text:
    Robert Lemoine LANGEVIN et ux., Plaintiffs-Appellees, v. James Kenneth HOWARD, Defendant-Appellant.
    No. 13622.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Rehearing Denied, En Banc. Nov. 14, 1978.
    Writ Refused Jan. 12, 1979.

      Cryer & Harp, Shreveport, for defendant-appellant.
    Richie & Richie, Shreveport, for plaintiffs-appellees.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

The defendant appeals from a judgment recognizing a legal predial servitude 50 feet in width and 1,537 feet in length across his land in favor of a 1.1 acre tract owned by plaintiff. The judgment enjoins the defendant from interfering with the use of the servitude by the plaintiff and rejects defendant’s damage claims based upon the alleged improper issuance of the temporary restraining order.

The plaintiff answers the appeal. We reverse the judgment recognizing the servitude and granting the injunction and as amended affirm.

The property involved in this litigation was included in a 1955 partition of the Kent tract as shown on the following plat which was attached to the partition:

The lot now owned by the plaintiff is sketched in the northwest corner of Tract F as shown on the plat of the partition and the lots owned by the defendant and Turk are identified by inscribing their names on the plat.

In the Kent partition of Tracts A, B, C, D, E and F as shown on the plat, the parties reserved ownership in indivisión of a 50 foot wide strip running north and south through the approximate center of the partitioned tracts as a right of way to the Primitive Baptist Church public road located along the south line of the partitioned property. The partition contained with reference to this strip the following stipulation:

“Appearers herein have not partitioned a strip of land, hereinafter described, and continue to hold in indivisión for the use and benefit of all appearers as an access road for the purpose of ingress and egress to the tracts herein described. It is understood that this reservation is not to be construed as establishing an easement or right of way in favor of the public generally, but is private in nature and ownership. Said strip of land is described as follows.”

The parties to the partition failed to pay the taxes on the 50 foot strip and were divested of ownership of this strip at a tax sale in 1960. In 1969 Turk acquired the ownership of Tract F. In 1972 the defendant acquired ownership of Tracts B, E and the 50 foot strip. In 1973, following defendant’s completion of his home on Tract E, he employed Turk to construct a 10 foot driveway down the approximate center of his 50 foot tract from its south line bordering the Primitive Baptist Church Road to his home located on Tract E. Defendant paid Turk the sum of $1,000 for this work.

In 1975 Turk decided to sell two lots in the northwest corner of Tract F adjacent to the east line of the 50 foot strip and pursuant to this plan, he had a survey made of each lot. Turk contemplated the use of the driveway which he had constructed on the 50 foot strip as the access route to the public road for the future owners of these two lots. One of these lots was .74 of an acre located in the northwest corner of Tract F, which Turk sold to plaintiff on August 6,1975. The other lot was adjacent to and immediately to the south of it. Turk had arranged to sell the second lot on the same day that he sold the plaintiff his lot, however, the proposed vendee died prior to the sale.

On August 14, 1975 Turk discussed for the first time with defendant his plan to sell two lots in the northwest corner of Tract F and use the driveway constructed on the 50 foot strip as access for the purchasers of these lots to the Primitive Baptist Church Road. Turk advised defendant of his ownership claim to a portion of the right of passage over the 50 foot strip as a result of the Kent partition. Turk at this time gave defendant back $200 of the $1,000 that he had received from defendant for construction of the driveway. The $200 was given to defendant in the form of Turk’s check which contained a notation on the face of it “use of driveway”. Defendant accepted the check and cashed it. While Turk and defendant recognized that the check was a reimbursement to defendant of a portion of his $1,000 paid for the construction of the driveway, their understanding of the rights that were acquired for these two lots by this payment is in dispute. At the time of these negotiations defendant was unaware that one of the lots had already been sold to plaintiff.

Plaintiff moved a house trailer on his lot in October of 1975 and commenced the use of defendant’s driveway. In May of 1977 defendant advised plaintiff to make arrangements for other access to his lot because defendant owned the 50 foot strip unencumbered by any right of passage. In the first week of July defendant proceeded to obstruct plaintiff’s passage from his lot to the driveway located on the 50 foot strip. Defendant installed posts along the east line of the 50 foot strip, two of which were at a point on plaintiff’s west line where his individual driveway entered the 50 foot strip. This interfered with easy access from the plaintiff’s lot to the driveway located on the 50 foot strip.

Plaintiff instituted this action on July 8 wherein he sought judicial declaration of the existence of a right of passage on the 50 foot strip from the Primitive Baptist Church Road to his lot in the northwest corner of Tract F. In this suit plaintiff obtained a temporary restraining order prohibiting defendant from obstructing his use of this right of passage and sought an injunction permanently prohibiting such interference. Plaintiff’s suit first contended his lot had a servitude of passage to the public road created by the 1955 Kent partition. Plaintiff alternatively argued that if there was no servitude in favor of his lot as a result of the Kent partition, then one was created on the defendant’s driveway by the 1975 $200 check transaction between Turk and defendant. In the second alternative, he contended that if he had no right of passage for either of these reasons, that he was entitled to a right of passage over defendant’s driveway under C.C. Art. 699 .

The trial judge held that the Kent partition created a legal servitude under C.C. Art. 701 rather than conventional servitude and for this reason the failure of the right of passage to be used for a period of more than ten years following its creation did not cause it to be extinguished by the prescription provided for in C.C.Art. 789.

The issues presented are: (1) was the Kent servitude in favor of Tract F a legal servitude within the contemplation of Article 701 and therefore exempt from libera-tive prescription by the provision of C.C. Art. 795 or was it a conventional servitude which prescribed following 10 years of non-usage? (2) did Turk’s August 14, 1975 $200 CHECK payable to defendant and cashed by him create a servitude in favor of plaintiff’s tract over defendant’s 10 foot driveway? (3) if the check is an insufficient writing to create a servitude of passage did defendant’s admissions under oath at trial with regard to his acceptance of the check create a servitude under the provisions of C.C. Art. 2275 ? (4) if plaintiff’s tract had no servitude of passage over defendant’s tract by virtue of the Kent partition or the Turk-Howard check transaction, is it entitled to a servitude under the provisions of C.C. Art. 699? and (5) if plaintiff has no permanent right of passage across defendant’s property, is defendant entitled to any damages as result of the court order prohibiting him from interfering with plaintiff’s use of his alleged right of passage?

LEGAL V. CONVENTIONAL

The trial judge’s determination that there was an article 701 servitude was erroneous because the language of 701 specifically requires that the dominant estate be enclosed in order to enjoy the servitude therein provided for. Picard v. Shaubhut, 324 So.2d 617 (La.App.1st Cir. 1975), Morgan v. Culpepper, 324 So.2d 598 (La.App.2d Cir. 1975).

In order for the Kent partition to have created a legal servitude in favor of plaintiff’s lot, Tract F must have been enclosed and deprived of any access to a public road as a result of the partition other than by use of the 50 foot servitude. This was not the case. The south line of Tract F as shown on the plat was the Primitive Baptist Church Road. Under these circumstances the servitude in favor of Tract F, created by the Kent partition, was a conventional servitude created by the agreement between the partitioners.

The evidence established there was no use made of the servitude which appertained to Tract F in the partition for more than 10 years following its creation in 1955. For this reason, the servitude was extinguished by the liberative prescription provided by C.C. Art. 789. Arcuri v. Cali, 244 So.2d 309 (La.App.4th Cir. 1971).

$200 CHECK TRANSACTION

Servitudes are established by all acts by which property can be transferred. C.C. Art. 743. Creation of a servitude is an alienation of a part of the property. C.C. Art. 731. Conventional predial servitudes and personal servitudes affecting immovable property which are created by agreement between the parties must be in writing. C.C. Art. 2440. Stinson v. Lapara, 62 So.2d 291 (La.App.Orl.1953); Newman v. Gumina, 77 So.2d 899 (La.Aup.Orl.1955); and McGuffy v. Weil, 240 La. 758, 125 So.2d 154 (1960).

Plaintiff contends the $200 check with the notation on the face of it, “use of driveway” given by Turk payable to defendant and by him endorsed and cashed, constitutes the required written grant of the servitude. The writing on the check does not describe the 50 foot strip belonging to the defendant.

Plaintiff contends that parol evidence is admissible to supply the description of the servient estate. The rule that parol evidence is admissible to make clear a vague description requires the writing to sufficiently identify the property so that the property involved in the transaction can be determined by the writing rather than from the parol evidence. Kernan v. Baham, 45 La.Ann. 799, 13 So. 155 (1893); Lemoine v. Lacour, 213 La. 109, 34 So.2d 392 (1948) and Jackson v. Harris, 18 La.App. 484, 136 So. 166 (2d Cir. 1931).

On the check the only word referring to the servient estate is “driveway” and this falls far short of giving any written information upon which a determination of the servient estate could be made. For this reason no parol evidence was admissible for the purpose of providing the description of the servitude.

Plaintiff argues that the check given by Turk to defendant creates a personal servitude by the operation of the doctrine of stipulation pour auturi in favor of the plaintiff over the defendant’s driveway. The creation of a personal servitude over real property creates an interest in the property and for this reason must be in writing. Newman v. Gumina, supra. Because the check contains no writing describing the property subject to the personal servitude nor referring to it with sufficient certainty to justify the admission of explanatory parol evidence, it cannot form the basis for a personal servitude in favor of plaintiff.

VERBAL SERVITUDE

The rule that transfers of interest in immovable property must be in writing is subject to the exception that a verbal transaction is binding upon the grantor who confesses it when interrogated under oath. C.C. Arts. 2440 and 2275.

Plaintiff contends the defendant admitted during the trial he accepted the check in payment for a permanent servitude over the 50 foot strip in favor of the lot which Turk had conveyed to the plaintiff. A fair evaluation of the totality of the defendant’s testimony establishes he admitted under oath only that he agreed for the plaintiff to use the driveway for a period of two years in consideration of the receipt of Turk’s check. The defendant testified that any longer right of passage upon his 50 foot strip could be obtained only by negotiation in the presence of his wife and such right would have to be put in a written document prepared by an attorney.

The testimony of Turk and his wife about the circumstances surrounding the delivery of the check to the defendant is not admissible under C.C. Art. 2275 for the purpose of establishing the admissions of the defendant about his verbal transfer of the servitude. Only the admissions of the grantor are effective against him. Testimony from witnesses to the verbal transaction attempting to establish the verbal immovable property transaction is inadmissible. Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Boyette v. Wingfield, 317 So.2d 235 (La.App.2d Cir. 1975). The two year personal servitude created by the defendant by his admissions under oath commenced on August 14,1975, and had expired in November 1977 when this case was tried below and therefore it cannot justify an adjudication of a servitude over defendant’s driveway, nor the continuation of the injunction against the defendant contained in the trial court judgment.

IS PLAINTIFF ENTITLED TO A LEGAL SERVITUDE UNDER C.C. ART. 699?

The plaintiff alternatively contends that in the event he has no servitude over the 50 foot strip his lot is therefore enclosed, and for this reason he is entitled to claim a servitude over the land of the defendant pursuant to the provisions of C.C. Art. 699. This article is inapplicable for the reason the plaintiff’s lot was a part of Tract F which was bordered by a public road on the entire south side. Plaintiff’s lot was enclosed by virtue of it’s severance from Tract F and under these circumstances C.C. Art. 701 requires plaintiff’s vendor, Turk, provide him with a gratuituous servitude of passage over Tract F to the public road. Because plaintiff is entitled to the 701 servitude, he is not entitled to 699 servitude. Bourg v. Audubon Park Commission for City of New Orleans, 89 So.2d 676 (La.App. Orl.1955); Marceaux v. Broussard, 338 So.2d 308 (La.App.3d Cir. 1976).

IS DEFENDANT ENTITLED TO DAMAGES?

The defendant assigns as error the trial judge’s failure to award him damages for the wrongful issuance of the temporary restraining order. The defendant cites C.C.P. Art. 3608 as authority for the damage award here sought. This article provides “the court MAY allow damages for wrongful issuance of a temporary restraining order or preliminary injunction”. By use of the word MAY this article provides that judicial discretion may be exercised in awarding damages for the wrongful issuance of an injunction. Amacker v. Amacker, 146 So.2d 672 (La.App.1st Cir. 1862) and Telerent Leasing Corp. v. R & P Motel, Inc., 343 So.2d 267 (La.App.1st Cir. 1977).

The defendant admitted giving the plaintiff the right to use the driveway constructed on the 50 foot strip for two years commencing August 14, 1975. During the first week of July 1977, approximately 5 weeks before the plaintiff’s right to use defendant’s driveway would have expired, defendant installed two fence posts along the west line of the right of way in such a manner as to obstruct plaintiff’s use of the driveway. Under these circumstances, the plaintiff was entitled to seek the temporary restraining order. Though the temporary restraining order was thereafter extended beyond August 14, 1977 and a permanent injunction incorporated in the judgment herein appealed from, the initial action of the defendant in depriving the plaintiff of a right which he admittedly gave him creates such justification for plaintiff’s initial action that we in the exercise of our discretion deny the plaintiff’s claim for damages.

For the reasons assigned, we amend the trial court judgment and hold the plaintiff has no right of passage upon the defendant’s property and is entitled to no injunction prohibiting the defendant from obstructing the plaintiff from using the defendant’s property. As amended, we affirm the trial court judgment. We assess all costs on appeal against the plaintiff leaving the assessment of costs below as contained in the trial court judgment unchanged.

      . C.C. Art. 699: “The owner whose estate is enclosed, and who has no way to a public road, railroad, or a tramroad may claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, or a tramroad and shall have the right to construct a road, railroad or tramroad according to circumstances and as the exigencies of the case may require, over the land of his neighbor or neighbors for the purpose of getting the products of his said enclosed land to such public road or railroad, tramroad, or for the cultivation of his estate, but he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion.” (Amended by Acts 1970, No. 672, § 1)
      The substantive provisions of this article are now provided for in Article 689:
      “The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.” (Acts 1977, No. 514, § 1, eff. Jan. 1, 1978)

      . C.C. Art. 701. “It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor, co-parcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.”
      New Article 694 substantially reproduces Article 701:
      Art. 694. “When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.” (Acts 1977, No. 514, eff. Jan. 1, 1978)

      . The substantive provisions of Article 789 are now provided for by C.C. Art. 753.

      . C.C. Art. 795. “Prescription for non-usage does not take place against natural or necessary servitudes, which originate from the situation of places.”
      This article is substantially reproduced by new Article 758.
      Art. 758: “The prescription of nonuse does not run against natural servitudes.” (Acts 1977, No. 514, § 1, eff. Jan. 1, 1978)

      . Art. 2275. “Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”

      . Art. 743: “Servitudes are established by all acts by which property can be transferred, and as they are not susceptible of real delivery, the use which the owner of the estate to whom the servitude is granted, makes of this right, supplies the place of delivery.”
      The substantive provisions are now provided for in C.C. Article 722:
      “Predial servitudes are established by all acts by which immovables may be transferred. Delivery of the act of transfer or use of the right by the owner of the dominant estate constitutes tradition.” (Acts 1977, No. 514, § 1, eff. Jan. 1, 1978)

      . Art. 731: “It is not sufficient to be an owner in order to establish a servitude; one must be master of his rights and have the power to alienate; for the creation of a servitude is an alienation of a part of the property.
      Thus minors, married women, persons interdicted, can not establish servitudes on their estates, except according to the forms prescribed for the alienation of their property.”
      The substantive provisions are now provided for in C.C. Article 708:
      “The establishment of a predial servitude by title is an alienation of a part of the property to which the laws governing alienation of immovables apply.” (Acts 1977, No. 514, § 1, eff. Jan. 1, 1978)

      .This type of servitude was recognized in the decision of Mallet v. Thibault, 212 La. 79, 31 So.2d 601 (1947), by the application of C.C. Arts. 757 and 758 and is now specifically provided for in new C.C. Arts. 639 and 640 which were included in Act No. 103 of 1976.

      . Art. 2440: “All sales of immovable property shall be made by authentic act or under private signature.
      Except as provided in article 2275, every verbal sale of immovables shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.”


source: Caselaw Access Project

author: BOLIN, Judge. PER CURIAM.

license: Public Domain

text:
    Orlando N. HAMILTON, Jr., Plaintiff-Appellant, v. Mrs. Evelyn J. McKEE, Administratrix of the Succession of Vera Childress Jackson, Defendant-Appellee.
    No. 13642.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Rehearing Denied, En Banc. Nov. 14, 1978.
    Writ Granted Jan. 12, 1979.

      Hamilton, Carroll & Miller by James M. Miller, Oak Grove, for plaintiff-appellant.
    Miller & Schneider by Leo A. Miller, Jr., Lake Providence, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff sued the administratrix of a succession demanding specific performance of an alleged agreement to sell a tract of land belonging to the Succession of Vera Chil-dress Jackson. Finding no enforceable agreement for the sale of the property, the trial court rejected plaintiff’s demands. Plaintiff appeals and we reverse.

The issues raised on appeal are: (1) Did the administratrix accept plaintiff’s offer to buy the property and create an agreement to sell the property at private sale provided the court approve the sale? (2) If so, did the administratrix have the power to execute such an agreement without prior court approval?

On June 25, 1973 plaintiff wrote a letter to the attorney representing the succession offering to purchase a 160-acre tract. Because this letter has a direct bearing on the outcome of this litigation, we set forth the body of the letter in full:

This will confirm our agreement and understanding this date, wherein I have offered to pay the sum of $64,000.00 for the following described immovable property situated in the Parish of West Carroll, State of Louisiana, being owned by the Succession of Vera Childress Jackson, now in Probate No. 6647 on the docket of the Fifth Judicial District Court for the Parish of West Carroll, State of Louisiana. This land is described as the Northwest Quarter (NW Vt) of Section Twenty (20) Township Twenty-Two (22) North, Range Eleven (11) East, West Carroll Parish, Louisiana.
The $64,000.00 purchase price on this property shall be paid in cash immediately upon passing of the deed of conveyance in proper form as hereinafter stated. For confirmation of our financial ability to handle this matter, you have our permission to check with the Bank of Oak Grove, Oak Grove, Louisiana, attention Mr. Albert Mizell, Vice-President, or Arden J. Smith, President.
We understand that the heirs of Mrs. Vera Childress Jackson will retain an undivided one-half (V2) interest in and to all of the oil, gas and minerals in, on and under subject property.
Due to the conditions as discussed with you, you agreed to furnish me with a policy of owner’s title insurance, at the expense of the estate, assuring me of full complete fee simple title to said land free and clear of any and all encumbrances with the exception of road right of ways, drainage right of ways, any other utility rights of way, and any reservations of record in West Carroll Parish. In connection with the last, it is our understanding that a portion of this property was previously deeded to a negro church, which has been abandoned, and we would request that you place in your deed a conveyance to me of any reversion rights that the estate may own.
We understand that all of the above is subject to approval by the Fifth Judicial District Court for the Parish of West Carroll, State of Louisiana, and in the event any heir or creditor should successfully contest this sale, then this agreement shall be null, void and of no force and effect. However, in the event of such a contest, I understand that you will agree to us joining in with your client, Mrs. Evelyn J. McKee, in attempting to secure approval of the sale by Court.
In evidence of this agreement, I have prepared this letter in three (3) counterparts of equal dignity, which will be executed by myself and accepted by you and Mrs. McKee, Administratrix of the Succession of Mrs. Jackson.
With kindest personal regards, we are Very truly yours,
HAMILTON, CARROLL AND MILLER
(Signed)
Orlando N. Hamilton, Jr.
The above terms are understood and accepted.
(Signed)
ALWINE L. MULHEARN, ATTORNEY FOR THE SUCCESSION OF VERA CHILDRESS JACKSON (Signed)
EVELYN J. McKEE, ADMINISTRA-TRIX
OF THE SUCCESSION OF VERA CHILDRESS JACKSON

The administratrix sought court authority to sell the property at private sale. La. C.C.P. article 3281 et seq. One of the Jackson heirs filed an opposition to the proposed sale. On August 16, 1973 the opposition was rejected and the administratrix obtained an order authorizing the sale of the property. The sale was never consummated and plaintiff brought this suit demanding specific performance of the letter agreement.

Plaintiff contends the June 25 letter constitutes a binding purchase agreement made subject to the suspensive condition that the court, as required by law, authorize the sale. Because the condition was fulfilled by the August 16 court order, plaintiff maintains he is entitled to specific performance. Defendant contends there was no binding agreement for sale of the property. She argues her signature on the letter should not be construed as an acceptance of the offer to purchase, because she intended only to signify that she received and understood the terms of the offer to purchase. Defendant further contends that, in any event, she had no power to execute such an agreement without first obtaining court approval.

The trial court held the administratrix had no authority to accept an offer to purchase without first obtaining court approval. Because her signature on the letter was ineffective, the court reasoned the plaintiff’s letter remained an offer to purchase the property which had never been accepted.

The analysis employed by the trial court did not require it to pass on the issue of whether the defendant (assuming she has the authority to do so) accepted the plaintiff’s offer to buy the property. In our view the defendant’s signature on the letter under the phrase, “The above terms are understood and accepted”, inescapably leads to the conclusion that she was accepting the offer to purchase, contingent upon the court authorizing the sale. We are not convinced by defendant’s argument that her signature merely signifies she received and understood the offer. The acceptance was clear and unequivocal and we reject defendant’s argument that it is ambiguous. La.C.C. article 1812.

The more difficult issue is whether the administratrix could execute this agreement without first securing court approval.

None of the legislation regulating the administration of succession deals specifically with this issue. The statute setting forth the general functions, powers and duties of the succession representative, La. C.C.P. art. 3191, neither expressly authorizes nor prohibits the representative from executing contracts:

A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times, as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.

Although contracts between the succession representative and the succession are expressly prohibited by La.C.C.P. art. 3194, we are unable to find any legislation prohibiting the representative from accepting an offer to purchase property at a private sale which is made contingent upon the court authorizing the sale. La.C.C.P. art. 3284 mandates court approval before the property can actually be sold at private sale, but does not answer the question of whether the administratrix can conditionally bind the succession by accepting an offer to purchase.

The articles dealing with the procedures for securing court approval for a private sale necessarily contemplate that there has been some negotiation between the succession representative and the prospective purchaser. For example, La.C.C.P. art. 3281 requires the representative to file a petition setting forth “a description of the property, the price and conditions of and the reasons for the proposed sale.” The price and conditions for the proposed sale contained in the petition must obviously result from negotiations with a prospective purchaser. This implicit recognition of negotiations, however, does not answer the ultimate question of whether the succession representative can conditionally bind the succession.

This issue has not been squarely decided by the jurisprudence. Plaintiff relies upon Bornemann v. Richards, 245 La. 851, 161 So.2d 741 (1964) to support his position that the administratrix does have such authority. In Bornemann the supreme court did characterize a purchase agreement executed by a succession representative as a contract to sell subject to the suspensive condition of securing court approval for the sale. However, the question of the power of the representative to enter into this type of agreement was not at issue in Borne-mann. Defendants relies upon Succession of Hausser, 320 So.2d 614 (La.App. 4th Cir. 1975) to support her position that the ad-ministratrix lacks authority to enter into a purchase agreement. In Hausser the executor accepted an offer to purchase. When he sought court approval for a private sale, the heirs filed an opposition because a higher offer had been made. The trial court rejected the opposition but the appellate court reversed and held that the opposition should have been sustained because of the receipt of the higher offer. Hausser does not hold, as contended by defendant, that the administratrix is without power to accept an offer to purchase with the sale made contingent upon court approval. We have found at least one other case which mentions an acceptance of an offer to purchase by the succession representative. Succession of Morgan, 347 So.2d 315 (La. App. 4th Cir. 1977). However, as in Borne-mann and Hausser, supra, the issue of authority was not before the court.

We see no reason why the adminis-tratrix cannot execute an agreement to sell succession property at a private sale provided the court, as required by law, authorizes the sale. Nothing in the legislation expressly prohibits it. The law safeguards the interests of the heirs and creditors against an improvident purchase agreement made by the administratrix. The adminis-tratrix must petition the court for authority to sell the property. La.C.C.P. art. 3281. The application for authority to sell must be published. La.C.C.P. art. 3282. Heirs and creditors may oppose the proposed sale. La.C.C.P. art. 3283. If the court considers the sale to be in the best interest of the succession, it authorizes the sale. La.C.C.P. art. 3284.

We hold that a succession representative may execute an agreement to sell succession property at private sale made subject to the suspensive condition that the court, as required by law, authorize the sale. If court approval is obtained, the suspensive condition is fulfilled and the parties are entitled to specific performance. La.Civil Code art. 2462.

The judgment is reversed. It is ordered there be judgment in favor of the plaintiff, Orlando N. Hamilton, Jr., and against the defendant, Mrs. Evelyn J. McKee, Adminis-tratrix of the succession of Vera Childress Jackson, ordering the defendant to specifically perform the agreement to sell dated June 25, 1973, and to transfer by formal act of sale, to the plaintiff herein, the following described property:

160 acres, more or less described as the Northwest Quarter (NW Vi) of Section Twenty (20), Township Twenty-two (22) North, Range Eleven (11) East, Parish of West Carroll, State of Louisiana.

The act of sale shall be in conformity with the terms and conditions set forth in the agreement of June 25, 1973.

It is further ordered that in the event the defendant does not issue the formal act of sale above referred to within ten (10) days from the finality of this judgment, then the plaintiff be recognized as the owner of the above described property upon his depositing in the registry of the Fifth Judicial District Court the sum of Sixty-four Thousand ($64,000.00) dollars.

All costs are assessed against appellee.

ON APPLICATION FOR REHEARING

Before BOLIN, PRICE, HALL and MARVIN, JJ.

PER CURIAM.

In considering the application for rehearing it has come to our attention that we inadvertently omitted a mineral reservation and a reversionary right affecting the property in the event our judgment formed the basis of plaintiff’s title. Accordingly, the following sentence is added to the last paragraph of our decree:

“This ownership includes any reversion-ary rights to that portion of the property previously deeded to a Negro church, but is subject to a reservation by the heirs of Vera Childress Jackson of an undivided one-half interest in and to the oil, gas and minerals in, on and under the property.”
Rehearing denied.


author: LEMMON, Judge. GULOTTA, Judge,

text:
    Cindy NORMAND, Individually, and on Behalf of her Minor Son, Mark Normand v. CITY OF NEW ORLEANS, Audubon Zoological Society and Travelers Insurance Company (Consolidated with No. 8411, Cynthia NORMAND, Individually and on Behalf of Her Minor Son, Mark Normand v. John A. MOORE, Frank Ercole, Sylvester Mills, Dick Zitzmann, Walter Warren, Faye Steele and Travelers Insurance Company).
    No. 8410.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 1978.
    Rehearing Denied Nov. 20, 1978.

      Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Philip S. Brooks, City Atty. and Robert Morías Schoenfeld, Asst. City Atty., for defendants-appellees, City of New Orleans and Sylvester Mills.
    James J. Morse, New Orleans, for defendants-appellees, The Audubon Park Commission, John A. Moore, Walter Warren, and The Travelers Ins. Co.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

Is the Audubon Park Commission liable for damages sustained by a two-year old child who was bitten by a caged ape at the zoo, when the Commission’s employee returned to the zoo after working hours to perform an employment task and then, after completing the task and in violation of the Commission’s rules, took the mother and child into the primate night house behind the cages, an area off limits to the public? The trial court (both judge as to the Commission and jury as to its insurer) answered in the negative, and Mrs. Cindy Normand has appealed from the judgment, rendered after trial on the merits, which dismissed her suit on behalf of her son, Mark.

I

Mrs. Normand testified: At about 5:30 p. m. on thé day of the accident she and her son were invited by their neighbor, Frank Ercole, a zoo employee (who did not have charge of the primates), to ride with him and his brother George to the nearby zoo, where Frank (still in uniform) was returning to turn off the water to the pool in the primate area, an employment duty he had forgotten to complete that day. They entered the zoo through the rear entrance and met the curator of the bird department, with whom George Ercole conversed. After Frank Ercole determined that someone had already turned off the water, he invited her and her son to view an orangutan. She carried the boy as they walked through the building behind the primates’ cages in an aisleway which measured five to six feet between the rear wall and the cages. When Frank warned them not to get too close to the cages, she cautioned Mark to keep his hands down. However, Mark pointed to a gibbon ape which grabbed and severely bit his hand. She admitted carrying the child in her right hand with the cages to their right, so that the child was within two to three feet of the cages.

Frank Ercole was discharged after the accident and was not available to testify. His brother, George, who was also a zoo employee at the time of the accident and still worked there at time of trial, verified that Frank had returned to the zoo for the purpose of turning off the water, which was part of his regular duties. He testified, however, that he advised Frank against taking Mrs. Normand and the child into the zoo in violation of the employer’s rules.

Under administrative policy employees were prohibited from entering the zoo without authorization after closing time and from bringing visitors into the zoo. Moreover, no visitor was ever allowed beyond guard rails, and only certain designated employees were allowed in the primate house. There were “Keep Out” and “Employees Only” signs at various places along the route traveled by Frank Ercole and the Normands.

II

The owner of an animal is answerable for the damage caused by the animal. C.C. art. 2321. The fault is in the nature of strict liability, and the master of the animal is presumed to be at fault. Holland v. Buckley, 305 So.2d 113 (La.1974). However, the owner can exculpate himself by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.

In the present case the Commission owned the animal and also employed the person who caused (or contributed to causing) the harm by taking the victim into a position of danger. Therefore, in order to avoid liability the Commission had the burden of showing that Frank Ercole was not a person for whom the Commission was responsible at the time of the accident. The issue is broadly one of vicarious liability under C.C. art. 2320 and more precisely one of scope of employment.

The trial court in reasons for judgment found that Frank Ercole was violating the Commission’s rules, without the Commission’s knowledge, and was therefore not in the course and scope of his employment. However, the fact that an employee’s conduct violates the employer’s express rules is not conclusive of the issue of scope of employment. Bordelon v. Great American Idem. Co., 124 So.2d 34 (La.App. 3rd Cir. 1960). Other considerations include whether the employee’s conduct occurred substantially within the authorized limits of time and space and was actuated, at least in part, by a purpose to serve the employer. Prosser, Torts § 70 (4th ed. 1971). The ultimate determination depends upon the particular facts and circumstances of each individual case.

Ercole’s return to the zoo after working hours for the purpose of turning off the water, although not a task of great urgency, was employment related, and his return was at least partially for the purpose of serving his employer. Moreover, his taking visitors after hours into those sections of the zoo where visitors are ordinarily permitted arguably has no significant adverse bearing on the determination of whether his conduct occurred with the scope of his employment. However, the fact that Er-cole, after completing his task, took visitors beyond the guard rail and into a section of the zoo which was a place of danger and from which visitors were excluded, even during regular zoo hours, is a significant consideration.

The policy of the master-servant law is to place upon the master the responsibility of the servant's misconduct in the scope of the master’s enterprise. That purpose is not served if the servant’s misconduct occurs when he has abandoned or completed the employment and engages in a frolic which is in no manner related to service of the master.

Although the employee in the present case originally returned to the zoo to perform an employment task, his conduct in taking a child beyond the guard rail, into close proximity of wild animals, was such a significant and unpredictable deviation and departure from his employment duties and was so unrelated to service of the employer as to remove the conduct from the scope of his employment. The conduct was more properly characterized as motivated entirely by personal considerations, completely extraneous to the employer’s interest, and as outside the authorized limits of time and space.

We conclude that the Commission has exculpated itself from liability under C.C. art. 2321 by showing that the harm was caused by the fault of third persons, Ereole and Mrs. Normand, and that the Commission was not responsible for the fault of either.

The judgment is affirmed.

AFFIRMED.

GULOTTA, Judge,

concurring.

I concur in the result.

      . C.C. art. 2320 provides:
      “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

      . Lemmon, J., notes his opinion that the determination of whether the risk created by an employee’s conduct is includable within the scope of his employment is similar to the determination (as part of the duty-risk approach) of whether the risk created by a person’s conduct is encompassed within the scope of the duty owed because of that conduct.
      Not every breach of duty will render a person legally liable when the breach plays a part in producing injury; similarly, not every act by an employee will render the employer liable when the fact of employment plays a part in the scenario leading up to the injurious consequences. There must be an ease of association between the employment and the employee’s act.
      While there may be an ease of association, for example, between the employer’s enterprise and the service station employee’s unauthorized smoking while pumping gasoline, there is no such ease of association in this case between the Commission’s enterprise and the risk created by Ercole’s taking the child into the primate house, after he had completed the menial employment chore which originally caused him to return to a different section of the premises. The risk is simply not typical of or reasonably incidental to the service of the employer. See 2 Harper & James, Torts § 26.7 (1956).


author: LEMMON, Judge.

text:
    Kenneth AUBERT, Individually and as tutor of and administrator of the Estate of his minor daughter, Sandrell Aubert v. CHARITY HOSPITAL OF LOUISIANA at New Orleans, a Division of/and the Louisiana Health and Human Resources Administration and Lee Frazier, Administrator of Charity Hospital of Louisiana, at New Orleans, Dr. William Stewart, Commissioner of the Louisiana Health and Human Resources Administration, Dr. John Adriani, Dr. Max Yarbrough, Dr. Byung Chung and Elvyn Lee.
    No. 9148.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 10, 1978.
    Writ Refused Dec. 1, 1978.

      Bernard E. Burk, Leonard A. Washofsky, New Orleans, for plaintiffs-appellees/appel-lants.
    William J. Guste, Jr., Atty. Gen., Joseph W. Thomas, Asst. Atty. Gen., Ronald C. Davis, Staff Atty., New Orleans, for defendants-appellants/appellees.
    Lemle, Kelleher, Kohlmeyer & Matthews, Vance E. Ellefson, New Orleans, for defendants-appellees Dr. John Adriani, Dr. William M. Yarbrough and St. Paul Fire and Marine Ins. Co.
    Before LEMMON and BOUTALL, JJ., and EASON, J. Pro Tern.
   LEMMON, Judge.

These are two separate appeals from a judgment rendered after a trial on the merits of a medical malpractice claim.

Mrs. Kenneth Aubert died following childbirth by Caesarean section under general anesthesia at Charity Hospital. Her widower and the child filed this suit for damages against Charity; Dr. Byung Chung, a first-year resident in anesthesiology; Elvyn Lee, a student nurse anesthetist; Dr. John Adriani, the director of Charity’s department of anesthesiology; Dr. W. Max Yarbrough, the assistant director; and others not involved in these appeals. Charity invoked R.S. 13:5104 and objected to plaintiffs’ request for trial by jury, and the proceedings were held as a bifurcated trial, with the claim against the individual defendants being tried by the jury and the claim against Charity tried by the judge.

Answering special interrogatories, the jury found that none of the individual defendants were liable. The judge refused to disturb the verdict, noting “(t)here is much room for disagreement”, but in determining Charity’s liability concluded “I must follow my own conviction” and found as a fact that Charity’s employees, Dr. Chung and Nurse Lee, were negligent, making Charity vicariously liable for plaintiffs’ damages. The ensuing judgment according dismissed plaintiffs’ claims against the individual defendants and granted an award against Charity. Plaintiffs and Charity have filed separate appeals.

Function of Appellate Court

An appellate court in Louisiana ordinarily reviews a record on appeal by applying the standard that the factual findings of the judge or jury will not be disturbed if the record contains credible evidence to support such findings. This is not simply a court-made standard of review, but is a recognition of the difference in functions between the trial court and the appellate court. The primary function of the trial court in cases involving mostly factual issues is to find the facts. Once that function has been performed, the appellate court (although in Louisiana vested by the Constitution with the power to review facts) does so simply by determining from the record whether there is sufficient evidence to reasonably support these findings.

When the record does not contain sufficient credible evidence to support the findings of the judge or jury, the decision of the trial court is set aside, and the appellate court in exercising its constitutional power then proceeds to find the facts based on its independent review of the record, without regard to the findings of the original trier of fact. But if after review of the record the appellate court finds that there is sufficient credible evidence to support the judgment of the judge or jury, then the appellate court should accept those findings. Were the appellate court called upon in every case to make its own independent findings of fact based on its power of appellate review, then there would be little need or purpose for a trial court. The policy which requires appellate courts to accord great weight to the factual findings of the judge or jury is simply a recognition of the principle that the fact finding function is primarily vested in the trial courts.

The present case involves an unusual function of the appellate court in Louisiana in that a single trial resulted in inconsistent findings of fact by the judge and by the jury, each of which had the power and authority to find facts necessary to determine the liability of the particular defendant whose liability was being tried by the particular trier of fact. Once each trier of fact has performed its function under such circumstances, the findings of the jury do not prevail over those of the judge. The judge trial is not (as Charity suggests) an inferior tribunal which is required to accept the factual findings of the jury and then proceed to decide the remaining issues in the case against the particular defendant in the judge trial. The judge had the right, power and duty to make independent factual findings, based upon his appreciation of the evidence, as was necessary to determine the liability of the defendant in the judge trial, and in doing so the judge was not bound to accept the inconsistent factual findings of the jury, even if the record supported those findings.

On appeal neither trier of fact is entitled to have greater weight accorded to its factual findings. Therefore, it is necessary for the appellate court to make its own independent factual findings based on the record, without according any weight to the factual findings of either the judge or the jury when those findings are inconsistent.

Basis of Trial Judge’s Findings

Charity’s vicarious liability was based on the trial judge’s findings that the resident anesthesiologist and anesthetist inserted an endotracheal tube into the esophagus, rather than the trachea, and then failed to discover the mistake timely, resulting in hypoxia (deprivation of oxygen to the brain), irreversible brain damage, and death.

The endotracheal tube is designed to be placed in the trachea, which leads to the lungs, so that the anesthetist ventilates the patient (by squeezing a bag connected between the anesthesia machine and the endo-tracheal tube) and actually breathes for the patient, whose muscles have been paralyzed by administration of a drug, anectine. All experts agreed that it would be below the standards of acceptable medical practice to insert the tube into the esophagus, which leads to the stomach, and to allow it to remain there without the problem being recognized. Thus the critical issue is whether the evidence preponderates in favor of a conclusion that the endotracheal tube was not properly placed in the trachea.

Expert testimony also established that initial insertion of the tube into the esophagus (located immediately adjacent to the trachea) is not rare and that the anesthesia team must check for proper insertion by visualizing the vocal cords during intubation, if possible, to determine that the tube passes between the vocal cords, then by observing that the chest moves up and down upon ventilation, and finally by listening with a stethoscope for breath sounds in the lungs on both sides of the chest. Under the outlined procedure the anesthesiologist, once intubation is completed and checked, notifies the surgeon, who immediately proceeds with the incision.

Pertinent Facts

Mrs. Aubert, then 18 years old, was in her first pregnancy and had no prior history of heart, lung or vascular problems. Because of a pelvic disproportion the obstetrician determined a delivery by Caesarean section was necessary. After premedication Mrs. Aubert, who was in mild labor, was preoxy-genated for ten minutes (1:10 to 1:20 p. m.), was then given a general anesthetic (50% oxygen and 50% cyclopropane) for two minutes while breathing her own, and at 1:22 was given anectine (which takes effect in about 45 seconds) to paralyze the muscles during the surgery. At about 1:23 the anesthetist inserted the tube and reported that the chest was expanding and that breath sounds were heard, and the obstetrician made the incision at 1:24. The anesthesia agent was switched to ethylene and oxygen, and an anectine drip was started.

The baby was delivered at 1:29, and the cord was clamped and the placenta was delivered intact in the next one to two minutes. Within a minute after delivery of the placenta the assisting obstetrician observed Mrs. Aubert’s blood was becoming dark and reported this to Dr. Chung. (At this time there was no change in the electrocardiogram, blood pressure or pulse rate, and no difficulty in ventilation).

Nurse Lee and Dr. Chung cut off the ethylene and switched to 100% oxygen, checked the chest expansion, the breath sounds and the anesthesia machine, checked the placement of the tube with a laryngo-scope, and then suctioned the tube and determined it to be free of obstructions. However, the blood continued to darken, despite the administration of pure oxygen. Mrs. Aubert’s uterus became flaccid, and her pulse dropped rapidly. About the same time Dr. Chung noticed the bag was a “little hard” to squeeze, and he removed the tube and attempted to reinsert it. When he was unable to do so (reportedly because of excessive saliva in the patient’s mouth and because the patient was not relaxed), he inserted a plastic airway and ventilated the patient by mask. At 1:40 (about the same time that the tube was removed) Mrs. Au-bert went into cardiac arrest, whereupon the surgeons applied cardiac massage. About three minutes after application of the oxygen mask Mrs. Aubert’s blood began to brighten slightly, and at about 1:50 she was successfully resuscitated. At 1:52 Dr. Dileo, Dr. Chung’s supervisor who had been summoned, arrived and inserted the tube successfully. A “few minutes” thereafter Mrs. Aubert’s blood became bright red. The surgeons noticed a large amount of gas in her bowels, and the gas was suctioned out with a nasal-gastric tube. The incision was closed, and Mrs. Aubert was taken to intensive care. The lungs were checked and X-rayed and found to be clear and normal, and coagulate tests were normal, but neurological examination revealed brain damage. She never regained consciousness and died eight days later.

Proof of Causation

Plaintiffs presented several medical experts who opined that the most likely cause of the hypoxia was a problem with the endotracheal tube. Dr. Floyd Hindelang, who was a second-year resident in obstetrics at the time and assisted in the surgery, noticed the blood “was getting darker” about two minutes after delivery of the placenta. Dr. Kermit Roux, the chief of anesthesia at a local hospital, described the pattern thereafter as one which generally fits intubation into the esophagus: The dark blood appeared about eight minutes after the initial intubation (the preoxygenation was sufficient to have kept the red cells saturated with oxygen for five to ten minutes); the blood continued to darken although the patient was switched to 100% oxygen (blood can only improve on 100% oxygen, if the oxygen is getting to the lungs); removing the tube and ventilating the patient with a mask produced a pinken-ing of the blood (some oxygen to the lungs, rather than no oxygen, would cause improvement in a few minutes); and after reintubation the blood improved remarkably and the blood gases returned to normal. Dr. Roux also observed that it is easy to misinterpret breath sounds and to mistake the stomach rising against the ribs as expansion of the chest.

Dr. Roux admitted that hypoxia can be caused by an embolism, but discounted that possibility because a pulmonary embolism or any condition which would cause such low oxygenation, without improvement on 100% oxygen, would damage the lungs and would not be returned to normal in 20 minutes. He also noted that in case of an embolism difficulty in ventilation, bronchial spasm and other signs would precede the darkening of the blood, while dark blood was the first sign of a problem in this case, at which time the patient’s chest sounds were clear and no difficulty in ventilation had yet been experienced.

Dr. Hindelang confirmed that the sequence of happenings indicated a problem with the endotracheal tube was the most probable cause of the hypoxia.

Dr. James Riley, a senior obstetrical resident at Charity at the time who was called in when the emergency occurred, stated his belief that a technical problem with the endotracheal tube was the most probable cause of the hypoxia. He particularly emphasized that there was no residual damage to the lungs, which are not as sensitive as the brain to low levels of oxygen, reasoning that an embolus large enough to cause such severe hypoxia would also cause residual lung damage.

Dr. Sidney Jacobs, an internist with a subspecialty in pulmonary diseases, testified that the increase in carbon dioxide, as was shown by blood gas analysis, could only mean that the patient was not breathing, either on her own or through the efforts of the anesthesia team, further observing that while low oxygen is caused by several things, high carbon dioxide in the blood is caused only by failure of the lungs to breathe it out. He stated that the normal chest X-ray and the ability of her lungs to bring the blood partial pressure of oxygen to 475 (from 60) late in the surgery indicates she had good lungs going into and coming out of surgery. He also observed that preoxygenation builds up a reserve of oxygen for a period without oxygen, stating that a preoxygenated patient can go 10 to 15 minutes without oxygen before cardiac arrest.

Dr. Jacobs steadfastly maintained that all medical evidence (including excessive gas in the stomach) was consistent with placement of the tube in the esophagus, while none of the evidence was inconsistent. On the other hand, he ruled out, because of inconsistent indicia, (1) severe pulmonary vasospasm (no pulmonary edema, no changes in electrocardiogram, and no discernible rales or noises in the lungs); (2) amniotic fluid embolism (no massive bleeding, no pulmonary edema, no intense shock, no tachycardia; also inconsistent was Mrs. Aubert’s first pregnancy, her mild labor, and the fact of the problem’s clearing up in 20 minutes); (3) air embolism (no churning noise in heart, which would have been heard through stethoscope by anesthesiologist, no stroke, no heart dysfunction, no high fever; also, not usually a cause of death by hypoxia); and (4) thromboembolism (no injury to vein, no sluggishness of circulation, no tendency of blood to clot). Furthermore, he noted that in the case of an embolism the administration of 100% oxygen (with a properly placed tube) would immediately lighten the blood, and that it would take days or weeks, rather than minutes, for the damage to clear up.

On the other hand, defendants relied on expert opinion that intubation was in fact in the trachea if the vocal cords were visualized during insertion of the tube, if bilateral breath sounds were heard, and if chest expansion was observed upon ventilation. Dr. Chung and Nurse Lee testified that all three of these checks were made, and their supervisors and department directors testified it was unlikely they were lying or mistaken.

Dr. Martin Ziskind, an expert on pulmonary diseases, could not come up with a diagnosis consistent with the evidence. He considered an air embolism or a pulmonary thromboembolism as highly unlikely. While he admitted there were many inconsistencies in the diagnosis of amniotic fluid embolism, he believed that was more likely than improper intubation, because the high volume flow of oxygen through the esophagus would have caused distention of the stomach and the smell of ethylene escaping around the tube into the operating room. He theorized that a chemical, serotonin, was produced by material coming from the uterus to the lungs and that a reflex reaction to the chemical caused a vasospasm, or constriction of the blood vessels, which produced concurrently or shortly thereafter a bronchospasm, or constriction of the small tubes in the lungs. He admitted that a vasospasm should be reflected on electro-cardiographic or blood pressure or pulse measurements (which did not appear in this case) and that a bronchospasm would produce difficulty in ventilation (which did not occur until a considerable length of time after dark blood was noticed), and he conceded the difficulty of explaining why the dark blood (caused by bronchospasm) occurred long before difficulty in ventilation (which should occur immediately upon bron-chospasm).

Dr. Frank Faust, an anesthesiologist at a local hospital, definitely attributed the death to an amniotic fluid embolism because of the presence of “cardinal symptoms”, namely difficulty in ventilation, cya-nosis (dark blood) due to changes in the lungs, circulatory collapse, loss of tone in the uterus, and coagulation failure in the blood. He stated that there was only one death from that cause in 31 years at his hospital, but focused on that cause because the others of the most common causes were clearly inapplicable to this case. He emphasized there was no problem until delivery of the placenta, which was the likely time amniotic fluid was released, theorizing that a clot from material in the fluid immediately threw the whole pulmonary vascular system into spasm. He insisted that ventilation was impossible when the dark blood appeared, but probably was not noticed right away because of the emergency situation. While also there was no evidence of failure of coagulation, which usually involves massive bleeding, he explained that patients don’t bleed after cardiac arrest. He further explained that pulmonary edema does not necessarily occur with amniotic fluid embolism, although it usually does.

Dr. John Parmley, the director of anesthesiology at a local hospital, chose embolic phenomena as the most likely cause of death. He noted that the bag can be squeezed unless the bronchospasm completely cuts off oxygen to the lungs.

Dr. Adriani ruled out the placement of the tube in the esophagus, because if there was no oxygen whatsoever the blood would have been somewhat discolored at the time of the original incision. He disregarded the value of preoxygenation, noting that the body does not store oxygen. Because the blood became dark after the placenta was released, he favored the diagnosis of an amniotic fluid embolism, which constricted the blood vessels, releasing serotonin and immediately causing vasospasm and partial bronchospasm (partial because she could be ventilated somewhat). In his opinion the spasm caused diminution in circulation, and the blood flow was not fast enough to pick up oxygen in the lungs and to keep the blood pink.

The testimony of two pediatricians, one presented by each side, was enlightening as to the use of an Apgar score in the evaluation of a baby, but their conclusions turned more on the effect of preoxygenation of the mother, a point more within the expertise of lung specialists.

Neither Dr. Yarbrough nor Dr. Dileo expressed an opinion on causation.

Liability of Dr. Chung, Nurse Lee and Charity

Causation, like any other fact, may be proved by direct or circumstantial evidence, and the proof is sufficient to constitute a preponderance when, taken as a whole, it shows the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971). A plaintiff has successfully borne the burden of proof when the evidence taken as a whole indicates the defendants’ negligence was the most plausible or likely cause of the occurrence and no other factor can as reasonably be ascribed as the cause. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972).

For the diagnosis of improper intu-bation to be accepted, the testimony of Dr. Chung and Nurse Lee must be discounted as incorrect. Nevertheless, no other diagnosis comes near fitting the pattern of events, and the diagnosis of improper intu-bation virtually fits the pattern exactly.

Administration of 100% oxygen into the lungs will effect improvement in the blood, if hypoxia is caused by partial bronchos-pasm following an embolism or by any other condition, but there was no improvement in this case. Indeed, there was some improvement after the tube was removed and oxygen was administered by mask, although in that method not all of the oxygen goes to the lungs (while with a properly placed endotracheal tube all oxygen goes into the lungs). Then there was dramatic improvement after Dr. Dileo inserted the tube into the trachea.

Other factors supporting the conclusion that improper intubation was the most probable cause of death are: The absence of evidence of residual damage to the lungs or of pulmonary edema; the absence of electrocardiographic, pulse and blood pressure changes (symptoms of vasospasm) pri- or to the appearance of dark blood; the absence of difficulty in ventilation (symptom of bronchospasm) until about nine minutes after dark blood was noted; the presence of good breath sounds and chest movement after dark blood was noted; the presence of a large amount of gas in the bowels; the low oxygen and high carbon dioxide content of the first blood gas test taken after a great deal of oxygen was administered by mask (indicating prior ventilation had been inadequate); the high oxygen and low carbon dioxide content of the second blood gas test (indicating the lungs were good enough to function adequately after 100% oxygen was administered by means of a properly inserted endotracheal tube); the absence of massive bleeding and tachycardia, which along with pulmonary edema generally occur in amnio tic fluid embolisms; the fact that amniotic fluid embolisms generally occur in older women with multiple pregnancies following hard labor and seldom occur with section deliveries where the placenta is intact; and the fact that pulmonary thromboembolisms generally occur in older persons with sluggish circulation and seldom occur during surgery. Finally, the fact of a healthy child is adequately explained by the quick delivery and by the use of preoxygenation, a procedure which must be of some value since it is employed by Charity and most other hospitals in non-emergency section deliveries.

On the overall evidence in this record the most likely cause and most plausible explanation of the death was improper intubation. No other factor can as reasonably be ascribed as the cause. Dr. Chung and Nurse Lee, along with their employer, Charity Hospital, are therefore liable for plaintiffs’ damages.

Liability of Drs. Adriani and Yarbrough

Both the judge and jury found that Charity’s director and deputy director of the department of anesthesiology were not liable. Plaintiffs alleged Drs. Adriani and Yarbrough were liable because they should have known the anesthesiologist and anesthetist were not competent to handle the assignment and because they failed to provide proper supervision in the operating room or to have supervisors in close proximity thereto.

There was considerable expert testimony that the training provided to Dr. Chung and Nurse Lee was adequate for them to handle the assignment. Indeed, not even plaintiffs’ experts disputed this. Moreover, there was no showing of any deficiency in the competency or qualifications of either.

There was also no showing of any need for immediate supervision in this particular case or that any negligence by Drs. Adriani and Yarbrough in providing supervision was a legal cause of this tragedy. Moreover, Dr. Dileo (Dr. Chung’s supervisor) testified that he arrived in the operating room within three minutes of being summoned by telephone.

Review of the record reveals no manifest error in the judgment dismissing these defendants.

Quantum

The judgment awarded $40,000.00 to Mr. Aubert and $60,000.00 to the child for loss of love and affection and $75,000.00 to Mr. Aubert and $25,000.00 to the child for loss of income production (and for the widower, loss of household services), as well as the funeral expenses. Plaintiffs’ appeal questions (1) the failure to award any amount for conscious pain and suffering and (2) the adequacy of the awards for loss of income production.

Plaintiffs’ contention as to conscious pain and suffering by Mrs. Aubert is based on the inference that after the initial anesthesia (two minutes of cyclopropane) wore off, the continuing anesthesia (ethylene) did not take effect because the tube was improperly placed. Of course, Mrs. Au-bert could not communicate pain because her muscles were paralyzed.

Dr. Roux, who also had a degree in pharmacology, testified that the initial anesthesia would have been effective for about five minutes and that, in the absence of additional anesthesia, Mrs. Aubert would have experienced pain thereafter until she became unconscious in perhaps another five or ten minutes.

Although reasonable minds could reach different conclusions, we cannot say the trial judge erred manifestly in his apparent conclusion that this evidence was too speculative to support an award.

An expert in economics testified as to the loss of income production and domestic services. He made two calculations of her projected earnings as a licensed practical nurse through age 60, the year which corresponded with the end of Mr. Aubert’s life expectancy. The first calculation was based on the assumption that she would have reentered employment six weeks after the child’s birth, and the second was based on the assumption she would have returned to work at age 35, the average beginning age for mothers to enter the labor market. He also computed the value of her household services, including child care, at the current hourly rate for the services she might reasonably have been expected to perform. After appropriate adjustment for increases attributable to productivity and rising cost of living and for decreases attributable to periods of unemployment, and further deduction of an amount attributable to her personal expenditures, he applied a discount rate of 6-3% to these amounts. His final calculations were $238,000.00 and $184,000.00 respectively as the amounts necessary in a fund today to provide $475.00 monthly (her gross salary at date of death) and the monthly value of her household services (never stated in dollars by the expert) over the respective periods, with the fund being exhausted at the end of the period.

An award of damages to a widower and children for loss of the wife and mother’s income productivity and household services cannot be calculated with mathematical certainty. Sound judicial discretion must be exercised after weighing all proper considerations, including the deceased spouse’s physical condition, her work and earning records, the ages of the widower and children, and the probability that the deceased spouse would have returned to work and earned similar amounts on a regular basis except for the injury or death. The difficulty of calculation with certainty is even more evident when the spouse dies at an exceptionally early age, as in this case, because no pattern of work performance and earnings has been established and because many unknown factors affect the likelihood of future earnings.

This record does not demonstrate an abuse of judicial discretion in the light of all considerations. The expert made no allowance for income taxes and used her gross income, which was never truly available to the couple. He also used statistics for registered nurses and professionals in considering salary increases and periods of unemployment. The amount attributed to the decedent’s personal expenditures appears to be very low, as compared to her projected income over the same period. Finally, in calculating the amount attributable as the value of her household services, the expert provided virtually no explanation. Apparently he did not consider the household services the husband would have performed himself, even if the wife had lived, nor other probabilities relating to expenditures for those services. The award of $100,000.00 constituted a proper exercise of discretion.

Decree

Accordingly, the judgment of the trial court is reversed in part to include Dr. Byung Chung and Elvyn Lee as defendants cast in judgment. In all other respects the judgment is affirmed.

REVERSED IN PART, AFFIRMED IN PART.

      . This is in contradistinction to appellate courts in states without appellate review of fact, where retrials are usually necessary following appellate reversal (especially after prejudicial and erroneous rulings on admissibility of evidence or jury instructions).

      . The present case does not involve a pure jury trial, in which the trial judge is incidentally called upon to apply the legal issue of vicarious liability based on the jury’s answers to special interrogatories. Rather, this case involves two entirely separate trials of some defendants before a judge and of other defendants before a jury. The statutory requirement that the State’s liability be tried by the judge is not fulfilled if the judge is relegated to applying vicarious liability based entirely on the jury’s factual findings.

      .This reasoning is consistent with the decision in Thornton v. Moran, 343 So.2d 1065 (La. 1977), in which the Supreme Court reversed an affirmation by the intermediate court of inconsistent conclusions of the two triers of fact in a bifurcated trial and remanded with instructions “to resolve the differences in the factual findings between the jury and the judge and to render a single opinion based upon the record”. It is evident the Supreme Court rejected any notion that the findings of either trier of fact were entitled to greater weight.

      . Blood gases drawn at 1:50 (shortly before reintubation) showed a very high carbon dioxide content and a very low oxygen content. In a sample taken at 2:20 the results were reversed, with a high oxygen content and a low carbon dioxide.

      . The anesthesia machine was a semiclosed type, vented by a pop-off valve into the room.


author: LEMMON, Judge. REDMANN, Judge,

text:
    Denis L. HOLZHAUSER, Settlor of the Employee Security Trust v. James E. FAGAN, Jr., Trustee of the Employee Security Trust.
    No. 9279.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 10, 1978.

      Robert G. Haik, New Orleans, for plaintiff-appellant.
    Miranne & Miranne, Eric 0. Person, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   LEMMON, Judge.

Plaintiff, as co-settlor of an employee security trust, filed this suit to remove the trustee. He has now appealed from a judgment maintaining an exception of no right of action and dismissing his suit.

On June 1, 1971 Louisiana and Southern Life Insurance Company (L & S) and plaintiff, an insurance broker, executed a donation inter vivos of $10.00 in trust to a local bank. The instrument, attached to and made part of plaintiff’s petition, purported to establish a trust, with L & S and plaintiff as co-settlors, and stated that the purpose of the trust was to allow the purchase of group life, accident and health insurance from L & S by employees of employers in the sales industry when the employers became participants in the trust. The instrument further provided:

“XI.
The Settlors reserve the right to remove the Trustee from office at any time by giving thirty-one (31) days’ notice in writing to the Trustee provided that all Employer-Participants are given notice of the Trustee’s removal and the appointment of any successor Trustee. The Set-tlors reserve the right to select and appoint any such successor Trustee.
sfc * 'M * ‡ *
“XIII.
Louisiana and Southern Life Insurance Company, acting alone and without the consent of the Co-Settlor Denis L. Hol-zhauser, d/b/a Greater New Orleans Brokerage Agency, shall have the exclusive right to amend, modify or revoke this trust at any time and to any extent said Louisiana and Southern Life Insurance Company deems it advisable or necessary except that no amendment, modification and revocation shall divert any part of the fund as then constituted for any purpose except those purposes set forth in Article X hereof.”

The bank subsequently resigned as trustee, and L & S and plaintiff appointed defendant as successor trustee on October 14, 1971. On the same day L & S and defendant entered into an agreement which provided that L & S would perform all administrative and ministerial functions with respect to the operations of the trust.

On October 20,1976 plaintiff filed a “Petition for a Declaratory Judgment and In-junctive Relief”, alleging that the agreement between L & S and defendant had been entered into without his knowledge; that defendant had never acted in the interest of the trust, or of its members, or in his interest as settlor, but for the sole interest of L & S; and that defendant had never performed his duties as trustee and had allowed “the Trust” and all of the files, records, assets and property of “the Trust” to be removed from the state. The petition prayed that “the Trust” and its property be returned; that an accounting be ordered; that defendant be required to post security; that defendant be removed as trustee; and that a declaratory judgment be rendered appointing a provisional trustee. Defendant filed exceptions of no cause of action and no right of action, the latter being maintained as noted above.

The exception of no cause of action questions whether the law affords a remedy to anyone for the particular grievance alleged. On the other hand, the exception of no right of action assumes that a valid cause of action is pleaded by the petition (and therefore assumes that the law affords a remedy to someone) and questions whether this particular plaintiff is a party to whom the law affords a remedy. C.C.P. art. 927; see also Babineaux v. Pernie-Bai-ley Drilling Co., 261 La. 1080, 262 So.2d 328 (1972) and the cases and law review articles cited therein.

The initial inquiry in the present case is the nature of the remedy sought. The petition essentially seeks removal of the trustee, although ancillary demands are also made for mandatory injunctive relief, such as orders for accounting and for the return of trust property. Therefore, if this contract in fact establishes a trust, the issues as to these exceptions are whether the petition states a cause of action to remove the trustee and whether this plaintiff has a right to assert the cause of action.

R.S. 9:1789 provides that “(a) trustee may be removed in accordance with the provisions of the trust instrument or by the proper court for sufficient cause shown”. Thus, the statute provides two methods of removing the trustee and the circumstances under which each method may be used.

The first method is in accordance with the provisions of the trust instrument, which by its express terms reserves this right to the settlors (plural). However, just as one settlor cannot alone select and appoint a successor trustee under Paragraph XI, one settlor alone cannot remove the present trustee by simple written notice under the same paragraph. The petition in this case does not allege the concurrence of the co-settlor and therefore does not state a cause of action for removal in accordance with the terms of the trust instrument.

The second method of removal is “for sufficient cause shown”. The petition alleges facts which constitute sufficient cause for removal and thus state a cause of action. However, this particular plaintiff does not have a right of action or interest in instituting suit for removal for cause.

An action to remove a trustee for cause may be brought by anyone who has a specific financial interest in the trust. Bo-gert, Trusts and Trustees, § 522 (rev. 2d ed. 1978). A beneficiary is obviously a proper party to bring such an action. Arguably, a settlor who has the power to modify or revoke the trust has a specific financial interest and perhaps may bring an action to remove a trustee for cause. However, a settlor who has no right to amend, modify or revoke the trust (and who is not also a beneficiary or a trustee is virtually disinterested in the trust administration and has no specific financial interest and no right to invoke the remedy which the law extends to others with such an interest.

While plaintiff may have other rights under this or other contracts arising from his business association with L & S, he has no cause of action to remove the trustee under this contract and no right of action to do so for cause.

The judgment is affirmed.

AFFIRMED.

REDMANN, J., concurs and assigns reasons.

REDMANN, Judge,

concurring.

The contract sued upon seems so doubtful a trust that I prefer not to join in trust law discussion. Plaintiff simply does not state a cause of action (although he might have one, as for dissolution of a partnership, for insurance commissions, or for some other unhinted remedy).

      . Defendant’s brief informs us that the trust was designed to extend group rates to employers who had fewer employees than the minimum required under the Insurance Code for group rates by associating the employers and combining the numbers of their employees.

      . If the trust instrument is silent as to removal of the trustee, or if the circumstances do not exist for removing the trustee in accordance with the provisions of the trust instrument, a trustee may still be removed for cause, but the party seeking removal must have sufficient interest in instituting the action.


text:
    John EUDY v. JEFFERSON PARISH COUNCIL and Alwynn J. Cronvich, Sheriff, Parish of Jefferson.
    No. 9306.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 10, 1978.

      George P. Vedros, Gretna, for plaintiff-appellant.
    Harry Lee, Parish Atty., Pierre F. Gau-din, Asst. Parish Atty., Gretna, for defendants-appellees.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   LEMMON, Judge.

Plaintiff filed this action to enjoin the enforcement of an ordinance rescinding his permit to sell shrimp from his truck in a supermarket parking lot. The trial court, after a hearing, denied the requested relief, and plaintiff appealed.

At the time of the August, 1977 trial plaintiff had been selling shrimp at this location for over two years. When he started in this occupation, he obtained an occupational license and periodically obtained a six-month permit from the local unit of the state health agency. In December, 1975 the Parish Council adopted an ordinance requiring Council approval for the sale of seafood from a vehicle, and plaintiff obtained such approval by ordinance adopted the following month.

In about March of 1977 the state health agency studied the problem of controlling the influx of persons who wanted to sell seafood from trucks, especially during the height of the shrimp season. Because seafood is highly dangerous on account of the high percentage of breakdown from bacteria, and because the agency loses control and supervision of the articles when an itinerant operation closes at night and the vendor brings the unsold seafood home, the assistant chief sanitarian issued an order that permits would no longer be granted to anyone to sell seafood from vehicles. Thus, when plaintiff’s six-month health permit (that had been issued on December 30, 1976) expired on June 30,1977, agency policy prohibited issuance of another permit.

Also around March, 1977 the Councilman for plaintiff’s district, in the face of a mounting number of requests, established a policy to recommend denial of all requests for permits to sell seafood from trucks, because of public health considerations and difficulty of control. The Councilman contacted plaintiff and yielded to plaintiff’s request to be allowed to sell shrimp through May 15, but when plaintiff continued sales thereafter, the Council adopted the June 30 ordinance revoking his permit, which was the only one still in existence at that time.

Ordinances prohibiting the sale of seafood on the streets have generally been upheld as a reasonable exercise of a county’s or municipality’s police power, having a substantial relationship to public health and safety. See 14 A.L.R.3d 896 (1967). The ordinance in this case involves a reasonable classification and meets constitutional standards.

Plaintiff’s main complaint is that he was initially granted a permit which was revoked without notice or hearing.

The issuance of a permit to plaintiff gave him no vested right to continue in business forever. When circumstances changed so that the number of persons requesting a peddler’s permit made supervision and control difficult so as to endanger public health, the Council and the health agency reasonably decided to prohibit all such sales. The revocation of plaintiff’s permit did not deny him equal protection, but rather was a necessary step to insure uniform administration and constitutional application of a valid ordinance.

As of the time of trial, itinerant permits were no longer being issued to sell seafood from trucks, and plaintiff did not meet the mechanical refrigeration, storage, screens, toilet facilities and other requirements to qualify for a permit for seafood sales from a permanent location. The suit was properly dismissed.

AFFIRMED.

      . The sanitarian testified as follows:
      THE WITNESS:
      “The danger in selling shrimp from a truck, when a permit is given to sell, is the number of hours that they sell shrimp and then they close up shop at approximately 7:00 o’clock and we lose control over the product. We don’t know where or what happens to the product. In a seafood market, we have a right to go into the market for inspection in the middle of the day or night to investigate what happens to the seafood. We have a right to seize the product and destroy it. In the case of a seafood vendor, we lose control of the product where he is selling the item and then brings it home after he closes up, and we have no control. We can’t go into his home and seize that product and destroy the product. Therefore, we don’t know what happens to the product after they leave the site that they were selling from and he comes back to the same site the next day and resells the product.”
      THE COURT:
      “What you’re saying is that your testimony is that you are no longer granting health permits to anyone selling seafood from a truck or a place that is not a permanent establishment, is that right?”
      THE WITNESS:
      “Yes, sir.”
      THE COURT:
      “That is your policy now?”
      THE WITNESS:
      “Yes, sir, that is my policy as of March.”

      . Actually, another permit was issued by mistake around June 30, but was revoked shortly thereafter. The evidence established conclusively that no such permits were issued to other peddlers after the March order.


author: SAMUEL, Judge.

text:
    Hubert J. BADEAUX v. DEPARTMENT OF POLICE.
    No. 9391.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.
    Writ Refused Jan. 12, 1979.
    Jackson & Stovall, James E. Stovall, New Orleans, for plaintiff-appellant.
    Michael A. Starks, Asst. City Atty., New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

This is an appeal from a ruling of the Civil Service Commission of the City of New Orleans refusing to reinstate Police Sergeant Hubert Badeaux to his former position on the police force, and for back pay from August 5, 1958.

In 1958 plaintiff, an eleven year member of the New Orleans Police Department, was assigned to an investigation of an alleged sex ring. On July 31,1958, the then Superintendent of Police (Provosty A. Dayries), the deputy chief, the deputy superintendent, an assistant city attorney, and plaintiff met in the superintendent’s office to discuss the investigation. The superintendent requested information from plaintiff which was within his knowledge in the scope of the investigation. Plaintiff refused to furnish the information claiming he could not reveal a confidential source. Plaintiff was again ordered to furnish the information and again refused. Plaintiff thereupon either tendered his oral resignation or in fact actually resigned. He was then ordered to turn in his badge.

On August 5, 1958, plaintiff wrote to Superintendent Dayries requesting permission to recall his resignation and for restoration of duty. In connection with this request, the superintendent arranged an interview between plaintiff and the deputy superintendent to discuss the matter. Following that discussion, on August 14, 1958 plaintiff was advised by letter from the superintendent that his application for reinstatement was denied.

Almost nineteen years later, on April 28, 1977, plaintiff (through his attorney) wrote to the chairman of the Civil Service Commission claiming his oral resignation was involuntary and that he was illegally removed from the payroll. The attorney requested that the Commission itself hear the case, rather than appointing a hearing officer. Memoranda were attached to the letter and on July 14, 1977, at its regularly scheduled meeting, the Commission heard extensive arguments on plaintiff’s behalf.

On October 13, 1977, plaintiff was advised by letter the Commission was of the opinion he did not have the right of appeal in view of his resignation and, alternatively, if the resignation was “forced”, then Superintendent Dayries’ letter of August 14,1958 denying plaintiff’s request for reinstatement was an action within the provisions of Civil Service Rule II, Section 4.3, requiring that an appeal must be filed within 30 days of action or actions taken. On June 28, 1977, plaintiff filed this suit against the City for immediate reinstatement pursuant to R.S. 33:2424.

In this court plaintiff contends: (1) the Civil Service Commission erred in refusing to grant appellant a right of appeal and an evidentiary hearing; (2) the Civil Service Commission erred in finding appellant had voluntarily resigned from the police department; (3) appellant was not given written notice of reason for his removal from the department; and (4) appellant’s removal is void ab initio.

We do not agree with plaintiff’s contentions. At appellant’s request, the matter was heard before the entire Commission rather than a hearing examiner. Thus, he cannot now be heard to complain. Nor did the Commission err in finding appellant voluntarily resigned. This fact is clearly supported by the record, in particular the appellant’s own letter to the superintendent requesting permission to recall his “resignation”.

Relative to appellant’s third and fourth contentions, he claims his removal is void ab initio because there was no written notice and thus his appeal delays could not begin to run. He relies on the case of Young v. Charity Hospital of La. at New Orleans, 226 La. 708, 77 So.2d 13, wherein the plaintiff had been orally fired but received no written notice of her dismissal. In the instant case plaintiff resigned. Thus, the cases are not similar.

We find this case similar to Krasnoff v. City of New Orleans, La.App., 209 So.2d 149. In that case, plaintiff resigned in a fit of anger and shortly thereafter appealed to the Commission and later, this court. We held that a police officer who resigned from the department could not appeal the denial of his request for a leave of absence since he was no longer a member of the department.

In Krasnoff, at page 154, the court said:

“The granting of a request for a leave of absence is rendered moot by his voluntary resignation from the service and the refusal of the Commission to hear this request on appeal was therefore proper.
Whatever mental reservations or secret motives the plaintiff might have had in submitting his resignation does not render it less valid to the department to which it was addressed. Its acceptance which terminated plaintiff’s employment cannot be undone by some self-serving declaration made in his ‘Letter of Appeal’ that it was a ‘phony’ and should not be considered.” (Emphasis added).

Assuming, but not deciding, that appellant’s resignation had been involuntary, it was incumbent upon him to timely appeal.

Civil Service Rule II, Sec. 4.3 provides:

“Appeals to the Commission shall be filed within thirty (30) days of the action or actions taken against the employee by the appointing authority.”

Superintendent Dayries’ letter of August 14, 1958 to plaintiff was such an action. Plaintiff cannot exercise his right of appeal more than eighteen years after the expiration of the delay for appealing to the Commission.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Tender of resignation or actual resignation by plaintiff is a disputed fact. Plaintiff claims the former while the defense claims the latter.


text:
    Albert D. LAQUE v. ST. CHARLES PARISH POLICE JURY et al.
    No. 9417.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Leonard K. Fisher, Jr., Boutte, for plaintiff-appellant.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff, Albert D. Laque, appeals from a dismissal of his suit against the St. Charles Parish Police Jury in which he sought reinstatement to his former position of Parish Administrator. Laque was employed by the Jury as Parish Administrator in August, 1968 for a four year term. He served in that capacity until August, 1975, when he resigned to run, unsuccessfully, for Sheriff. He was reemployed in the same capacity on December 15,1975 under a contract which set his salary at $819.28 biweekly but was silent as to term. He was dismissed without a hearing on December 20, 1976. No reason was given for the termination.

In this court appellant contends his position was covered and protected by Civil Service and thus he is entitled to reinstatement. We do not agree.

On August 17, 1971, under the authority of Act 453 of 1968 (R.S. 33:1236(34)) the Jury enacted Ordinance 66-3-86 creating a Civil Service system and other matters relating thereto and on April 27, 1972 the Civil Service Board adopted rules and regulations therefor. As provided by Article 15 of the ordinance (adopted verbatim under the rules of the Board) plaintiff’s position was covered by Civil Service. However, on December 18, 1972, the Jury amended Article 15 to except therefrom, i. e., to take out of the classified service, the positions of Parish Administrator, Secretary to the Police Jury and Parish Treasurer.

Had plaintiff not resigned his position on August 4, 1975 he might successfully argue the civil service status he acquired on August 17, 1971 and April 27, 1972 could not be diminished. However, his resignation terminated that right.

When plaintiff was reemployed on December 15, 1975 he was employed under and bound by the ordinance in effect on the date of that reemployment. As stated above the ordinance at that time clearly provided the position of Parish Administrator was not in the classified service. We know of no law or reason, and plaintiff has pointed to none, which would prevent the Jury from validly passing that ordinance insofar as plaintiff is now concerned. As plaintiff was not protected by Civil Service at the time of his reemployment, and as that employment was not for a fixed term, his employment could be terminated by the Jury at any time with or without cause.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . “The classified service shall comprise every position to which the right of employee selection, appointment, supervision and discharge is vested in the Police Jury of the Parish of St. Charles.”

      . Civil Code Art. 2747; Freeman v. Elbilco, Inc., La.App., 338 So.2d 967; Ingram v. Kaiser Alum. & Chem. Corp., (Gramercy Wks.), La. App., 323 So.2d 921; Senac v. L. M. Berry Company, La.App., 299 So.2d 433.