text:
    MID-SOUTH CONTRACTORS, INC., Plaintiff-Appellant, v. J. E. RATCLIFF, Defendant-Appellee.
    No. 5224.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 19, 1976.

      Burnett, Harrison, Sutton & Walker, by Stephen V. Calloway, Shreveport, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by Henry B. Bruser, III, Alexandria, for defendant-appellee.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HOOD, Judge.

Mid-South Contractors, Inc., instituted this suit to recover the profits it allegedly would have received under a contract entered into with defendant, J. E. Ratcliff, had plaintiff been permitted to complete the contract. Defendant Ratcliff filed a reconventional demand seeking to recover damages for an alleged breach of contract by plaintiff. Judgment was rendered by the trial court in favor of defendant, rejecting plaintiff’s demands and condemning Mid-South to pay to Ratcliff the sum of $12,610.20 as damages. Plaintiff Mid-South appealed.

The issues presented are (1) whether the trial court erred in refusing to grant plaintiff a continuance, and (2) whether Mid-South breached its subcontract with Ratcliff.

In November, 1972, the Rapides Parish School Board awarded a contract to defendant Ratcliff, a general contractor, to renovate the Boyce High School. Ratcliff then entered into a subcontract with Mid-South, under the terms of which the latter agreed to do the painting work on the project, pursuant to plans and specifications prepared by the architects, for a contract price of $16,490.00.

The subcontract entered into between the parties was evidenced by a letter from Mid-South to Ratcliff dated November 24, 1972, submitting a bid for the painting work, and a letter from Ratcliff to Mid-South, dated December 20, 1972, in which defendant accepted plaintiff’s bid, with one mutually acceptable modification. Rat-cliff’s letter to plaintiff contains the following statements:

“All matters within the scope of this contract shall be governed by the necessary conditions of the specifications and by the provisions of my contract- with the Owner. You are to comply with all governmental regulations concerning the health and safety of your employees and the public.
“We expect to start at an early date on the work in the Gymnasium Building and to complete that part by June 1, 1973. Most of the work in the Classroom Building will have to be done between June 1, 1973 and August 15, 1973. Please mark your records so that you will plan to have men ready to complete the work as outlined above.”

The evidence shows that Mid-South did some painting in the gymnasium building in April and May, 1973, but that the painting work on that building was not completed by June 1, 1973, as required by the contract. Also, despite repeated demands by employees of defendant, Mid-South failed to begin the painting of other parts of the project by the middle of July, when it became apparent that it would be impossible even with due diligence for plaintiff to complete all of the painting work by August 15, 1973.

After plaintiff had failed to resume work on the gymnasium and to commence painting the rest of the project following repeated demands made by representatives of defendant to do so, Robert T. Ratcliff, an authorized employee of the defendant’s construction company, sent a “mailgram” to Mid-South on July 14, 1973, advising that “because of your failure to timely perform your subcontract with J. E. Ratcliff General Contractors reference Boyce High School job, it is terminated this date.” Plaintiff performed no more work on the school renovation project after that mail-gram was received by it.

Immediately after terminating the contract in that manner, Ratcliff engaged another painting contractor, Raymond Prest-ridge, to complete the painting work on the project. Prestridge began working immediately, employing six to eight painters who at times worked six and seven days a week, nine or ten hours a day. Despite what we consider to be diligent efforts on the part of Prestridge, the latter was unable to complete the painting work on the entire project by August IS, 1973, as required by the contract, but instead the painting work, was actually completed the latter part of December, 1973, while school was in session.

Mid-South filed this suit on December 12, 1974, to recover $3500.00, being the profits which it allegedly would have earned under the subcontract if it had been permitted to finish the job. Defendant answered, alleging that Mid-South had breached the contract by failing to perform the painting work required by the subcontract, and it reconvened for damages in the amount of $12,610.20, being the additional cost allegedly incurred by Ratcliff in having the painting work completed.

At a pre-trial conference held on February 13, 1975, the case was scheduled for trial on May 27, 1975. When the case came up for trial on the last mentioned date, plaintiff filed a motion for a continuance, alleging as grounds therefor: (1) That plaintiff’s attorney had withdrawn as its counsel in this case and from the practice of law on April 30, 1975; (2) that important records of Mid-South had been subpoenaed by Ratcliff and by the United States District Court for the Western District of Louisiana, thus making it impossible for Mid-South to properly prosecute its original demand or defend itself in the reconventional demand without serious and undue risk; and (3) that the president of Mid-South had been subpoenaed by the United States District Court to appear before a Federal grand jury on May 28, 1975, and thus would not be able to be present during the trial of the instant suit.

The trial court denied plaintiff’s motion for a continuance, and the case was tried on its merits on May 27, 1975. Following that trial, the trial judge concluded that plaintiff Mid-South had breached the painting subcontract which had been entered into between the parties, and he accordingly rendered judgment in favor of Ratcliff and against Mid-South for the amount demanded in defendant’s reconven-tional demand. Mid-South appealed.

Motion for Continuance

Plaintiff contends, first, that the trial court erred in refusing to grant its motion for a continuance and that the judgment thus should be reversed and the case remanded for a new trial.

From the time the suit was filed until April 30, 1975, plaintiff was represented by the firm of Burnett, Harrison, Sutton and Walker, a professional law corporation, with Michael H. Wainwright, a member of that firm, handling the case for plaintiff. On April 30, 1975, Wainwright left that firm and he discontinued representing plaintiff in this suit on that day. Thereafter, although the same law firm, Burnett, Harrison, Sutton and Walker, continued to represent plaintiff, the files were turned over to Stephen V. Calloway, a member of the same firm, and Mr. Callo-way has handled the case for plaintiff since that time.

The record shows that the deposition of Harry Phillips, the superintendent of painters for plaintiff, was taken on March 12, 1975. The deposition of Malcolm Fu-qua, supervisor of the Boyce High School project for defendant, was taken on May 9, 1975, while plaintiff was being represented by its new counsel. And, the oral depositions of Dan Holt Hicks, James E. Ratcliff and Robert T. Ratcliff, all of whom occupied managerial positions with defendant construction company and had personal knowledge of the facts which are relevant to the issues presented here, were taken on May 14, 1975. Plaintiff’s new counsel, Calloway, was present and participated in-the taking of the last mentioned depositions.

Much of the relevant evidence was in the record before trial, therefore, and most of it was available to plaintiff’s new counsel, Mr. Calloway, as soon as it would have been available to Mr. Wainwright. The issues presented in this case are not unusually complicated. All of the files remained in the same law firm, so no difficulty was experienced by plaintiff’s new counsel in obtaining access to those files. In our opinion, plaintiff has failed to show that it was prejudiced or harmed in any way by the withdrawal of its original counsel almost four weeks before the trial.

The second ground alleged by plaintiff to support its demand for a continuance was that important records of Mid-South had been subpoenaed by Rat-cliff for use in the trial of this case, and by the United States Attorney for the Western District of Louisiana, for use in a proceeding which was pending in the United States District Court.

The record shows that the above records were subpoenaed by the United States Attorney to be produced in the Federal District Court on May 19, 1975. The subpoena duces tecum issued in response to Rat-cliff’s demand ordered that the records be produced in the trial court on May 27, 1975, when this case was scheduled for trial. The records thus were available to plaintiff almost up to the date of trial. The president of plaintiff company testified, however, that he did not have access to the subpoenaed records prior to the trial, because the CPA firm which had possession of those records would not release them to plaintiff. The record does not show that plaintiff took any steps prior to the trial to get possession of its own records, or at least to examine them, by means of discovery procedure, by requesting a subpoena duces tecum, or by other appropriate legal proceedings.

It does not appear to us that the records which were subpoenaed are material to the issues presented here. In any event, however, the trial judge contacted an assistant United States Attorney before the trial began and arranged for plaintiff’s records to be made available at the trial. We find nothing in the record which indicates to us the plaintiff was prejudiced by being required to go to trial under those circumstances. Since plaintiff took no legal steps to get possession of its records prior to trial, and the evidence does not show that it has been prejudged by the lack of access to them, we cannot say that the trial judge erred in denying the motion for a continuance on that ground.

Plaintiff contends next that it was entitled to a continuance because Mr. Louie Howard, president of plaintiff company, could not be present after the first day of the trial. The record shows that the trial was completed in one day. Mr. Howard was present and he testified at the trial.

Finally, although not alleged in its motion for continuance, plaintiff contends that it was entitled to have the trial delayed because of the absence of a material witness, John M. Gingles, Jr.

At the beginning of the trial plaintiff’s counsel stated that he had subpoenaed some witnesses from Shreveport, but that the subpoenas had not been served. He nevertheless made arrangements for one witness, Gingles, a resident of Shreveport, to accompany him to the trial, but stated that this witness later changed his mind and refused to do so. The trial judge indicated that the case would be held open to take Mr. Gingles’ testimony at a later date. At the trial, however, plaintiff presented its case in chief and then rested, without requesting that the case be left open for the testimony of Gingles.

The evidence shows that Gingles worked for plaintiff as an “estimator” in May and June, 1973, and that he had some contacts with defendant, or his employees, while the Boyce High School renovation project was being conducted. Plaintiff contends that his testimony was essential to support its claim that defendant failed to supply color selections to plaintiff promptly, and that plaintiff was prejudiced in being compelled to go to trial without that witness.

The trial judge indicated at the beginning of the trial that the case would be left open for the testimony of Gingles. Plaintiff rested its case without reserving the right to obtain the testimony of Gingles later, however, and it indicated at the close of the trial that it was ready for the case to be decided by the trial court. It appears to us that the testimony of Gingles, assuming that it would be most favorable to plaintiff, would be cumulative and would not alter the results of the trial. Under those circumstances, we hold that the trial judge did not err in denying plaintiff’s motion for a continuance on that ground, or in deciding the case at the conclusion of the trial.

The refusal of the trial court to grant a continuance on discretionary grounds will not be disturbed on review in the absence of a clear abuse of that discretion. Manley v. Manley, 203 So.2d 832 (La.App. 2 Cir. 1967); Evans v. The Travelers Insurance Company, 220 So.2d 117 (La.App. 3 Cir. 1969).

We find no abuse of discretion on the part of the trial court in this case in refusing to grant plaintiff the continuance which it sought.

On the Merits

Plaintiff contends that it was attempting to perform its obligations under the subcontract, but that it was prevented from doing so by the “inactions and failures” of defendant Ratcliff. Its principal argument is that Ratcliff failed to provide plaintiff with complete color data timely, that plaintiff could not perform its duties under the contract without that information, and that defendant’s failure to perform its duties thus was the cause of plaintiff’s delay.

The evidence shows that in April, 1973, portions of the renovated gymnasium of the Boyce High School Building were ready to be painted. At that time, employees of Ratcliff began calling on Harry Phillips, superintendent of painters for plaintiff Mid-South, requesting that he get painters on the job so the painting could be ■completed within the time specified in the contract. The entire gymnasium and the exterior of the classroom building were completed and were ready to be painted- in May, 1973. The contract called for the painting of the gymnasium to be completed by June 1, 1973. Phillips testified that his painters did some priming work in the gymnasium in April and the first half of May. The record shows that the only work which plaintiff did on the job was some priming work in the locker room area and on some doors in the gymnasium, and some priming work on the metal copping coves on the perimeter of the roof of the gymnasium. The evidence also shows that defendant had to remove and replace some doors in the gymnasium because he could not get plaintiff to paint them for several weeks after they were installed, and the doors absorbed water and warped due to the fact that they had not been painted.

Mid-South, apparently conceding that it did not begin painting the building early enough to enable it to complete the job within the required time, explains that it was unable to start work on the project earlier because of defendant’s delay in getting the color selections to plaintiff.

The record shows that defendant Rat-cliff sent a partial color selection for the gymnasium to Mid-South on May 30, 1973, and that he sent a second color selection to plaintiff relating to classrooms on June 18, 1973. Mid-South acknowledges that it received the partial color selection on May 30, and that it received a letter purporting to transmit other color selections on or about June 18. It contends, however, that color selections were not enclosed with the last mentioned letter. Regardless of whether color selections were enclosed in the second of those two letters, the evidence shows that color selections were available to plaintiff at the job site and in the office of plaintiff, and that the information which plaintiff needed relating to colors was readily available to it by merely going to the work site or to the office of the general contractor. Plaintiff apparently made no effort to get these color selections. We note also that although plaintiff maintains that it could not do even the priming until it received the color selections, it actually did some priming work before the time it admits having received those selections. And, the evidence indicates that it did no further priming or painting after it admittedly received the partial color selections on May 30.

Mr. Gingles, estimator for Mid-South, wrote a letter to defendant Ratcliff on July 3, 1973, requesting “plans and specifications” for the project, “so that we can plan and schedule our portion of the work.” No mention was made in that letter of color selections, and plaintiff made no explanation as to why the bulk of the painting work had not been completed, or even started, by that time. Defendant promptly forwarded a copy of the plans and specifications, as requested, although they had been available to plaintiff at the job site long before that time. No further painting work was performed on the job thereafter, and on July 14, 1973, defendant sent the above mentioned mailgram to plaintiff terminating the contract.

Mr. Howard, president of plaintiff company, was unable to explain why plaintiff waited until July 3, 1973, to ask for the plans and specifications, that being long after a major part of the painting work should have been completed. And the testimony of Robert Ratcliff and defendant’s supervisor of construction is convincing to the effect that plaintiff never informed defendant that it needed or had not received the color selections.

Phillips, plaintiff’s supervisor, testified that very little painting work had been done on the job prior to the time the contract was terminated, “probably no more than five or six man days work.” He also estimated that from ten to twelve weeks would be required to complete the painting called for by the subcontract. It is apparent from his testimony that the painting work on the classroom buildings could not have been completed by August 15, as provided in the contract, even if plaintiff had started working when it first requested the “plans and specifications” on July 3, 1973.

We have already pointed out that Mr. Prestridge, who was engaged by defendant to complete the painting, was not able to finish it until some time in December, 1973, although we find that he worked diligently in attempting to do so. Plaintiff had some financial troubles while this subcontract was in effect, and it also experienced some difficulty in getting painters to work on the project. Those factors, none of which were attributable to defendant, may have contributed in some measure to plaintiff’s failure to begin work on the project timely. Whatever the reason, however, it is clear that plaintiff delayed the painting work for such a long period of time that it would have been impossible for it to have completed the work timely, even if it had begun to work diligently on July 14 when the subcontract was terminated.

The trial judge concluded that:

“The Court finds as a fact that the Plaintiff had available to him color selections which he could have used and with due diligence he could have obtained further color selections in time to perform this contract.”
“ . . . . This was a contract in which time was of the essence. The School Board and RATCLIFF both were attempting to complete this job prior to the beginning of the school year of 1973, which would be in September. According to the evidence MID-SOUTH did not have men on the job site despite repeated efforts by RATCLIFF, his foreman, Mr. Fuqua and his assistant, Mr. Hicks.”
* * * * * *
“The Court is of the opinion that Mr. Ratcliff was justified in cancelling this contract. Time was of the essence in this contract and he was having great difficulty getting the subcontractor, MID-SOUTH, to place painters on the job to complete the project . . . ”
******
“. . . The Court finds as a fact the Contract was breached by MID-SOUTH when they failed to perform the work as they were obligated to do, and that Mr. Ratcliff’s cancellation of the contract was justified.”

We agree with the trial judge that the subcontract was breached by Mid-South, and that defendant was justified in terminating that contract.

Plaintiff contends, however, that the trial judge erred in awarding damages to Ratcliff, since there was no . active breach of contract and plaintiff was not put in default. To support that argument, plaintiff quotes and relies on the following provisions of LSA-C.C. art. 1933 :

“Art. 1933. When the breach has been passive only, damages are due from the time that the debtor has been put in default, in the manner directed in this chapter.
“The rules contained in this and the preceding articles, however, are subject to the following exceptions and modifications :
“1. When the thing to be given or done by the contract was of such a nature, that it could only be given or done within a certain time, which has elapsed, or under certain circumstances, which no longer exist, the debtor need not be put in legal delay to entitle the creditor to damages.”

The trial judge found that time was of the essence of this contract between the parties, and we think the evidence supports that finding. The specifications for the work, the contract between the School' Board and Ratcliff, and the letter agreement between Ratcliff and Mid-South provide that the work on the gymnasium was to be completed by June 1, and that the work on the Classroom Building was to be completed by August 15, 1973. The work was being performed on a school building, and it was of great importance that it be completed during the summer months, before school resumed in the fall.

Since time was the essence of the contract, the requirement of a putting in default is not necessary. Payne v. Foster, 26 So.2d 237 (La.App.Orl.1946); Brown Carriage Co. v. Coreil, 7 La.App. 411 (1928); McMillan v. Mills, 3 La.App. 9 (1925).

Mid-South argues, however, that a putting in default was necessary in this case, because defendant chose to terminate the subcontract prior to its completion date, that is, prior to August 15, 1973. It points out that Paragraph 1, of Article 1933 of the Civil Code, dispenses with putting in default only when “the contract was of such a nature, that it could only be given or done within a certain time, which has elapsed . . . ” Its argument is that the time for completing the subcontract had not elapsed on July 14, 1973, when defendant terminated that agreement, and that Ratcliff thus was not relieved of the requirement that plaintiff be put in default.

We find no merit to that argument. The time for completing the painting of the gymnasium elapsed on June 1, 1973, several weeks before the contract was terminated. Since the time for performing a substantial part of the contract had elapsed, LSA-C.C. art. 1933(1) relieved Ratcliff of putting plaintiff in default for that reason alone. Another reason why it was necessary to put plaintiff in default is that the contract provides that all of the remainder of the work was to be completed by August 15, 1973. That provision necessarily implies that the contractor would begin the work which it agreed to perform early enough to at least make it possible for that work to be completed by the agreed deadline. We think plaintiff’s failure to commence work on the remainder of the project in time to enable it to complete that work by August 15, 1973, constituted a breach of the contract by plaintiff, and that defendant thus had the right to terminate the contract on July 14, 1973.

Finally, plaintiff argues that it was entitled to seven days written notice of the default before defendant could terminate the subcontract. It points out that the letter agreement between the parties stipulates that all matters within the scope of that contract shall be governed by “the provisions of my contract with the owner.” The contract between the School Board and Ratcliff provided that in the event the contractor fails to perform, the owner may terminate the employment of the contractor and take possession of the site after giving the contractor seven days written notice.

One answer to that argument is that there is no privity of contract between the School Board and Mid-South. The School Board, as owner, thus is not required to give Mid-South, a subcontractor, any notice at all in the event the latter defaults. Neither the principal contract between the School Board and Ratcliff, nor the letter agreement between the parties to this suit, can logically be interpreted as requiring the principal contractor, rather than the owner to give such a notice to the subcontractor, before the principal contractor could “take possession of the site.” The principal contractor has possession of the site despite a default by a subcontractor.

We find no error in the judgment of the trial court which rejects plaintiff’s demands, and condemns Mid-South to pay Ratcliff the damages which the latter sustained as a result of the breach of contract by Mid-South.

The evidence shows that Ratcliff paid Prestridge $12,610.20 more to finish the painting work than it would have owed to Mid-South under the subcontract involved in this suit. The trial court correctly awarded that amount to Ratcliff as the damages he sustained.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant, Mid-South Contractors, Inc.

Affirmed.


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    Morris Wade COOPER, Sr., et al. v. EMPLOYERS COMMERCIAL UNION INSURANCE CO. et al.
    No. 7194.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      Becnel & Kliebert, Ronald J. Landry, Gramercy, for plaintiff-appellant.
    Milling, Benson, Woodward, Hillyer & Pierson, Guy C. Lyman, Jr., Joseph E. Leblanc, Jr., New Orleans, for defendants-appellees.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

This is an appeal from a district court judgment finding no negligence on the part of a railroad or its engineer in causing or contributing to a train-automobile collision.

On December 24, 1974 at approximately 9:20 A.M. an accident occurred at the intersection of La. Highway 44 and the Louisiana ahd Arkansas Railway Company’s tracks in LaPlace. Plaintiff, Morris Wade Cooper, was driving his automobile in a northerly direction with his two minor sons in the rear seat when the automobile stalled on the railroad tracks and was thereafter struck by a train owned by defendant, Louisiana and Arkansas Railway Company, and operated by defendant-engineer, T. A. Butcher, and crew members Leo Akens and Charles Difulco.

Plaintiff filed suit individually and as administrator of the estate of his two minor children against Louisiana and Arkansas Railway Company and T. A. Butcher. Defendants denied any negligence on their part and alternatively pleaded contributory negligence as a bar to plaintiff’s recovery. They also third partied plaintiff’s insurer, Travelers Indemnity Company, for property damages to railroad signal standards. The district court with written reasons rendered judgment in favor of defendants dismissing all of plaintiff’s demands. It further ordered plaintiff and his insurer to pay Louisiana and Arkansas Railway Company the sum of $506.50 for the damages to the signal standards.

Plaintiff, individually and on behalf of his minor children, has herein perfected this devolutive appeal primarily contending the trial court erred in failing to find negligence on the part of the engineer and/or the crew members of the train and failing to find that the engineer and/or the crew members had the last clear chance to avoid the accident. Travelers did not join in the appeal. We affirm.

The able trial judge after listening to all of the testimony made extensive findings of fact. He concluded that the signal flashers and bells at the crossing were operating at the time when plaintiff was stopped or slowing before he entered the crossing; that there was no evidence to rebut Butcher’s testimony that he applied the train’s emergency brakes 200-300 feet before the crossing when plaintiff’s danger was made known to him; that plaintiff’s vehicle stopped on the tracks when the engine was about 315 feet from the crossing; that Akens, the flagman, shouted to Butcher that the train had not cleared the crossing when the engine was -280 feet from the intersection; and that plaintiff could have seen an approaching train at some 500-600 feet from the crossing had he looked. He declared the plaintiff negligent in entering the crossing at a time when the flashers and bells warned of an approaching train and held that defendant Butcher was not negligent in his operation of the train nor did he have the last clear chance to avoid the collision. We believe that for the most part these findings are fully supported by the record.

Plaintiff’s main argument is based upon the premise that his vehicle stalled on the tracks at a time when the train was at least 2600 feet from the intersection and that the train crew was negligent in failing to stop ’ when they clearly had sufficient time to perceive the disabled vehicle. We believe the record lends no support whatsoever to this theory;

The record discloses plaintiff recalled virtually nothing about the accident. Among other things he specifically did not recall: how fast he was going as he approached the crossing; whether he stopped before he proceeded to cross; if he looked at the signal standards to see if they were flashing; how far away the train was when he first saw it and how much time passed before impact; how long he was stalled; the speed of the train; if he considered attempting to get his sons out of the back of the car; the impact itself and talking to the police officer afterwards. Cooper also admitted he did not look to see if a train was coming as he approached the crossing and did not even look after his car stalled.

Obviously, plaintiff’s own testimony does not support his theory. Furthermore, no testimony of any other witness even approached establishing that the accident occurred in the manner advanced by plaintiff. All other eye witnesses to the accident were members of the train’s crew. Their testimonies were in all practical respects consistent. They testified the train was traveling about 25 mph and that the Cooper vehicle was first spotted from a 600 foot distance as it slowly approached the crossing and stopped beside the railroad tracks. Since the whistle, bell and flasher lights were operating and it was a clear day, the crew assumed the car would remain stopped. However, the car began to move slowly across the tracks. At that time though there was still a considerable distance between the train and the car, and accordingly, the engineer did not slow down. As the car crossed the intersection it passed out of the engineer’s sight around the nose of the engine and he assumed it had safely cleared the intersection. Crewmen Akens and Difulco were seated on the other side of the engine cab and were able to see the vehicle stop before clearing the tracks and shouted a warning to the engineer. The engineer immediately applied the emergency brakes, but by this time the train was too close to the crossing to be able to stop. Impact occurred and the train traveled approximately 210 feet before the emergency brakes finally brought it to a halt.

An examination of the record does not reveal that the trial judge erred in concluding that the accident occurred in the manner described by the crew members. The only inconsistency in defendant’s case is the testimony of their two stopping distance experts. One expert estimated the train could stop in 527 feet and the other, using the train’s speed tape, calculated a stopping distance of 853 feet. We believe that regardless of which of these estimations is deemed correct, the evidence still preponderates in favor of the conclusion that the brakes were applied as soon as it became apparent the Cooper vehicle would not clear the tracks. By that time the accident was unavoidable.

We conclude that defendants were in no way negligent and at all times acted properly and in conformity with their legal duties. See Wheat v. New Orleans and Northeastern Railroad Co., 245 La. 1099, 163 So.2d 65 (1964). Accordingly,' the doctrine of the last clear chance is inapplicable to the facts of this case.

The judgment of the trial court is affirmed. Plaintiff is to pay costs.

Affirmed.

      . Unrefuted evidence established that the tripping mechanism for the crossing signals was located 2600 feet from the crossing and that it was functioning properly. Since plaintiff did not recall whether the signals were functioning when he drove onto the tracks, counsel is suggesting that the tripping mechanism had not as yet been activated.

      . A speed tape is a sealed mechanical device which continuously graphically records speeds and points at which the brakes of the train are applied.


author: BEER, Judge. REDMANN, Judge

text:
    Mrs. Agnes M. BRAUD v. SALMEN COMPANY et al.
    No. 7160.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Dufour, Levy, Marx, Lucas & Osborne, Leonard B. Levy, Sidney F. Braud, New Orleans, for plaintiff-appellant.
    Drury, Lozes & Curry, Felicien P. Loz-es, Madison C. Moseley, and Gamble & Gamble, Harry P. Gamble, Jr., New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG, and BEER, JJ.
   BEER, Judge.

This suit arises from actions of defendants-appellants Salmen Company (hereafter, Salmen) and Sizzler Family Steak Houses of Southern Louisiana, Inc. (hereafter, Sizzler) which allegedly caused damage to a building owned by plaintiff-appel-lee-appellant, Mrs. Agnes M. Braud (hereafter, Mrs. Braud) when Salmen and Sizzler renovated property owned by Salmen and leased to Sizzler.

Both Mrs. Braud and Salmen derive ownership of their property, which has a common wall, from a common ancestor in title, Victory Land Company.

Mrs. Braud’s ownership is from an inheritance from the estate of William Murphy, vendee of Victory. In the sale from Victory to Murphy (as well as in the sale from Victory to Salmen’s ancestor in title) there is an agreement which grants the successor in title, his heirs and assigns a conventional servitude of support for the wall, roof, and improvement of the property acquired. The agreement further provides that each individually owned building, separated by the common wall which divided the property owned by Mrs. Braud from the property owned by Salmen, could be removed by either owner if the party, choosing to so act, bears the responsibility of the damage he may cause to the remaining building on the other side of the common wall. Mrs. Braud sues Salmen under this provision seeking reimbursement for the damage allegedly done to her property when Salmen leased its property to Sizzler and consented, in conjunction with the lease, to have its existing building (which shares the common wall with Mrs. Braud’s building) demolished by Carrollton Lumber & Wrecking Company, Inc. (hereafter, Carrollton) so that Sizzler could build a steak house. From a judgment against Salmen and Sizzler finding them jointly liable by virtue of the agreement noted above, those defendants appeal. Mrs. Braud also appeals seeking recovery against Carrollton and its insurer since her original suit against them was dismissed by the trial court.

The buildings in question are steel framed with sheet metal roofing and siding except for the common brick wall. Mrs. Braud contends that the support of the common wall was weakened when Salmen, Sizzler and Carrollton, in demolishing the Salmen building, cut supportive beams that formerly ran through both buildings. As a consequence, the common wall (which then became the exterior wall of the Braud building) could not withstand any substantial wind velocities and threatened collapse unless corrective measures were taken. She further contends that the Salmen, Sizzler, Carrollton demolition has necessitated waterproofing of the wall which, now an exterior wall, is exposed to the elements. Finally, she contends that the demolition created a need to replace certain sheets of torn or damaged metal plus broken windows on another side of her building along with the need for a new gutter spout and other repairs.

All defendants admit the existence of the agreement noted above as well as the lease by Salmen to Sizzler and the fact that the demolition was done by Carrollton for the account of Salmen and Sizzler.

As a result, of the conditions noted above, Mrs. Braud contracted with Bartley, Inc. to perform the repairs which she now alleges were necessary to restore structural and watertight integrity to her premises. This included several separate types of repair work: (1) bracing the existing masonry wall; (2) waterproofing the existing masonry wall; (3) cutting of existing steel members that apparently jutted out; (4) site paving; (5) repairs to existing metal siding and roof; and (6) repairs to existing concrete floor.

The record supports the trial court’s finding that bills and invoices for this work total $11,355.02.

The trial court rendered judgment dismissing Mrs. Braud’s claim against Car-rollton and its insurer but granted judgment in favor of Mrs. Braud against Sal-men and Sizzler in solido, in the sum of $11,355.00, together with legal interest from the date of judicial demand and for all costs, and dismissed certain cross claims that are not involved in this appeal.

Salmen and Sizzler appeal from the judgment against them and Mrs. Braud appeals from that portion of the trial court’s judgment which dismisses her claim jointly against Salmen, Sizzler and Carrollton (and insurers) allegedly arising from recent interpretations of the applicability of LSA-C.C. Article 667 by the Supreme Court of Louisiana and by this court in cases allegedly similar to this one.

In the trial court’s reasons for judgment, the provisions of Article 667 were held to be inapplicable as to Carrollton and relief to Mrs. Braud against Carrollton was denied. Article 667 provides:

“Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

In Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (1971) the Supreme Court reviewed previous considerations of this Article and concluded:

“Article 667 is therefore a limitation the law imposes upon the rights of proprietors in the use of their property. It is a species of legal servitude in favor of neighboring property, an expression of the principle of sic utere. An activity, then, which causes damage to a neighbor’s property obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant. This being ascertained, it remains only to calculate the damage which ensued.
“And the proprietor is likewise responsible not only for his own activity, but also for that carried on by his agents, contractors and representatives with his consent and permission. This liability which the law imposes attaches also to the agent or contractor, who, as in this case, becomes solidarily liable with the proprietor if his activity causes damage to a neighbor.”

Chaney was thereafter cited by this court in D’Albora v. Tulane University et al., 274 So.2d 825 (La.App. 4th Cir. 1973) writ denied La., 278 So.2d 504, when we observed that:

“It must be noted that in fact neither agent nor contractor was involved in Chaney, and accordingly the quoted language is not a holding which we are obliged to follow without further examination. But apparently a majority of our supreme court is of the view that art. 667 is a basis to hold not only owner but ‘agent or contractor1 as well.” (Emphasis ours.)

Thus, the trial court’s rejection of the applicability of Article 667 to the claims against Carrollton is vigorously questioned by Mrs. Braud. She contends that if the Salmen, Sizzler, Carrollton activities did cause damage to her property, this fact alone would be sufficient for recovery against Salmen, Sizzler, and Carrollton. The trial court, concluding otherwise, imposed joint and solidary liability upon Sal-men and Sizzler but declined to hold Car-rollton liable under Article 667.

The trial court was correct in its conclusion that “. . . either owner (or his assignees, heirs, etc.) had the right, at any time, to remove the improvements on his respective property provided that he do so at his own expense and provided further that he was responsible for any damages caused by such removal.”

We agree, also, with the trial court’s factual determination that “. . . it would have been almost impossible to remove either portion of [the] common building without creating the conditions which were brought about. . . . ”

However, the creation of “the conditions that were brought about’’ is not, necessarily, entirely covered by the wording of the agreement that governs the obligation which Salmen had to Mrs. Braud. That agreement made Salmen responsible for “damages . . . caused by such removal.”

We find that a definite issue exists here as to whether or not the entire claim by Mrs. Braud can properly be held to be damages caused by such removal. Further, we conclude that there is considerable merit to the contention by able counsel for defendants-appellants that the cost of converting the remaining building into a complete, watertight, wind resistant, structurally improved entity goes somewhat beyond the obligation to repair damages caused by removal of the Salmen building. Yet, the record contains no clear line of demarcation for us to follow in allocating such costs and it is apparent that a fairly substantial percentage of the overall expenditure made by Mrs. Braud could be attributable to the damages caused by the demolition. In view of the fact that defendants-appellants made no showing on the record that would substantiate or support any sort of percentage allocation or other means or methods of delineation, we cannot conclude that the trial court was manifestly in error in making the quantum award in the amount of $11,355.00.

The state of the record with respect to the possible differentiation between the effective renovation of the Braud building compared to the repair of damages caused by the Salmen building demolition also causes us much concern regarding the status of Carrollton. Had Carrollton’s demolition—in and of itself—caused unanticipated and non-indemnifiable (by the agreement) additional damage then we would be obliged to hold that Carrollton cannot properly be excluded from a finding of some ' liability in the particular circumstances of this case. Chaney, as noted by us in D’Albora, would apparently require us to extend the applicability of 667 liability to Carrollton for the damages which they actually, independently caused. The “apparent view” of the Supreme Court (which we discuss in D’Albora) is, as far as we are able to perceive, now even more apparent as a result of their decision in Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (La.1973). But there is no basis for concluding that Carrollton damaged the Braud building within the definition announced in Lombard. Carrollton only demolished the Sal-men building to within eighteen inches of the common wall in accordance with its commitment to Salmen and Sizzler. The record discloses no 667 type damages in the performance of this contractual commitment. The - so-called damages that Sal-men was contractually responsible to repair were anticipated and reckoned with in the previously noted agreement. Likewise, that same contracted for exposure was also assumed by Sizzler in its lease agreement with Salmen when it contractually agreed to be responsible for “. . . all liability and damages occasioned to any person or persons resulting from such demolition. .” (emphasis ours).

Thus, all of the “damages” that are shown to be collectible are collectible from Salmen and Sizzler as a direct result of their various contractual committments and not due as a result of 667 type liability. Since Carrollton had no contractual exposure to Mrs. Braud, the trial court did not commit error in exculpating them (and their insurers) from liability.

Though it is not essential to the conclusion noted above, we agree with Mr. Justice Barham in his concurring opinion in Lombard where he concludes that parties other than proprietors are not made responsible for non-negligent acts under 667 and can only be cast for damages if they are negligent. Since no such showing has been made in this record regarding Carrollton’s activities their dismissal on the grounds outlined in Justice Bar-ham’s concurrence would also be proper.

The judgment is affirmed, each party to bear its own costs of this appeal.

Affirmed.

REDMANN, J., dissents.

REDMANN, Judge

(dissenting in part).

First, defendant owner and its lessee-in-demnitor do not owe plaintiff a new, impeccably finished, and whole building — and exterior paving as well! — as “damages . caused by [the] removal” of defendant’s part of the building.

Servitudes which tend to affect the free use of property, in case of doubt as to their extent or the manner of using them, are always interpreted in favor of the owner of the property to be affected. C.C. 753.

The Victory-Murphy agreement’s three paragraphs quoted at n. 1 establish (or confirm, see C.C. 767-769 on destination) servitudes affecting free use of the properties, governed by C.C. 753.' By implication, C.C. 753 also governs interpretation of clauses by which the burdens of servitudes are released: they must be interpreted in favor of the owner of the servient estate.

The very context provided by the agreement’s first and third quoted paragraphs shows that the servitude of support is for “roof and (then-existing) sides” of the building (because all of plaintiff’s support columns rest partly on defendant’s land, save one, necessitating the servitude of support for the sides “facing and fronting on the Short Street and Edinburgh Street sides of the property” — a servitude undisturbed by defendants) ; and the obligation of maintaining the roof is “so as not to damage or cause harm to the portion of the roof of the other” (under penalty of paying for “such damages”). Thus certainly nothing is owed to plaintiff on account of the first paragraph, and nothing on account of the third except roof damage.

The second paragraph’s obligation, upon removal of one owner’s part of the building, to pay “any damages . . . caused by such removal” must, because of C.C. 753, be interpreted in defendants’ favor. It was not defendants’ removal of their building which made plaintiff’s wall porous or unreinforced. Those conditions are not damages caused by the removal in any direct sense. An interpretation in favor of the servient land’s owner, C.C. 753, requires that the judgment be amended to refuse to plaintiff all costs of reinforcing, waterproofing and painting this concrete block wall.

Second, there are minor damages (broken window glass, a distant window-frame loose) not shown to have been caused by defendants, and an apparently repetitious (and doubtfully owed in the first place) cutting of protruding steel members which defendants had already cut as directed by plaintiff’s engineer.

Third, the corrugated sheet-metal sides of the building had visible earlier damage for which some depreciation, perhaps 20% or so, should be allowed.

In sum, the only award should be about $4,486, for the sheet metal work ($2,986 plus 25% overhead and profit, the whole depreciated by 20% for a net $2,986) plus a rough allowance ($1,500) for other work arguably caused by the demolition.

      . The specific wording of the agreement is:
      “The vendor and its assigns hereby grant unto the purchaser, his heirs and assigns, a servitude of support for the sides and roof of the building and improvements on the premises herein conveyed and sold, facing and fronting on the Short Street and Edinburgh Street sides of the property, as shown by the attached survey, and while and for as long as the said building and improvements remain on said property.
      “The vendor and its assigns and the purchaser, his heirs and assigns shall at any time have the right to remove the portion of the common building erected and forming the improvements on his and its respective properties, at the expense of the party who makes such removal, provided that any damages to the property of the other caused by such removal, shall be borne by the party causing said damages.
      “The vendor and its assigns and the purchaser, his heirs and assigns, agree that each party shall keep his or its portion of the roof of the common building in a state of satisfactory repair so as not to damage or cause harm to the portion of the roof of the other, provided that if any such damages be caused (other than ordinary wear and tear) the party causing said damages shall bear the cost of said damages.”


author: LEMMO'N, Judge.

text:
    Joseph A. MELANCON, Jr. and Alan Ruiz v. A & M PEST CONTROL SERVICE COMPANY, INC.
    No. 6835.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    McDonald, Buchler & Morel, Ernest H. Hanewinckel, Metairie, for plaintiffs-ap-pellees.
    Drury, Lozes & Curry, René A. Curry, Jr., New Orleans, for defendants-appellants.

      Before LEMMON, GULOTTA and BOUT ALL, JJ.
   LEMMO'N, Judge.

This suit by Joseph Melancon and Alan Ruiz, the former and present owners of a residential building, seeks recovery against A & M Pest Control Service, Inc. for the cost of repairing termite damage to the structure.

The trial court awarded damages to Ruiz, and A & M appealed. The principal issues on appeal are (1) whether the termite infestation occurred because of A & M’s failure to properly perform its obligations under its contract with Melancon; (2) whether A & M had an obligation under that contract to Ruiz for repair of the damage; and (3) whether the amount awarded was excessive.

A & M had contracted with Melancon in February, 1970 to furnish subterranean termite control for a period of two years. The initial treatment under the contract included trenching and treating of the outer perimeter of the building’s slab and treating the bath trap and shower head. The serviceman who performed the initial treatment made no notation as to active infestation or damage.

In December, 1970 Melancon sold the house to Ruiz. In connection with the sale Melancon turned over his contract with A & M to Ruiz and instructed him to pay the renewal fee when it became due in February, 1972.

A & M’s records indicated an attempt to contact Melancon for the annual inspection in February, 1971, with no response. However, in November, 1971 Ruiz complained to A & M about flying insects in the kitchen and numerous pieces of wings in the attic, and A & M sent a serviceman to inspect the premises, apparently as a service under the original contract. The serviceman identified the insects as flying ants (not members of the termite family) and assured Ruiz he had no cause to worry about termites. He reported that he “(c)hecked bath areas, also treated bath trap” and found “no visible evidence of active termites”.

On January 12, 1972 the serviceman reinspected the premises after another complaint by Ruiz of flying insects. He again identified the insects as flying ants and again reported no visible evidence of active termite infestation.

In February, 1972 A & M called Ruiz to set up the annual inspection, which was ultimately performed on March 1 along with retreatment. Ruiz paid and A & M accepted the renewal fee specified in the contract, Ruiz testifying that A & M’s representative told him he could keep the contract in effect by paying this fee. However, no new warranty was ever issued in Ruiz’s .name.

In late April, 1972 Ruiz’s brother, a painter, undertook to paint the bathrooms. In preparing the wall surface, he discovered that dark spots thought to be mildew were not solid and upon investigating further discovered active termites in the bathroom wall. He and Ruiz then checked the attic and found tunnels, wings and other evidence of termite infestation along the ceiling joists.

Ruiz contacted A & M, as well as the Louisiana Structural Pest Control Commission. On May 2, 1972 A & M’s inspector found termites (swarmers) in the bath trap and also found infestation in the sheetrock above the shower stall in the bathroom. The following day the Commission’s inspector found infestation in the attic on the joists above the bathrooms. He advised Ruiz to “provide access opening to shower and toilet pipes in bathrooms which aren’t as yet visible, and properly treat”.

A & M returned the following week and treated the bath trap, the area behind the shower head, the area under the face bowl and the bathroom walls (by drilling holes in the sheetrock). The Commission’s inspection two days later revealed that no active termites remained.

Ruiz demanded that A & M repair the structural damage, but A & M denied any responsibility under the contract. Ruiz (together with Melancon) then instituted this action.

A & M argues on appeal that Ruiz’s proof was insufficient to support the judgment, since there was no evidence as to termite trails (tunnels constructed by termites through which they travel in required darkness back and forth from inside the building to the earth, their moisture source) and no other evidence of active termites around the perimeter of the slab or in the bath trap area. Pointing out that the contract requires the owner to “immediately eliminate faulty plumbing, leaks and dampness from drains, condensation or leaks from the roof or otherwise into, onto or under said area treated”, A & M contends that the most logical explanation of the infestation was that termites entered (before the initial treatment or after) through doors, windows, screened overhangs, or other sources and then were maintained (without having to return to the soil) by independent moisture sources which Ruiz allowed to exist in the building.

In support of this argument A & M emphasizes its manager’s testimony that he inspected the bathrooms when first notified of the problem (apparently in late April) and saw signs of moisture or a water leak in the bathroom area on the ceiling. However, the manager gave no further description of the moisture evidence, and he did not perform any inspection. The serviceman who performed two complete inspections in May did not testify as to any moisture or leak. The only other testimony as to any leak or moisture anywhere in the house was the statement by Ruiz’s brother that about a year after the infestation he repaired the flat roof over the garage (the house had a hip roof), which was on the same side of the house as the bathrooms, after Ruiz had discovered some leaking around the soffit. However, no one found any indication of termites near the garage area at any time, and the only reported locations of active termites or of damage was in the bathroom walls and ceilings and in the attic under the hip roof above the bathrooms and above the adjoining kitchen and hall.

We believe that the more plausible explanation of the infestation arises from the evidence of swarming termites in the bath trap, which A & M had inspected and treated only two months earlier and had checked two additional times in the previous four months. Since this dark area afforded some moisture and was also a route through the slab to moisture in the earth, and since active termites were found only in the rooms containing the trap and in the attic just above, we conclude (as apparently did the trial judge) that the infestation occurred more probably than not because of A & M’s failure to properly inspect and treat the bath trap area. We find this explanation more plausible than the only other reasonable explanation offered — that the termites were sustained by an independent moisture source in the building — especially in view of the lack of acceptable evidence that a moisture source was found. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when the proof, taken as a whole, shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins, Co., La., 245 So.2d 151 (1971).

A & M further argues that it only contracted to treat the perimeter and that it was not obliged under the contract to repair- the damage. A & M particularly denies any obligation to Ruiz, in whose favor the judgment was rendered, contending the written warranty was personal to Melan-con.

A & M’s contract with Melancon provided in pertinent part:

“Due to extreme hazards encountered in slab type construction and the possibilities of hidden infestations, the Termite Contractor cannot be held responsible for any damage to the structure or its contents caused by termite activity.*
“ * Supplemented by warranty against future termite damage up to $25,000.”

The pertinent provisions of the written warranty were:

“* * * A & M PEST CONTROL SERVICE, INC., has issued this lifetime subterranean termite warranty and will provide such repairs to the said premises attributable to new damage caused by subterranean termites, PROVIDED, it is established that said new damage was caused by subterranean termites after the date of initial treatment and live subterranean termites are present in the damaged areas at the time the same is brought to the attention of the undersigned; it is further understood that in no event shall this warranty obligate the undersigned to provide such repairs in excess of the sum of $25,000.00, subject to the provisions above recited.
“This warranty is an integral part of the Contract between the customer named above and A & M PEST CONTROL SERVICE, INC., and shall exist only so long as the Contract itself continues. The obligation of A & M PEST CONTROL SERVICE, INC., in this warranty is controlled by all of the terms and conditions of the Contract itself, including the provisions by which the Contract may be terminated. This warranty shall also terminate with the life of the customer named above to whom this warranty is issued. This warranty agreement is personal to the customer named above and may not be assigned or transferred by any means whatever by the person to whom it is issued.” (Emphasis supplied)

Although the contract and warranty were issued to Melancon, Ruiz testified that A & M’s representative with apparent authority to do so told him the contract could be kept in effect by paying the renewal fee. A & M not only did not deny this statement, but also accepted the renewal fee from Ruiz and contacted him to arrange the annual inspection and treatment pursuant to the contract. We therefore conclude that A & M ratified its agent’s agreement to allow Ruiz to take over its contract with Melancon by providing service and accepting payment under the contract, and Ruiz therefore had a right of action to enforce the terms of the contract. See Edwards v. Terminix 57, Inc., 292 So. 2d 851 (La.App. 2nd Cir. 1974).

Furthermore, A & M’s obligation under the contract was to provide repairs attributable to new damage caused by subterranean termites. Inasmuch as we have concluded that Ruiz proved subterranean termites caused damage to the building after the initial treatment and that this damage occurred because of A & M’s failure to properly perform its obligations under the contract, we hold that A & M is liable to Ruiz for the repair of the damage.

As to the amount of the award, Ruiz presented the testimony of two building contractors who estimated the cost of labor and materials required to repair the termite damage. One proposal included removing the sheetrock and wall tile, then replacing the studs, plates and ceiling joists in the two bathrooms and the adjacent areas of the blaster bedroom, kitchen and hall, and finally refinishing the wall and ceilings, including retiling and repainting, for a cost of $5,678.00. The other contractor estimated from the visible areas of decay and evidence of major structural damage that repairs would cost between $6,225.00 and $8,450.00, but recommended tearing into the walls and ceilings before an exact proposal could be made. Ruiz declined to do this because he could not then afford to complete the repairs, which had still not been accomplished at time of trial.

A & M complains that the $7,000.00 award was excessive because the extent of termite damage, if any, in the stud walls was unknown until the sheetrock was removed. The estimates, however, were to repair the observable damage and to remove and later replace the wall coverings to determine hidden damage. The latter steps were necessary to insure the integrity of the walls in the area of observable damage, whether or not detailed inspection revealed extensive damage in the stud walls. The first contractor conceded his proposal was too low if stud wall damage was extensive, and the second contractor submitted a range in price because of this unknown quantity.

The $7,000.00 award apparently represented a consensus figure taken from some of the testimony of both experts. Since under the circumstances of this case an award of damages cannot be calculated with mathematical certainty, we find no error in the amount awarded on the basis of the evidence in this record.

The judgment is affirmed.

Affirmed.

      . R.S. 40:1269 provides the requirements for a licensed pest control operator’s contract to control or eradicate termites.

      . The purpose of trenching and treating along the slab is to form a chemical barrier which prevents termites from entering the building by that route. Since termites require moisture almost daily, the barrier also traps any termites inside the building, causing them to die from lack of moisture. The bath trap, which is actually a hole in the slab going through to the earth below, is also treated in the initial treatment.

      . A & M’s serviceman testified as to the difference between nondestructive swarmers and wood-eating workers, but admitted that workers usually are in the building when swarmers are found. Therefore, we attach no great significance to the fact that only swarmers were found in the bath trap. See also Maguire v. Masino, 325 So.2d 844 (La.App.4th Cir. 1975); Charbonnet v. Orkin Exterminating Co., 254 So.2d 148 (La.App.4th Cir. 1971).


author: CUTRER, Judge ad hoc. MILLER, Judge MILLER, Judge.

text:
    Seymour X. GUILBEAU, Plaintiff and Appellee, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant and Appellant.
    No. 5277.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 12, 1976.

      Pugh, Boudreaux & Gachassin, by Charles J. Boudreaux, Lafayette, for defendant-appellant.
    Thompson & Perrin, by Michael F. Thompson, Lafayette, for plaintiff-appel-lee.
    Before MILLER and WATSON, JJ., and CUTRER, Judge ad hoc.
   CUTRER, Judge ad hoc.

Defendant, St. Paul Fire and Marine Insurance Company, appeals from a judgment granting recovery in favor of plaintiff, Seymour X. Guilbeau, for injuries allegedly sustained by him when a laparoto-my pad was not remqved from him during surgery performed on him at Lafayette General Hospital. We affirm the judgment.

Plaintiff filed suit against defendant for damages sustained by him as a result of the alleged negligence of defendant’s insured, a surgeon who performed a right colectomy on plaintiff on March 3, 1973. Plaintiff also asserted a claim against Lafayette General Hospital and its insurer in connection with the same incident, which claim was settled. The record indicates that plaintiff was referred to the surgeon in question, Dr. Edgar Breaux of Lafayette, by his physician, Dr. William Bernard, for a suspected abdominal malignancy. The plaintiff -was scheduled for surgery to be performed by Dr. Breaux, assisted by Dr. Bernard. The presence of cancer of the cecum was confirmed, and evidence of the spreading of the malignancy required Dr. Breaux to perform an extended surgical procedure requiring re-movel of some of the intestines and other tissue, together with repairs of the intestinal tract. The operation required the insertion of a large number of instruments, sponges and laparotomy pads in the plaintiff’s abdominal cavity. Through error a laparatomy pad was left in the plaintiff’s abdomen which caused severe pain and suffering for him over a period of time. Prolonged infection and drainage from the surgical incision resulted. It was necessary for plaintiff to undergo two subsequent operations, first to remove the laparotomy pad and later to repair an incisional hernia resulting from the second surgery.

The evidence presented at trial indicated that as part of the preparation for surgery two of the nurses on the hospital surgical team counted all of the instruments, sponges, pads, etc., that were prepared and-which might be used during the surgical procedure. Part of this counting procedure required that one of the nurses record the count for each item on a special sheet of paper at the time the initial count was made. At the conclusion of the surgical procedure and before the surgeon began closing the surgical incision, the two nurses jointly conducted a count of all the instruments, sponges, pads, etc., which had been used during the surgical procedure and removed by the surgeon together with those items which were on the surgical table but which had not actually been used during the surgery. This count was recorded as it was made on the same sheet of paper but in a different column. This count agreed exactly as to all items with the original count which had been made prior to the surgery. This count was verbally reported to the surgeon as being correct. These were the only counts which were indicated on the sheet of paper used to record the count, which paper was introduced into evidence at the trial. The testimony, however, indicates that additional counts were made by the two nurses and that none of these counts indicated that any items were missing. As noted above, this surgery was performed on March 3, 1973. The plaintiff was discharged on March 15, 1973.

The evidence further indicated that plaintiff continued to feel bad after the operation, and in May a liver scan showed metastasis to the left lobe of the liver. He experienced nausea and vomiting, and was admitted to the hospital on June 3, 1973. At that time he had dark drainage from the surgical wound and there was evidence of small bowel obstruction. X-ray examination indicated a foreign body in the right iliac region of the pelvis, which appeared to be a sponge. Surgery was performed on June 5, and it was discovered that a laparotomy pad had been phagocytized by the small bowel and the small bowel was attempting to exude it through the intestinal lumen. He also sustained a wound infection which was treated following this second operation. The plaintiff was discharged on July 4, 1973. He was again admitted to the hospital on August 18, 1974, for repair of an incisional hernia. The hernia was closed using wire sutures. He was discharged on August 30, 1974.

Following the presentation of the evidence the trial judge rendered judgment in' favor of plaintiff, finding that Dr. Breaux had been negligent in failing to remove the laparotomy pad from plaintiff during the initial operation. An award for his pain and suffering in the amount of $36,000.00 was determined to be fair by the trial judge. However, the trial judge found that defendant was entitled to a reduction of one-half of this amount in view of the fact that plaintiff had compromised and released one of the joint tortfeasors, the Lafayette General Hospital. Costs were assessed against the defendant, and expert fees for the four doctors who testified were set at $50.00 each.

This appeal does not involve a factual dispute. It is admitted by defendant that error was committed when the pad was left in the plaintiff’s abdominal cavity during the surgery. It is defendant’s contention, however, that Dr. Breaux should not be blamed for the damages sustained by the plaintiff because he met the standard of professional care of the locality and exercised the degree of skill, care and judgment which is ordinarily exercised by similar practitioners in the area. Evidence to support this contention was presented in the form of testimony by experts which indicated that the general practice in the area was to rely on the “sponge count” of the nurses and a visual inspection of the area of surgery prior to closure to prevent the error committed in this case.

Defendant cites Meyer v. St. Paul-Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (1954) as setting forth the rule which controls the determination of questions of negligence on the part of surgeons:

“As a general rule it is his duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members, of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case.” 73 So.2d at 782.

In addition, defendant argues that under Roark v. Peters, 162 La. 111, 110 So. 106 (1926), the surgeon is. required to do no more than was done in the present case to exonerate himself from liability when a sponge or pad is left in the patient following surgery.

Plaintiff argues that the controlling rule is set forth in Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969). In that case suit was brought against the hospital, its insurer and the operating surgeon’s liability insurer for damages sustained by the plaintiff as a result of a sponge being left in her body following surgery. In finding personal negligence on the part of the operating surgeon, the Supreme Court set forth the following statement of law:

“The general rule ... is that a surgeon’s failure to remove a sponge or pad before closing an incision may be regarded as negligence per se, and some authorities hold that the surgeon cannot relieve himself from liability for injury to a patient caused by leaving sponges or pads by reliance on a custom or rule requiring the attending nurse to count the sponges or pads used and removed, and on the nurse’s statement as to the count.
“Albeit there is authority to the contrary, we are convinced that the general rule is sound.” 223 So.2d at 154 — 155.

In Grant, the Supreme Court was faced with the fact that a sponge had been left in the plaintiff’s body following surgery. The fact that it had been placed there during surgery by the surgeon and not removed by him before closure constituted negligence per se on his part, and the fact that he had complied with the “community standard” in relying on the nurse’s sponge count did not exonerate him. In the present case we are faced with the same situation. A laparotomy pad was placed in plaintiff’s body by the surgeon during surgery and was left there following surgery, and defendant attempted to show that the procedure used by the surgeon to prevent leaving any sponges or pads in the patient was in complete accord with the community practice. Grant requires that we find the operating surgeon negligent per se. This is the latest expression of our Supreme Court on the subject and we are obliged to follow it.

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

Affirmed.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

When this 67 year old plaintiff sought medical attention he was extremely anemic and required and received immediate surgery. He had a grade three (on a scale of four) cancer of the colon which had spread to the lymph nodes. To increase Mr. Guil-beau’s chance for survival surgery was required, and the odds for survival with surgery were only fifty percent. At trial two years after his first surgery, plaintiff was in good health. — a testimonial to the skill of the surgeon and to the efficacy of his judgment decisions made during the course of the complicated and difficult two hour procedure.

The majority did not find it relevant to review the impressive testimony by which defendant surgeon established his freedom from negligence.

It is respectfully submitted that Louisiana does not follow the rule that a surgeon’s failure to remove a sponge or pad before closing an incision must be regarded as negligence per se. It may be, but not must. And the majority has not recognized this distinction.

The trial judge properly held the hospital staff negligent in reporting to the surgeon they had properly counted the 177 instruments, pads, etc., used during the complicated surgical procedure. They confessed their negligence and settled plaintiff’s claim.

The trial judge did not assign written reasons but his impression of the case is indicated by one of his questions: “Doctor, just how in the world is it that a surgeon can leave something in the body of a human being?” Tr. 151. It appears he too followed the simple rule established by the majority — if a pad is left in the patient, the surgeon is liable.

Dr. Breaux’s skill as a competent and experienced surgeon was established beyond peradventure.

The procedure established and followed by all hospital personnel (to account for all items used in the patient’s body during surgery) was identical to that followed in Mayo Clinic, in hospitals in Houston, Texas, and elsewhere. So far as the surgeon is concerned there were no deviations in this case from the standard procedure. As to the patient, the hospital staff was negligent and the patient has recovered for this negligence.

According to this record surgeons never participate in or supervise these counts. A surgeon’s attempt to do so would be contrary to accepted medical practice and not in the patient’s best interest. In Mr. Guil-beau’s case, it might well have jeopardized his chance for survival.

The extensive cancer had almost completely obstructed the bowel. During the course of surgery, Dr. Breaux was required to determine the extent of the cancer, what organs or tissues should be removed, and the best method of accomplishing this in order to re-establish the intestinal tract. Before touching the cancerous intestines and lymph nodes, he had to probe the apparently healthy tissue to make a judgment as to how much should be excised. His ultimate decisions were confirmed by the pathologist’s report obtained during surgery. Dr. Breaux had to remove the entire right side of the colon and a portion of the small intestine.

Twenty of the 177 items used inside the patient’s body were laparotomy pads used to wall off healthy organ's and tissues. The pads are soaked before being inserted in the patient. They move between spaces in the twenty-two feet of small bowel, around the stomach, the spleen, and down in the pelvis. The lap pads get smaller and smaller and almost invisible as they become wet and perform their mission. During long and complicated surgery it is possible for the back and forth movement of the bowels (caused by movement of the diaphragm) to cause a lap pad to gravitate to an area other than where it was placed.

Some matters requiring the surgeon’s undivided attention involve proper tying off the bowel above and below the cancer to prevent spread of cancer cells; controlling the bleeding from major blood vessels encountered in this area; attempting to prevent bowel contents and lymph node material from entering or remaining in the area of surgery; protecting the healthy organs from bruise or injury; excising the diseased organs and tissue and suturing to approximate the ends of the remaining bowel; checking to make sure the joining together of the bowel ends is adequate and free of leaks and bleeding; cleaning out the cavity to remove all possible contamination; remaining informed about the patient’s vital signs — blood pressure, pulse, and respiration; keeping informed as to the pathologists reports on tissue sent for examination; and other matters essential to the patient’s welfare.

Before closing the surgery, the hospital staff twice reported to Dr. Breaux they had obtained a correct count. All counts having been reported as correct, the evidence uniformly establishes it would have been medically improper for the surgeon to have made an extended, time consuming search of all crevices. To make such a search would have seriously jeopardized Mr. Guil-beau’s life.

Such a search could spread germs from the colon, cancer cells from the diseased to the healthy tissue, and otherwise injure the healthy organs. In view of Mr. Guilbeau’s malignant disease, the two hour open colon surgery on this 67 year old patient, and the report of hospital personnel that all counts were correct, an extended and unnecessary search under and around the intestines, stomach, spleen, liver, and pelvic area, was contra-indicated. Good medical practice was followed in this case.

It is respectfully submitted that Mr. Guil-beau’s best chance for survival was served by the surgeon’s reliance on the accuracy of the hospital staff’s count. The majority holding may require the medical profession to revise their standard of care to elevate the search for lap pads to a higher priority than saving the patient’s life. Be it here recorded that I come down on the side of saving the patient’s life — and that is exactly what Dr. Breaux accomplished.

I understand the majority to consider themselves bound by a rule (quoted by the Supreme Court from Corpus Juris Secun-dum) that “a surgeon’s failure to remove a sponge or pad before closing an incision may be regarded as negligence per se.” [Emphasis added.] Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 at 154—5 (1969). The majority has read may be to mean must be. I respectfully submit the Supreme Court applied the rule as written —“may be regarded as negligence per se.” After stating the rule, the court carefully points to the basis for finding the surgeon negligent. The four by four inch, gauze sponge used to soak up blood was attached to a metal holder. The surgeon removed the metal holder and should have noted (but failed to note) the sponge was not attached when he handed the holder to the nurse. No metal holder could be attached to the twenty lap pads used in Mr. Guil-beau’s surgical procedure.

Where the evidence establishes, as it does here, that in order to increase the patient’s chance for survival, the surgeon must depend on those properly trained and uniformly assigned personnel to count laparo-tomy pads, the hospital staff’s negligence in making and reporting an erroneous count should not, of itself, establish the surgeon’s negligence.

This surgeon proved he was not negligent. He is being held liable for the operating room personnel’s faulty count.

I respectfully dissent.

ORDER

The Application for Rehearing herein having been duly considered:

It is ordered that a Rehearing be, and the same is hereby, denied.

MILLER, J., votes for a rehearing and assigns reasons.

MILLER, Judge.

I vote to grant the application for rehearing for the reasons stated in my dissent and for these additional reasons.

Even in cases where the rule of negligence per se is applied, a breach of duty must be found. Heretofore, the physician has been required to exercise the degree of skill and care utilized by other members of his profession in his community. The majority pretermits consideration of that issue. They do not reject the uniform testimony that the surgeon used that degree of skill and care, but, on finding the presence of the foreign body, find him liable without regard to the fact that he established his freedom from fault. I respectfully submit this is not application of the doctrine of negligence per se, but rather a theory of strict liability based on the finding he has an absolute duty to remove laparotomy pads even though the surgeon has been advised by competent assistants in charge of the count that all laparotomy pads have been removed. Under the rule of this case, even the most extraordinary degree of skill and caution, even the most unusual surgical procedures performed under adverse circumstances, will not serve to exculpate the surgeon.

There is no precedent in our law for applying such a strict standard of liability to a surgeon. It is wholly inappropriate since the essence of his work is skill and caution, not a mechanical disassembly and reassembly of components.

The burden of res ipsa was completely satisfied in this case. Someone was negligent. The trial court found the hospital personnel were negligent and they settled the claim. On the facts of this case, the res ipsa doctrine is improperly applied to the surgeon. Plaintiffs presented no evidence showing a want of skill or care by the surgeon. His observance of the accepted precautions was established.

I respectfully submit the surgeon cannot be held liable on any theory of negligence, and that surgeons should not be subjected to the doctrine of strict liability.

I would grant the application for rehearing.

      . See also Chappetta v. Ciaravella, 311 So.2d 563 (La.App. 4th Cir. 1975), writ refused, 313 So.2d 841 (La.1975).


author: BY THE COURT: ADKINS, C. J.,

text:
    THE FLORIDA BAR, Petitioner, v. William S. BLALOCK, Respondent.
    No. 47100.
    Supreme Court of Florida.
    Jan. 7, 1976.
    Bernard C. O’Neill, Jr., Bar Counsel, Orlando, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for petitioner.
    James B. Clayton of Clayton & James, DeLand, for respondent.
   BY THE COURT:

This matter is before us on the petition of The Florida Bar to review a referee’s report in disciplinary proceedings directed against William S. Blalock. The Bar asks that we approve the referee’s findings of facts and his determination of guilty conduct, but urges that we increase the disciplinary punishment over that which the referee recommended. Blalock essentially admits his misconduct, but argues for mitigation of the discipline.

The referee made the following findings and recommendations:

“1. The Respondent, William Shaw Bla-lock, is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

2. The Respondent was retained by Brox-ie Parnell, a/k/a Broxie Harris, a/k/a Broxie Parnell Smith, hereinafter called Broxie Harris, in October of 1971 to obtain a partnership accounting and partition of real estate in the Ninth Judicial Circuit, Orange County, Case No. 71-6413. The Respondent and Broxie Harris had had a prior attorney/client relationship during the fall of 1968 for which she paid the Respondent $225.00 for,, professional services rendered at that time.

3. The 1971 litigation described in paragraph 2 above resulted in the entry of a court order on April 24, 1973 directing the defendant, Ben Smith, to pay the plaintiff, Broxie Harris, the sum of $25,000.00.

4. The Respondent received on behalf of Broxie Harris $1,947.00 on or about April 7, 1972; $14,000.00 on or about June 29, 1972; and $6,224.58 on or about May 22, 1973, for a total of $22,171.58, as a result of this litigation.

5. Broxie Harris has received a total of $10,070.61 from the Respondent despite numerous and persistent demands by Broxie Harris of the Respondent that he deliver to her or account for the funds held in trust for her by the Respondent. Respondent has accounted for the disbursement of $896.07 which he received in trust from or on behalf of his client, Broxie Harris, and which he expended on her behalf for the payment of costs associated with the litigation and legal representation he was providing to her.

6. The Respondent claims that on October 5, 1971 he entered into a contingent fee contract with Broxie Harris which entitled him to forty percent (40%) of the money collected for his professional services in the event suit was filed. Broxie Harris denies any such agreement and claims that the Respondent is only entitled to $550 which she has paid. I find as a matter of fact that the Respondent and Broxie Harris did enter into a contingent fee contract (Respondent’s Exhibit 3) on or about October 5, 1971, under which the Respondent provided professional services which resulted in a stipulated settlement in favor of Brox-ie Harris on or about March 9, 1972 (Respondent’s Exhibit 10), which was later reduced to formal court order on or about April 24, 1973. The payments totalling $22,171.58 more particularly described above were received by the Respondent on behalf of Broxie Harris as the result of these professional efforts.

7. The following is a computation of receipts and disbursements related to the legal services provided in Case No. 71-6413, Ninth Judicial Circuit, Orange County, Florida:

$22,171.58 — amount recovered by suit -10,070.61 — amount paid Broxie Harris $12,100.97
- 8,868.63 — 40% contingency attorney fee $ 3,232.34
- 596.07 —costs ($896.07 less $300.00 paid by _ Broxie Harris)
$ 2,636.27 — amount withheld from Broxie Harris by Respondent.

Therefore, the Respondent had failed and refused to account for and deliver on demand approximately $2,636.27 to his client, Broxie Harris.

8. The Respondent has refused to promptly pay or deliver to Broxie Harris as requested by her the funds in his possession which she is entitled to receive and has therefore violated Rule 11.12(4) of the Integration Rule of The Florida Bar and Disciplinary Rule 9-102 (b)(4) of the Code of Professional Responsibility.

9. The Respondent has received money on behalf of Broxie Harris that is not subject to a counter-claim or set off for attorney’s fees, has refused to account or deliver over such money upon the demand properly made by Broxie Harris thereby wrongfully converting such money to his use and has thus violated Rules 11.02(3) (a) and 11.-02(4) of the Integration Rule of The Florida Bar and Disciplinary Rule 1-102(A)(4) of the Code of Professional Responsibility.

10. The aforementioned acts as described in paragraphs 2 through 9 above constitute a violation of Florida Statutes § 811.-021(1) (b) (1971) being the commission of the crime of grand larceny.

11. The actions of the Respondent constitute a felony of the third degree under the laws of Florida and the Respondent has thereby violated Rule 11.02(3) (b) of the Integration Rule of The Florida Bar and DR 1-102 (A) (3) and (4) of the Code of Professional Responsibility. However, I further specifically find that the record does not establish that Respondent has been convicted of a felony since Bar Exhibits L and M clearly establish that the adjudication of guilt has been withheld upon his plea of nolo contendere to the charge of grand larceny.

In reaching the above findings I have considered all the sworn testimony, all the exhibits placed in evidence by both parties, and am satisfied that the findings made are supported by a clear and convincing preponderance of evidence in the record.

I recommend that the Respondent be found guilty as of violations of his oath as an attorney, of Rules 11.02(3) (a), 11.-02(3) (b), and 11.02(4) of the Integration Rules of The Florida Bar and Disciplinary Rules DR 1-102(A)(3), DR 1-102(A)(4), and 9-102(B)(4) of the Code of Professional Responsibility. .

I recommend that the Respondent be suspended from the practice of law in Florida until such time as he has clearly demonstrated that he has his disease of alcoholism under total control. I further recommend that as conditions to his reinstatement to the practice of law in Florida that he be required to do the following:

1. Actively participate in a continuing personal program controlling his disease of alcoholism, including the total abstinence from all forms of alcohol.
2. That he pay the costs of this proceeding.
3. That subsequent to his reinstatement, he make regular periodic money payments to Broxie Harris in the appropriate amount in restitution of his misappropriation of 'her funds. . .

Before recommending the disciplinary measures to be applied I considered the following personal history pertaining to the Respondent as reflected in the Florida Bar Journal (September 1974) and Martindale-Hubbell Law Directory, Volume II (1975). He is 44 or 45 years old, a graduate of Duke University, Durham, North Carolina, and the University of Florida Law School, Gainesville, Florida. He was admitted to practice to the Bar of Florida in 1957 and has practiced in Orlando, Florida since that time.

After finding the accused guilty I then considered the prior disciplinary and criminal history of the Respondent, specifically The Florida Bar v. Blalock, 302 So.2d 758 (Fla.1974) and the parallel criminal prosecution styled State v. Blalock, Case No. CR 74—1876, Orange County, Florida Circuit Court (Bar Exhibits L and M). No other disciplinary or criminal history has been made known to the referee.

The record clearly demonstrates that the Respondent’s professional misconduct is directly connected with his disease of alcoholism which in turn has led to financial, marital, and professional problems. Prior to the development of his dependency upon alcohol, Respondent’s personal and professional conduct were ethical, competent, and responsible. If and when the Respondent brings his dependency upon alcohol under his complete control, he should ' be seriously considered for reinstatement to the practice of law in Florida. .

I find the following costs were reasonably incurred by The Florida Bar:

Administrative cost at referee level under
Integration Rule 11.06(9)(a) . $ 50.00
Cout [sic] reporter costs . 141,00
TOTAL COSTS. $191.00

It is apparent to me that other costs may have been incurred. It is recommended that all such costs and expenses, together with the foregoing itemized amounts should be charged against the Respondent.”

The Bar acknowledges that Blalock’s problems stem entirely from the disease of alcoholism. Its recommendation for a discipline more severe than that recommended by the referee is based in part on the view that a definite (as opposed to an indefinite) suspension will eliminate the pressures which led Blalock to alcoholism and the other Code violations under consideration. The Bar also points out that the conversion of a client’s funds has been viewed as one of the least excusable acts of misconduct for which a lawyer can be disciplined. The Bar particularly objects to reinstatement before full restitution to Blalock’s client, relying on prior decisions of this Court in like situations.

Blalock’s appeal for mitigation of discipline is based on his demonstrated effort to control alcoholism, and on his attempted rehabilitation through supervised employment in a law office under the procedures this Court approved in The Florida Bar v. Thomson, 310 So.2d 300 (Fla.1975).

We agree with the Bar as to the severity of Blalock’s particular misconduct, stealing a client’s funds. We also appreciate Blalock’s effort to control the root cause of his problems. Our duty is to weigh these personal factors as they affect Blalock, and in so doing also discharge our impersonal responsibilities to protect the public and to generate confidence in the integrity of the legal profession.

We approve the referee’s findings of fact and his determination of guilt. Taking all factors into account in prescribing his discipline, we direct that Blalock be indefinitely suspended from the practice of law and shall be eligible for reinstatement only after (1) he has made full restitution of clients’ funds, (2) he has paid all costs of this proceeding, and (3) he has demonstrated to the satisfaction of this Court that he has been rehabilitated both as to his alcoholism and as to his appreciation and understanding of the Code of Professional Responsibility. •

It is so ordered.

ROBERTS, BOYD, OVERTON, ENGLAND and HATCHETT, JJ., concur.

ADKINS, C. J.,

concurs in the finding of guilt, but would follow the referee’s recommendation for disciplinary punishment.

      . The Referee has recommended an indefinite suspension from the practice of law, restitution of client’s funds following reinstatement, payment of all costs of the proceeding, and active participation in an alcoholic disease control program. The Bar urges a maximum three-year term of suspension, coupled with restitution and proof of rehabilitation before reinstatement to the Bar.

      . The Florida Bar v. Welch, 309 So.2d 537 (1975); The Florida Bar v. Goldhaber, 257 So.2d 13 (Fla.1971); The Florida Bar v. Scott, 227 So.2d 195 (Fla.1969); State ex rel. The Florida Bar v. Buskin, 126 So.2d 142, 143 (Fla.1961).

      . The Florida Bar v. Pahules, 233 So.2d 130, (Fla.1970); The Florida Bar v. Hudson, 199 So.2d 474 (Fla.1967); In re Dawson, 131 So.2d 472 (Fla.1961).

      . Blalock is presently under an indefinite suspension from the Bar for other misconduct during the time period here involved. The Florida Bar v. Blalock, 302 So.2d 758 (Fla.1974).

      . The Florida Bar v. Riccardi, 264 So.2d 5, 6 (Fla.1972); The Florida Bar v. Beaver, 259 So.2d 143, 144 (Fla.1972).


author: PER CURIAM.

text:
    John Edward JOYNER, Petitioner, v. STATE of Florida, Respondent.
    No. 46589.
    Supreme Court of Florida.
    Jan. 7, 1976.
    M. Stephen Turner, Thompson, ■ Wads-worth & Messer, Tallahassee, for petitioner.

      Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Certiorari was granted in this cause because of apparent conflict between the instant decision of the District Court of Appeal, First District, 303 So.2d 60, and the decision of the District Court of Appeal, Fourth District, in Laiser v. State, 299 So.2d 39 (Fla.App. 4th 1974). Since the granting of this writ, the District Court’s decision in Laiser, supra, has been quashed by this Court in State v. Laiser, 322 So.2d 490 (Fla.1975).

Accordingly, conflict having been dispelled, the writ heretofore issued is discharged.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    DEPARTMENT OF ADMINISTRATION et al., Appellants, v. Mallory E. HORNE, as a citizen and taxpayer of Florida, Appellee.
    No. 45281.
    Supreme Court of Florida.
    Jan. 7, 1976.
    David V. Kerns, Dept, of Administration, Arthur C. Canaday, Gen. Counsel to Governor, Tallahassee, Robert L. Shevin, Atty. Gen., and Thomas A. Harris, Asst. Atty. Gen., for appellants.
    Edward S. Jaffry, Tallahassee, for ap-pellee.
   PER CURIAM.

This cause concerns the validity of a veto by the Governor of certain restrictive language in three items of the 1973 General Appropriations Act. The Governor did not veto the appropriation itself but vetoed certain provisions relating thereto.

The subject legislation is not now in effect nor was it so at the time of the argument of this cause before the Court.

It appearing that any opinion we render would be advisory only, this cause is hereby dismissed.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, SUNDBERG and HATCH-ETT, JJ., concur.


text:
    Petition of the FLORIDA BOARD OF BAR EXAMINERS FOR AMENDMENT TO RULES.
    No. 46763-C.
    Supreme Court of Florida.
    Jan. 7, 1976.
    Joseph J. Gersten, Miami, Chairman, and C. Graham Carothers, Tallahassee, for The Florida Board of Bar Examiners, petitioner.
   PER CURIAM.

The Florida Board of Bar Examiners has requested that we amend the rules relating to Bar admission effective November 11, 1975 (i) to permit refunds of fees paid by an applicant whose death occurs prior to admission to the Bar, and (ii) to clarify procedures and costs for obtaining copies, of previously-administered, essay-type bar examination questions. The Examiners’ recommendations are approved.

The following amendments to the rules relating to Bar admissions are adopted, effective at midnight November 10, 1975.

1. The preamble to Rule V of the Rules and Regulations of the Florida Board of Bar Examiners is amended in its entirety to read:

“The following fees shall be paid by the applicant. No fees shall be refunded, except that the Board may, in its discretion and upon request, refund ail or a portion of the fees of an applicant who dies before taking the oath of admission.”

2. Rule V, Section 63 of the Rules and Regulations of the Florida Board of Bar Examiners is amended in its entirety to read:

“The Board shall honor requests received in writing for copies of the essay-type questions which appeared on a previously-administered Florida Bar Examination. Each such request shall be accompanied by a fee of.$5.00.”

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.


text:
    Elizabeth Graves COYNE, Appellant, v. William COYNE, Appellee.
    No. 75-1022.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Rehearing Denied Feb. 11, 1976.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appellant.
    Blitstein & Molans, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, TT.
   PER CURIAM.

The basic question in this cause is whether the appellant-wife made a general appearance or a special appearance in a California divorce proceeding. The wife filed an appearance which alleged that the California court lacked jurisdiction over the subject matter. No contest was made over jurisdiction of her person. Ordinarily, the matter would be determined by California law, but no foreign law was pleaded in the trial court. See: Hieber v. Hieber, Fla.App.1963, 151 So.2d 646; Cordrey v. Cordrey, Fla.App.1968, 206 So.2d 234; Movielab, Inc. v. Davis, Fla.App.1969, 217 So.2d 890; § 92.031, Fla.Stat.

Therefore, we are left to a situation where, no law to the contrary being shown as to the foreign forum, the matter is to be determined by the law of this forum. Kingston v. Quimby, Fla.1955, 80 So.2d 455; Miller v. Shulman, Fla.App.1960, 122 So.2d 589; Hieber v. Hieber, supra; Cordrey v. Cordrey, supra. And, pursuant to the following Florida authorities, we hold that counsel’s appearance for the appellant in California constituted a general appearance. Green v. Hood, Fla.App.1960, 120 So.2d 223; St. Anne Airways, Inc. v. Webb, Fla.App.1962, 142 So. 2d 142. Further, it appears that the actions of the appellant, through her counsel, in California constituted a general appearance under the reasoning of the following California authorities: Farmers & Merchants National Bank of Los Angeles v. Superior Court of Los Angeles County, 25 Cal.2d 842, 155 P.2d 823; Wilson v. Barry, 102 Cal.App.2d 778, 228 P.2d 331; Bank of America Nat. Trust & Savings Ass’n v. Harrah, 113 Cal.App.2d 639, 248 P.2d 814; Smith v. Smith, 120 Cal.App.2d 474, 261 P. 2d 567.

Therefore, for the reasons above stated, the final order under review be and the same is hereby affirmed.

Affirmed.