author: LEMMON, Judge. SCHOTT, Judge,

text:
    Delmont O. DAPREMONT, Jr., et al. v. Jacqueline CROSSLEY.
    No. 9506.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 1979.
    Rehearing Denied Feb. 15, 1979.
    Writ Refused April 9, 1979.

      John S. Keller, New Orleans, for plaintiffs-appellants.
    Fine & Waltzer, Michael G. Bagneris, Joseph I. Giarrusso, Jr., New Orleans, for defendant-appellee.
    Morphy, Holbrook & Faulkner, Steven K. Faulkner, Jr., Metairie, for intervenor-ap-pellant, Bertucci & Associates, Inc.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

This is an action to recover damages for breach of a contract to buy and sell immovable property, based on defendant-buyer’s alleged failure to pay the required deposit within a reasonable time and failure to apply timely for mortgage financing. Plaintiffs-sellers have appealed from a judgment dismissing their suit after a trial on the merits.

Facts

On October 10, 1976 defendant signed an offer to purchase the property for $42,-500.00, with a $20,000.00 down payment and the “balance by homestead loan”. The offer also contained the following provisions:

“This sale is conditioned upon the ability of purchaser to borrow upon this property as security the sum of $22.500 by a mortgage loan or loans at a rate of interest not to exceed current % per annum, interest and principal payable on or before -years in equal (monthly) X (quarterly) - (semi-annual) - (annual)_installments. “Should purchaser, seller or agent be unable to obtain the loan stipulated above within 30 days from acceptance hereof, this contract shall then be null and void and the agent is hereby authorized to return the purchaser’s deposit in full. Commitment by lender to make loan, subject to approval of title, shall constitute obtaining of loan.
* * * * * *
“Upon acceptance of this offer, vendor and purchaser shall be bound by all its terms and conditions and purchaser becomes obligated to deposit with seller’s agent immediately 10% of the purchase price amounting to $500 cash & promissory note of $3.750. and failure to do so shall not void this agreement but shall be considered as a breach thereof and seller shall have the right, at his option, to demand liquidated damages equal to the amount of the deposit or specific performance, and purchaser shall, in either event, be liable for agent’s commission, attorney’s fees and costs.
******
“In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare the deposit, ipso-facto, forfeited, without formality beyond tender of title to purchaser, or the seller may demand specific performance”.

The offer was accepted on October 11, 1976. The following day the agent requested the deposit, but defendant did not furnish it immediately. Moreover, defendant did not apply for a mortgage loan until November 11 (the 31st day after acceptance of the offer), and the application was rejected the same day. The contract deadline for passing the act of sale (November 24) passed without plaintiffs’ putting defendant in default or tendering title to her.

On December 9, 1976 plaintiffs filed this suit to recover liquidated damages in the amount of $4,250.00.

At trial defendant testified: Her husband had died, and she desired to purchase a home for herself and her minor children with the forthcoming proceeds from settlement of a claim related to his death. She inspected and wanted to buy plaintiff’s house, but didn’t want to be obligated until she received the settlement funds, and she signed the contract only because the agent told her the contract was a meaningless formality which would not bind her. Two days later the agent notified her the offer had been accepted and requested the deposit, but she didn’t have any money at the time. After several more requests by the agent she received an October 27 letter from plaintiffs’ attorney, stating that her failure to furnish the deposit constituted a breach of the contract and demanding payment. She consulted an attorney and gave him a $500.00 check dated November 5, the death claim settlement in the amount of $70,000.00 having been completed.

A subsequent letter from defendant’s attorney to plaintiffs’ attorney referred to a November 5 conversation between the two and indicated defendant’s willingness to tender the cash portion of the deposit and to sign a promissory note for the balance, when the note was provided by the agent. No party saw fit to present other evidence about the promissory note.

The agent testified: On October 10 he received two offers on the subject property. Defendant’s offer, based on homestead financing, was accepted over the other offer, based on F.H.A. financing, because homestead financing was quicker and offered greater net proceeds to the seller. He thought that homestead financing would be approved, although defendant’s only income was social security benefits, because of the substantial down payment. When he notified defendant that the offer had been accepted, she stated she would prepare a check for the deposit on the following day, but when he called to pick up the check, she refused to pay the deposit, stating that her brother had told her she could get F.H.A. financing with a smaller down payment. At no time had he told defendant the contract was not binding on her, although he did explain at the time the offer was executed that the sellers had the option of accepting either offer and that defendant’s offer would not become a binding contract unless the sellers accepted that offer. Breach of Obligation to Apply for Mortgage Loan

On appeal plaintiffs initially argue defendant breached the contract by failing to apply for a mortgage loan until after the 30-day period had expired.

The contract was one subject to a suspensive condition, and defendant had the implied obligation to make a good faith effort to obtain mortgage financing and thereby fulfill the condition. Groghan v. Billingsley, 313 So.2d 255 (La.App. 4th Cir. 1975). Even when the evidence most favorable to the prevailing party is accepted, defendant did not use reasonable diligence in applying for mortgage financing. However, the penalty imposed on a buyer who does not make a good faith effort to obtain a mortgage loan necessary to fulfill a condition in a real estate sales contract is that the condition which was not fulfilled because of the buyer’s fault is deemed waived by the buyer, and the condition is considered as fulfilled. C.C. art. 2040; Groghan v. Billingsley, above.

Therefore, while defendant cannot avail herself of the condition in order to avoid her obligations under the contract, plaintiffs are not entitled to damages merely because defendant did not make a good faith effort to obtain a mortgage loan.

Breach of Obligation to Pay Deposit

By the terms of the contract defendant was obliged to pay the deposit immediately upon acceptance by plaintiffs, and the evidence established she failed to do so. Plaintiffs accordingly contend defendant breached the contract and was liable for liquidated damages, irrespective of the fact that plaintiffs did not tender title prior to the contract date for passing the act of sale.

It is first necessary to examine the basic concept of the necessity of putting a party to a real estate contract in default before the contract date for passage of the act of sale. The leading case is Di Cristina v. Weiser, 215 La. 1115, 42 So.2d 868 (1949), in which the stipulated date passed without action by either party. When the buyer sued for specific performance, the court reasoned, in effect, that the time for passing the sale was of the essence, and the court held that since the buyer was in default by not taking title or offering performance prior to the stipulated date, he was prohibited by C.C. art. 1913 from subsequently placing the seller in default.

The Di Cristina decision was criticized on the basis that time is not necessarily of the essence in real estate sales contracts, and that, even if time were of the essence, the court nevertheless has discretionary authority under C.C. art. 2047 to allow an additional delay. See, for example, Work of the Louisiana Supreme Court for the 1954-1955 Term, 16 La.L.Rev. 211, 244 (1956); Litvinoff, 7 Louisiana Civil Law Treatise — Obligations, Book 2, § 250 (1975). Nevertheless, the decision has been followed consistently, even when it is evident that time is not of the essence in the particular contract. Furthermore, as appears from subsequent appellate opinions, form contracts used by real estate brokers have been modified over the years to reflect court decisions, and the provisions at issue in this case are worded differently than the provisions at issue in earlier cases.

In the present case the contract required defendant-buyer to post the deposit immediately upon the sellers’ acceptance of her offer, but the contract did not dispense with the necessity of putting her into default for failure to post the deposit timely. The sellers’ notary, by letter on October 27, did put defendant in default, in effect notifying her that the promised performance was expected now and that any delay was significant. See Litvinoff, above, § 175. Shortly after receipt of the letter defendant gave her attorney a check for the cash deposit and expressed her willingness to sign a note for the balance, in accordance with the terms of the contract.

However, the seller did not tender title before the time specified in the contract. Since the buyer, although tardy in payment, had posted the deposit and was in a position to perform (and indeed may have decided to perform if the seller had tendered title), we cannot say that the seller’s tender of title would have been a vain and useless thing and therefore unnecessary. Furthermore, it is evident from the facts that time was of the essence in this case, since both parties knew that there were two pending offers and that defendant’s offer was accepted because of the shorter period of time within which the sale was to be passed.

Inasmuch as plaintiffs did not tender title before the date stipulated in the contract, they are not entitled to claim liquidated damages based on any breach by defendant.

Agent’s Claim for Commission

Even though the offer was accepted and the condition as to mortgage financing was considered as fulfilled, the agent is not entitled to a commission without regard to subsequent events. Becker v. Johnson, above. To recover a commission from the buyer (who was the only party at which the intervention was directed) on the contract to purchase, the broker must show either that contract was breached because of the buyer’s fault or that the buyer agreed with the seller to rescind the contract. There was no such proof in this ease.

The judgment is affirmed.

AFFIRMED.

SCHOTT, J., concurs and assigns reasons.

SCHOTT, Judge,

concurring.

The purchaser, defendant in this case, is charged with two breaches of her contract to purchase the property. Under the facts of the case plaintiffs are not entitled to claim liquidated damages.

Under the sequence of events which was dictated by the agreement, once defendant’s offer to purchase the property was accepted by plaintiffs she became obligated to make her deposit “immediately.” When she failed to do so plaintiffs had the option to demand liquidated damages. The record shows conclusively that plaintiffs did not exercise this option but instead proceeded on the theory that the property would be sold irrespective of defendant’s failure to make the deposit.

At this point defendant was still bound by her agreement to make a good faith effort to make a mortgage loan in accordance with the agreement, and her failure to comply with the agreement in the time specified authorized plaintiffs to sue for the deposit or demand specific performance, but in either case plaintiffs were required to tender title to defendant. Having failed to make a tender plaintiffs forfeited their right to sue for the deposit or to demand specific performance. Hence the suit was properly dismissed.

I agree with the majority reasoning that the agent is precluded from recovering commission pursuant to Becker v. Johnson, 350 So.2d 1259 (La.App. 4th Cir. 1977).

      . C.C. art. 1913 provides:
      “In commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the party who wishes to put the other in default, must, at the time and place expressed in, or implied by the agreement, offer or perform, as the contract requires, that which on his part was to be performed, otherwise the opposite party will not be legally put in default.”
      The court, apparently preoccupied with the issue of the validity of a verbal extension of time, did not discuss the court’s discretionary authority to grant a further delay to the party in default, although that party was no longer entitled of right to tender performance. C.C. art. 2047; Southport Mill, Ltd. v. Ansley, 160 La. 131, 106 So. 720 (1925); Work of the Louisiana Supreme Court for the 1949-1950 Term, 11 La.L.Rev. 141, 166 (1951).

      . The cited comment by Professor J. Denson Smith also notes that putting in default, if necessary at all, is only necessary when delay damages are claimed.

      . In Shell Oil Co. v. Hogan, 228 La. 37, 81 So.2d 761 (1955) the contract provided that the sale was to be passed “on March 4, 1954, or on such other date as might be mutually agreed upon by the parties”. The court held that the buyer, who did not offer performance before March 4, was not entitled to specific performance.

      . The contract, as to the seller’s right to declare the deposit forfeited if “the purchaser fails to comply with this agreement”, dispensed with the necessity of any formality beyond tender of title to the purchaser. Nevertheless, tender of title is a prerequisite to forfeiture of the deposit, even if the purchaser has given some indication he no longer wanted to purchase. Becker v. Johnson, 350 So.2d 1259 (La.App. 4th Cir. 1977).

      . See Lamar v. Young, 211 La. 837, 30 So.2d 853 (1947), in which the court found time was of the essence because it was necessary for tax purposes to complete the sale within the calendar year.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    Willie E. PERKINS, Plaintiff-Appellee, v. Carlos MULLINS, Defendant-Appellant.
    No. 13740.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.

      Hal R. Henderson, Arcadia, for defendant-appellant.
    J. Rush Wimberly, III, Arcadia, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

This case involves a determination of the boundary between a tract of land owned by plaintiff and one owned by defendant. After hearing testimony from surveyors appointed by each party, the trial court rendered judgment determining the boundary to be as described in the plat by plaintiff’s surveyor. We vacate that judgment and remand the case for the appointment of a surveyor by the court pursuant to Louisiana Code of Civil Procedure article 3692.

Plaintiff and defendant traced their titles back to a common ancestor who at one time owned the entire ten acres involved. Two acres of this ten were sold to plaintiff’s immediate ancestor in title and later the other eight were sold to defendant.

The controversy arose when defendant had his tract surveyed soon after he purchased it and erected a fence around his property in conformity with that survey. Plaintiff thought this fence encroached upon his property and consequently had another survey made. This survey indicated defendant’s fence had encroached 62 feet onto plaintiff’s property.

At trial, both surveyors were called as expert witnesses. The testimony indicated the two surveys differed due to the fact that the surveyors disagreed as to the correct location of the corner marker of the section involved, which each used as his starting point. However, neither made any effort to check the correctness of this quarter section corner with any established government corners. Both surveyors admitted the section had never been properly surveyed and neither surveyed the entire ten acres involved. There is little evidence to indicate which starting point, if either, was the correct one. No independent survey was conducted.

Judgment was rendered in favor of plaintiff recognizing him as owner of the two-acre tract as described in his deed and as shown by the plat of his surveyor. Defendant appeals, contending ownership was never at issue since he admitted plaintiff was the owner of two acres as described in his deed of acquisition, and that the evidence before the court was insufficient to support a judgment delineating a boundary between the two tracts.

We agree. The only evidence available to the court for the determination of the location of the boundary between the two tracts was two surveys which were in conflict and entitled to no legal significance since neither was commenced from a proven government corner. In Beene v. Pardue, 79 So.2d 356 (La.App.2d Cir. 1955) this court noted that “to begin a survey at a disputed and unproven corner when there were available regular Government corners, as we have pointed out before, was error.” In that case the court repudiated a survey commenced at an iron pipe supposedly located at the corner of a township since there was insufficient evidence to justify a conclusion as to the correctness of the location of the pipe.

In Houston Ice & Brewing Co. v. Murray Oil Co., 149 La. 228, 88 So. 802 (1921), the court was faced with conflicting surveys, one of which had to be incorrect. There, the court remanded the case for a new survey to be made by a surveyor selected by the judge.

Code of Civil Procedure article 3692, as amended in 1977, permits the trial court to appoint an independent surveyor in boundary actions. Prior to the amendment of the article it was the mandatory duty of the court to appoint the surveyor. Although this duty is now discretionary, in a case such as this where the court is presented with two conflicting surveys, neither of which was properly made, we find the trial eourt abused its discretion in not appointing an independent surveyor. A surveyor should be appointed to prepare a plat showing the entire ten acres involved, the plaintiff’s two acres and the defendant’s eight acres.

The judgment is vacated and the case remanded for further proceedings in conformity with law and consistent with the views expressed herein. All costs to await the final determination of the case.

      . Article 3692.
      The court may appoint a surveyor to inspect the lands and to make plans in accordance with the prevailing standards and practices of his profession indicating the respective contentions of the parties.


author: JONES, Judge.

text:
    GOLDSBERRY OPERATING COMPANY, INC., Plaintiff and Appellee, v. CASSITY, INC., Defendant and Appellant.
    No. 13745.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    Bodenheimer, Jones, Klotz & Simmons, Shreveport, for defendant and appellant.

      Greene, Ayres & Mayo, Cook, Clark, Egan, Yancey & King, Shreveport, for plaintiff and appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Cassity appeals from a judgment rejecting its third party demand against its general liability insurer that the policy of insurance covered its liability for damage done to Goldsberry’s oil and gas well by Cassity. We affirm.

Cassity was hired by Goldsberry to perforate ten feet of the well with an explosive gun at a depth of some 8,000 feet. While the gun was being lowered to the desired depth, it prematurely exploded at 6,900 feet, causing some $10,000 in damages.

The policy excludes coverage for property damage done to “that particular part of any property, not on premises owned by or rented to the insured [Cassity] upon which operations are being performed by ... the insured at the time of the property damage . . . ” This exclusionary language is of recent origin in the Broad Form Property Damage Coverage used by Aetna Casualty and Surety Company, third party defendant here. This form is dated January 1974. The exclusionary language in this form differs from that construed in Hendrix Electric Company, Inc. v. Casualty Reciprocal Exchange, 297 So.2d 470 (La.App. 2d Cir. 1974). Hendrix recognized the general rule that exclusionary provisions of insurance policies are to be strictly construed.

We are called on to construe the quoted provision to determine whether Cassity was performing its operation solely upon the ten feet Cassity intended to perforate at the 8,000 foot level (as Cassity contends) or whether Cassity was performing its operation upon the tubing (as Aetna contends).

The only case coming to our attention which interprets the policy language in question is from the Supreme Court of Tennessee. There the contractor was hired to install two circuit breakers in an existing electrical switchboard. The contractor negligently shorted the entire board which caught fire and blew up. The court emphasized that the switchboard, although composed of many parts, was nonetheless, a complex, self-contained, collective unit which constituted a single item of property. It held the switchboard to be “that particular part of the property upon which operations [were] being performed” and declined to limit the exclusion to the one area of the switchboard where the contractor was installing the circuit breakers.

Cassity argues by analogy that the tubing which was damaged at 6,900 feet was nothing more than a vertical highway which was to be used merely to gain access to the 8,000 foot depth where the operations were to be performed. Cassity hypothesizes that the insurer would be liable in a situation where a truckload of explosives prematurely detonates on a private road going to a coal mine operation where the explosives were to be used. This may be true because the road, as Cassity indicates, is not a part of the strip mine. The result perhaps would be different if the explosives were intended to be used to extend the road and prematurely detonated, damaging a part of the completed road some Vith mile from the site of intended use. The facts of each case will determine upon what particular part of someone’s property the insured is performing its operations.

The gun was attached to a line which was on a wench installed in Cassity’s truck located at the well site. The gun was lowered into the well by Cassity’s operator in the truck. The electrical trigger designed to explode the charge at the desired depth was located in the truck and operated by a Cassity employee. The electricity which was to fire the gun would have travelled down the line from the truck into the well and down through the tubing to the point where the gun had been lowered. An odometer in the truck was used to determine whether sufficient line had been reeled off the wench to place the gun at the desired depth.

We hold that the particular part of the property upon which Cassity was performing its operations was the entire part of the well where the gun and line traversed and through which the electricity would have passed to detonate the gun if the gun had reached the desired depth, and for this reason, the exclusion in the insurance policy precludes coverage on the damages sustained to the well when it prematurely exploded at the 6,900 foot depth.

At appellant’s cost, judgment is AFFIRMED.

      . Vinsant Electric Contractors v. Aetna Casualty and Surety, 530 S.W.2d 76 (Tenn., 1975).


author: HALL, Judge.

text:
    James Louis SPILLERS, Plaintiff-Appellant, v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 13746.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    Donald R. Miller, Shreveport, for plaintiff-appellant.
    Barry E. Edwards, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

The plaintiff, James Louis Spillers, appeals from a judgment rejecting his claim against the City of Shreveport for total disability workmen’s compensation benefits. We affirm.

Plaintiff was injured on September 29, 1976 when the garbage truck he was driving ran off the road and turned over. His principal injury was diagnosed as a fracture of the lower portion of the neck between the sixth and seventh cervical vertebrae, with displacement. Dr. Lloyd C. Megison, Jr., a neurosurgeon, performed surgery on October 20,1976, fusing the C6 and 7 vertebrae with a piece of bone from the hip. Plaintiff was discharged from the hospital a few days later and remained under the doctor’s care until September 1, 1977. After examination on this date, the doctor discharged plaintiff as able to return to work. His neck had healed and was stable. Plaintiff had only minor complaints of pain at that time, was not taking any medication, and had some remaining weakness in the right triceps muscle. The doctor told him he could go back to work but might not be able to carry a garbage pail in his right arm, and there was no need for him to come back for routine visits.

When plaintiff reported for work his employment was terminated because of his negligence in causing the accident in which he was injured. His compensation benefits were also terminated based on the doctor’s report.

Plaintiff went back to Dr. Megison on November 15, 1977, complaining of pain in the back of the neck, which seemed to shoot up into his head and down into his lower back. He said he had neck pain every time he bent over and stood back up and that the pain was severe. Dr. Megison found no difference from the previous examination, except the right triceps muscle was now strong and normal.

The doctor estimated the limitation in range of motion of plaintiff’s neck due to the fusion was about fifty per cent around to each side. The doctor was of the opinion the plaintiff was able to do the work he was doing at the time of his injury, driving a garbage truck and carrying large barrels of garbage. Dr. Megison testified most patients do not continue to experience pain after an injury and surgery such as involved here has healed.

Plaintiff testified he had not been able to do any work up to the time of trial in April, 1978, other than occasionally picking up beer cans on the side of the road and selling them. He testified he is in almost constant pain, can’t sleep, and can’t work. Two lay witnesses, plaintiff’s grandfather and a friend, testified plaintiff does not seem to be able to work or do other physical activities he used to do.

The sole issue is whether plaintiff continues to be totally disabled under LSA-R.S. 23:1221. Plaintiff argues on appeal that the trial court misconstrued the statute as amended in 1975, and erred in failing to find him totally disabled because he cannot work without substantial pain, cannot do the work he was formerly doing, and cannot work with safety to himself and others. Plaintiff cites Rachal v. Highlands Ins. Co., 355 So.2d 1355 (La.App. 3rd Cir. 1978) writ refused La., 358 So.2d 645, as supporting his position.

The only medical evidence is that plaintiff’s injury and fusion surgery has healed and that he has no physical impairment other than the limitation in range of motion of his neck. There is no evidence that the limitation of motion would itself prevent or impair plaintiff’s performing the work he was doing at the time of the accident or other gainful employment with safety to himself and others. The doctor’s opinion was that plaintiff is not disabled.

If plaintiff can only work in substantial pain, he is totally disabled under the statute. Rachal, supra; Phillips v. Dresser Engineering Company, 351 So.2d 304 (La.App. 3rd Cir. 1977) writ refused La., 353 So.2d 1048. We find nothing in the trial court’s written opinion which indicates he construed the statute otherwise. The trial court apparently did not accept plaintiff’s virtually uncorroborated testimony as to his continued pain and physical disability. The testimony of plaintiff’s witnesses was vague and of little assistance. There is no evidence plaintiff has sought further medical treatment or that he is taking medication. He has not sought other employment.

Finding no manifest error in the trial court’s conclusion that plaintiff is not disabled under the compensation statute, we affirm the judgment denying benefits.

Affirmed.


text:
    Beverly F. BRANDON, Individually and as tutrix for minors, Jonathan Dustin Brandon and Jerry Lee Brandon, et al., Plaintiffs-Appellees, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, et al., Defendant-Appellant.
    No. 13748.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    Writ Refused March 16, 1979.

      Kitchens, Benton, Kitchens, Pearce & Elkins by John B. Benton, Jr., Minden, for plaintiff s-appellees.
    Philip K. Jones, Marchall W. Wroten, Robert J. Jones, Doran & Kivett by William J. Doran, Jr., Sp. Asst, to Gen. Counsel La. Dept, of Transp. and Dev., Baton Rouge, for defendant-appellant.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

The State of Louisiana, Department of Transportation and Development, formerly the Department of Highways, appeals from a judgment for damages rendered against it in favor of plaintiffs for injuries sustained by three passengers and the death of one passenger who were riding in a vehicle which turned over after running off the paved portion of a state highway onto a low shoulder which had not been brought up to grade after the highway was overlaid. For the reasons expressed in the trial court’s excellent and well-reasoned written reasons for judgment and for the reasons expressed in this opinion, the judgment is affirmed.

This case arises out of a one vehicle accident which occurred on Highway 157 approximately three miles west of Springhill in Bossier Parish in the late afternoon of July 11, 1975. The vehicle involved in the accident was a 1969 Ford Bronco owned and being driven at the time of the accident by Dayton Rodgers. Passengers in the Bronco were Jerry Lee Brandon, James S. Felknor, William D. Curry and Robert S. Felknor.

The modified 1969 Ford Bronco was towing a fishing boat on a trailer. The accident occurred when the Bronco left the paved portion of the highway, ran off the shoulder to the right and turned over. The paved surface of the asphalt highway had been overlaid some five months previously, but the shoulders had not been brought up to the level of the roadway and there was a drop-off of several inches. There were some construction signs and low shoulder signs in the area. The driver was familiar with the highway and was aware that the shoulders were low throughout the seven mile length of the highway that had been overlaid. The posted legal speed limit on the highway was 55 miles per hour, but there was at least one 45 miles per hour advisory speed sign in the area.

Rodgers was driving in an easterly direction at a speed of 45 to 55 miles per hour. He was engaged in conversation with the passengers about fish baits and immediately prior to the accident took one hand off of the wheel as if reaching for a bait. At this time the vehicle veered from the paved portion of the highway onto the shoulder to the right. The driver made an effort to bring the vehicle back onto the highway, but the vehicle went out of control and turned over. Rodgers and Brandon suffered fatal injuries. The other three passengers were injured.

Rodgers, Brandon and James S. Felknor had been on a fishing trip on the day of the accident, drinking beer throughout the day. A blood alcohol test performed on the driver after the accident showed a blood alcohol content of .13.

Two separate suits were filed. Plaintiffs in the suit on appeal are Beverly Felknor Brandon, widow of Jerry Lee Brandon, individually and as tutrix of their two minor children, and the other passengers in the vehicle. Named as defendants were the Department of Highways, the Bossier Parish Police Jury, and St. Paul Insurance Company, liability insurer of Rodgers. The Police Jury was dismissed from the suit on a motion for summary judgment because it had no responsibility for maintenance of the highway on which the accident occurred. Another suit was filed by Rodgers’ widow on behalf of their minor child.

The Highway Department denied negligence, pled the contributory negligence of the driver and the passengers, and in the Brandon suit made a third party demand against the estate of Rodgers.

On the first day of trial St. Paul Insurance Company admitted liability and deposited its policy limits plus interest ($10,-986.88) in the registry of the Court. The Highway Department dismissed its third party demand against the estate of Rodgers and St. Paul, with prejudice. Plaintiffs withdrew the money from the registry of the Court without prejudice to their rights against the Department of Highways. Plaintiffs did not release the estate of Rodgers.

After trial of the consolidated suits the district court found that Dayton Rodgers was negligent, that the Department of Highways was also negligent, and that their combined negligence was the legal cause of the accident. The court found the passengers to be free of contributory negligence. In the Rodgers case, judgment was rendered in favor of the Department, dismissing the suit. No appeal was taken in that case and it is not before this court. In the Brandon et al. case, judgment was rendered as follows: (1) in favor of Beverly Felknor Brandon, individually, for $464,-209.50; (2) in favor of Beverly Felknor Brandon, as tutrix of the minor Jonathan Dustin Brandon, for $40,000.00; (3) in favor of Beverly Felknor Brandon, as tutrix of the minor Jerry Lee Brandon, for $40,-000.00; (4) in favor of William Curry for $1,724.45; (5) in favor of James S. Felknor for $17,296.62 and (6) in favor of Robert S. Felknor for $22,181.31. The Department was given credit against the judgments for the amount paid by St. Paul Insurance Company.

The Highway Department sets forth six specifications of error:

(1) The court erred in failing to admit evidence of the condition of the Bronco vehicle at the time of the accident;
(2) The court misapplied the prior jurisprudence of this state regarding the duty of the Department of Highways and erred in finding that the State of Louisiana, Department of Highways was guilty of any negligence which was the proximate cause of this accident and erred in failing to find that the negligence of Dayton Rodgers was the sole proximate cause of this accident;
(3) Alternatively, the court erred in failing to find that the passengers in the vehicle had assumed the risk or were guilty of contributory negligence;
(4) The court erred in assessing all cost against the defendant;
(5) Alternatively, the court erred in awarding an excessive amount of damages to Mrs. Beverly Brandon; and
(6) In the third alternative, the court erred in failing to reduce any judgment against the Department by one-half because of the release given by plaintiffs to the St. Paul Insurance Company.

Mrs. Brandon answered the appeal seeking an increase in the award.

Specification of Error No. 1 — Condition of the Bronco

After the trial of this case had been under way for several days, the Department sought to file an amended answer, pleading as an additional ground of negligence on the part of Rodgers and the passengers in the Bronco the fact that the Bronco had been “jacked up” and was difficult to drive and handle. The Department argued at the time that the condition of the Bronco had been put at issue by testimony offered by plaintiffs to the effect that the Bronco seemed to drive properly prior to the accident. The trial court did not allow the amendment for the reason that it came too late. When the defendant later tried to offer evidence as to the condition of the Bronco the trial court refused to allow the evidence, but it appears in the record under a proffer of proof. The disputed evidence consists primarily of expert testimony, based on inspections of the Bronco made some two years after the accident, to the effect that the Bronco was improperly modified and would have a tendency to sway and be difficult to handle.

The trial court did not err or abuse its discretion in refusing to allow the amendment to the answer and in refusing to admit defendant’s evidence concerning the condition of the Bronco. The amendment raising a new defense after the trial was well under way came too late because the alleged facts upon which the new defense was based were readily available to defendant or could have been developed by defendant long before trial. The casual mention of the condition of the Bronco in testimony offered while plaintiffs were putting on their case did not raise a material issue as to the condition of the Bronco. The condition of the Bronco was not an issue since it had not been timely and properly raised by the defendant. In any event, the evidence which appears in the record concerning the condition of the Bronco is inconclusive and does not establish that its condition at the time of the accident was such that the driver or the passengers could be held negligent for driving or riding in the vehicle, or that the condition of the Bronco was a significant contributing factor in causing the accident. There is absolutely no evidence that any of the passengers had any reason to believe that it was not safe to ride in the vehicle. Defendant’s specification of error number 1 is without merit.

Specification of Error No. 2 — Negligence and Liability of the Highway Department

Defendant’s specification of error No. 2 presents the primary and most serious issues in this case. The Department contends that it was not negligent and that the sole cause of the accident was the negligence of the driver. The Department’s contentions can be briefly summarized as follows: (1) the overlay work was done to remedy hazardous conditions in the paved surface of the highway and the five month delay in bringing the shoulders up to grade was not unreasonable because the work crews were deployed during this period of time to the best of the Department’s ability and in accordance with the priorities of the various projects worked on during that period of time; (2) at the time of the accident the entire project was adequately signed with construction and low shoulder signs in accordance with the Manual on Uniform Traffic Control Devices and, in any event, the driver of the vehicle was well aware of the condition of the highway; and (3) the sole cause of the accident was the negligence of the driver in driving under the influence of alcoholic beverages, in becoming inattentive and allowing the vehicle to go off the road, and in attempting to jerk the vehicle back onto the roadway.

The paved portion or the traveled portion of the roadway of Louisiana Highway 157 had become hazardous prior to January, 1975, and was in great need of overlay. A petition of the citizens of the area had been circulated and sent to the governor of the State of Louisiana and the State Department of Highways requesting improvement of the road. The Department of Highways responded to the need for overlay of the highway by electing to let contracts for the furnishing and application of the necessary hot mix materials to overlay the paved surface, with Department crews to do the necessary shoulder work. The fourteen mile section of Highway 157 between Plain Dealing, Louisiana and Springhill, Louisiana was divided into two seven mile sections, one extending from Plain Dealing to Red-land and the other from Redland to Spring-hill. The first seven mile stretch of overlay, on which the accident happened, was done by Winford Company and the overlay was completed on or about February 17, 1975. At the beginning of construction in January, 1975, the seven mile section from Redland to Springhill was signed in accordance with the standards set forth in the Uniform Traffic Control Devices Manual. This consisted of barricade construction signs at the beginning and end of the project, advisory 45 m.p.h. speed signs, and low shoulder signs spaced a mile apart on each side of the highway. The seven mile section between Plain Dealing and Redland was overlaid by Southern Excavation and this overlay was completed July 2,1975 only nine days before the accident occurred. The shoulders of the highway had not been brought up to a typical section or flush with the edge of the traveled portion of the roadway as of July 11,1975, the date of the accident. There is a sharp conflict in the evidence as to what signs were in place at the time of the accident.

The hazardous condition of the highway and its shoulders, specifically the drop-off of several inches resulting from the low shoulder, created by the Highway Department, was a significant and substantial cause-in-fact of the accident. The description of the accident by the surviving passengers shows the violent action of the vehicle dropping off onto the shoulder and the difficulty encountered in the attempt to get the vehicle back onto the pavement because of the drop-off. While there may be a possibility that the Bronco would have turned over even if the drop-off had not existed, the probability is that the drop-off caused a serious accident to result from a maneuver which would otherwise have been inconsequential.

The Highway Department has a duty to maintain the highways in a reasonably safe condition for public travel. Barr v. State, Department of Highways, 355 So.2d 52 (La.App. 2nd Cir. 1978) writ den. 355 So.2d 1324 (La.1978); Petree v. Crowe, 272 So.2d 399 (La.App. 2nd Cir. 1973) writ den. 274 So.2d 709 (La.1973). Included within this duty is maintenance of the shoulders of the highway in safe condition. Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir. 1977) writ den. 356 So.2d 434 (La. 1978); Willis v. State, Dept. of Highways, 321 So.2d 819 (La.App. 1st Cir. 1975) writ den. 325 So.2d 280 (La.1976); Hopkins v. State, Dept. of Highways, 167 So.2d 441 (La.App. 1st Cir. 1964) writ den. 246 La. 885, 168 So.2d 268 (1964). More specifically as applied to this case, the Highway Department has a duty not to create a defect or hazard in the highways. Recognizing the necessity of construction work in the maintenance of highways and that hazards will often necessarily exist during the course of construction, this duty is relaxed in connection with construction activities according to the reasonable necessities of the circumstances. The Department’s duty during the course of construction is usually discharged by the giving of adequate warning. What constitutes adequate warning depends on the nature of the hazard to be guarded against. Von Cannon v. State, Dept. of Highways, 306 So.2d 437 (La.App. 3rd Cir. 1975) writ den. 309 So.2d 681 and 309 So.2d 682 (La.1975).

The Department has a duty to repair defects, and particularly those created by its own construction activities, within a reasonable length of time. Hale v. Aetna Casualty & Surety Co., 273 So.2d 860 (La. App. 2nd Cir. 1973) writ den. 275 So.2d 867 (La.1973). Stated another way, the Department has the duty to pursue construction to a completion within a reasonable period of time in order to eliminate the hazards created by the construction. It is a breach of that duty for the Department to undertake construction, partially complete the project, and then leave the project unfinished with hazardous conditions existing for an unreasonable period of time, particularly when it is within the capability of the Department to complete the project and eliminate the hazard.

Placing warning signs may lessen the hazard but does not correct or eliminate the hazard. Giving of warning discharges the Department’s duty only during the period of time it is reasonably necessary for the hazard to exist during construction activity. Also, common experience tells us, and expert testimony in this case verifies, that warning signs left up over an extended period of time with no evidence of construction activity become ineffective, particularly as to drivers who travel the road regularly even though the drivers have actual knowledge of the hazard.

Hale v. Aetna Casualty & Surety Co., supra, involved a low shoulder hazard created by overlay work and a delay of six days in bringing the shoulder up to grade. While finding the Highway Department’s contractor free of negligence under the facts of the case involving an accident arising out of a hazard created by construction activity, the court recognized the duty to perform the activity “in such a manner as not to expose those using the roads to any dangers which could be prevented by the use of ordinary and reasonable care” and to “use all reasonable precautions in repairing the road”.

What constitutes a reasonable time to complete construction and to eliminate construction defects depends upon the circumstances of each case and involves consideration of factors such as the extent of the project, emergencies, availability of materials and manpower, priorities of projects, safety and economic aspects of construction, the nature and degree of the hazard created, the ability to adequately warn, and other factors.

Applying these standards, our conclusion is that the Highway Department breached its duty in this case by allowing the serious hazard created by its construction activity to exist for an unreasonable period of time. The low shoulder created a very dangerous condition, as admitted by Highway Department officials who testified. The condition was allowed to exist without attention for five months after the overlay was completed.

In support of its contention that the work was to be performed according to priorities, the Department offered into evidence its records showing where and on which project its crews were working throughout the entire five month period. It was demonstrated that some of the projects probably rated higher priority than the shoulder work involved here. But the evidence falls short of demonstrating that either economic or safety priorities made it impossible or unreasonable for the necessary crews to be assigned to the completion of this project throughout the entire five month period. As noted by the trial court, the evidence indicates that the main consideration given to assignment of the crews was a geographic progression of their work from south to north, a valid consideration but not a paramount one. Materials and manpower were available to complete the shoulder work.

The Department has the responsibility for establishing priorities of projects under LSA-R.S. 48:192(A). Still, this responsibility must be reasonably exercised. It would be difficult to second-guess the Department on priorities in correcting defects not of its own making or in bringing old highways or bridges up-to-date as in Roberts v. Winston Carriers, Inc. 304 So.2d 818 (La.App. 3rd Cir. 1974) writ den. 309 So.2d 341 (La.1975) and Barr, supra. But once the Department initiates a construction project, thereby itself creating a hazardous condition, it becomes the duty of the Department to complete the construction and eliminate the hazard within a reasonable period of time, and the priorities that would excuse non-completion would have to be of high order and almost emergency proportion. Other priorities of such proportions were not shown in this case.

That good construction practice calls for the shoulders to be brought up to grade was demonstrated by the Department’s own manuals and by other evidence. The maintenance manual provides that “shoulders shall be maintained smooth and flush with the edge of the surfacing.” The maintenance superintendent’s manual provides that “any time a shoulder is more than one inch low (or less in some cases) ... it should be reshaped.” The manual further states, “An overlay raises the pavement up. The shoulder needs to be brought up to it.” and “Raising shoulders must be done after an overlay.” Testimony established that when the contractor who does the overlay work is also required to do the shoulder work, which is often the case, the contract usually requires the contractor to bring the shoulder up to grade at the end of each work day. Testimony also established that shoulders can be brought up to grade on at least a temporary basis by simply grading the shoulder with a motor grader, pushing the dirt and existing material up to the grade of the paved surface. Testimony by the Department’s officials also established that the overlay contract was let and the contractor given permission to proceed without any plan for the Department to do the shoulder work except sometime during the construction year. The failure of the Department to eliminate the hazardous condition for five months cannot be excused on the basis of priorities.

The duty of eliminating the hazard created by the low shoulder situation within a reasonable time encompasses the risk of injury to persons riding in vehicles which are driven off the paved surface of the highway onto the shoulder. The duty is to protect against injury arising out of the use of the shoulder for their intended purposes such as emergency exits, stopping because of motor trouble or flats, and the like; and also arising out of vehicles going onto the shoulder because of driver inattention or error. Common experience tells us that the latter is not an unusual or infrequent occurrence. Low shoulders substantially increase the risk of harm from such foreseeable activity, as it did in this case. At least as to passengers and other innocent persons, the duty to maintain the shoulders in good condition encompasses the protection of those persons from increased danger or harm resulting from driving on the shoulder because of driver inattention. There is an ease of association between the duty and the risk. For these reasons, the Department’s contentions of remote cause, intervening or superceding cause, and lack of proximate cause, must fall.

In Robertson v. Handy, supra, the Highway Department was held liable for the wrongful death of a passenger in an automobile which was negligently driven off the traveled portion of the highway, hit a rut on the shoulder of which the Department had constructive notice and had failed to repair, went back on the highway, and struck an oncoming truck. In Hudson v. State, Dept. of Highways, 289 So.2d 505 (La.App. 3rd Cir. 1974) writ den. 293 So.2d 178 (La.1974), the court found that a defective curb was a contributing cause-in-fact of the accident and rejected the Department’s defense that it was only a remote cause and that the accident was precipitated by the intervening negligence of one of the drivers. The “injuries suffered were of the sort expectable from the hazardous condition.” See also: Mixon v. Allstate Insurance Company, 300 So.2d 232 (La.App. 2nd Cir. 1974) writ den. 303 So.2d 179 (La.1974); Von Cannon v. State, Department of Highways, supra.

Summarizing, the hazard created by the Highway Department was a substantial, contributing cause-in-fact of the accident. The Department breached its duty of maintaining the highway in a reasonably safe condition by first creating and then allowing the low shoulder hazard to exist for an unreasonable period of time. The breach was not excused by priorities or signing. The duty encompassed the risk of injury to persons riding in vehicles which might run off the pavement onto the shoulder through driver inattention. The defendant’s fault was a legal cause of the accident and it is liable for the damages sustained by the passengers in the car and their survivors.

Specification of Error No. 3 — Contributory Negligence and Assumption of Risk

The Department contends that recovery by passengers in the Bronco is barred by reason of their contributory negligence and assumption of risk in riding with an intoxicated driver, and in engaging in horseplay with the driver causing him to become distracted and to run off the highway. We adopt the findings and conclusions of the trial court on these issues:

“Next, the Department raised as a defense the contributory negligence or assumption of the risk on the part of the passengers in the Rodgers’ vehicle because it was established that an examination of Rodgers’ blood for alcohol content revealed 0.13% which the Department argued would have been intoxication to the point that anyone observing Dayton Rodgers immediately before the accident would have readily seen he was under the influence of alcohol to the extent that he could not possibly operate a motor vehicle safely.

The evidence heard by this Court, with the single exception of one expert witness, was to the contrary.

Discounting James Felknor’s testimony to some degree because he had been drinking beer with Dayton Rodgers during the day while on the fishing trip, this Court heard Mr. Robert Felknor testify that he would never have gotten into the Bronco with Dayton Rodgers nor would he have permitted it to leave his residence premises if he had observed anything about Dayton to indicate he was under the influence of alcohol. Mr. Felknor had not had anything at all alcoholic to drink and his job was Safety Supervisor of Lake Plain Dealing, a recreational facility at Plain Dealing, Louisiana where one of the chief problems had been excessive use of alcohol by users of the lake. He had been Safety Supervisor at this lake from 1964 or 65 until the accident date, had obtained adoption of an ordinance to prohibit drinking at the lake; and had been appointed a deputy sheriff to help enforce the prohibition. He testified that he personally patrolled the lake in his own boat.

This Court was impressed that Mr. Felk-nor meant it when he said he would not have ridden with Dayton Rodgers if he had observed any signs of intoxication on Rodgers’ part nor would he have permitted his son, son-in-law and nephew to go with him.

William Curry, who did drink one beer in the yard before the trip began, also testified that there was no indication that Rodgers was under the influence of the beer he had consumed during the day while on the fishing trip.

Dr. C. H. McCuller, practicing physician and former coroner of Bossier Parish testified that it was very possible that a person could have a 0.13% blood alcohol content and not evidence the influence to an untrained observer.

Only Ray Herd, Director of the Northwest Louisiana Crime Lab expressed the opinion that this much blood alcohol would cause Rodgers or anyone else to show visible signs of intoxication.

This Court is of the opinion that under the facts established in this case the passengers in the Rodgers vehicle were not con-tributorily negligent by riding with Dayton Rodgers because the Department failed to prove by a preponderance of the evidence all three requirements of the Prestenbach case [Prestenbach v. Sentry Insurance Company, 340 So.2d 1331 (La.1976)], i. e. that Rodgers was intoxicated, his intoxication was a cause of the accident, and the passengers knew, or should reasonably have known from personal observation of the driver’s activities that he was intoxicated.

Further, the Department contended that the passengers Jerry Brandon and James Felknor were distracting Dayton Rodgers by talking to and kidding him about the fishing trip and a particular fishing lure which James Felknor had taken from Rodgers’ tackle box and that this activity on their part was negligence contributing to the accident which would bar recovery on the part of the widow and children of Brandon and on the part of James Felknor.

Again the burden of establishing this alleged contributory negligence was with the Department, and again, in this Court’s opinion, the Department failed to meet this burden. True there was testimony of kidding of Rodgers on James Felknor’s part, but nothing done or said that would be sufficient to cause Rodgers to lose control of his vehicle or leave the hard surface portion of the roadway. . . ”

Specification of Error No. 4 — Court Costs

The trial court was correct in assessing all court costs, including expert witnesses fees against the Department of Highways. Segura v. Louisiana Architects Selection Board, 362 So.2d 498 (La.1978). See also: Act 467 of 1978 which enacted LSA-R.S. 13:5112 and amended LSA-R.S. 13:4521 to allow assessment of all court costs against the State, and Hopkins v. Department of Highways, 364 So.2d 616 (La. App. 3rd Cir. 1978), which gave retroactive effect to the 1978 Act.

Specification of Error No. 5 — Awards to Mrs. Brandon

For the wrongful death of her husband the trial court awarded Mrs. Brandon $10,-000.00 for his pain and suffering prior to death, $100,000.00 for loss of love, affection and companionship, and $350,000.00 for loss of support. Each of the two children were awarded $40,000.00 for loss of love, affection and companionship.

The defendant argues the amounts awarded are excessive, citing several cases (all decided prior to 1975) in which smaller awards were made. Argument is made that the economist’s projection of loss of support is speculative and loss of support cannot be calculated with mathematical certainty.

Plaintiff Mrs. Brandon contends the awards are too low and should be increased. Plaintiff particularly argues that the economist projected loss of support at $567,-797.89, but the trial court arbitrarily awarded only $350,000.00 for this item of damages.

Jerry Lee Brandon was either unconscious, or conscious but in shock, when first observed immediately after the accident. One witness observed that his eyes were open at first. On the way to the hospital in the ambulance he went into convulsions, showed other signs of serious injury and was making “gurgling” sounds. At the time of admission to the hospital he had no motor reaction but his vital signs were intact. The diagnosis was basal skull fracture and severe cerebral lacerations. Surgery was performed and postoperatively he never regained any signs of motor functions and never had any reflexes. He was pronounced dead in the late afternoon of the next day. The award of $10,000.00 for Brandon’s pain and suffering prior to his death is appropriate, within the trial court’s discretion, and in line with recent awards in similar cases. Compare Marceleno v. State of Louisiana, Department of Highways, 367 So.2d 882 (La.App. 2nd Cir. 1978) and cases cited therein.

Jerry and Beverly Brandon met and married while he was at Louisiana Tech, where he was a varsity basketball player. Upon his graduation in 1973, he became a teacher and coached both basketball and baseball at Glenbrook Academy in Minden. The headmaster at the school described Brandon as having the ability and potential of going on to the college level in his field.

Brandon was 25 years old at the time of his death and his wife was 23. Jonathan Dustin Brandon was born in September, 1974 and Jerry Lee Brandon II was born in September, 1975, after his father’s death. The family relationship was close and happy-

The awards of $100,000.00 to Mrs. Brandon and $40,000.00 to each child for loss of love, affection and companionship are well within the range of the trial court’s discretion and are neither too low or too high.

The award for loss of support represents a substantial reduction from the projection made by Dr. Herbert Hamilton, professor at Southwestern University and an expert actuary. His opinion was soundly based on the usual factors such as earnings at time of death, work life expectancy, appropriate discounts, and the like. Nevertheless, recognizing that projections of future earnings and loss of support are necessarily speculative and cannot be calculated with mathematical certainty, the trier of fact is not required to accept actuarial estimates precisely. We find no abuse of the trial judge’s much discretion in the award for loss of support.

Specification of Error No. 6 — Release of Joint Tort-Feasor

Defendant contends plaintiffs are entitled to recover only one-half of their damages from the Highway Department because they released the insurer of Rodgers, a joint tort-feasor, from liability. The Department cites Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964) and Smith v. Southern Farm Bureau Casualty Insurance Company, 247 La. 695, 174 So.2d 122 (1965).

The Department’s contention is without merit and the cited cases are not applicable to the circumstances of this case. Here, the plaintiffs did not release the estate of Dayton Rodgers, the joint tort-feasor. They did not release Rodgers’ liability insurer, although they did withdraw the money deposited into the registry of the Court by the insurer, who conceded liability and paid its policy limits plus interest. The Department itself released both the estate of Rodgers and the insurance company.

The rationale of Harvey is that where a claimant releases one of two joint tort-fea-sors and thereby deprives the remaining tort-feasor of its right to enforce contribution, the claimant can only recover one-half of his damages against the remaining tort-feasor. Here, plaintiff has done nothing to interfere with the Department’s right to contribution. The Department itself released its rights in this respect. Plaintiffs are entitled to full recovery of their damages from the Department, subject only to a credit for the amount paid by Rodgers’ insurer, which credit was given in the judgment. See: Casimere v. Ryder Truck Rental, Inc., 324 So.2d 855 (La.App. 4th Cir. 1976), writ denied 329 So.2d 453 (La.1976); Mullin v. Skains, 205 So.2d 207 (La.App. 2nd Cir. 1968) and 252 La. 1009, 215 So.2d 643 (La.1968); and Cole v. Golemi, 271 So.2d 65 (La.App. 4th Cir. 1973).

Decree

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

Affirmed.


text:
    A. Taylor HEGAN, Plaintiff-Appellee, v. Evelyn Coburn HEGAN, Defendant-Appellant.
    No. 13749.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.

      Robert P. McLeod, David E. Verlander, III by David E. Verlander, III, Monroe, for defendant-appellant.
    Captan Jack Wyly, Lake Providence, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Plaintiff obtained a divorce from defendant on the grounds of adultery and was awarded custody of their seven-year-old daughter. Defendant appeals only from that portion of the judgment awarding custody of the child to plaintiff. We affirm.

Plaintiff and defendant were married in 1968. In 1971, shortly after the birth of the child, defendant began to suffer from epileptic seizures which required constant treatment and medication, including occasional hospitalization. Coping with this disease, coupled with marital problems, caused severe depression which required treatment by a psychiatrist and a psychologist and resulted in further hospitalization in a Shreveport mental hospital during March and April of 1977. When she was released from this hospital, she did not return to her husband and child in Delhi, but established residence in Bossier City and began seeking employment. This suit was filed in September.

The evidence indicates defendant’s epilepsy is now controlled by medication and that she has learned to adequately cope with her depression problems. She has obtained satisfactory employment and has worked for a period of time, which indicates that she is fully capable and has a permanent position. At the time of trial she had made plans to move to a larger apartment and to provide proper education and day care for the child.

Plaintiff is a pharmacist and owns a home in Delhi. He has cared for the child during defendant’s various illnesses and has had physical custody of the child since defendant entered the mental hospital in March of 1977. The child has attended school in plaintiff’s home parish for the last two years and appears to be happy and well adjusted in her present environment. Additionally, plaintiff’s mother now resides with him in order to help care for the child.

The trial judge, in his written reasons for judgment, weighed the evidence in favor of each party and decided that it would be in the best interest of the child for her to remain in custody of the plaintiff. He noted, however, that the defendant had presented no evidence to support her claim that she had overcome the depression problems which precipitated her most recent hospitalization.

After this judgment was rendered, defendant hired new counsel who took depositions of two of her doctors, each of whom stated that she was now recovered from her mental problems and fully capable of caring for her child. On the basis of this favorable testimony, defendant moved for a new trial and this motion was denied.

Defendant appeals, alleging the trial court erred in the following respects: (1) in failing to grant a new trial to consider the medical evidence contained in the depositions; (2) in failing to apply the “maternal preference rule” as set out in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) and Abreo v. Abreo, 281 So.2d 695 (La.1973); and (3) in applying a “double burden rule” to defendant’s claim for custody, requiring her to show not only her own fitness but to also show the unfitness of plaintiff.

The first assignment of error is clearly without merit. In a minute entry, dated May 4, 1978, the court stated:

Considering the application for a new trial and the evidence and arguments offered it is the Court’s opinion that nothing offered would have changed the result originally found, and it is ordered that the application for a new trial is denied.

(Emphasis added)

It is apparent that the trial judge did consider these depositions and decided no new trial was needed since the result would have been the same. Therefore, defendant’s charge that the trial judge erred in not admitting the depositions for consideration is unfounded.

With regard to the second assignment of error, defendant argues that when the custody of a child of tender years is at issue, the mother should not be denied custody unless she is shown to be morally unfit or otherwise unstable. She further argues that plaintiff had the burden of proving this unfitness, which he failed to carry.

We realize that there has long been a jurisprudential rule recognizing that ordinarily a child’s best interest will be served when custody is awarded to the mother, especially when the child is of tender years, Fulco, supra; and that custody should be awarded to the mother unless she is shown to be unfit, Abreo, supra.

However, we also notice that Civil Code article 157 was amended by Act No. 448 of the 1977 regular session of the Legislature to read, in pertinent part, as follows:

A. In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children. Such custody hearing shall be held in private chambers of the judge. In no event shall the pendente lite custody rights presently existing be affected by this Act. The party under whose care the child or children is placed, or to whose care the child or children has been entrusted, shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died.
* * * * * #
(Emphasis added)

This amendment took effect on September 9, 1977, eleven days before this suit was filed. Under this article as now written, the best interest of the child is the sole determination to be made in the initial granting of custody and the wife is granted no absolute preference in this determination.

We do not hold that a close natural bond between a mother and child of tender years, if present, should not be considered in determining what would be best for the child. We admit, as stated by this court in Brackman v. Brackman, 322 So.2d 314 (La. App. 2d Cir. 1975), that one of the many factors to consider in determining the best interest of children is the desire to “continue them in the care of the parent who, in a normal situation, has provided the degree of continuous care and affection which creates such a close bond that it would be harmful to the children to alter that relationship by granting custody to the father.” We hold that if such a relationship exists between a mother and a child, it should be considered. However, we also hold that the consideration given to this particular factor should not be so great as to only be overcome by a showing on the part of the father that the mother is unfit or unstable. Furthermore, as in this case, this same factor could also weigh in favor of the father.

Having so held, we find the trial judge was correct in his ruling. His written reasons for judgment reflect that he did consider the traditional idea of a “maternal preference” as a factor in his decision. However, he did not find this factor solely determinative in light of the benefits offered by the plaintiff and the fact that the child was presently happy and well adjusted in the environment in which she has lived since her parents separated. We agree with his summation wherein he stated:

The evidence is not such as would justify removing the child from this environment and putting her in a strange place under the care of defendant who may or may not prove capable of assuming these new responsibilities. On the side of Mr. Hegan we have known quantities, while on the other side it is more speculative.

Regarding the third assignment of error, defendant argues that the trial court erroneously applied the law relative to a change in custody rather than that relative to an initial determination of custody. More specifically, she alleges the court required her to prove not only that she could provide a suitable home but also that the present home in which the child lives is detrimental to her welfare. Even a casual reading of the trial judge’s written reasons for judgment indicates that this approach was not taken. Consequently, this assignment of error is also without merit.

The judgment is affirmed. Cost of this appeal is assessed to appellant.


author: PRICE, Judge.

text:
    Lindy HOUSTON, Plaintiff-Appellee, v. George EDGEMON, Defendant-Appellant.
    No. 13753.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    Diehlmann C. Bernhardt, Monroe, for defendant-appellant.
    Madison, Files, Garrett, Brandon & Ha-maker by Merwin M. Brandon, Jr., Frank B. Tugwell, Bastrop, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

George Edgemon appeals a default judgment ordering specific performance by him of a contract to sell a sixty-five acre tract of land located in Morehouse Parish to Lindy Houston.

Plaintiff signed a contract with defendant’s real estate agent to purchase the property for a cash consideration of $74,800 and deposited the sum of $4,500 with the realtor to be applied on the purchase price upon execution of the deed transferring title. After completion of examination of title, plaintiff tendered the balance of the purchase price and called upon defendant to execute the deed to transfer title in accordance with the contract. Defendant refused to complete the transaction, and plaintiff filed this suit for specific performance. The district court rendered judgment by default ordering defendant to carry out the sale as provided by the contract.

On this appeal defendant contends the $4,500 deposit was earnest money under La.C.C. Art. 2463, and therefore plaintiff is not entitled to specific performance, but is only entitled to a return of double the amount deposited. We find the judgment ordering specific performance is contrary to the jurisprudence and reverse.

La.C.C. Art. 2463 provides:

But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to wit: he who has given the earnest, by forfeiting it; and he who has received it, by returning the double.

In interpreting this article the jurisprudence has firmly established the rule that a deposit made pursuant to an agreement to sell is presumed earnest money in the absence of a clearly stated contrary intention. Maloney v. Aschaffenburg, 143 La. 509, 78 So. 761 (1917); Haeuser v. Schiro, 235 La. 909, 106 So.2d 306 (1958); First National Bank of West Monroe v. Campbell, 242 So.2d 366 (La.App. 2d Cir. 1970); Troxler v. McFarlain, 308 So.2d 808 (La.App. 4th Cir. 1975).

Counsel for plaintiff has made a very forceful argument that this line of jurisprudence is a misconstruction of the language and intent of C.C. Art. 2463, and that it results in a thwarting of the true intentions of the contracting parties in many instances. Several recognized legal scholars of the present and past share in this view. See 2 Litvinoff Obligations in Louisiana Civil Law Treatise § 123 (1975); Smith, An Analytical Discussion of the Promise of Sale and Related Subjects, Including Earnest Money, 20 La.L.Rev. 522, 541-42 (1960). See also 2 M. Planiol Traité élémentaire de droit civil 1387-90 (La. State L. Inst, trans. 1959).

Nevertheless, we feel constrained to follow the rule prevailing for over sixty years in the unbroken line of jurisprudence and hold that absent a clearly stated contrary intent, a deposit in a contract to sell is to be considered the giving of earnest under C.C. Art. 2463, and specific performance by the seller is not an available remedy.

The instant contract does not express a clear intent against the giving of earnest money by the deposit made with the defendant’s agent. The failure of defendant to tender to plaintiff the sum equal to double the amount of deposit does not alter the nature of the contract and does not, in itself, show a contrary intent to the acceptance of earnest by the defendant.

For the foregoing reasons, the judgment is reversed and plaintiff’s demands against defendant are dismissed. The right to recover double the amount deposited as earnest money from defendant in an appropriate action is reserved to plaintiff. All costs of this proceeding including this appeal are assessed to plaintiff.


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    T. A. ROBINSON, III, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION et al., Defendants-Appellees.
    No. 13755.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.

      Glen H. Smith, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for General Motors Corp. and Royal Globe Ins. Co.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones, Shreveport, for Itaseo, a Division of Winnebago Industries, Inc., defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Plaintiff appeals from a judgment granting defendants’ motion for summary judgment. We reverse in part, affirm in part and remand.

Plaintiff’s recently purchased motor home and its contents were destroyed by fire causing an alleged loss of $26,783.51. Plaintiff’s insurer, Royal Globe Insurance Company, paid plaintiff $19,135 for damage to his motor home under the property damage coverage of the policy. Aetna Casualty and Surety Company reimbursed plaintiff $3,430 for some of the destroyed contents under a homeowners policy. Plaintiff then brought this suit to recover his net loss of $4,218.51 against the following defendants:

(1) General Motors Corporation, the manufacturer of the engine and chassis for the motor home;
(2) Royal Globe Insurance Company, the insurance carrier of General Motors; (Royal Globe was coincidentally the insurer of plaintiff)
(3) Itaseo, the manufacturer of the motor home;
(4) Great American Insurance Company, the insurance carrier of Itaseo.

Royal Globe intervened alleging it had paid plaintiff $19,135 under the property damage coverage of a policy it had issued to plaintiff and was subrogated to plaintiff’s rights against the defendants. Aetna filed a similar petition of intervention for the amount it paid plaintiff under his homeowners policy.

General Motors and Royal Globe then filed a motion for summary judgment against plaintiff. The thrust of this motion was that when plaintiff received the $19,-135 from Royal Globe he signed a “receipt for payment” without reserving his rights against any other parties. Movants contended this release had the effect of discharging all parties solidarily liable with Royal Globe by virtue of La.Civil Code article 2203 which provides, in pertinent part:

The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
* * * * # *

Attached to the motion was the proof of loss form plaintiff had submitted to Royal Globe for payment under his liability policy. On this form plaintiff signed a receipt for payment which stated:

Received of the Royal Globe Insurance Company the sum of ninteen (sic) thousand-one hundred-thirty five dollars ($19,135.00) in full satisfaction and indemnity for all claims and demands upon said company on account of said loss and damage and payment to Royal Globe Insurance Company is hereby authorized.

Itasco subsequently filed a similar motion for summary judgment alleging it too was released under article 2203, since plaintiff had released Royal Globe, a solidary obligor, without reservation of rights.

Plaintiff filed an opposition to the motions which was accompanied by his affidavit in which he stated the receipt for payment was given solely in connection with his claim against Royal Globe as his insurer and that he was unaware at the time that the company was also the insurer of General Motors. He further stated the company’s agent advised him the money was being paid under his personal liability policy and he was led to believe the release would put him in a better position to recover the total loss because Royal Globe would pursue a claim against General Motor’s insurer.

Plaintiff also alleged that La.C.C. art. 2203, relied upon by defendants, was inapplicable because Royal Globe, in its capacity as his insurer, was not a solidary obligor with the defendants. Plaintiff pointed out that Royal Globe filed an intervention in his suit seeking recovery of the property damage loss paid to plaintiff under his policy. Contending the motion for summary judgment was misleading and not presented in good faith and was presented solely for purposes of delay, plaintiff prayed for reasonable expenses, including attorney fees, under La.Code of Civil Procedure article 967.

Without assigning written reasons, the trial court granted defendants’ motion for summary judgment and dismissed plaintiff’s suit. This judgment is clearly erroneous.

Royal Globe stands in a position of dual responsibility toward plaintiff — (1) as his insurer and, (2) as the liability insurer of General Motors. Only in its capacity as insurer of General Motors is the company a solidary obligor with the other defendants toward plaintiff within the terms of article 2203.

Although defendants’ motion is unclear, they apparently contend the release executed by plaintiff was intended to discharge Royal Globe not only in its capacity as plaintiff’s insurer but also as the insurer of General Motors. Plaintiff’s affidavit and opposition establish that the receipt for payment was only intended to discharge the company in its capacity as his insurer, and that he was unaware at that time that Royal Globe also insured General Motors. Plaintiff’s position is supported by the receipt of payment contained on a proof of loss form submitted by plaintiff for payment under his insurance policy. Moreover, Royal Globe’s petition of intervention in plaintiff’s suit clearly states that the company paid plaintiff $19,135 under the property damage coverage of a policy of insurance issued to plaintiff and that the company was exercising its subrogation rights. Thus, it is clear that defendants’ unsupported assertion in the motion for summary judgment that plaintiff released Royal Globe in both its capacities is untenable.

In opposing the motion for summary judgment plaintiff requested an award for reasonable expenses, including attorney fees, in accordance with La.Code of Civil Procedure article 967, which provides in pertinent part:

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If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt. (Emphasis added)

Plaintiff’s contention that the defendants’ motion for summary judgment was misleading and not presented in good faith and solely for the purpose of delay probably has merit. However, defendants did not present any affidavits in connection with their motion. By its express terms the statute only applies to affidavits filed in bad faith or for purposes of delay. Our research reveals no Louisiana or federal cases (interpreting Fed.R.Civ.P. Art. 56(g), the counterpart to La.C.Civ.P. art. 967) specifically dealing with the question of whether reasonable expenses may be awarded in the situation in which a motion, without affidavits, is filed in bad faith or solely for purposes of delay. Although the equities are with plaintiff, this is a question for the legislature to resolve. Accordingly, we deny plaintiff’s request for reasonable expenses and attorney fees.

The judgment sustaining defendants’ motion for summary judgment and dismissing plaintiff’s suit is reversed; the motions are overruled and the case is remanded for further proceedings. Plaintiff’s demands for expenses and attorney fees are denied. Defendants are cast with the cost of this appeal; all other costs to await the final determination of the cause.

      . In Alart Associates, Inc. v. Aptaker, 279 F.Supp. 268 (D.C.N.Y.1968); appeal dismissed 402 F.2d 779 (C.A.2d 1968), expenses and attorney fees were apparently awarded under Fed.R. Civ.P. art. 56(g) after defendants filed a frivolous and dilatory motion for summary judgment. The issue of the propriety of such an award in the absence of affidavits filed in bad faith or for purposes of delay was not discussed. Accordingly, we do not find this case dispositive of this issue. But see Wright and Miller, Federal Practice and Procedure: Civil § 2742, text at n. 59.

      . Wright & Miller, Federal Practice and Procedure: Civil § 2742 point out:
      In the unusual case in which a motion is filed in bad faith or solely for purposes of delay but no supporting affidavits are filed, the rule technically does not apply. In this situation, alternative sanctions are available, such as those provided in Section 1927 of Title 28. The intent of the rule seems to be that any party on whose behalf affidavits are filed is a “party employing them” and thus subject to the sanctions prescribed in subdivision (g).
      28 U.S.C. § 1927 provides:
      Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs.
      In Louisiana there is no alternative remedy to fill the gap created by article 967.


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    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Claude A. DANCE, et ux., Defendants Appellees.
    No. 13759.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.

      William W. Irwin, Jr., Johnie E. Branch, Jr., Bernard L. Malone, Jr., Bryan Miller, Baton Rouge, for plaintiff-appellant.
    Wm. H. Cook, Jr., Shreveport, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

The State of Louisiana, Department of Highways, expropriated a .195 acre tract out of a .495 acre triangular tract of land owned by defendants located at the intersection of the Floumoy-Lucas and Woolworth Roads in Caddo Parish. The Department deposited $1,365.00 as the value of the property taken and nothing for severance damages. Defendants answered, claiming $4,247.00 as the value of the property taken and $4,900.00 for severance damages.

After trial, the district court found the value of the property was $7,000.00 per acre based on a highest and best use for industrial purposes, as testified to by the Department’s appraisers, and awarded $1,365.00 for the .195 acre tract taken. The court further found the remaining .3 acre tract had no value and awarded severance damages based on $7,000 per acre, or $2,100, for a total award of $3,465.00. The court also awarded $500 as attorney’s fees and $400 as an expert witness fee for the defendants’ appraiser.

The Department appealed, specifying that the trial court erred: (1) in awarding 100% severance damages although none of the experts testified the remaining property was worthless; (2) in awarding $500 attorney’s fees because defendants did not prove their claim; and (3) in awarding $400 expert witness fee because defendants’ appraisers did not aid the court in resolving the ease. Defendants argue the trial court was correct in its award of severance damages. Alternatively, defendants argue that even if the award of severance damages was excessive, the total judgment for just compensation should be affirmed because the trial court’s finding of value was too low.

The district court’s finding that the property’s highest and best use was industrial and that its value was $7,000 per acre is amply supported by the evidence. The opinions of the plaintiff’s appraisers to this effect were persuasive and well documented by data as to neighborhood characteristics, population in the area, comparable sales, and the like. The opinion of the defendants’ appraiser that the highest and best use of the property was commercial and that its value was fifty cents per square foot was not supported by comparable sales in the area or other data. We affirm the trial court’s finding of before-taking value for the reasons expressed in more detail in the court’s written reasons for judgment.

The trial court erred, however, in awarding severance damages based on a 100% diminution in the after-taking value of the remaining property. A trial court may not substitute its opinion for that of experts who testified at the trial. State Department of Highways v. Eubanks, 345 So.2d 533 (La.App. 3d Cir. 1977). Neither the Department’s appraisers nor the defendants’ appraiser expressed the opinion that the remainder was worthless. The Department’s appraisers were of the opinion the remainder retained its before-taking value and the defendants’ appraiser was of the opinion there was a 75% diminution in value. All appraisers were of the opinion the remainder could be used for some limited industrial or commercial purposes, such as for billboard advertising. It does not appear, as argued by defendants, that use of this property in an industrial area for advertising purposes would be prohibited by LSA-R.S. 48:461 et seq.

It is only reasonable that the remaining property, of very small size, irregularly shaped, with reduced road frontage, and with reduced potential usages, has substantially less value after the taking than before the taking. The 75% diminution estimate of defendants’ appraiser seems reasonable.

Based on 75% of the before-taking value of $7,000 per acre, severance damages to the .3 acre remainder are $1,575 rather than $2,100 as fixed by the trial court, amounting to a reduction in the award of $525.00.

The amount of compensation deposited in the registry of the court is less than the amount of compensation awarded by the judgment as amended and reduced herein. Reasonable attorney fees may be awarded, but cannot exceed 25% of the difference between the award ($2,940) and the amount deposited ($1,365). LSA-R.S. 48:453 E. The award of attorney’s fees is reduced from $500 to $393.75, which is 25% of the difference of $1,575.00.

The $400 award for the fee of defendants’ expert witness is well within the trial court’s discretion, even though the opinion of the appraiser was accorded little weight in the ultimate resolution of the case.

For the reasons assigned, the judgment of the district court is amended to reduce the amount awarded to the defendants from $3,465 to $2,940 and to reduce the award of attorney’s fees from $500 to $393.75, and as amended is affirmed at appellant’s costs.

AMENDED AND AFFIRMED.


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    SHREVEPORT INDEPENDENT RETAIL GROCERS ASSOCIATION, Plaintiff, Appellant, v. CITY OF SHREVEPORT et al., Defendants-Appellees.
    No. 13765.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.

      Michael W. Beam, Bossier City, for plaintiff-appellant.
    Charles C. Grubb, Roland J. Achee, Neil Dixon by Roland J. Achee, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff filed suit seeking to have certain ordinances of the City of Shreveport relating to Sunday liquor sales declared unconstitutional and their enforcement enjoined. The trial court sustained defendants’ exception of no cause of action and we affirm.

Plaintiff seeks to have the following ordinances declared unconstitutional:

Section 3-12. Dealers to be Closed Between Certain Hours on Sunday.
Except as is now or may hereafter be provided in Section 3-13 hereof, it shall be unlawful for any retail dealer or wholesale dealer to be open for business in the City between the hours of 2:30 a. m. Sunday and 7:00 a. m. Monday. Section 3-13. Sunday Sales at Certain Establishments.
******
B. Bona Fide Private Clubs.
(1) A bona fide private club, as defined herein, shall be permitted to serve alcoholic beverages on Sundays but only between the hours of 12:00 noon and 12:00 midnight. Such a bona fide private club, however, may serve only the types of alcoholic beverages that it is licensed to serve at other times.
(2) Any bona fide private club designed to serve alcoholic beverages on Sundays in accordance with this section shall first apply to the Commissioner of Public Safety for a Sunday Alcoholic Beverage Permit for Private Clubs. Any applicant for such a permit shall furnish such information relative to its operation as may be required by the Commissioner of Public Safety, including, but not necessarily limited to, Articles of Incorporation and other documents evidencing that the applicant is a bona fide private club as defined herein. The Commissioner of Public Safety shall arrange for a representative of his Department to inspect the applicant’s premises to determine whether a bona fide private club as defined herein is being operated on such premises. If the Commissioner of Public Safety is satisfied that a bona fide private club is being operated on the premises of the applicant, he shall issue a Sunday Alcoholic Beverage Permit for Private Clubs which shall be displayed in a conspicuous place on the premises of the applicant. Any permit issued pursuant to this section shall be subject to revocation of suspension for any ground that a dealer’s basic liquor permit may be revoked or suspended and also if the applicant shall fail to continue to operate a “bona fide private club” as defined herein.
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(4) For the purpose of this section a “bona fide private club” is defined as a voluntary, incorporated or unincorporated association of persons for purposes of a social, literary, political, or other noncommercial nature which is patronized only by its members and any guests which have been specifically invited by and accompany such members. Equitable ownership of such club must be held exclusively by its members. It must be “non-profit” in nature in that it must not be designed primarily to pay dividends on invested capital nor incomes to its members. After the issuance of the permit the holder thereof must at all times meet the requirements hereof in order to be considered a bona fide private club as defined herein.
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Section 3-13. Sunday Sales at Certain Establishments.
C. Bona Fide Private Parties Held on Sundays on the Premises of Retail Dealers of Alcoholic Beverages.
(1) Notwithstanding anything contained in Sections 3-11 and 3-12 hereof, it shall be lawful for any retail dealer of alcoholic beverages otherwise licensed to allow consumption on the premises to open and sell, serve, dispense, or otherwise dispose of any alcoholic beverages between the hours of 12:00 noon and 12:00 midnight for the purpose of conducting a bona fide private party as defined herein and on the terms of the conditions contained herein.
(2) Any retail dealer desiring to open on Sunday between the hours of 12:00 noon and 12:00 midnight and sell, serve, dispense, or otherwise dispose of any alcoholic beverages during that time for the purpose of conducting a bona fide private party as defined herein shall first apply to the Commissioner of Public Safety for an Alcoholic Beverage Permit to Sell, Serve, Dispense, or otherwise Dispose of any Alcoholic Beverage at a Private Party on Sunday. Any application for such a permit shall furnish such information relative to the contemplated private party as may be required by the Commissioner of Public Safety including, but not necessarily limited to, identification of the host(s) for the contemplated party, the number of invited guests, the proposed hours of the party, together with a statement that no one not specifically invited to the party will be allowed admittance thereto. All applications for such permits shall be submitted to the Commissioner of Public Safety no later than (10) days prior to the proposed time and date for such a private party. Any permit issued pursuant to this section shall be subject to revocation and suspension for any ground that a dealer’s basic liquor permit may be revoked or suspended.
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(4) For the purpose of this article, a “bona fide private party” is defined as a party hosted and sponsored by someone other than the retail dealer of alcoholic beverages and for which a written guest list is prepared, invitations are distributed, and no one other than specific invitees thereto shall gain admittance.

Plaintiff alleges these ordinances violate the equal protection clause of the 14th Amendment of the United States Constitution and Article 1, Section 3 of the Louisiana Constitution. This allegation is based on a claim that the ordinances create a distinction between businesses open to the general public and private clubs or parties without a reasonable basis for the distinction.

Plaintiff further alleges these ordinances violate the First Amendment of the United States Constitution and Article 1, Section 8 of the Louisiana Constitution in that they were enacted on the basis of religious belief and, as such, constitute a prohibited establishment of religion.

The trial court, on an exception of no cause of action filed by the defendants, found there is a reasonable basis for the distinction created by the ordinances. Consequently, it held the ordinances to be constitutional on their face and sustained the exception.

Plaintiff appeals, contending the trial court erred in sustaining the exception based on a finding of a reasonable basis for the distinction created by the ordinances. It further contends the court erred in not considering the legislative intent when determining the constitutionality of the ordinances.

Plaintiff’s first specification of error is without merit. This court, in Gifford v. City of Shreveport, 291 So.2d 419 (La.App. 2nd Cir. 1974), stated the following with regard to the requirements for enjoining the enforcement of a penal ordinance:

Louisiana courts have held consistently that three circumstances must exist concurrently before enforcement of a penal ordinance may be enjoined: (1) the invasion of a property right in the plaintiff; (2)a threatened irreparable injury for which there is no adequate remedy at law; and (3) a manifestly unconstitutional ordinance. See Olan Mills, Inc. of Tennessee v. City of Bogalusa, 225 La. 648, 73 So.2d 791 (1954) and cases cited therein; Warner v. Clarke (La.App. 2d Cir. 1970) 232 So.2d 99 and cases cited. If any one of the three enumerated conditions is absent the judgment of the lower court must be affirmed.

In the present case, the trial court found the third circumstance, a manifestly unconstitutional ordinance, to be lacking.

We agree. The jurisprudence has clearly established that ordinances prohibiting the sale of alcoholic beverages on Sunday are constitutional. Corporation of Minden v. Silverstein & Dittner, 36 La.Ann. 912 (1884); City of Baton Rouge v. Rebowe, 226 La. 186, 75 So.2d 239 (1954); State v. Trahan, 214 La. 100, 36 So.2d 652 (1948). The basis for these ordinances has been stated to be the desire to ensure to the public at large a day of rest free from what local lawmakers consider antagonistic influences. Corporation of Minden v. Silverstein & Dittmer, supra. Since local laws prohibiting liquor sales on Sunday have been held valid as protecting the public, the fact that such a law exempts private establishments does not render it invalid. We do not find it unreasonable for a local governing authority to prohibit sales to the general public and at the same time permit sales at private clubs and parties, particularly when these clubs and parties are under strict government scrutiny and regulation. This minimizes the effect of this prohibition on the exercise of personal freedom while at the same time affording ample protection to the public at large.

Plaintiff’s demand for a declaratory judgment was also properly dismissed. In Theodos v. Bossier City, 232 La. 1059, 95 So.2d 825 (1957), the court held that a civil court abuses its discretion in entertaining a suit for declaratory judgment when criminal action is pending against plaintiff involving the identical question on which plaintiff asks declaratory relief. Plaintiff’s petition alleges there are pending charges against its members arising out of the violation of the ordinances in question. Consequently, a declaratory judgment in this case would be improper.

Plaintiff’s second specification of error is also without merit. Even if the trial court had considered the legislative intent in determining the constitutionality of the ordinances, the result would have been the same. As stated above, our courts have held that Sunday liquor laws have a purpose distinct from the establishment of a religion through mandatory observance of the Christian Sabbath. As the court stated in Corporation of Minden v. Silverstein & Dittmer, supra:

While it may be that the reason for selecting Sunday as the day on which the liquor traffic is prohibited, rests on the universally admitted belief in the Christian world that that day is the Sabbath of the Lord, and that it is the day of rest, yet the regulation might well be supported on reasons having no connection with Sunday as a Sabbath.

Having a valid purpose apart from an enforced observance of the Christian Sabbath, these ordinances are not an establishment of religion prohibited by the United States and Louisiana constitutions.

The judgment is affirmed at appellant’s cost.