants not guilty of negligence. From that verdict the plaintiff appeals.

Plaintiff, a marine surveyor, shot himself in the left knee while at his home on March 5, 1972. The blast, from pointblank range by a 12 gauge shotgun destroyed much of the bone, blood vessels and ligaments of the knee, and the pellets embedded themselves deeply in the tissue.

The first attempt to save the leg occurred in the emergency room of West Jefferson Hospital where Dr. Earl Rozas, a defendant orthopedist, performed a debridement or cleaning of the wounded area and removed most of the pellets. Later, on October 9, 1972, Dr. Rozas, assisted by defendant Dr. Raymond Horn, Jr., also an orthopedist, performed a surgical procedure known as a Charnley fusion in an attempt to save the leg and make it more stable. When it was found that the plaintiff’s leg was not responding satisfactorily, on June 20, 1973, a slot graft fusion was performed on the damaged leg in the hope of a desired result of a stiff, but stable leg.

After the slot graft fusion operation, the plaintiff’s leg was bandaged and immobilized in a cast. To combat any possible infection, an antibiotic, garamycin, was administered to the plaintiff. The cast and bandage were left in place and not opened until July 3, 1973, a period of thirteen days. Upon opening the surgical dressing, the defendant doctors, Drs. Horn, Rozas and Kenneth Briggs, noted evidence of infection. Attempts to combat the infection with the antibiotics garamycin and keflex were not successful and the plaintiff chose to have the leg amputated rather than attempt further surgery.

Suit was brought to recover damages for the alleged negligence of Drs. Horn, Rozas and Briggs, West Jefferson Hospital and three nurses, Marguerite Lomonaco, Effie Danten and Claire Smith, and the hospital’s insurer, Argonaut-Southwest Insurance Company. The plaintiff alleges that the physicians were negligent in failing to open the surgical dressing timely and discover the infection at an earlier date, which would have allowed the infection to be com-batted effectively; the physicians failed to take note of the plaintiff’s rising temperature after the grafting operation, to perform a white cell blood count or to check the lymph glands; and the nurses were negligent in failing to take note of an odor emanating from the wounded area which would indicate that an infection was present.

On appeal the plaintiff contends that he proved a prima facie case of negligence with a preponderance of evidence and that the defendants failed to meet the required burden that they prove themselves free from negligence. Plaintiff contends that the evidence offered by defendants at trial on the merits was entirely self-serving and that the jury erroneously accepted that evidence when it found the defendants to have not been negligent.

We preface our discussion of the merits of this appeal by reiterating that a jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence and/or its application of law is clearly erroneous. Garrison v. Hotel Dieu, La.App., 319 So.2d 557 (1975); Duray v. Continental Insurance Company, La.App., 311 So.2d 491 (1975). Thus, in this appeal we must consider if the verdict was supported by the evidence and/or the law was correctly applied.

It is plaintiff’s contention that the defendant physicians failed to exercise the skill ordinarily employed in the treatment of such injuries by their failure to timely discover the infection. In support of this proposition, he offered Dr. David Aiken as an expert in the field of general surgery to establish the standard for treatment of post operative patients.

Dr. Aiken opined that the standard of care was not met by the defendants because the hospital records did not disclose that a white blood cell count was made or check of the lymph glands occurred. He stated these tests would likely have given notice of an infection being present in the operative area. However, on cross examination, Dr. Aiken acknowledged that he did not know the body responses to a bone graft and that such was not in his field of expertise, and the attending physician would have a better appreciation of the condition of the patient. Further, Dr. Aiken, a general surgeon and not an orthopedist, testified that he had never treated a patient post-operatively from this type of surgery. Dr. Aiken stated that orthopedics was a separate distinct field from general surgery and that his testimony was based upon general surgical practices and care, not involving fusion-type orthopedic surgery.

To offset the testimony of Dr. Aiken and to show the reasonableness of their course of treatment, the defendants called upon Dr. Jack Winters, an expert in the field of orthopedics.

Dr. Winters had seen the plaintiff prior to the amputation, at the defendants’ request, for his consultation in the matter. Dr. Winters testified that the treatment and convalescent care afforded the plaintiff were reasonable and the judgments made were appropriate in this case. Dr. Winters refuted plaintiff’s claim that odor should have the defendants on notice that an infection was setting in when he stated that an odor was normal due to the excessive drainage that results from that type of operation. In contravention to Dr. Aiken’s testimony, Dr. Winters testified that a white blood cell count taken after the graft operation would not be of value because body tissue had been damaged by the accident and subsequent grafting procedure, thereby causing large numbers of white blood cells to be present in the blood during the postoperative period. As for plaintiffs allegation that the surgical dressing and cast should have been opened prior to 14 days post-operative, Dr. Winters testified that it is common practice in orthopedic surgery to wait two weeks to open the dressing and supportive cast so that the leg will be immobilized and the proper fusion will occur, as well as to lessen the chance for external infection.

The plaintiff contends that Dr. Winters’ testimony was self serving and not entitled to full credibility due to his consultant status. Plaintiff relies upon L.C.C. article 2282:

“The circumstance of the witness being a relation, a party to the cause, interested in the result of the suit, or in the actual service or salary of one of the parties, is not a sufficient cause to consider the witness as incompetent, but may, according to circumstances, diminish the extent of his credibility.”

This court notes that article 2282 does not consider an interested witness incompetent, but subject only to diminished credibility according to the circumstances. In Dr. Winters’ situation, we can only see his interest in the suit to be infinitesimal, and thus entitled to no diminished credibility.

Considering the plaintiff’s contention in view of the testimony of Dr. Aiken and Dr. Winters, as well as the testimony of the defendant doctors and nurses, it is apparent to this court that the amputation of the plaintiff’s leg did not result from negligence of the defendants. Plaintiff failed to prove his case by the evidence presented to the jury and the evidence supports the jury’s verdict.

The record convinces us that the defendants showed that they possessed and exercised the skill ordinarily employed under similar circumstances by orthopedists in the community and that they used reasonable care and their best judgment. Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953). A physician is not an insurer of the results of treatment afforded a patient. Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963). Accordingly, the judgment for the defendants is affirmed.

AFFIRMED.

      . The nurses, employees of West Jefferson Hospital, testified that they were trained to detect infectious odors and to distinguish the odor of infection from the odor of drainage of a surgical site, and there was never an infectious odor in plaintiff’s room while the cast and dressing were in place, but only the odor of drainage from the sites of the graft.


author: BEER, Judge.

text:
    Gary ORGERON v. Adele Badeaux, wife of/and Herbert BADEAUX and Allstate Insurance Company.
    No. 7755.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.

      George B. Richard, Marrero, for plaintiff-appellant.
    Camp, Carmouche, Palmer, Carwile & Barsh, Robert P. Hogan, Metairie, for defendants-appellees.
    Before GULOTTA, STOULIG and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Gary L. Orgeron, sued Adele Badeaux, wife of/and Herbert Badeaux, and their liability insurer, Allstate Insurance Company (hereafter, “Allstate”), for personal injuries and property damage arising from an intersectional automobile collision on June 5, 1974. Answering, the defendants denied the allegations of negligence and pleaded contributory negligence, last clear chance, and sudden emergency. By reconventional demand, Allstate, as subrogee, sought reimbursement for damages occasioned to Orgeron’s automobile. Orgeron denied the allegations of the reconventional demand and specially pleaded, in the alternative, the contributory negligence of Adele Badeaux. After trial, judgment was rendered dismissing all claims. Orgeron devolutively appeals.

The accident occurred on June 5, 1974, at about 1:00 p. m., at the intersection of Victory Drive and Westbank Expressway in Westwego. Road, weather and visibility conditions were good. Immediately prior to the collision, Orgeron, owner and operator of a 1970 Chevrolet automobile, was proceeding in a northerly direction on Victory Drive and stopped at its intersection with the Expressway for a red light. When the light changed, Orgeron crossed the two east bound lanes of traffic on the expressway and stopped in the median area while permitting the south bound Victory Drive traffic to clear. When the traffic cleared, he intended to turn left. Mrs-. Dominick Ter-rase, another motorist (and a disinterested witness) testified that she was stopped at the intersection in the left south bound traffic lane on Victory Drive, opposite Or-geron’s vehicle. She was waiting to make a left turn onto the east bound traffic lane of the Expressway. When the traffic light changed to yellow, she waved to Orgeron with her hand encouraging him to turn while she remained stopped. He commenced his turn, but before his vehicle was completely out of the intersection, Mrs. Ba-deaux’s right turning car collided with the back right side of Orgeron’s car. Mrs. Ba-deaux had been traveling in a southerly direction on Victory Drive and had changed from the left to the right lane in anticipation of making a right turn onto the Expressway.

Orgeron testified that as he approached the Expressway on Victory Drive, he stopped for a red light. When it turned green, he proceeded to the neutral ground area where he stopped with the front portion of his vehicle protruding slightly into the west bound lanes of the Expressway, and activated his left turn indicator. After the traffic on Victory Drive seemingly subsided, the traffic light in the meanwhile changed from green to amber while, simultaneously, Mrs. Terrase signaled him with her hand to make the left turn. Orgeron testified that he looked for oncoming traffic before commencing his turn and he “could see a good ways down” Victory Drive. When it was too late to avoid the collision, he saw Mrs. Badeaux’s vehicle. Orgeron’s vehicle had not quite cleared the intersection when the accident occurred. We note from his testimony that although Orgeron is restricted by his driver’s license, he was not wearing glasses at the time of the accident.

The defendant, Mrs. Badeaux, testified that as she approached the Expressway at its intersection with Victory Drive at 15 to 20 miles per hour, she slowed the vehicle to a near stop (approximately 10 to 15 miles per hour) and proceeded to turn right. When she was in the intersection, the traffic light turned yellow, but Mrs. Badeaux felt she had gone “too far into it (the intersection) to stop without backing up . .” “I was already committed to go across.” Although she contends that Orgeron did not signal his turn, Mrs. Badeaux acknowledges that she did see him “coming across when . (she) . . . started across.” As Mrs. Badeaux, turning right, traversed the intersection, her vehicle struck Orger-on’s vehicle.

The trial court concluded that concurring negligent acts on the part of Orger-on and Mrs. Badeaux proximately caused the collision. This type of factual determination is peculiarly within the province of the trial court, will be accorded great weight and only reversed if error is manifest. See Naquin v. Van Court, 222 So.2d 601 (La.App. 4th Cir., 1969) and the cases cited therein; Canter v. Koehring, 283 So.2d 716 (La., 1973). We cannot conclude that the trial judge manifestly erred. Indeed, we believe the record amply supports his well stated oral reasons for judgment. The judgment is affirmed at appellant’s cost.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Shannon L. McCLENDON v. SECURITY INSURANCE CO. OF HARTFORD et al.
    No. 7939.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.

      Friedman, Ortiz & Selenberg, Carl J. Sel-enberg, New Orleans, for plain tiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Albert H. Hanemann, Jr., New Orleans, for defendants-appellees Riley A. Boykin, Jr. and Peninsular Fire Insurance Co.
    Bienvenu, Foster, Ryan & O’Bannon and Stuart A. McClendon, Robert N. Ryan and Frederick R. Campbell, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing her tort action against Riley A. Boykin, Jr. and his individual insurer, Peninsular Fire Insurance Company.

On May 6, 1975, plaintiff filed suit for workmen’s compensation benefits against her alleged employer, Southern Comfort Heating & Air Conditioning, Inc., and its insurer, Security Insurance Company of Hartford. She alleged that she was injured on May 6,1974, in the course of her employment as a clerk when she fell from a ladder.

On October 1, 1975, she filed a supplemental and amending petition in which she asserted a tort claim against Boykin as an alternative to her original petition. Now she alleged the accident was the result of a defective ladder which was owned by Boy-kin, alternatively that she was employed by Boykin personally as a domestic worker, and further alternatively that Southern Comfort was the “alter ego” of Boykin so that the two were one and the same.

The trial judge dismissed the suit against Boykin and his personal insurer on the basis of the one year prescription applicable to tort actions under LSA-C.C. Art. 3536. Plaintiff introduced no evidence and the case was decided in the trial court on the basis of the pleadings, answers by Southern Comfort to interrogatories propounded by plaintiff, memoranda and arguments of counsel.

In its answers to the interrogatories Southern Comfort identified its directors and officers as Glen Rogers, Boykin and plaintiff; its authorized signatories for bank checks as Rogers and Boykin; Boykin as the one who furnished his vehicles to plaintiff when necessary for errands; and Boykin as the only employee of Southern Comfort who witnessed plaintiff’s accident. It also disclosed that Security Insurance Company of Hartford had issued a liability policy to the insured named as “Riley A. Boykin, Jr., d/b/a Southern Comfort Air Conditioning and Heating, Inc.”

In this Court plaintiff contends that these answers by Southern Comfort show a close relationship between Southern Comfort and Boykin, such that when a timely suit was filed against Southern Comfort Boykin had timely notice of the claim. Plaintiff further contends that such notice coupled with the filing of the amending petition against Boykin were sufficient to interrupt prescription.

Plaintiff relies on LSA-C.C.P. Art. 1153 and R.S. 9:5801 to support her position. The former provides that “when the action . asserted in the amended petition . arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

The original petition joined only Southern Comfort as a defendant, and arguably Art. 1153 could apply to an amended petition against Southern Comfort, which sets forth a new theory of recovery arising out of the “conduct, transaction or occurrence” sued on originally. This amended pleading, however, attempts to add a new defendant, and under these circumstances Art. 1153 does not purport to authorize the addition of a new defendant as a mere “amendment” relating back to the time of the original petition.

R.S. 9:5801 states that “prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants.” In Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974), it was held that the timely filing of a petition interrupted prescription only as to defendants named in the original petition, absent solidary liability between unnamed defendant and an original defendant.

Plaintiff relies heavily on Andrepont v. Ochsner, 84 So.2d 63 (La.App.Orl.1955), in which our predecessor Court held that the timely filing of a tort against Dr. Ochsner individually had the effect of interrupting prescription against the corporation of which he was president. The Court reasoned that the suit, though directed to Ochsner personally, gave notice to Ochsner as corporation president and cited jurisprudence to the effect “that the knowledge of a president of a corporation relating to its affairs is knowledge to the corporation.”

There is a factual distinction between the Andrepont case and the instant case in that here the suit was filed against Southern Comfort, the corporation, and then the suit was amended to bring in Boykin, the president. Knowledge to the corporation is not necessarily knowledge to the individual president, and the record before us does not demonstrate that Boykin necessarily had knowledge of the suit when filed. On the face of the original petition there is a request to serve only Security Insurance Company, Southern Comfort’s insurer, even though both entities are named defendants. Service was made only on Security and a joint answer was filed by both entities. Even so, we are constrained to hold that Andreport was impliedly overruled by the Supreme Court in Majesty v. Comet-Mercury-Ford of Lorain, Mich., supra. The two cases cannot be rationally harmonized.

Plaintiff also relies on Banks v. K & H Stock Farm, 97 So.2d 444 (La.App. 1st Cir. 1957) where a timely suit for workmen’s compensation benefits against the wrong employer was held to interrupt prescription against the tardily sued but correct employer. But in that case there was an ingredient of the employee being reasonably misled into impleading the wrong defendant by the employer’s method of doing business in close interrelationship with the incorrectly impleaded party. That ingredient was not pleaded in the instant case and no evidence was adduced to that effect by plaintiff at the trial on the exception, although she had the burden of proof to show the absence of prescription since the pleadings themselves indicated that the claim had prescribed.

Plaintiff’s other theory is that Boy-kin used the corporation as his alter ego, but if this were so, Boykin was also plaintiff’s employer and his liability would be restricted to workmen’s compensation liability under our law. The only matter before us is the tort liability of Boykin.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . In the trial court Boykin also pleaded prescription with respect to his individual workmen’s compensation liability to plaintiff but that exception was overruled.