text:
    Forrest CELESTINE, Plaintiff-Appellee, v. Warren SEGURA et al., Defendants-Appellants.
    No. 6646.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.

      McBride & Brewster by Robert R. McBride, Lafayette, for defendants-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Randall C. Songy, Lafayette, for defendant-appellee.
    Breaux & Bordelon by Lester J. Gauthier, Jr., Lafayette, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

Forrest Celestine instituted this suit against Warren Segura, U.S.F. & G. Co. (Segura’s insurer), and Commercial Union Assurance Company (plaintiff’s uninsured motorist insurer) seeking recovery for damages sustained arising out of an automobile accident which occurred on March 5, 1976. The accident occurred when plaintiff, who was standing next to his automobile which was parked in his driveway, was struck by Segura’s vehicle. Commercial Union Assurance filed a third party demand against Segura seeking recovery for any amount Commercial Union would be liable for as a result of a judgment exceeding the $10,000 policy limit of U.S.F. & G. Judgment was rendered in favor of plaintiff and against Segura and U.S.F. & G. in the amount of $12,326.37; and, in favor of plaintiff against Commercial Union in the amount of $943.81. Additionally, judgment was rendered in favor of Commercial Union and against Segura in the amount of $943.81. U.S.F. & G. has perfected a suspensive appeal from said judgment. Plaintiff and Segura have perfected devolutive appeals from said judgment. Commercial Union has answered plaintiff’s appeal seeking a reduction in the amount awarded. In addition, plaintiff has answered the appeal by U.S.F. & G. and Segura seeking an increase in the amount awarded.

The sole issue presented on this appeal is whether that part of the judgment awarding plaintiff $9,000 in pain and suffering for a six to eight-month period is excessive or inadequate.

As a result of the accident, plaintiff complained of pain in his lower back area, left shoulder, right hand, left leg, and head. Plaintiff spent eight days in the hospital under the care of Dr. Kinchen, the treating physician. Dr. Kinchen’s examination revealed abrasions of the left shoulder and upper back, abrasions of the right anterior and lateral thigh areas, and a tenderness in the leg and hip area. Dr. Kinchen prescribed analgesics and muscle relaxants as well as a lumbosacral support. His diagnosis revealed a contused right hip, probable sprain of the lower back and hip areas, and a contused and sprained left shoulder. Plaintiff returned to work on August 9, 1976. In addition to Dr. Kinchen, plaintiff had seen Drs. Meuleman, Ducote, Bienven-ue, and Schneider. The general consensus of these doctors is that plaintiff’s accident-related injuries are not serious and will eventually cure themselves.

Defendant argues strenuously that the compression fracture of a thoracic vertebra, diagnosed by Dr. Schneider about nine months after the accident, was not caused by the accident involved herein. Of course, Dr. Schneider could not say positively that the accident caused the compression fracture, but he did say that the fracture occurred at least three months prior to his examination. He did not expressly rule out the possibility that the compression fracture was causally connected with the accident.

Appellants contend that the trial court abused its much discretion in awarding plaintiff $9,000 for pain and suffering for a six to eight-month period. We disagree. There is a reasonable evidentiary basis for the trial court’s award, and we find no manifest error therein.

The trial court judgment is affirmed. Costs of this appeal are assessed against U.S.F. & G.

AFFIRMED.


source: Caselaw Access Project

author: WATSON, Judge. GUIDRY, Judge,

license: Public Domain

text:
    Wilmore J. LAMBERT, Plaintiff-Appellant, v. Dr. Richard Roy MICHEL et al., Defendants-Appellees.
    No. 6647.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.
    Writ Refused Jan. 26, 1979.

      Robert W. Stratton, Baker, for plaintiff-appellant.
    Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for defendants-appel-lees.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

Wilmore J. Lambert’s suit against Dr. Richard R. Michel and his malpractice insurer, St. Paul Fire and Marine Insurance Company, claimed damages for the death of Lambert’s wife, Beatrice. A jury decided in favor of the defendants, Dr. Michel and St. Paul, and against plaintiff, Lambert.

The first issue presented is whether plaintiff’s cause of action has prescribed.

PRESCRIPTION

Defendants have filed an exception of prescription in this court, contending that the suit is barred by the provisions of LSA-R.S. 9:562s.

Dr. Michel last treated Mrs. Lambert on April 3, 1975. Mr. and Mrs. Lambert had knowledge of Mrs. Lambert’s cancerous condition on October 22, 1975. Mrs. Lambert died on July 14, 1976, of cancer of the cervix. Her cause of action had not prescribed at that time. The instant suit was filed on November 4, 1976, less than one year after Mrs. Lambert’s death. Ordinarily, a statutorily designated survivor may bring suit, both for a decedent’s surviving right to recover and for the wrongful death, within “a period of one year from the death of the deceased.” LSA-C.C. art. 2315 (quoted at footnote 4 infra); J. Wilton Jones Co. v. Liberty Mutual Insurance Co., 248 So.2d 878 (La.App. 4 Cir. 1971), writ denied, 259 La. 61, 249 So.2d 202 (1971); Carter v. Mule, 346 So.2d 882 (La.App. 4 Cir. 1977).

In some circumstances, the statute’s application might result in a denial of an adequate remedy at law for injury in violation of LSA-Const. Art. 1, § 22. For example, if the malpractice victim died the day before the year expired without filing suit, LSA-R.S. 9:5628 would allow only one day for the survivor to file suit. It is difficult to believe that the legislature intended such a result. However, it is not necessary to consider the constitutional issue in the present case. Moreover, the Louisiana Supreme Court has stated in Everett v. Goldman, 359 So.2d 1256 (La.1978) that: “The right of malpractice claimants to sue for damages caused them by medical professionals does not involve a fundamental constitutional Tight.” 359 So.2d 1268. Compare Foster v. Hampton, 352 So.2d 197 (La.1977).

Attorney for plaintiff contends that the last treatment by Dr. Michel on April 3, 1975, occurred prior to the effective date of the statute, September 12, 1975, and LSA-R.S. 9:5628 is therefore inapplicable. The Louisiana Supreme Court, in Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978), held LSA-R.S. 9:2794, also a malpractice statute, to be interpretive and procedural legislation which should be given retrospective effect, but that court has not yet considered LSA-R.S. 9:5628. Henson v. St. Paul Fire & Marine Ins. Co., 354 So.2d 612 (La.App. 1 Cir. 1978) writ granted March 31, 1978, followed a proportionate method in applying the statute, reckoning the period preceding the change under the old law and that following under the new. In the instant situation, it is unnecessary to decide whether LSA-R.S. 9:5628 should be given retrospective effect. The alleged tort did not consist of the treatment rendered by Dr. Michel but his omission to perform certain diagnostic tests, particularly a Pap smear, which would have revealed Mrs. Lambert’s cancerous condition. LSA-C.C. art. 2316. Only when Mrs. Lambert’s cancer was discovered by another doctor on October 22, 1975, were the Lamberts aware an injury had been sustained. This was after the effective date of LSA-R.S. 9:5628, which is therefore controlling, if applicable.

The Lamberts became aware of the cancerous condition on October 22, 1975, and the record indicates they then discovered that the cancer might have been detected earlier but for Dr. Michel’s act, omission or neglect. Perrin v. Rodriguez, 153 So. 555 (La.App.Orl.1934); Hunter v. Sisters of Charity of Incarnate Word, 236 So.2d 565 (La.App. 1 Cir. 1970).

LSA-R.S. 9:5628, provides for a one year prescriptive period on an action for “damages for injury or death” because of medical malpractice. The statute is curiously silent on the inheritance of a cause of action for death (what is commonly referred to as the survival action) and the cause of action for wrongful death. LSA-R.S. 9:5628, because it makes no specific provisions for wrongful death actions and the survival action, must be considered a general statute. It conflicts with the provisions of LSA-C.C. art. 2315, which following an announcement of the general theory of negligence law in Louisiana, makes special provision for inheritance of a right to recover damages, provides a one year prescriptive period following the death of the deceased, and carefully enumerates those persons who inherit the cause of action. There is also a provision for the right to recover for the wrongful death.

Article 2315, especially paragraphs two and three, is a special statute relating to actions arising from the death of tort victims. The rule is that where there is an apparent conflict between general laws and special laws on the same topic the special law prevails, even though the general law may have been enacted at a later date; the special law is not repealed by implication and is only affected if the intent to repeal cannot be doubted. Hewitt v. Webster, 118 So.2d 688 (La.App. 2 Cir. 1960).

Therefore, the prescriptive period applicable to Lambert’s claim for the death of his wife is as provided by Article 2315 and not LSA-R.S. 9:5628. Lambert was entitled to file suit for one year following her death provided that her cause of action had not prescribed at the time of her death. It had not.

The exception of prescription is overruled.

OTHER ISSUES

The other issues presented by plaintiff’s appeal, as reflected by the record and the contentions of the parties, are as follows: whether the jury erred manifestly in holding that Dr. Michel was not guilty of negligence which was a legal cause of Mrs. Lambert’s death; whether the trial judge erred in failing to give certain instructions requested by plaintiff; whether there was error in receiving testimony from Dr. Michel concerning a medical meeting at Marksville General Hospital relative to a Federal study; and whether the trial judge erred in allowing certain questions by defendants’ counsel.

ON THE MERITS

Dr. Michel treated Mrs. Lambert from April of 1972, until April of 1975, for various acute problems. During this period of time, Mrs. Lambert did not present any symptoms relating to her female organs, and Dr. Michel did not treat her for any medical problems connected with the cause of her death'. Mrs. Lambert was admitted to the Marksville General Hospital on four occasions during 1974 and 1975. She was admitted on March 4, 1974, and discharged on March 10, 1974, with complaints of coughing, shortness of breath, bronchitis, and fever. During this first visit to the hospital, Dr. Michel examined Mrs. Lambert relative to these complaints. Mrs. Lambert’s three subsequent admissions by Dr. Michel to the Marksville General Hospital on July 27, 1974, August 6, 1974, and March 31, 1975, were all of short duration. She was discharged from the hospital on April 3, 1975, and this was the last time she was under Dr. Michel’s care. Mrs. Lambert’s chief complaint on these admissions was diarrhea and associated pain in the abdomen.

On or about October 19, 1975, Mrs. Lambert began to hemorrhage from her vagina. On October 22, 1975, Mrs. Lambert was examined by Dr. Vincent, a gynecologist, who diagnosed Mrs. Lambert’s condition as stage 3 carcinoma of the cervix. (Stage 3 is a relatively advanced stage.) Mrs. Lambert was referred to a radiation treatment center at Woman’s Hospital in Baton Rouge in an attempt to save her life. These radiation treatments, subsequent surgery, and chemotherapy were unsuccessful and Mrs. Lambert died on July 14, 1976.

Defendants’ expert witnesses (Dr. F. P. Bordelon, Jr., Dr. Edwin John Califey, Dr. Bryan Clark McCann and Dr. Samuel R. Abramson), all, like defendant, general practitioners in the Marksville-Avoyelles Parish community, unanimously testified that, when a woman presents herself in their offices or is hospitalized for a complaint unrelated to her female organs, they do not perform pelvic examinations or pap smears. Furthermore, under such circumstances, they elicit from their patients only the medical history necessary to treat the specific complaint. The jury could reasonably conclude that Dr. Michel’s treatment of Mrs. Lambert did not fall below the community standard. There is no evidence that the community standard followed by general practitioners in the Marksville-Avo-yelles Parish community is faulty or contrary to teachings in medical colleges.

Therefore, there is no manifest error in the jury’s decision in favor of Dr. Michel and St. Paul and against the plaintiff.

SPECIAL INSTRUCTIONS

The special instructions which the trial judge declined to give the jury were as follows:

1. “Expert evidence is not required where the results of the treatment . are of such character as to warrant the inference of want of care from the testimony of the laymen, or in the light of the knowledge and experience of the jurors. It is not necessary that expert testimony showing improper treatment be specific and positive.” (TR. 351)
2. “A doctor may not be allowed to take refuge in the fact that others in the same profession would have done the same as a defendant doctor did. If you determine among yourselves that the plaintiff was entitled to better treatment or a higher standard of care than exists in the community, notwithstanding the medical testimony as to the local standard of care, you may find negligence by the defendant if you find there is negligence so obvious that it would be within the comprehension of a layman’s common knowledge or experience.” (TR. 352)

The trial judge did not err in declining to give the two requested instructions. In the general instructions, the trial court charged the jury that the defendant physician was required to exercise the degree of care and skill ordinarily employed under similar circumstances by physicians in good standing in the community (TR. 343). Also, the jury was charged that the defendant was required to use reasonable care and diligence along with his best judgment in caring for the deceased (TR. 344). The language used by the trial court in the various charges is in accord with LSA-R.S. 9:2794.

The question presented here was whether the physician had failed to follow proper medical procedures and not whether he was negligent in some fashion which might be appreciated by a layman. The instructions requested by plaintiff were appropriate only if the jury were called upon to decide a question of negligence within the purview of a layman’s knowledge and were unwarranted under the facts of the instant case. The instructions given by the trial court adequately reflect the law on the issues presented.

TESTIMONY CONCERNING FEDERAL STUDY

Appellant’s specification of error number three deals with Dr. Michel’s testimony concerning the Marksville General Hospital and a Federal study, which purportedly found that no pap smears or pelvic examinations were done in 1977 for patients with upper respiratory infections. Appellant objected to Dr. Michel’s qualifications to give the testimony. There was no error in the ruling that the doctor was qualified.

HYPOTHETICAL QUESTIONS

Specifications of error number four and five deal with two series of hypothetical questions proposed to expert witnesses. Plaintiff’s objection was to questions (Tr. 154 and 177) by defendant’s counsel as to whether the expert witness being interrogated would perform a pelvic examination or a pap smear on female patients involved in automobile accidents or having a variety of diseases. It is correct that hypothetical questions should not be based on unproved facts. Brown v. Aetna Casualty & Surety Company, 96 So.2d 357 (La. App. 1 Cir. 1967). But the questions posed here did not purport to be based on the facts of Mrs. Lambert’s situation; they pertained to the general subject of pelvic examinations. A principal issue of the litigation involved the circumstances in which a pelvic examination or a pap smear is appropriate. The hypothetical questions were relevant to a material issue. Expert testimony, not unreasonably prolonged, which illuminates the general area of inquiry for the jury may be permitted. There was no error in allowing these questions.

For the reasons assigned, the judgment below is affirmed at appellant’s costs.

AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge,

concurring.

I concur in the result. In my view plaintiff’s cause of action for the death of his wife has prescribed under the provisions of LSA-R.S. 9:5628. Although the cited statute does not specifically recognize inheritance of a right to recover damages for death, it impliedly recognizes the existence of such right when it allows damages for “injury or death ”. I agree with the opinion author that the provisions of LSA-C.C. Article 2315 allowing inheritance of a right to recover damages for death and/or wrongful death in medical malpractice actions were not repealed by LSA-R.S. 9:5628, however, I cannot agree that the prescriptive period applicable to such actions, as provided by LSA-C.C. Article 2315, insofar as medical malpractice actions are concerned, was not superseded by LSA-R.S. 9:5628. The latter statute very specifically provides that “No action for damages for injury or death against any physician, . whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of . discovery of the alleged act, omission or neglect .”. In the instant case, as correctly found by the opinion author, plaintiff and his deceased wife became aware of her condition and Dr. Michel’s alleged act of omission or neglect on October 22, 1975. The instant suit was not filed until November 4, 1976. Under such circumstances, in my opinion, plaintiff’s suit was filed too late and should have been dismissed on appel-lee’s plea of prescription.

      . LSA-R.S. 9:5628: “Actions for medical malpractice”
      “A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.

      “Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severa-ble.”

      . LSA-Const. Art. 1, § 22: “Access to Courts”
      “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation or other rights.”

      . LSA-C.C. art. 2316: “Negligence, imprudence or want of skill”
      “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

      . LSA-C.C. art. 2315: “Liability for acts causing damage; survival of action”
      Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
      The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
      As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively. (Amended by Acts 1948, No. 333, § 1; Acts 1960, No. 30, § 1.)


author: CULPEPPER, Judge.

text:
    Lee GUILLOT and Doris Guillot, Plaintiffs and Appellants, v. STATE of Louisiana, Through the LOUISIANA STATE POLICE and the Louisiana Department of Public Safety, Defendant and Appellees.
    No. 6657.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.
    Writ Refused Jan. 19, 1979.
    Riddle, Bennett & Ryland by John T. Bennett, Marksville, for plaintiffs and appellants.
    Foye L. Lowe, Jr., Baton Rouge, for defendant and appellees.

      Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CULPEPPER, Judge.

Plaintiffs, Lee and Doris Guillot, filed this suit for damages for the wrongful death of their son, John William Guillot. They allege that, while operating a motorcycle, he was struck and killed by a vehicle negligently driven by Allen J. Bonnette. The defendants, (1) the State of Louisiana, through the State Police and (2) the Department of Public Safety, are sued on the basis that due to Bonnette’s prior convictions for driving while intoxicated, the defendants should have taken away his driver’s license and his vehicle license plates. Defendants excepted to the suit on the ground that the plaintiffs failed to state a cause of action. The district judge sustained the defendant’s exception and dismissed the suit. From this judgment, the plaintiffs appeal.

The decisive issues are: (1) Did the Department of Public Safety have a statutory duty to issue an order to the Louisiana State Police to pick up either Bonnette’s driver’s license or his vehicle license plates? (2) Assuming, as plaintiffs allege, that the Louisiana State Police were negligent in failing to pick up Bonnette’s driver’s license, after being ordered to do so on February 2, 1977, was this a legal cause of the death of plaintiffs’ son?

The allegations of plaintiffs’ original and supplemental petitions, which, for purposes of the exception of no cause of action, must be accepted as true, are as follows: Their son was traveling on a motorcycle in a westerly direction when the accident occurred. According to the petition, Allen J. Bonnette, who is not a party to this suit, was proceeding in an automobile in the opposite direction along the same road when he turned into the path of the motorcycle and thereby caused the collision and subsequent death of Guillot. Plaintiffs allege that as of the date of the accident Bonnette had been convicted of driving while intoxicated on three separate occasions. Their original and supplemental petitions contain the following allegations of negligence and causation:

“8(b).
“That according to Louisiana law, the Department of Public Safety was required prior to this accident to issue an order to the Louisiana State Police ordering them to take away his driving privileges which included the taking of his license and license plates on his vehicle.
* * * * * *
“9.
“That through inadvertence or negligence, the Department of Public Safety failed to issue such an order which failure resulted in Allen J. Bonnette being on the road on the date and at the time of the accident, said failure to issue the said order was the proximate cause of the accident in the following respects:
“(a) That under the statute cited herein-above the law provided that the license of Allen J. Bonnette shall be revoked;
“(b) That upon conviction on September 2, 1976 while driving while intoxicated became the duty of the Department of Public Safety to issue an order to the Louisiana State Police to pick up the driver’s license of Allen J. Bonnette;
“(c) That on February 2, 1977 an order was issued by the Department of Public Safety to the Louisiana State Police to pick up his driver’s license;
“(d) That in neglecting to issue this order prior to February 2, 1977 the Department of Public Safety was negligent and said negligence proximately caused the accident;
“(e) That in addition by failing to pick up the driver’s license of Allen J. Bon-nette after receiving an order on February 2, 1977 the State of Louisiana through the Louisiana State Police was negligent which negligence proximately caused the accident.
* * * * * *
“10(a).
“That the accident in question occurred on April 10, 1977 at 3:55 p. m.; that according to the records of the Department of Public Safety an order was issued by the Department of Public Safety to the Louisiana State Police on February 2, 1977 to pick up the driver’s license of Allen J. Bonnette.
* * * * * *
“10(b).
“That if in fact his license had been picked up within this period of time it is more probable than not that Allen J. Bon-nette would not have been driving upon the roads of Louisiana on the date and at the time in which the accident occurred that is April 10, 1977, and the accident and the death of John William Guillot would not have occurred.”

DID DEPARTMENT OF PUBLIC SAFETY HAVE STATUTORY DUTY TO ISSUE ORDER TO STATE POLICE TO PICK UP LICENSE?

In both their petitions and in their brief, plaintiffs argue that in those cases in which LSA-R.S. 32:414 makes the revocation or suspension of an individual’s license mandatory, the law of Louisiana requires that the Department of Public Safety issue an order to the state police to physically seize the individual’s driver’s license and his vehicle license plates. We. find no such requirement in either the statutes or the jurisprudence.

LSA-R.S. 32:414(B)(2) mandates the revocation for twelve months of the driver’s license of an individual upon that individual’s second or subsequent conviction of driving while intoxicated. Therefore, in the instant case, the Department of Public Safety was under a positive duty to revoke Bonnette’s driver’s license. However, the statute does not place a duty upon any state agency to seek out the motorist and take actual physical possession of his driver’s license or his vehicle license plates. Instead, LSA-R.S. 32:414(E) provides that upon cancellation, revocation or suspension of any person’s license the Department of Public Safety shall send written notice to that person of such cancellation, revocation or suspension and that such person must return his driver’s license within five days. LSA-R.S. 32:414.1 (1 and 4) declare it to be unlawful for any person to have in his possession any canceled, revoked or suspended license or to fail or refuse to surrender to the department any canceled, revoked or suspended license.

In these statutes, the legislature imposes no affirmative duty on the State beyond the mailing of the notice of suspension, revocation or cancellation. Instead, these statutes impose a duty on the individual, upon notice of revocation by the department, to surrender his license under penalty of punishment. We conclude the Department of Public Safety had no statutory duty to issue an order to the state police to pick up either Bonnette’s driver’s license or his vehicle license plates. Thus, plaintiff’s allegations of negligence, based on the department’s failure or delay to issue such an order, do not state a cause of action. Plaintiffs do not allege any negligence by the department in failing or delaying to notify Bonnette of the revocation of his license.

FAILURE OF STATE POLICE TO PICK UP LICENSE

The next issue is, assuming the Louisiana State Police were negligent, as plaintiffs allege, in failing to pick up Bonnette’s driver’s license, was such negligence a legal cause of the death of plaintiffs’ son?

In Frank v. Pitre, 353 So.2d 1293 (La.1977), the plaintiff, a city policeman, filed suit against the sheriff of Evangeline Parish for personal injuries caused by gunshot wounds which he suffered while attempting to quell a barroom fight. The plaintiff had been shot by L. J. Dick, who was supposed to be a prisoner in the Evangeline Parish jail at the time of the accident, but who had been released by the sheriff on a “week-end pass”, for which the sheriff had no authority. The Supreme Court of Louisiana refused to hold the sheriff liable for the injuries to the plaintiff. The majority opinion, signed by four justices, found there was not a sufficiently close connection between the release of the prisoner and the injury to plaintiff. Stating that the theory of “proximate cause” may still survive in Louisiana, the majority said:

“Whatever the theoretical basis for liability is called, the claimed cause of the injury (the release of Dick) did not sufficiently contribute to the injury to create liability in defendant.”

In a concurring opinion, Justice Tate stated he preferred to use the duty risk analysis, under which he concluded that the harm to the plaintiff was not within the scope of protection of the duty breached by the defendant. He states:

“For a defendant’s violation of a duty to be a legal cause of an injury, his violation must not only be a cause in fact of (i. e., a substantial factor contributing to) the injury, but the duty violated must also have included within its purpose the prevention of the risk encountered by the plaintiff to his injury. (Citations omitted.) “Here, as the majority correctly notes, the sheriff’s duty to confine the person held for bailable charges plainly did not include within its scope the protection of third persons from injury . . . .”

The allegations of the petition in the instant case are analogous to the facts of Frank. In Frank, the plaintiff contended that if the sheriff had not breached his duty in issuing the pass, the prisoner would not have been in the bar on that particular night, and the injuries to the plaintiff would not have occurred. Frank contended further that a purpose of the sheriff’s duty to confine his prisoners was to protect third persons from injury by the prisoners. In the instant case, the plaintiffs have alleged that if the state police had picked up Bon-nette’s license, Bonnette would probably not have been driving an automobile on the day of the accident and the injuries to their son would not have occurred. Under a duty risk analysis, this may satisfy the cause in fact requirement. But, plaintiffs do not allege that a purpose of the duty to pick up the license was to protect third persons from injury by Bonnette’s driving. Thus, the allegations do not expressly satisfy the duty-risk requirement that the injury be one which the duty breached sought to protect against. See Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970).

We conclude the trial judge was clearly correct in deciding this case under the rationale of Frank v. Pitre, supra. If we use the “proximate cause” rationale of the majority opinion in Frank, the failure of the state police to pick up Bonnette’s driver’s license did not sufficiently contribute to the death of plaintiffs’ son to create liability in the State. Also, if we use the duty-risk analysis, as did Justice Tate in his concurring opinion, the purpose of any duty imposed on the state police to pick up Bon-nette’s driver’s license did not include within its scope the protection of third persons from injury by Bonnette’s driving.

Keeping in mind that there was no statutory duty by any state agency to pick up the license, and that the only duty being discussed here is that alleged by plaintiff as arising out of an order by the Department of Public Safety to the State Police to pick it up, we think the obvious purpose of this order was to enforce the statutory penalty that Bonnette surrender the license. The purpose of revoking Bonnette’s license was to inflict on him a punishment for his convictions of driving while intoxicated. These were criminal offenses, and the revocation of the license was a part of the penalty.

Essentially, what the plaintiffs in this case are contending is that the State’s failure to enforce a punishment for violation of a criminal statute caused the death of their son. The answer to this is that although the State has a duty to enforce its criminal laws, it is not liable for damages to individuals injured by the criminal acts of others or by the State’s failure to punish those criminal acts. To hold otherwise would, in effect, obligate the State to compensate the victims of crime. Louisiana has not adopted such a law.

The only cases we find from other states support our conclusion. A New York court, faced with an almost identical fact situation, Chikofsky v. State, 203 Misc. 646, 117 N.Y.S.2d 264 (1952), refused to find a cause of action against the state on two grounds. First, the court concluded that neither the state nor municipalities were liable in damages to individuals for omission to perform a public duty. Secondly, the court found no “proximate cause” between the failure of the state to seize the license and the personal injuries of the plaintiff. In a later case, Brumby v. State of N. Y., 14 Misc.2d 592, 180 N.Y.S.2d 71 (1958), the New York bureau of highways had sent a notice of revocation to an individual ordering the surrender of the automobile’s license plates. The individual failed to do so and subsequently injured the plaintiff through negligent driving. The court refused to allow the plaintiff to recover against the state, concluding that the “crux” of the case was a lack of “causation” between the plaintiff’s injuries and the state’s failure to seize the plates. See also Guy v. State, 50 Misc. 29, 269 N.Y.2d 504 (1966) and 79 A.L.R.3d 963. Despite the use of the proximate cause analysis, these cases illustrate the aversion of the New York courts to hold the state liable for injuries caused by drivers whose licenses had been revoked but not surrendered or picked up.

In a supplemental brief, plaintiffs argue that the recent case of Boyer v. Johnson, 360 So.2d 1164 (La.1978) supports their position. In Boyer, defendant employed plaintiff’s 15-year-old son to drive a commercial motor vehicle in violation of a criminal statute, LSA-R.S. 23:161(10). In holding the defendant employer liable to the parents for the death of the boy while operating the vehicle, the court found that the employer’s violation of the criminal statute was a cause in fact and that the purpose of the statute was to protect against the risk of injury to minors. We find the Boyer case is distinguished from the present matter. In the first place, there was no violation of a criminal statute by the defendants herein. Furthermore, for the reasons stated above, the duty breached, if any, did not seek to protect against the injury süffered.

For the reasons assigned, the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.


author: CUTRER, Judge.

text:
    Joseph Barney DESHOTELS, Sr., Plaintiff-Appellant, v. Oremus FRUGE, Defendant-Appellee.
    No. 6659.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.

      Preston N. Aucoin and Gilbert W. Aucoin, Ville Platte, for plaintiff-appellant.
    Jules R. Ashlock, Ville Platte, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

This is a companion case consolidated for trial with Fruge v. Deshotels, 364 So.2d 263, our docket No. 6658. Separate decisions in these cases are being rendered by us this date.

These suits arise out of a contract for the sale of land made on February 20, 1967. On that date, plaintiff sold ten acres of land in Evangeline Parish to defendant for $2,500. The description of the acreage stated that it fronted “250' on the Vidrine-Pine Prairie blacktop highway.” The sales contract contained the following clause:

“It is agreed to by the parties that vendee will not build his home any less than 350 feet from the said blacktop road.”

In November of 1977, defendant began building his house on this tract of land approximately 320 feet from the blacktop highway. In this suit plaintiff-vendor seeks a rescission of the sale, or, in the alternative, a mandatory injunction ordering defendant-vendee to move his house so that it will be at least 350 feet from the highway. Plaintiff further seeks damages and attorney’s fees for the alleged breach of contract.

The trial judge rendered judgment in favor of defendant-vendee, dismissing plaintiff’s suit. Plaintiff-vendor appealed.

Counsel for Deshotel sets forth one broad specification of error:

“The trial judge erred in holding that the stipulation was illegal, invalid, and unenforceable, and/or had prescribed.”

The trial court in its written reasons for judgment arrived at the following conclusions:

“1. The stipulation and/or restrictive covenant contained in the deef [sic] from Deshotels to Fruge is illegal, invalid and unenforceable as it does not form part of a regular planned subdivision;
“2. It is a predial servitude which, in this case, does not run with the land, and therefore is subject to the prescription of 10 years;
“3. Said servitude has prescribed.”

Based upon these reasons, the trial judge dismissed the plaintiff Deshotel’s suit.

I. WHAT IS THE NATURE OR CLASSIFICATION OF THE CLAUSE IN QUESTION?

The trial court concluded that this was a predial servitude that did not run with the land. The attorney for Deshotel contends this clause cannot be classified as a predial servitude but, under the particular circumstances herein, must be treated as a personal obligation. To make this determination, we look to LSA-C.C. arts. 756, 646 and 757.

.Article 756 of the Louisiana Civil Code provides in part as follows:

“If the right granted be of a nature to assure a real advantage of an estate, it is to be presumed that such right is a real servitude, although it may not be so styled.”

Article 646 of the Louisiana Civil Code provides in part as follows:

* * * * * *
“Real servitudes, which are also called predial or landed servitudes, are those which the owner of an estate enjoys on a neighboring estate for the benefit of his own estate.
“They are called predial or landed ser-vitudes, because, being established for the benefit of an estate, they are rather due to the estate than to the owner personally.”

Article 757 of the Louisiana Civil Code provides in part as follows:

“Art. 757. If, on the other hand, the concession from its nature is a matter of mere personal convenience, it is considered personal, and can not be made real but by express declaration of the parties.”

The effect of these provisions is that, if the charge or burden is laid on one estate for the use, benefit or advantage of another estate, such is a predial servitude. If the charge or burden is for “personal convenience” of the obligee, then it is treated as a personal obligation.

The provisions of the clause in question do not designate the kind of right the parties intended to create. When the instrument does not so designate the kind of right, the resolution of the question becomes a matter of contractual interpretation and is governed by both the general rules of construction of juridical acts and the rules of construction applicable specifically to instruments purporting to create servitudes. Under these rules of interpretation the intention of the parties must govern. McLure v. Alexandria Golf & Country Club, Inc., 344 So.2d 1080 (La.App. 3rd Cir. 1977).

Applying these principles to the clause in question, we examine the evidence which applies to this problem. Mr. Desho-tel unequivocably testified that the 350-foot setback was inserted in the deed for one reason which was that, when Fruge built his home, he did not want Fruge’s home any closer to the blacktop roadway than the home that Deshotel intended to build. Deshotel, being more specific, stated that he wanted Fruge’s home aligned with his so that when he (Deshotel) was on his front porch, he would not see the side of Fruge’s house. Alignment of the two houses for the personal convenience of view was the sole and only purpose of the clause. Alignment for the limited purpose of view, as described by Deshotel, was inserted for the personal convenience of Deshotel. Neither the instrument nor the undisputed evidence give any indication that the burden or charge imposed on one estate was for the benefit of another. The restraint was purely for the personal convenience of Deshotel and we hold that the clause shall be classified as a personal obligation, which obligation tends to restrict the free use of land.

Counsel for Fruge contends that Civil Code art. 709 prohibits this clause as it imposes services on the person and not on the estate. This argument was put to rest in the case of Mallet v. Thibault, 212 La. 79, 31 So.2d 601, 604 (1947), where the court held:

“ . . . And we are not unmindful of Article 709 of the Code which seems to forbid the conventional establishment of a servitude in favor of a person. However, that article cannot be reconciled with Articles 757 and 758 which are contained in Section 2 of Chapter 4 of Title IV dealing with the establishment of ser-vitudes and which provide directly to the contrary. This court recognized the existing conflict in Frost-Johnson Lumber Co. v. Salling’s Heirs, 150 La. 756, 91 So. 207, 245, where it was declared: ‘And with these conflicting provisions before us we cannot say that the law clearly prohibits the creation of a servitude upon lands in favor of a person and his heirs. And hence the intention of the parties should govern in such matters.’ ”

II. PRESCRIPTION

The trial judge referred an exception of prescription to the merits and maintained same in his judgment. The prescriptive period applicable to this personal obligation clause is Civil Code art. 3544, which provides in pertinent part as follows:

“In general, all personal actions are prescribed by ten years.”

The contract was entered into on February 20, 1967. The alleged breach occurred in November of 1977, when defendant-vendee began erecting his house. The prescriptive period of ten years began running in November of 1977, Cyr v. Louisiana Intrastate Gas Corporation, 273 So.2d 694 (La.App. 1st Cir. 1973); R. E. E. De Montluzin Co., Limited v. New Orleans & N. E. R. Co., 166 La. 822, 118 So. 33 (1928). Plaintiff-vendor had until November of 1987 to file his suit and, therefore, was well within the prescriptive period.

III. WHAT RECOURSE, IF ANY, WOULD DESHOTEL HAVE FOR A VIOLATION OF THE CLAUSE UNDER THE FACTS PRESENTED?

Having classified the clause, we must next determine whether Deshotel is entitled to any injunctive relief or a dissolution of the sale under the circumstances presented. As we approach this determination, and having' concluded that this is a personal obligation which tends to restrict the free use of land, we must keep in mind the general rules set out in Fuller v. Hill Properties, Inc., 259 So.2d 398, 400 (La.App. 2nd Cir. 1972), wherein the court held as follows:

“'It is too well settled to require citation in support thereof that stipulations contained in restrictive covenants are stricti juris and every doubt should be resolved in favor of the unencumbered use of the property.’ Chexnayder v. Rogers, 95 So.2d 381 (La.App.Orl.Cir. 1957). See also, Salerno v. De Lucca, 211 La. 659, 30 So.2d 678 (1947); Fatjo v. Mayer, 162 So.2d 356 (La.App. 3rd Cir. 1964); Failla v. Meaux, 237 So.2d 688 (La.App. 3rd Cir. 1970).
“ ‘Restrictive covenants are to be construed most strictly against the grantor and persons seeking to enforce them, and liberally in favor of the grantee, all doubts being resolved in favor of a free use of property and against restrictions.’ Munson v. Berdon, 51 So.2d 157 (La.App. 1st Cir. 1951); Wax v. Woods, 209 So.2d 329 (La.App. 4th Cir. 1968); writ ref. Tully v. Woods, 252 La. 467, 211 So.2d 330 (1968).”

The evidence reflects that this is rural property fronting on a blacktop highway. Deshotel had purchased the property in approximately 1965. He then sold a portion of same to a Joseph Ortego. No restriction was incorporated in that deed. Later, on February 20, 1967, the subject deed was executed. At that time, Deshotel was living in a home situated approximately 320 feet from the blacktop highway. This is the way the situation stood until November 1977, at which time Fruge began construction of his home which was aligned with that of Deshotel. A dispute arose over whether Fruge was building too close to the highway, resulting in these suits. After the suits were filed and at a time near trial, in January 1978, Deshotel began construction of his home immediately to the rear of his original residence. He stated that the front of his residence was one foot from the rear of his original house. Deshotel stated that the reason he inserted the clause was that he wanted to make certain that Fruge’s home would be no closer to the highway than his new residence. His purpose, as previously discussed, was one of personal convenience, in that he didn’t want to have to look at the side of Fruge’s house from his front porch. There is no evidence that the clause was for any aesthetic purposes, nor is there any contention or evidence that the clause was in any way connected with any uniformity of setback for property value purposes. This clause had only the one purpose set out above.

Deshotel, upon being questioned by the court, testified that he had begun the construction of his new home 360 feet from the blacktop highway. He stated that his son had measured the distance. Under these circumstances, Deshotel, by placing his home 360 feet from the roadway, defeated the purpose of the clause. If Fruge were ordered to move his home back to the 350-foot mark, his home would still be 10 feet to the front of Deshotel’s residence. Deshotel thereby created the very misalignment that he intended to obviate.

The extraordinary remedy of injunc-tive relief will not be granted if, as a result thereof, no real meaning or useful purpose would be served. Heard v. Seegers, 178 So.2d 789 (La.App. 2nd Cir. 1965). Under the circumstances presented by Deshotel’s testimony, injunctive relief would serve no meaningful purpose.

This same reasoning is applicable for denying the plaintiff’s request to dissolve the obligation for violation. It is not disputed that Fruge built his home within the 350-foot minimum, but such technical violation does not tend to defeat the purpose of the clause. Deshotel defeated his own purpose by his own action as pointed out above.

When a technical violation of a restrictive type of obligation does not defeat the purpose or object of the covenant or obligation, such violation will be disregarded as immaterial to the issue. Guyton v. Yancey, 240 La. 794, 125 So.2d 365 (1960), reh. den. January 9, 1975.

Under these principles and the facts at hand, dissolution of the contract of sale is also denied.

For the above reasons, the judgment of the trial court is affirmed. Costs of the trial and the appeal are assessed one-half each to appellee and appellant.

AFFIRMED.

      . In the caption of the case, plaintiffs name is spelled “Deshotels”; however, in the trial court’s judgment, the name is spelled “Desho-tel.” The latter will be used in this opinion.

      . C.C. art. 709 provides in pertinent part as follows:
      “Art. 709. Owners have a right to establish on their estates, or in favor of their estates, such servitudes as they deem proper; provided, nevertheless, that the services be not imposed on the person or in favor of the person, but only on an estate or in favor of an estate; and provided, moreover, that such services imply nothing contrary to public order.”

      . “BY THE COURT:
      “How far is your house from the road?
      “A. My house would be 300 and_if Fm not mistaken, 360.
      “Q. You measured this?
      “BY JULES ASHLOCK, Counsel for Fruge:
      “I’m sorry, your Honor, I didn’t hear what he said.
      “BY THE COURT:
      “360 feet.
      “A. My sons measured it.”


text:
    Oremus FRUGE, Plaintiff-Appellee, v. Joseph Barney DESHOTELS, Sr., Defendant-Appellant.
    No. 6658.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.
    Preston N. Aucoin and Gilbert W. Aucoin, Ville Platte, for defendant-appellant.
    Jules R. Ashlock, Ville Platte, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

This is a companion case consolidated for trial with Deshotels v. Fruge, 364 So.2d 258, our docket No. 6659. The issues are substantially the same in both suits. Separate decisions in these cases are being, rendered by us this date.

For the reasons assigned in Deshotels v. Fruge, 364 So.2d 258, our docket No. 6659, the judgment of the trial court is affirmed. The costs of the trial and the appeal are to be paid one-half each by ap-pellee and appellant.

AFFIRMED.


author: GUIDRY, Judge. WATSON, Judge,

text:
    Clarence LeBLANC, Plaintiff-Appellant, v. AMERICAN EMPLOYERS INSURANCE CO. et al., Defendants-Appellees.
    No. 6627.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1978.
    Rehearings Denied Nov. 28, 1978.
    Writs Refused Jan. 26, 1979.

      Cooper & Sonnier, Calvin E. Woodruff, Jr., Abbeville, for plaintiff-appellant.
    J. Minos Simon, Lafayette, Sue Fontenot, Abbeville, Onebane, Donohoe, Bernard, To-rran, Diaz, McNamara & Abell by Timothy J. McNamara, Lafayette, for defendants-appellees.
    Cynthia Picou, Francisville, for defendants-appellees-appellants.
    Before CULPEPPER, WATSON, GUI-DRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

This is a tort suit wherein plaintiff seeks to recover damages for injuries sustained by him in an accident which occurred April 6, 1974. The defendants in the tort action are Pierre Hebert; his wife, Aline Hebert; and, their insurer, American Employers Insurance Company (American). Coupled with the tort suit is an action by plaintiff against Pierre Hebert, Aline Hebert and their only daughter, Genella Hebert Nors-worthy, to set aside an act of donation of real and personal property as having been made gratuitously and in fraud of creditors.

The record reflects that on the afternoon of Saturday April 6, 1974 plaintiff, Clarence LeBlanc, was operating his motorcycle in a westerly direction on West First street (Hwy. 14) in the city of Kaplan, Vermilion Parish, Louisiana. At the same time, defendant, Mrs. Pierre (Aline) Hebert, was driving a community automobile on a community mission in an easterly direction on the same street. West First street is a two lane, paved highway, traversing the city of Kaplan from east to west. Lejeune street, in the city of Kaplan, is a two laned, paved roadway, running north and south. Le-jeune street forms a junction or “T” intersection with the northernmost lane of West First street.

Upon reaching the intersection of West First street and Lejeune street on the date in question, defendant, Mrs. Hebert, stopped on West First street intending to execute a left turn across the west bound lane of West First street onto Lejeune street. Mrs. Hebert did not see plaintiff approaching in a westerly direction, and as he entered the intersection, she simultaneously commenced a left turn maneuver colliding with plaintiff. As a result of the accident plaintiff received severe injuries. On April 22, 1974 and May 9, 1974, prior to the institution of this suit, defendants, Pierre and Aline Hebert, donated substantially all of their property to their only daughter, Genella Hebert Norsworthy. The April 22, 1974 donation conveyed to. Mrs. Norsworthy two time certificates of deposit issued by Vermilion Bank & Trust Company, one of $5,000.00 and one of $2,000.00. The May 9, 1974 donation to Mrs. Norswor-thy purported to convey to the latter a 100 acre tract of land in Vermilion Parish, Louisiana, together with “all livestock, buildings, barns, and any equipment of any nature whatsoever situated and/or located on the above described premises, including the house and/or dwelling situated upon the above described property”. It is this latter donation which plaintiff seeks to revoke as having been executed in fraud of his rights.

At trial on the merits it was stipulated that at the time of accident American had in effect a policy of automobile liability insurance issued to defendants, Pierre and Aline Hebert, bearing limits of $10,000.00 per person and $20,000.00 per accident for bodily injury and $10,000.00 for property damage. It was further stipulated that the property damage suffered by plaintiff was $1,000.00.

The matter was tried by a jury which returned a verdict on special interrogatories which resulted in a judgment which awarded plaintiff $50,000.00 in total, non-itemized, damages and denied his revocatory action. The judgment was rendered against defendant, American and Pierre and Aline Hebert, in solido, in the sum and amount of $11,000.00 and the remainder thereof, i. e., $39,000.00, being in favor of plaintiff and against Pierre and Aline Hebert, in solido. Following rendition of judgment plaintiff executed a partial release acknowledging satisfaction of the first $11,000.00 of the $50,000.00 judgment, reserving all rights to proceed against Pierre and Aline Hebert, individually, for the remaining $39,000.00 and further reserving all rights to have that sum increased on appeal.

From this judgment plaintiff appealed seeking a reversal of the trial court judgment insofar as it denied a revocation of the donation inter vivos and seeking also an increase in the quantum of damages awarded. Defendants Aline and Pierre Hebert, answered plaintiff’s appeal seeking a reversal of the trial court’s finding on the issue of defendants’ tort liability. Genella Hebert Norsworthy did not appeal nor answer the appeal of plaintiff.

The substantial issues on appeal are:

1. Did the jury err in finding Clarence LeBlanc free from negligence?

2. Did the jury err in dismissing plaintiff’s revocatory action?

3. Is the jury’s assessment of damages manifestly erroneous?

DID THE JURY ERR IN FINDING PLAINTIFF, CLARENCE LEBLANC FREE FROM NEGLIGENCE?

Defendants do not seriously contend that on the occasion in question Mrs. Aline Hebert was not negligent or that her negligent conduct in executing a left turn in the face of oncoming traffic, did not proximately cause the accident. Defendants do however, strongly urge that plaintiff was eon-tributorily negligent and the jury erred in its finding to the contrary.

The question as to whether or not plaintiff was contributorily negligent is for the most part, a factual issue. It is well settled in our jurisprudence that the factual findings of the trial court should not be disturbed on appeal in the absence of manifest error. Canter v. Koehring Co., et al., 283 So.2d 716 (La.1973). We find no error in the jury’s determination of this issue.

There is no evidence in the record which would reflect that plaintiff was exceeding the posted speed limit or that he was riding his motorcycle other than in a normal and prudent manner. Plaintiff was proceeding in his proper lane of traffic and had the right to assume that the defendant, Mrs. Hebert, would obey the law and allow him to continue. Further, the record supports the finding that at the point where plaintiff saw or should have seen Mrs. Hebert would not yield the right of way to him, plaintiff did not have the time or distance to stop or avoid the collision. Presumably the jury so found in rejecting defendants’ contention that plaintiff was con-tributorily negligent and as aforesaid, we find no error in this conclusion.

Bailes v. Casualty Reciprocal Exchange, La.App., 279 So.2d 255 and Allstate Insurance Co. v. Toliver, La.App., 341 So.2d 1156.

DID THE JURY ERR IN DISMISSING PLAINTIFF’S REVOCATORY ACTION?

Appellant argues that the act dated May 9, 1974, purporting to transfer approximately 100 acres of immovable property along with all the improvements thereon from Pierre and Aline Hebert to Genella Hebert Norsworthy should be annulled by this court as having been executed in fraud of his rights. This act of donation was executed and recorded prior to the date on which suit was instituted but after the date of the automobile accident which gave rise thereto. It is appellant’s position that as he had become a creditor of Pierre and Aline Hebert on the date of the accident, his rights as a creditor became vested on that date, rather than on the date suit was filed.

We find that the jurisprudence of this State supports appellant’s position. The debt owed by a tortfeasor to the victim of the tort accrues at the time that the injury is sustained, and not on the date that suit is filed or judgment obtained. Holland v. Gross, 195 So. 828 (La.App. 2nd Cir. 1940); Perigoni v. McNiece, 307 So.2d 407 (La.App. 4th Cir. 1975). The filing of suit merely seeks recognition of a pre-existing delictual obligation. Therefore, we agree that on May 9, 1974, the date on which the appellees sought to transfer immovable property to their daughter, appellant was already a creditor of Pierre and Aline Hebert, with standing to attack such a transfer if proven to be made in fraud of his rights.

The civil code establishes a cause of action for the avoidance of contracts by persons who are not parties thereto by way of a revocatory action. LSA — C.C. 1968 et seq. LSA — C.C. 1969, in pertinent part, provides as follows:

". . . every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal, and ought, as respects such creditor, to be avoided . . . ”

LSA-C.C. Article 1970 provides:

“The law gives to every creditor, when there is no cession of goods, as well as to the representatives of all the creditors where there is any such cession, or other proceedings by which they are collectively represented, an action to annul any contract made in fraud of their rights.”

When the contract sought to be avoided is purely gratuitous in nature, it is presumed to have been made in fraud of existing creditors if, at the time of its execution, the debtor did not have over and above the amount of his debts, more than twice the value of the property he sought to dispose of by such act. LSA-C.C. 1980.

The record before us indicates that the immovable property transferred, valued in the donation at the sum of $55,000.00, represented substantially all the property owned by Pierre and Aline Hebert. Judgment in the amount of $50,000.00 was rendered against appellees by the trial court, which sum could not be satisfied from the property which remained in their ownership following the transfer in question. Therefore, if the transfer was purely gratuitous in nature these factors in combination necessarily give rise to a presumption of fraud which appellees bear the burden of refuting. LSA-C.C. Article 1980.

The terms of the act itself clearly purport to evidence a “manual gift and donation inter vivos” to Genella Hebert Norsworthy of the immovable property therein described, given in consideration of love and affection alone. Appellees urge, however, that contrary to its own terms, this document evidences what was actually a donation remunerative in’ nature. They allege that the donee helped her father work on the land after school as a child, and had rendered “services” for her parents when they were sick.

By the express terms of the instrument itself, the act executed by appellees was a self styled donation inter vivos given in consideration only of the donee’s love and affection. The terms so indicating are clear and free of ambiguity. Appellees have neither enumerated those services allegedly performed by the donee, nor placed upon such services a value by which the court might correlate the value of the immovable with the value of the services allegedly rendered in exchange therefor. Apart from vague allusions to chores performed by the donee while a child, similar to those normally performed by children at the direction of their parents, we are unable to discern from the record any evidence to refute the express terms of the act itself. We find the act to be a pure gratuitous donation, the circumstances of which cast upon Pierre and Aline Hebert the burden of proving that such donation was not made in fraud of appellant’s rights.

As aforestated this matter was tried to a jury which dismissed plaintiff’s revocatory action. We do not know and have no means of knowing whether the jury found the donation in question to be a pure gratuity. If the jury did not so find and did not attach to it the presumption of fraud allowed by C.C. Article 1980 then such conclusion we find manifestly erroneous.

In seeking to refute the presumption that the transfer in question was made in fraud of plaintiff’s rights appellees point to the testimony of donors to the effect that they clearly manifested an intent to donate this property to their daughter a year before the accident. This manifestation of intent is said to arise from the fact that sometime in the early part of the year 1973 Mr. Hebert called upon Mr. James Fontenot, an attorney in Abbeville, Louisiana, to discuss the feasibility and propriety of making such a donation. The Heberts testified that at this one meeting, which occurred over one year prior to the accident, Mr. Fontenot was commissioned to prepare the donation but because of his procrastination and delay the document was not prepared and not executed until May 9, 1974. Our examination of the record prompts us to conclude that at the meeting between Messrs. Hebert and Fontenot in the year 1973 no specific agreement was reached that the latter would prepare a donation for execution by Mr. and Mrs. Hebert to their daughter, rather only the possibility of doing so was discussed. According to the testimony of James Fontenot, when Mr. Hebert called at his office he indicated that he was not in a hurry to have the document prepared, he did not inform him of the specific property which he wished to donate and made no specific agreement to have the document drawn up. The Heberts testified that during the year following their initial and only contact with Mr. Fontenot some effort was made to contact him in regard to the proposed donation, however, without success allegedly because Mr. Fontenot was occupied with legislative business. Although, the Heberts may have exerted some effort to contact Mr. Fontenot to further discuss the donation, the fact remains that he was not in fact again contacted until after the accident at which time the donation was prepared and executed.

Even if the record be viewed in a light most favorable to appellees and it be concluded that the Heberts made every effort to execute a donation to their daughter prior to the accident of April 6, 1974, but did not do so because of the fault of their attorney, this would not refute the presumption that at the time the donation was actually executed, i. e., after the accident, it was made in fraud of the rights of the plaintiff, their creditor. This is so because at the time of the making of the gratuitous donation they were left with insufficient property, at least, to satisfy plaintiff’s demand. In our view the only evidence sufficient to rebut the presumption of fraud established by LSA-C.C. Article 1980 is evidence establishing that the donors had sufficient property remaining, following the donation, to satisfy plaintiff’s demand. Chase v. McCay et al., 21 La.Ann. 195. Since the record in this case clearly reflects that following the donation of May 9, 1974, Pierre and Aline Hebert had not sufficient property remaining to satisfy plaintiff’s demand it follows that appellees have failed to overcome the presumption that the donation was made in fraud of plaintiff’s rights. Accordingly, we hold that the donation from Pierre and Aline Hebert to Genella Hebert Norsworthy dated May 9, 1974, recorded May 10, 1974 in Book 24, Folio 449, Entry No. 222671, records of Vermilion Parish, Louisiana is a fraudulent transaction, confected in fraud of plaintiff’s rights as a judgment creditor of Pierre and Aline Hebert, and that such transfer should be annulled and set aside, insofar as Clarence LeBlanc is concerned, to the end that all property purported to be transferred thereby shall be subject to the payment of the money judgment in favor of plaintiff-appellant. LSA-C.C. Article 1977. We find the conclusion of the trial jury to the contrary to be manifestly erroneous.

QUANTUM

The only issue which remains is that which concerns the sufficiency of the quantum award. Dr. Alton Bujard, a radiologist, testified that he examined Clarence LeBlanc’s x-rays on the date of the accident, April 6, 1974. On that date x-rays revealed a non-displaced fracture of the 6th left rib, multiple fractures of his lumbar spine involving the transverse process of L-2, L-3, L-4: with displacement of the fragments, and open comminuted fractures of the left lower leg involving the tibia-fibula directly above the ankle. LeBlanc was initially attended by Dr. Marion J. Trahan, a surgeon, who performed an open reduction with internal fixation of the left distal third of the tibia-fibula, inserting a pin for stabilization and gathering the boney fragments together by means of a Parham band. His examination revealed the fracture to be severely comminuted and unstable. After being put in a long leg cast, LeBlanc remained hospitalized from April 6, 1974 until May 9, 1974 for treatment of his rib, back and leg injuries.

Dr. Trahan referred LeBlanc to Dr. Lee Leonard, an orthopedic specialist, who first saw appellant on September 18, 1974. Under Dr. Leonard’s direction, a myelo-gram of the cervical and lumbar spine was performed which revealed a ruptured disc at the L-3, L-4 level. Due to the apparent risks involved in having surgery performed to repair this condition, LeBlanc decided against having the surgery performed at this time. However, the record does indicate that future surgery may become necessary to remove the disc.

By November, 1975, 19 months after the accident, the fracture of the tibia had not yet healed, and appellant had to be re-hospitalized, at which time a bone graft was performed and part of the small bone on the outside of his leg removed. For a period in excess of two years, appellant’s leg remained immobilized alternately by means of a cast and a brace.

At the time of trial, some three years post accident, although the fracture was healed appellant was still suffering from poor circulation in his left leg (a condition known as “milk leg”); his lower leg still had generalized swelling; his ankle had lost approximately 30 percent motion; and, he continued to suffer the effects of the ruptured disc in his back.

The record reflects medical expenses incurred by appellant to have been in excess of $8,000.00. With the possibility of future back surgery requiring a six month medical follow-up, additional future expenses are likely to be incurred.

At the time of the accident appellant was self employed, and had been operating an upholstery business out of his home for approximately one and a half years. The record reflects that this business was bringing in a limited income at the time of the accident. Appellant’s 1973 income tax return indicates a net profit of $2678.00, and his return covering the first four months of 1974 indicate he had a net income of approximately $400.00 for that period. Since the date of the accident, appellant has not been steadily employed, although the record does reflect that he has engaged in non-strenuous part-time work such as a farm tractor driver, a police radio dispatcher, a rural route mailman and has done some limited upholstering work. The record indicates that appellant is presently capable of performing only light work as a result of the injuries he has sustained.

The record is not clear concerning the amount of earnings that have been and will be lost by appellant. However, there can be no doubt that he has sustained a substantial loss of earnings in the past and will continue to lose earnings in the future as a result of his injuries.

In determining the amount of its award, the jury presumably considered appellant’s injuries, and the aforementioned factors relative thereto, as well as appellees’ ability to respond in judgment. Evidence of appel-lees’ limited insurance coverage as well as their limited income and property appears from the record to have been presented for the jury’s consideration. We likewise assume that in fixing quantum, the jury was cognizant of the fact that it was going to dismiss the revocatory action, thereby vesting title to the donated immovable property in the donee, Genella Hebert Norsworthy.

In light of our conclusion that appellant’s revocatory action should be sustained, which substantially increases appellees’ ability to respond in judgment, we find that the rationale set forth by the Louisiana Supreme Court in Coco v. Winston Industries, 341 So.2d 332 (La.1977) and Schexnayder v. Carpenter, 346 So.2d 196 (La.1977) does not herein apply.

Although we find that appellees’ ability to respond in judgment has been increased by the value of the property purported to be donated, we do, however, acknowledge that appellees’ ability to satisfy a judgment is still quite limited.

Under all circumstances we find that an award of $50,000.00 in total, non-itemized, damages is clearly inadequate. Appellant remained hospitalized and in a cast for an extended period. He endured a prolonged and painful healing process. As a result of his injuries, he was rendered incapable of engaging in steady employment for a three year period following the accident, and his ability to engage in future employment has likewise been substantially impaired. It is probable that appellant will incur future medical expenses as well.

For the aforementioned reasons, we believe that a total award of $70,000.00 to appellant will do substantial justice to all parties. Considering the partial release granted by appellant to American, we will amend that portion of the trial court’s judgment rendered against Mr. and Mrs. Pierre Hebert, in solido, so as to increase the judgment against them from $39,000.00 to $59,-000.00.

For the above and foregoing reasons we affirm the trial court’s conclusion as to liability and its assessment of costs in the trial court; reverse the trial court judgment in the revocatory action; and, amend the trial court judgment so as to increase the quantum of the award in favor of plaintiff and against Pierre and Aline Hebert, in solido. To that end and considering the “PARTIAL SATISFACTION OF JUDGMENT AND PARTIAL RELEASE” executed by plaintiff in favor of defendants, Pierre Hebert, Aline Hebert and American Employers Insurance Company, dated February 23,1978, we amend and recast the judgment below, in part, and order that there be judgment in favor of plaintiff, Clarence LeBlanc and against defendants, Pierre and Aline Hebert, in solido, (over and above the amount for which they are cast in solido with American Employers Insurance Company) in the sum and amount of FIFTY-NINE THOUSAND AND NO/100 ($59,000.00) DOLLARS with legal interest thereon from date of judicial demand until paid, subject, however, to a credit for any interest on such amount previously received by plaintiff as evidenced by the agreement of partial satisfaction of judgment dated February 23, 1978. It is further ordered, adjudged and decreed that there be judgment in favor of plaintiff, Clarence LeBlanc, and against defendants, Pierre Hebert, Aline Hebert and Genella Hebert Norsworthy decreeing and declaring that the donation from Pierre and Aline Hebert to Genella Hebert Norsworthy dated May 9, 1974, recorded May 10, 1974, in Book 24, Folio 449, entry number 222671, records of Vermilion Parish, Louisiana, is a fraudulent transaction, confected in fraud of plaintiff’s rights as a judgment creditor, and such transaction is hereby annulled and set aside, insofar as Clarence LeBlanc is concerned, to the end that all property purported to be transferred thereby is hereby declared subject to the payment of the money judgment hereby rendered in favor of plaintiff, Clarence LeBlanc. It is further ordered that the assessment of costs in the trial court is affirmed. Finally, it is ordered that all costs of this appeal are to be borne by Pierre Hebert, Aline Hebert and Genella Hebert Norsworthy.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART; AND, RENDERED.

WATSON, J., concurs in part and dissents in part, and assigns written reasons.

WATSON, Judge,

concurring in part and dissenting in part.

I agree with the jury and concur with the majority that Mrs. Aline Hebert was negligent and Clarence LeBlanc was not negligent.

I dissent from the majority’s decision to reverse the jury’s factual conclusion that the donation by Pierre and Aline Hebert was not fraudulent, allowing revocation of the donation by the Heberts to their daughter.

LSA-C.C. art. 1849 states:

“Some circumstances and acts attending particular contracts, are by law declared to be conclusive; and others, presumptive evidence of fraud. These laws will be found in the proper divisions of this Code, treating of these contracts.”

The presumption of fraud established by LSA-C.C. art. 1980, is not a conclusive one and can be rebutted by evidence to the contrary. Planters of Pine Bluff, Inc. v. Gallion Gin, Inc., 228 So.2d 152 (La.App. 2 Cir. 1969); Hinde’s Lessee v. Longworth, 24 U.S. 199, 11 Wheat. 199, 6 L.Ed. 454 (1826). The majority errs as a matter of law in stating that only a showing of sufficient property remaining to satisfy plaintiff’s claim would rebut the presumption. See 9 Tulane Law Review 422.

LSA-C.C. art. 1980 was read to the jury as follows:

“If the contract be purely gratuitous, it shall be presumed to have been made in fraud of creditors, if, at the time of making it, the debtor had not over and above the amount of his debts, more than twice the amount of the property passed by such gratuitous contract.”

The jury was properly instructed that a donation given without anything in return is gratuitous; further instructed that, once the presumption of fraud arises, it then becomes defendants’ burden to prove that the ^donation was not made in fraud; and told that:

“Fraud may be inferred from facts and circumstances. However, if the acts and circumstances have an explanation that is natural and probable and is consistence (sic) with the good faith and honesty of the parties, they do not prove fraud, and the legal conclusion must be that it is not fraud.” (TR. 413)

The jury here heard the testimony of Mr. and Mrs. Hebert, as well as that of attorney James Fontenot, and concluded that the Heberts had rebutted the presumption of fraud attached to their gratuitous donation. The majority erroneously concludes that this factual finding is not one on which reasonable minds may differ.

The uncontradicted testimony of James Fontenot was that Aline and Pierre Hebert consulted him in 1973, after having some difficulty in obtaining an appointment. According to his testimony, Mr. and Mrs. Hebert are illiterate and do not speak either English or French well. They were interested in avoiding later succession proceedings and expressed a positive intent to donate their property to their daughter. They did not, at the time of this first conference, press to conclude the donation and were undoubtedly unaware of what was necessary to do so. Then Senator Fontenot testified that he delayed and procrastinated, a common occurrence among busy attorneys serving in the legislature. Mr. and Mrs. Hebert saw attorney Fontenot at least twice and attempted to locate him several additional times. Both were sick from time to time in the interim. Mrs. Aline Hebert was subsequently involved in the accident with Clarence LeBlanc on April 6, 1974, long after the Heberts had expressed an intention to donate their property to their only child. Although the donation took place subsequent to the accident, Mr. Hebert testified that he thought he had enough insurance to cover any liability and did not know he would be sued personally. Mr. Hebert’s uncontradicted testimony was that plaintiff LeBlanc told him: “You have insurance, and I don’t want a penny that comes out of your pocket.” (TR. 314) While I share the majority’s sympathy with the injured plaintiff, Mr. LeBlanc admitted that the Heberts had no way of knowing at the time the donation was made, prior to the institution of this suit, that they had any individual liability in the matter.

It is possible, and certainly consistent with general experience, that the accident reminded Mrs. Hebert and her husband of the impermanence of life and the possibility that they might die without having made provision for their daughter. Regardless, the question of fraud turns largely on the credibility of the Heberts. Mr. and Mrs. Hebert are inarticulate people. The jury had an opportunity to judge their honesty on the basis of their demeanor and gestures, as well as the words transcribed.

Mr. and Mrs. Hebert were not left destitute by the donation since they retained $4000.00 in the bank, as well as their social security and retirement income. Their daughter had agreed that they could remain in the donated home for the rest of their lives, and they testified they could rely on her to care for them in the event of illness.

Although a presumption of fraud exists and the sequence of events gives rise to suspicion, the question of whether Mr. and Mrs. Hebert rebutted the presumption of fraud is one on which reasonable minds may differ. I dissent from the majority’s substitution of its judgment for that of the jury.

I further dissent from the increase in the award to plaintiff from $50,000 to $70,000. The $50,000 awarded does not represent a clear abuse of discretion on the part of the jury. LSA-C.C. art. 1934.

I RESPECTFULLY DISSENT.

      . Suit was instituted on May 13, 1974.

      . Following the donation there remained to Pierre and Aline Hebert only a truck, a car and $4,000.00.

      . Although appellees urge that this disc injury was not in fact caused by the accident, we find that a preponderance of the medical evidence in the record reveals it to be a complication of the aforementioned injuries suffered as a direct result of the accident.

      . Fontenot was quite familiar with the immovable property involved; the Heberts had lived there at Forked Island since his childhood. (TR. 378).


author: STOULIG, Judge.

text:
    Agostino MANTIA v. JAZZ CITY, INC.
    No. 9843.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 17, 1978.
    Writ denied, La., - So.2d -.
    Paul E. Ramoni, Jr., LaPlace, for plaintiff-appellee.
    Tucker & Schonekas, Gibson Tucker, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

This is the second motion filed by appel-lee seeking a dismissal of appellant’s sus-pensive appeal from a judgment of eviction. The motion is based upon the contention that appellant failed to assert under oath an affirmative defense entitling it to remain in possession of the premises.

A review of the proceedings in this matter reflects that the rule for possession of the premises was filed more than one year ago and that the lease terminates in approximately 17 days. However, the delay 'experienced in concluding the summary proceeding is not due to want of diligence by counsel but is attributable to the multiplicity of pleadings and a compromise agreement which effectively suspended for 90 days a rendition of a judgment by the trial court.

In response to the rule for possession, the lessee filed, at one time and in separate pleadings, an exception of lis pen-dens, an exception of no right of action, and an answer wherein it is alleged the lease was founded on fraud and error and that the property was purchased for the lessee by the lessor.

On the date set for trial of the matter, the compromise agreement previously referred to was reached. Appellant failed to fulfill his obligations under the compromise, and in accordance with its terms the trial court made the rule absolute and ordered the lessee to vacate the premises. From this judgment appellant was granted a sus-pensive appeal.

It should be noted that none of the pleadings filed by appellant were made under oath. This lack of verification is significant when viewed in the light of the requirements of C.C.P. art. 4735, which provides that the execution of a judgment of eviction will not be suspended by an appeal unless an affirmative defense under oath has been pleaded which would entitle lessee to retain possession of the premises and the appeal bond posted within 24 hours of the rendition of the judgment.

Appellant has failed to meet the mandatory requirements of a verified pleading asserting an affirmative defense entitling it to the continued occupancy of the property. The exceptions and answer filed by the appellant do not contain an affirmative defense as enumerated in C.C.P. art. 1005 nor contemplated by C.C.P. art. 4735. It therefore follows the efficacy of this appeal to suspend the execution of the judgment of eviction never materialized. However, the pending appeal is still valid as a devolutive appeal.

Accordingly the motion to dismiss this appeal is denied and said appeal is ordered maintained as a devolutive appeal.

MOTION DENIED.

      . The exception pleads a prior suit (No. 77-6986 C.D.C.) filed by lessor against Cosimo Metassa and urges since he is the president of Jazz City, Inc., that it is in fact a suit against the corporate lessee.

      . The exception of no right of action is based upon the contention that in Suit No. 77-6986 C.D.C. plaintiff has judicially acknowledged that the premises are verbally leased to Cosimo Metassa individually. (It appears that the basis for the exception of no right of action conflicts with the predicate of the exception of lis pendens.)

      . In its answer, lessee, while admitting existence of the lease, attacks the title of the lessor. The alleged fraud and error is that lessor repudiated the agreement to transfer title to lessee for whose account he allegedly purchased it. It is well settled that a lessee in possession cannot question his lessor’s title nor change the character of possession even though he may be the real owner of the property. Burgess v. Hogan, 175 So.2d 924 (La.App. 2d Cir. 1965).


author: SMITH, Presiding Justice,

text:
    James R. WALTERS et al. v. VALIDATION OF $3,750,000.00 SCHOOL BONDS OF PETAL MUNICIPAL SEPARATE SCHOOL DISTRICT, FORREST COUNTY, Mississippi, Dated 4-1-78.
    No. 51003.
    Supreme Court of Mississippi.
    Nov. 1, 1978.
    Dudley W. Conner, Hattiesburg, for appellants.
    Aultman, Aultman & Tyner, Thomas W. Tyner, Robert F. Drake, Hattiesburg, for appellee.
    Before SMITH, LEE and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

James R. Walters, and others, taxpayers of Petal Municipal Separate School District, appeal from a decree of the Chancery Court of Forrest County validating $3,750,000.00 of construction and renovation general obligation school bonds of that district.

On October 20, 1977 the Board of Trustees of Petal Municipal Separate School District, a municipal separate school district created and existing under the laws of Mississippi, and embracing the territory encompassed within the municipal boundaries of the City of Petal and added territory in Forrest County, duly filed with the Mayor and Board of Aldermen of the City of Petal a certified copy of its resolution, previously adopted on that date, requesting that an election be called and held for the purpose of submitting to the qualified electors of the district the question of whether the bonds of the district should be issued in the maximum principal amount of $3,750,-000.00, for the purpose of raising money to renovate and construct school buildings and related facilities of the district.

The Mayor and Board of Aldermen of Petal received and filed the certified copy of said resolution so adopted by the Board of Trustees of the District, and, at its meeting duly held at 6:45 in the evening of October 20, 1977, found, determined and declared, as reflected by the official minutes of the Mayor and Board of Aldermen for that date that:

(1) The Board of Trustees of the Petal Municipal Separate School District had adopted said resolution and that a certified copy of the same had been duly filed with the Mayor and Board of Aldermen;

(2) The purposes for which it was proposed to issue said bonds were lawful and within the scope and purview of Mississippi Code Annotated section 37-59-3 (1972);

(3) The said Petal Municipal Separate School District had no outstanding bonded indebtedness at the time and that the proposed maximum amount of said proposed bonds in the aggregate would not exceed fifteen per centum (15%) of the assessed valuation of the taxable property within the school district as ascertained by the last completed assessment for taxation;

(4)Said resolution was in compliance with law and that an election should be called and held as provided by Mississippi Code Annotated section 37-59-11 (1972) for the purpose of submitting to the qualified electors of the school district the question of the issuance of such bonds in said amount for said purposes.

An order was thereupon duly adopted by the Mayor and Board of Aldermen of the City of Petal and entered upon its official minutes calling an election as provided by law for said purposes and directing that notice of said election be given and published in the manner and for the time required by law.

Said election was duly held and the issuance of said bonds was approved and authorized by three-fifths of the qualified electors of the school district voting in said election as required by Mississippi Code Annotated section 37-59-17 (1972).

No question is raised as to the sufficiency of the notice of said election or as to the manner in which it was held or conducted, or as to the vote therein.

Following the election, the Mayor and Board of Aldermen of the City of Petal received the official report of the Election Commissioners and found and determined that in said election 2,351 of the qualified electors of the school district had voted, that of that number 1,433 qualified electors had voted for the issuance of the bonds and 918 had voted against the issuance of the bonds.

The Mayor and Board of Aldermen thereupon found that the issuance of said bonds had been approved and authorized by more than three-fifths of the qualified electors of said school district voting in said election and that the issuance of said bonds had been duly approved and authorized as provided by Mississippi Code Annotated section 37-59-17 (1972). The Mayor and Board of Aldermen entered an order to that effect and directed that the bonds be submitted to validation as provided by Mississippi Code Annotated section 31-13-5 (1972).

Pursuant to that order, a transcript of the proceedings was submitted to the State’s bond attorney and the approving opinion of that official, together with the transcript and relevant legal papers, documents and proceedings, were duly filed in the Chancery Court of Forrest County, a date was set and notice of the hearing was given as required by law. Appellants appeared at the hearing and objected to the validation of the bonds. The Chancery Court of Forrest County, following an evi-dentiary hearing, entered its decree validating the bonds.

On appeal, appellants have assigned several grounds which they argue require reversal of the decree!

A major portion of the argument is directed toward the proposition that the proceedings of the Mayor and Board of Aider-men were invalid because the resolution adopted by the Board of Trustees, a certified copy of which had been filed, and was on file, with the Mayor and Board of Aider-men, was not incorporated and set forth at length in the minutes of the Mayor and Board of Aldermen of its October 20, 1977 meeting.

The resolution of the Board of Trustees of the Petal Municipal Separate School District contained this paragraph:

BE IT FURTHER RESOLVED that the Secretary of this Board of Trustees be, and he is hereby, authorized and directed to file a certified copy of this Resolution with the Board of Mayor and Aldermen of the City of Petal, Forrest County, Mississippi.

Mississippi Code Annotated section 37— 59-11 (1972) provides:

[A] certified copy of a resolution adopted by the board of trustees . . shall be filed with . . . the governing authorities of the municipality .

The minutes of the Mayor and Board of Aldermen of its October 20, 1977 meeting found and adjudicated with respect to this matter the following:

WHEREAS, the Board of Trustees of said Petal Municipal Separate School District has heretofore adopted a resolution requesting the Board of Aldermen of the City of Petal to call and provide for the holding of an election on the proposition hereinafter set forth, and has caused a certified copy of said resolution to be filed with said Board of Aldermen ; and (Emphasis added).

There is no contention that at its meeting on October 20,1977, the Mayor and Board of Aldermen did not have on file and before it a certified copy of the resolution adopted by the Board of Trustees of the Petal Municipal Separate School District as required by the above statute. The filing of a certified copy of the resolution adopted by the Board of Trustees with the governing authority of the municipality fulfilled the requirement of the statute. What is sometimes referred to as “the better practice” might suggest the incorporation in full of the school board’s resolution in the minutes of the governing authority, but this is not required by the statute. Appellants argue that the action of the Mayor and Board of Aldermen, taken at its meeting held after the election in December, 1977, and amending its October 20, 1977 minutes by inserting in full the resolution adopted by the school board, somehow^ invalidated the action taken on October 20, 1977. This action by the Mayor and Board of Aider-men was unnecessary however, and in nowise invalidated or affected the proceedings.

Appellants next seek to question the validity of the assessment of property for taxes, charging that such assessments were in violation of section 112 of the Mississippi Constitution of 1890. It was stipulated by the parties:

(1) That the City of Petal, Mississippi, is a code-chartered municipality; and
(2) For the taxable year 1977 the City of Petal, Mississippi, Tax Assessment Rolls were literally copied from the Forrest County Tax Assessment Rolls as it pertains to real property located in the City of Petal, Mississippi, and the Petal Municipal Separate School District for said valuation purposes, pursuant to the authority of Section 21-33-9 of the Mississippi Code of 1972, as amended; and
(3) Thereafter the governing authorities of the City of Petal, Mississippi, performed the statutory duties pertaining to Notice to Taxpayers and adopted a resolution to equalize the rolls upon the objections of taxpayers so filed; and
(4) That in their acts to equalize the rolls, objections were heard from twenty-nine taxpayers and relief was granted to twenty-two taxpayers and relief denied to seven taxpayers.

Statutory proceedings to equalize tax assessments afford an adequate remedy to taxpayers against improper assessment of their property. Nothing was offered, or appears in the record, capable of supporting a view that the assessment process of Forrest County or of the City of Petal itself was void. The assessment was not void on its face. Nor is there anything upon which a finding can be predicated that the orders of the governing body of the City of Petal or the orders of the Board of Supervisors of Forrest County in approving the assessments were void. The question sought to be raised here constitutes an attempt to attack the assessments collaterally and this is not permissible unless there is a showing of such a complete departure from law or complete denial of due process as to render the assessments void. This is not the case here. For a discussion of collateral attacks in bond validation proceedings see In re Validation of $175,000 Gen. Co. Funding Bonds, 185 So.2d 420 (Miss.1966).

Other matters assigned as error have been considered and are without merit.

The record in this case has been examined with care and we have concluded that the proceedings for the issuance of the bonds in question were conducted in all respects in due and regular time, form and manner, according to law, that the aforesaid bonds constitute valid and binding general obligations of the Petal Municipal Separate School District, and that the decree validating the same should be affirmed.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.