text:
    STATE of Louisiana v. Scott A. FRUCHTNIGHT and Susan F. Schoen.
    No. 63381.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Scott A. Fruchtnight and Susan F. Schoen, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Writ granted.

The petition of the relators in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Alvin Rudy Eason, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 15th day of December, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relators herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be determined by this Court, why the relief prayed for in the petition of the relator should not be granted.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Louis James HOWARD v. CRIMINAL DISTRICT COURT, SECTION “B”, ORLEANS PARISH, State of Louisiana.
    No. 62695.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Louis James Howard applying for writ of habeas corpus. Parish of Orleans.

Writ denied. Based on the certified copy of the minutes showing that relator was represented by counsel at the time of his 1963 pleas of guilty, we find no merit to the relator’s application.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Leo JACKSON v. Hon. Oliver P. SCHULINGKAMP, Judge, Section “F”, Criminal District Court, Parish of Orleans.
    No. 63455.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Leo Jackson applying for supervisory and remedial writs. Parish of Orleans.

Writ granted. Trial court is ordered to either appoint new counsel or direct present appointed counsel to proceed with the appeal.


text:
    STATE of Louisiana v. Charles W. BLANCHARD.
    No. 63473.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Charles W. Blanchard applying for supervisory and remedial writs. Parish of Jefferson.

Writ granted. Evidentiary hearing is ordered as to whether plea bargain was violated.


text:
    Mrs. Dorothy Yarls Gordon, wife of/and James T. GORDON, Sr. v. CITY OF NEW ORLEANS, New Orleans Police Department, Donald Lagarde and Marcel David.
    No. 63477.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Mrs. Dorothy Yarls, wife of/and James T. Gordon, Sr., applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Margaret ESPENAN v. Roger A. ESPENAN.
    No. 63485.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Margaret Espenan applying for writs of certiorari, prohibition and/or mandamus. Parish of Orleans.

Writ granted. An immediate hearing is ordered.


text:
    STATE of Louisiana v. William MICHAEL.
    No. 63487.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: William Michael applying for supervisory and remedial writs. Parish of Orleans.

Writ granted. It is ordered that trial judge’s criminal commitment of defendant be terminated within 30 days unless civil commitment proceedings have been instituted before then.


text:
    STATE of Louisiana ex rel. Frank C. WILLIAMS v. Frank C. BLACKBURN, Warden, et al.
    No. 63269.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Frank C. Williams applying for remedial writs and writ of habeas corpus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Raphael (Rayfield) MALVEAUX.
    No. 63305.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Raphael (Rayfield) Malveaux applying for writ of certiorari. St. Landry Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Clinton HOWARD v. Matthew S. BRANIFF, Judge, Criminal District Court.
    No. 63309.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Clinton Howard applying for writ of mandamus. Parish of Orleans.

Writ denied. Application is moot.


text:
    The HOUSE OF REPRESENTATIVES OF the LEGISLATURE of Louisiana, etc. v. Sherman A. BERNARD and Richard C. Britson.
    No. 63390.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Sherman A. Bernard and Richard C. Britson applying for writ of certiorari, prohibition, mandamus and/or writ of review to the First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Buster E. WILDER.
    No. 63417.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Buster E. Wilder applying for writs of certiorari, mandamus, prohibition and review. Parish of Ouachita.

Writ denied.


text:
    STATE of Louisiana ex rel. Rodney David BOOVER v. Hayden J. DEES.
    No. 63446.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Rodney David Boover applying for writ of mandamus. Parish of Jefferson.

Writ denied. Application is moot.


text:
    STATE of Louisiana v. Willie James GIBSON.
    No. 63469.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Willie James Gibson applying for writ of habeas corpus. Parish of Ouachita.

Writ denied.


text:
    STATE of Louisiana v. Quinton BLACKSTONE.
    No. 63497.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Quinton Blackstone applying for remedial writ. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph Francis FORBES v. JUDGE, 27TH JUDICIAL DISTRICT, PARISH OF ST. LANDRY.
    No. 63547.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Joseph Francis Forbes applying for writ of mandamus. Parish of St. Landry.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    Sherman A. BERNARD, Ancillary Receiver, and Mobile Insurance Company, in Receivership v. BRINKLEY & WEST, INC.
    No. 63556.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Brinkley & West, Inc. applying for writs of prohibition and review. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Henry BISSELL.
    No. 63559.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Henry Bissell applying for writ of review. Parish of Ouachita.

Writ denied.


text:
    Albert MARTIN, Sr. v. HOLZER SHEET METAL WORKS, INC., and Argonaut Insurance Companies.
    No. 63344.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Albert Martin, Sr., applying for supervisory writs. Parish of Orleans.

Writ denied. Interlocutory rulings of the lower courts are not ordinarily reviewed by us in the absence of palpable error. 363 So.2d 544.

DIXON, CALOGERO and MARCUS, JJ., would grant the writ.


text:
    ELECTRODATA MANUFACTURING CORPORATION v. The DOMED STADIUM HOTEL, INC., et al.
    No. 63439.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Electrodata Manufacturing Corp. applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 362 So.2d 1122.

Writ denied.

SUMMERS, DIXON and DENNIS, JJ., would grant the writ.


text:
    Marguerite Cecilia LANDRY, wife of Thurman Paul Hall, Jr. v. Thurman Paul HALL, Jr.
    No. 63557.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Marguerite Cecilia Landry Karajulles applying for writs of certiorari. Parish of St. Bernard.

This application is returned to the attorney for applicant by violation of Rule 7, Section 7 of this Court.


text:
    STATE of Louisiana v. Curtis JACKSON.
    No. 63613.
    Supreme Court of Louisiana.
    Dec. 18, 1978.
   In re: Curtis Jackson, applying for writ of certiorari and stay order. Orleans Parish.

On the showing made, the application is denied.


text:
    STATE of Louisiana ex rel. Mitchell MALLETT and George Herbert English v. J. Al AMISS, Sheriff, East Baton Rouge Parish.
    No. 63621.
    Supreme Court of Louisiana.
    Dec. 18, 1978.
   In re: Mitchell Mallett and George Herbert English, applying for writs of habeas corpus. Parish of East Baton Rouge.

Writ granted. The East Baton Parish Sheriff is ordered to release the prisoners to the Calcasieu Sheriff for return and hearing in accordance with our order in No. 63620 this date.


text:
    STATE of Louisiana ex rel. George Herbert ENGLISH and Mitchell Mallett v. Hon. L. E. HAWSEY, Judge, 14th Judicial District Court.
    No. 63620.
    Supreme Court of Louisiana.
    Dec. 18, 1978.
   In re: George Herbert English and Mitchell Mallett applying for writ of certio-rari, prohibition and mandamus. Parish of Calcasieu.

Writs granted as prayed for in paragraph 1 and 2 of relator’s prayer of the application.

1. Writs of Prohibition and Mandamus issue herein directed to the Honorable L. E. Hawsey Jr., Judge of the 14th Judicial District Court, commanding him to order the immediate return to Calcasieu Parish of George Herbert English and Mitchell Mal-lett pursuant to Louisiana Code of Criminal Procedure Article 366 and further commanding him to order the presence of George Herbert English and Mitchell Mal-lett on the hearing on the writ of habeas corpus.

2. Writs of Prohibition and Mandamus issue herein directed to the Honorable L. E. Hawsey Jr., Judge of the 14th Judicial District Court, commanding him to prohibit the further transfer of George Herbert English and Mitchell Mallett by Sheriff Henry A. Reid, Jr., to any other facility without an order of the 14th Judicial District Court.


text:
    STATE of Louisiana v. Kevin SEWARD.
    No. 63527.
    Supreme Court of Louisiana.
    Dec. 18, 1978.
   In re: Kevin Seward, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Orleans.

Writ granted. The ruling on the motion to recuse is reversed, and the recusal is granted. Accordingly, the ruling on the motion to suppress is vacated and set aside and it is ordered that the motion be heard before the judge to whom it is re-allotted. Our ruling is without prejudice to the relator’s right to move to set aside any other ruling of the recused judge.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Billy Ray WATTS.
    No. 63618.
    Supreme Court of Louisiana.
    Dec. 19, 1978.
   In re: Billy Ray Watts applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo.

Writ granted. Bail bond reduced to $500.00.

SUMMERS, J.,

dissents. I see no abuse of the discretion of the trial judge.


text:
    Succession of Geraldine Anita De La Parra ELROD.
    No. 63461.
    Supreme Court of Louisiana.
    Dec. 20, 1978.
   In re: Countess Ercilia Elrod LeNy applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans.

Granted.


text:
    STATE of Louisiana v. Donald Ray LEONARD.
    No. 63369.
    Supreme Court of Louisiana.
    Dec. 20, 1978.
   In re: Donald Ray Leonard, applying for remedial writs. Parish of Orleans.

Writ denied. On the basis of returns from the trial court, there is no showing of a denial of speedy trial at this time.


text:
    STATE of Louisiana v. Trina A. HOLLIS.
    No. 63616.
    Supreme Court of Louisiana.
    Dec. 20, 1978.
   In re: Trina A. Hollis applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Jefferson.

Writ denied. Adequate remedy by review in the event of conviction.


author: SANDERS, C. J., and MARCUS, J.,

text:
    STATE of Louisiana ex rel. Robert N. PAULHUS, a/k/a Robert N. O’Brien v. CUSTODIAN OF RECORDS OF LOUISIANA STATE PENITENTIARY, C. Paul Phelps, Sec., Dept. of Corrections, Frank Blackburn, Warden, La. State Penitentiary.
    No. 62969.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Robert N. Paulhus, a/k/a Robert N. O’Brien, applying for remedial writs of mandamus, prohibition, injunctive relief. Parish of West Feliciana.

Denied.

SANDERS, C. J., and MARCUS, J.,

dissent adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.


text:
    STATE of Louisiana ex rel. Nelson MANUEL v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 63069.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Nelson Manuel applying for motion for leave to proceed in forma pauperis and petition for writ of certiorari. Calca-sieu Parish.

Writ denied.

SANDERS, C. J., and MARCUS, J.,

dissent adhering to their dissent in State v. Curtis, 363 So.2d 1375 (La.1978).

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Louis M. KLAR.
    No. 63627.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Louis M. Klar applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Gary Eugene NEWCOMBE.
    No. 63643.
    Supreme Court of Louisiana.
    Dec. 21, 1978.
   In re: Gary Eugene Newcombe, applying for remedial writs and stay order. Parish of Lafayette.

Writ denied and stay order rescinded.


text:
    STATE of Louisiana v. Jack DANIEL and Denise Daniel.
    No. 63671.
    Supreme Court of Louisiana.
    Dec. 22, 1978.
   In re: Jack Daniel and Denise Daniel, applying for writ of review. Parish of Terrebonne.

Writ granted. Bonds reduced to $10,-000.00 as to each defendant.

SUMMERS, J., dissents, seeing no abuse of the discretion of the trial judge.


text:
    STATE of Louisiana ex rel. Bernell MATTHEWS v. STATE of Louisiana and the Hon. Bernard L. Knobloch.
    No. 63697.
    Supreme Court of Louisiana.
    Jan. 3, 1979.
   In re: Bernell Matthews applying for supervisory and remedial writs. Parish of Lafourche.

Writ granted. Trial judge ordered to admit Bernell Matthews to bail, the amount to be fixed by the trial judge after a hearing.


author: LEMMON, Judge.

text:
    Mrs. Inez L. GREEN, Individually and in Behalf of Nathaniel Green, minor v. ORLEANS PARISH SCHOOL BOARD.
    No. 8430.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1978.
    Rehearing Denied Dec. 19, 1978.
    Writ Refused Feb. 9, 1979.

      Nelson, Nelson & Lombard, Ltd., John P. Nelson, Jr., Patrick D. McArdle, New Orleans, for plaintiff-appellant.
    Polack, Rosenberg, Rittenberg & Endom, Franklin V. Endom, Jr. and Richard G. Ver-lander, Jr., New Orleans, for defendant-ap-pellee.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   LEMMON, Judge.

This tort action, founded on teacher negligence, presents the claim of a 16-year old high school student who was permanently paralyzed by injuries sustained while performing a wrestling drill in a required physical education class conducted by a teacher employed by the Orleans Parish School Board. Plaintiff’s claim was dismissed after a trial on the merits, and he has appealed.

Since the standard for evaluating a teacher’s conduct is the care which a reasonable and prudent person would exercise under similar circumstances, the voluminous testimony presented with utmost legal skill by both sides primarily addressed the question of whether this teacher’s method of conducting the class was so substandard as to create an unreasonable risk of injury to students and therefore render the teacher liable for injuries resulting from the risk created.

I

In January, 1973 plaintiff decided to go out for football and reported for spring training. Because his vision as determined by a physical examination was below the Board’s standard, he was not allowed to engage in contact activities, but did participate in the exercises and non-contact drills. In accordance with the coaches’ policy of having the football players take physical education together during the sixth period (2:15 to 3:15 p. m.), plaintiff was also transferred into that class.

About two weeks after spring training was completed, the sixth period P.E. class began a six-week unit in which wrestling and weight lifting were taught on alternate days. The first three wrestling classes consisted of warm-up calisthenics and instructions in basic positions and moves, with the moves being demonstrated and then performed by the students “by the numbers”. In this procedure each move was broken down into numbered components, and the students upon command moved methodically through the entire maneuver, at first slowly and then with gradually increasing speed. According to plaintiff’s testimony, the students were taught three or four moves in this manner, and at least one time they had paired off and wrestled, but not as hard as they could go, and they were limited to the move then being studied.

On the fourth or fifth day the students, after warming up, were paired off and required to wrestle “hard” in a 30-second drill, using not only the moves they had been taught, but also any others which came to mind. The drill was conducted with a varsity wrestler on the mat acting as referee and the teacher seated in a chair about six feet away. In the course of the 30-second drill plaintiff found himself turned on his back, with his opponent on top, chest to chest. Plaintiff attempted to avoid being pinned by arching with his neck and feet, basically using a “bridge” which he had been shown both as a conditioning exercise and as a wrestling maneuver. When he heard the referee begin to count, plaintiff raised a leg and attempted to roll away, but he felt a sudden force on his chest, followed by pain in the neck, and he became paralyzed.

II

A teacher has the duty to conduct his classes so as not to expose his students to an unreasonable risk of injury. Certain classes, such as science, physical education and vocational training, involve dangerous activities, and due care must be exercised in instructing, preparing and supervising students in these activities so as to minimize the risk of injury.

When an activity is potentially dangerous, a student should not be required to attempt such activity without first receiving proper instruction and preparation, including an explanation of basic rules and procedures, suggestions for proper performance, and identification of risks. Considerations in determining whether instructions are proper and sufficient include the difficulty and inherent dangerousness of the activity and the age and experience of the students.

Furthermore, potentially dangerous activities require supervision reasonably calculated to prevent injury. The reasonableness of supervision is determined largely by the same factors used to determine reasonableness of instruction and preparation.

No national or local guidelines- or procedures have been established for teaching wrestling in physical education classes. However, since wrestling is a sport which involves physical contact and a certain degree of skill, and since participation exposes students to some risk of injury, the procedures must meet the standard of reasonableness and therefore must be reasonably calculated to minimize the risk of injury under the overall circumstances. The proof in this case therefore consisted of testimony of experts in wrestling, stating their opinions on the type and amount of instruction and supervision necessary for these particular students to attempt the drill in progress at the time of the accident without unreasonable risk of injury.

Ill

All experts agreed that conditioning is the first step in the teaching of wrestling and that the simpler moves must be taught first, building up to more complex moves. They disagreed, however, on the central issue of the instruction, conditioning and supervision necessary to prepare a beginning student for a 30-second hard wrestling drill with unlimited moves.

Plaintiff presented Paul Katz, a high school wrestling coach, who testified that it was highly likely someone would get hurt if P.E. students were allowed to wrestle hard with unlimited moves on the fourth day and that it was dangerous to allow novice wrestlers to execute a bridge in competition. He opined that allowing novices to wrestle hard, with only the instructions given to plaintiff, subjected them to unreasonable risk of injury.

Keith Bellow, a high school wrestling coach, stated that he would not allow two beginners to wrestle hard at any time during a short P.E. program, because of the unreasonable risk of injury, and that such courses should culminate in half-speed wrestling, limited to certain moves.

Brian Scully, a college P.E. teacher who coached wrestling in high school and college, testified that he would never allow beginners in a three-week course to reach full resistance, because they did not have sufficient skill to control themselves. He also noted that unskilled persons tire more quickly and are more prone to accidents in a state of fatigue. Moreover, he opined that a student should have six to eight weeks of wrestling instructions, including practice with another person in a supporting position, before being allowed to use the bridge as a technique for escape from pinning, because of the risk of injury to the upper back and neck.

Surachi Harnsongkram, a high school wrestling coach who taught wrestling in high school P.E. classes, testified that during the first few weeks of classes he concentrated on conditioning and fundamentals (rules and legal holds) and did not get into wrestling until at least the third or fourth week of a nine-week session, depending on the students. He did not teach bridging as a maneuver until the fourth or fifth week, because it was not important. He opined that allowing a novice to wrestle hard for 30 seconds with unlimited moves in the fourth day of class would expose the student to an unreasonable risk of injury and that teaching the bridge as a wrestling maneuver in the first few days would subject the student to unreasonable risk of neck injury.

Edward Kavanaugh, a high school wrestling coach, did not allow beginners to wrestle hard for three or four weeks, but reasoned that bad habits picked up from wrestling too early would be hard to break. He conceded, however, that he taught fifth and sixth graders and allowed them to wrestle after five days of instruction.

In its defense the Board presented the P.E. teacher, who had no formal training in wrestling, having learned techniques from college wrestlers, books and short clinics. He believed there was nothing unsafe in teaching beginners several basic moves and letting them wrestle hard on the fourth or fifth day, as long as he watched them closely to prevent their using dangerous or illegal moves. He also noted this particular class, which consisted primarily of football players, learned quicker than a class of average students and, because of recently completed spring training, was in better condition.

Dennis Murphy, a high school wrestling coach, in answer to hypothetical questions, opined that the class had adequate physical conditioning (considering the recently completed spring football training, which included many exercises and drills that strengthened the neck) and had been adequately instructed to safely participate in 30-second wrestling drills. He noted that wrestlers on their backs bridge naturally, stating he would not have stopped the match had he seen a beginning wrestler in the position plaintiff was in when he was injured.

Dr. David Klein, a neurosurgeon who had wrestled in high school and college,' considered the described conditioning as sufficient for participating in 30-second wrestling drills.

Lester Alfortish, who had coached wrestling in junior high and high school and was also a wrestling referee, testified that beginners, if sufficiently conditioned, can safely participate in 30-second drills at full speed during the first week with restrictions against moves which are potentially dangerous or which apply pressure to joints. In his teaching he used bridging from the very beginning of instructions.

Raymond Charboneau, a high school wrestling coach who wrestled four years in college, considered the described conditioning and instruction as adequate for wrestling hard with unlimited moves on the third or fourth day, noting that competent beginning wrestlers can “pick up” 15 moves in three days. He asserted that bridging and rolling are natural maneuvers, which in his experience very young children have learned immediately in wrestling camps.

Alfred Johnson, a high school wrestling coach, considered 15 and 30-second wrestling drills with unlimited moves to be safe for adequately conditioned students after three days of instructions. He taught the bridging maneuver to his team in the first week of mat practice. He admitted, however, that two unskilled wrestlers would tend primarily to utilize brute force during most of a 30-second drill and that additional instruction and practice at less than full speed would minimize the risk of injury.

Julius Palone, who had wrestled in college and taught wrestling in high school P.E. classes, opined that a class could wrestle hard in the middle of the second week, but that a class of athletes could progress faster.

Each of the Board’s experts believed the situation and position of the wrestlers at the time of the injury was not potentially dangerous, and none would have stopped the drill because of danger. Moreover, each approved the teacher’s supervision from a point six feet away, as long as he had a whistle and an experienced wrestler was on the mat as referee. Even some of plaintiff’s experts (who believed the teacher should have been on the mat) admitted the teacher’s presence there would not have prevented the occurrence of the injury.

IV

Plaintiff presented substantial and impressive expert opinion evidence that the students in plaintiff's class were subjected to unreasonable risk of injury in the 30-second drill because of insufficient conditioning, which resulted in early fatigue and increased risk of injury; insufficient instruction and practice with fundamental moves; premature introduction of bridging as a wrestling maneuver; exposure to too many moves too quickly; and failure to limit the drill to the moves that had been taught. On the other hand, the Board’s expert evidence expressing contrary opinions was at least equally impressive. Reasonable minds could have differed on the conclusions to be drawn from the overall evidence in this record. Nevertheless, we cannot say that the trial court erred manifestly in finding the evidence did not preponderate in favor of a conclusion that the teacher’s instruction and preparation for and supervision of the drill in which plaintiff was injured fell below any locally or nationally accepted reasonable standard of care for teachers under similar circumstances.

The judgment is affirmed.

AFFIRMED.

PER CURIAM.

In its application for rehearing the School Board argues the trial court’s assessment of costs should be reversed or, alternatively, should be limited in accordance with R.S. 13:4521 to the stenographers’ costs for taking testimony.

The trial court has wide discretion in assessing costs. C.C.P. art. 1920. The School Board has shown no abuse of discretion under the overall circumstances of this case.

As to the statutory exemption of public boards from the requirement of payment of court costs other than stenographers’ fees, the court in Hopkins v. Department of Highway, State of Louisiana, 364 So.2d 616 (La.App. 3rd Cir. 1978) held that Act No. 467 of 1978, amending R.S. 13:4521 and adding R.S. 13:5112, should be given retroactive effect. Accordingly, the assessment of all costs against a department of the state was allowed to stand when the act became effective while the matter was pending on appeal.

We agree that this decision accords with legislative intention.

The application is denied.

APPLICATION DENIED.

      . Plaintiff had gone out for the varsity wrestling team during the preceding fall semester. After several days of practice, he dropped out because he had not completed the physical, but he continued to visit practice sessions and assist in meets.

      . For a general discussion of teacher negligence, see Vacca, Teacher Malpractice, U. Richmond L.Rev. 8:447 (1973-1974) and Proehl Tort Liability of Teachers, 12 Vand.L.Rev. 723 (1959).

      . For example, in LaValley v. Stanford, 272 App.Div, 183, 70 N.Y.S.2d 460 (1947) a P.E. teacher was held liable for an injury sustained by a student in a required boxing activity when the completely untrained student was allowed to go “right at it as hard as we could” with another completely untrained student, while the teacher sat in the bleachers. The court held that the teacher failed in his duty “to exercise reasonable care to prevent injuries”.

      . Plaintiff argues the hypothetical questions propounded to defendant’s experts were not based on proved facts. Our review of the record convinces us that the questions were supported by proved facts in significant areas and that when cross-examination suggested certain assumptions were doubtful, the experts generally maintained the same opinion.

      . Plaintiff used only one move that had not been taught, and that was the lifting of the leg to avoid pinning.


author: SARTAIN, Judge.

text:
    BUYERS AND TRADERS SERVICE, INC., Plaintiff-Appellant, v. Randolph L. STEWART, Sr., A/K/A Randy Stewart et al., Defendant-Appellee.
    No. 12236.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Bailey E. Chaney, Baton Rouge, of counsel for plaintiff-appellant, Buyers & Traders Service, Inc.
    Victor L. Roy, III, Baton Rouge, of counsel for defendant-appellee, Randolph L. Stewart, Sr. A/K/A Randy Stewart, et al.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

The plaintiff, Buyers & Traders Service, Inc. (Buyers & Traders) brought suit to enjoin the defendants, Car Maintenance Specialists of Baton Rouge, La., Inc. (Car Maintenance) and Randolph L. Stewart, Sr., president of Car Maintenance, from using the trade name “Kar KliniK.” Plaintiff also sought to recover any profits defendants had derived from use of the trade name, as well as an award for losses suffered by reason of the alleged trade name infringement.

The trial court granted the injunction but refused to award any monetary damages. Plaintiff’s right to an injunction is not presently contested. Plaintiff appeals that part of the judgment denying it recovery for damages and lost profits. We affirm.

The situation out of which the dispute in this case arose was the subject of an earlier suit between Buyers & Traders and Car Maintenance. The decision in the prior litigation is reported at 290 So.2d 753 (La.App. 1st Cir. 1974), writs refused 294 So.2d 550 (La.1974).

In the first suit, Buyers & Traders sought and was granted the cancellation of a lease and franchise agreement between the parties. Buyers & Traders previously had operated an automobile repair business on Florida Boulevard in the City of Baton Rouge under the registered trade name “Kar KliniK.” In 1963 Buyers & Traders sold the going business to the defendant Corporation. The agreement also included an eleven year sublease of the Florida Boulevard premises and a franchise to use the name “Kar KliniK.”

In November of 1972, two years before the expiration of the lease, Buyers & Traders filed suit for cancellation, alleging that Car Maintenance had breached the lease-franchise agreement. Although Car Maintenance denied any breach on its part, it did not oppose the cancellation of the lease; and, in fact, on January 1, 1973, it vacated the premises and moved to a location on Choctaw Drive. Car Maintenance did maintain, however, that in the 1963 agreement it had purchased all rights to the trade name. It continued throughout the litigation to operate and advertise its relocated repair shop under the name “Kar KliniK.” This use of the trade name is the subject of the current suit.

It was determined by this court in the prior suit that Car Maintenance had purchased only a franchise to use the name and that the lease-franchise agreement was can-celled as of January 1, 1973.

In the present suit, the defendants have stipulated to an injunction prohibiting their use of the trade name. The dispute centers on plaintiff’s right to an award for damages and lost profits resulting from the defendants’ wrongful use of the trade name after January 1, 1973, the date of the dissolution of the franchise.

It is undisputed that defendants operated and advertised under the name “Kar Kli-niK” until some time in May, 1974. It was shown that when defendants vacated the Florida Boulevard building, signs were painted on the windows indicating that the Kar KliniK had moved to Choctaw. The premises remained empty for approximately one and one-half years until the opening of a new Kar KliniK by Certified Auto Testing Repairs, Inc. (Auto Testing), a corporation owned by Leo Wroten, the sole shareholder of Buyers & Traders.

The parties in this case assume that the applicable law is R.S. 51:211, et seq. (Trade Marks and Trade Names) and particularly Secs. 222 and 223 thereof, which provide:

“§ 222. Infringement
Any person who shall:
(1) Use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this Sub-part in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such goods or services; or
(2) Reproduce, counterfeit, copy or col-orably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in conjunction with the sale or other distribution in this state of such goods or services;
shall be liable to a civil action by the owner of such registered mark for any or all of the remedies provided in this Sub-part, except that under Subsection B hereof the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such mark is intended to be used to cause confusion or mistake or to deceive.”
“§ 223. Remedies
Any owner of a mark registered under this Sub-part may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the said court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display or sale; and such court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case, be delivered to an officer of the court, or to the complainant, to be destroyed.
The enumeration of any right or remedy herein shall not affect a registrant’s right to prosecute under any penal law of this state.”

We note in passing that the applicability of these statutes to a case of trade name infringement might be subject to question. Cf. N.O. Checker Cabs, Inc. v. Mumphrey, 205 La. 1083, 18 So.2d 629 (1944); Robinson, 22 La.Bar J. 179 (1974); But cf. The Metalock Corp. v. Metal-Locking of La., Inc., 260 So.2d 814 (La.App. 4th Cir. 1972); Gallow v. Safeway Brake Shops of La., Inc., 140 So.2d 912 (La.App. 4th Cir. 1962).

However, in this case it is not necessary to rule on the scope of the statutes as the law and the outcome are the same whether we look to R.S. 51:222 — 23 or to the general Louisiana law on trade name appropriation which was developed by the courts under C.C. art. 2315 to prevent unfair competition and to protect the public from deception.

“It is settled in our law that trade names will be protected against unfair use, imitation, or simulation. The law’s protection against unfair competition by the use of another’s trade name rests upon the deceit or fraud which the newcomer in the business practices, not only upon the one already established in the business but also upon the public. A trade name, though not the subject of a technical trademark, will be as fully protected as if it had been so registered, on the ground of unfair trade. Priority of appropriation of the trade name determines the question as to which one of the conflicting claimants is entitled to use it.” (Citations omitted.)

Boogie Kings v. Guillory, 188 So.2d 445, 447 (La.App. 3d Cir. 1966)

Defendants’ use of the trade name after January 1, 1973, the date the franchise terminated, was an infringement for which plaintiff has a right of redress.

Buyers & Traders seeks as an element of damages the profits defendants derived from their use of the name “Kar KliniK.” In proof of its claim, plaintiff offered into evidence the balance sheets and profit and loss statements of Car Maintenance for the fiscal years covering the period of the infringement. These documents show the defendant corporation had a net loss during the relevant period.

Plaintiff argues in its brief that many of the deductions from gross receipts made in these financial statements are improper when calculating profits for the present purpose. While some of the arguments may have merit as a matter of legal principle, there is insufficient proof of the facts upon which the arguments rest. For instance, plaintiff suggests that a deduction labeled “insurance” should not be allowed because “it could be only life insurance, profiting the individual defendant” but no attempt was made to prove this supposition.

As plaintiff has failed to prove that the defendant corporation earned any profits, we affirm the trial court’s ruling on this issue. Additionally, there was insufficient evidence to segregate the receipts that were derived from the wrongful appropriation from those due to other factors. Stewart testified that when he changed the name of his shop from Kar KliniK to Car Medic, there was no appreciable difference in his volume of business.

The second element of damages claimed by plaintiff is for losses suffered by plaintiff by reason of defendant’s infringement. On this question too we affirm the trial court’s denial of an an award, as we conclude that plaintiff failed to prove the causal relationship between the wrongful appropriation and the reduced volume of business done by the Kar KliniK opened in the Florida Boulevard location approximately one and one-half years after defendants left.

Plaintiff’s proof on this issue consisted mainly of a comparison of the gross receipts of the two businesses; but no analysis was made of other features of the two businesses which might explain the discrepancy in income. The most plausible explanation for the difference in the amount of sales is that defendants had been in the auto repair business continuously for more than nine years, while plaintiff’s operations had begun after a gap of one and one-half years.

Mr. Wroten testified that some customers at the new Florida Kar KliniK told him they previously had gone to the Kar KliniK on Choctaw. However, there was virtually no evidence to indicate the influence that defendants’ use of the trade name had on these customers.

As indicated above, we agree with the trial court that plaintiff has failed to prove any connexity between defendants’ wrongful use of the trade name and any damages suffered by plaintiff.

Accordingly, for the above reasons, the judgment of the district court is affirmed. All costs incurred in the district court are assessed against the defendants-appellees, and all costs incidental to this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . Even if plaintiff had succeeded in proving the new Kar KliniK suffered because of the trade name infringement, further proof would be needed to show how this had damaged the plaintiff corporation which is a distinct entity from Auto Testing, the corporation which operates Kar KliniK under a lease and franchise from the plaintiff.


author: REDMANN, Judge. PER CURIAM.

text:
    Andrew J. WARE v. Birdie Pankey WARE.
    No. 9208.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Rehearing Denied Jan. 17, 1979.
    Writ Refused March 5, 1979.

      Santo A. Dileo, Carrollton, for defendant.
    Paul A. Bonin, Garrity, Levenson & Bo-nin, New Orleans, for plaintiff.
    Before REDMANN, LEMMON and BEER, JJ.
   REDMANN, Judge.

An ex-husband sued his ex-wife for a partition of their former marital community by licitation. A notary public was appointed only to take an inventory (which he did). The ex-wife then answered, objecting that partition by licitation was not necessary for every asset of the community; she also sought attorney’s fees and an accounting of all property acquired during the marriage and of all income after the parties’ separation.

The trial judge treated the wife’s answer as a traversing of the inventory, in respect to two items, namely Mississippi property and certain interests in employee stock and retirement plans arising from the husband’s employment.

The wife argues about other matters, upon which the trial judge apparently reserved consideration until after the actual effecting of the partition by another notary appointed to do so (who will presumably treat these claims as provided by C.C.P. 4608). We deem that action within the trial judge’s “discretion to direct the manner and conditions of effecting the partition,” C.C.P. 4605, especially when it requires a stretch of the imagination even to treat the wife’s answer as a traversing of the inventory.

The trial judge awarded the community the $8,700 it advanced for improvements on the Mississippi property (and the record does not support any further claim, specifically for any advance of purchase price). Assuming the property was the husband’s separate property, that is the maximum reimbursement for enhancement that La.C.C. 2408 allows. The wife’s claim that she is a co-owner of the Mississippi land (despite title in the husband as the result of a transfer from his parents, and his subsequent transfer of the land to his mother) is not cognizable by a Louisiana court; Succession of Martin, La.App. 2 Cir. 1962, 147 So.2d 53, writ refused 243 La. 1003, 149 So.2d 763; see also Pennison v. Pennison, La.App. 4 Cir. 1964, 157 So.2d 628, writ refused 245 La. 585, 159 So.2d 290.

The wife’s claim to the employee stock account resulted in a judgment ordering the husband “to withdraw certain [sic] shares of the Exxon stock purchased through his contribution [rather than with the employer’s contribution] ... to be divided in kind or by licitation, depending upon the further partition of this community.” The wife’s argument that the judgment should award her half of a total of 307 shares errs both in that she stipulated that the total as of the effective termination was 283 shares [the husband concedes that 238 at one point in the judgment is a clerical error] and in that not all shares can be withdrawn, but only those paid for by the employee’s contribution. Moreover, there was a $4,900.64 loan balance against his thrift (stock) account which might affect withdrawability of the shares. Accordingly the judgment appealed from appears to have been as specific as it could on the record before us. (The husband’s brief asserts that the available stock has in fact been partitioned since the judgment.)

(The wife’s brief also asks, without supporting explanation, that the husband be “ordered to withdraw at each 6-month interval, whatever shares of Exxon stock can be withdrawn and place same in name of wife.” We are not informed why this should be ordered, and it appears incorrect because the husband’s earnings after the community’s dissolution effective November 12, 1974 belong exclusively to him.)

The wife also asks that the judgment be amended to provide a mathematical formula for her participation in the retirement benefits “as per Lynch v. Lynch ” rather than the judgment’s simple provision for entitlement under Lynch. Lynch v. Lawrence, La.App. 4 Cir. 1974, 293 So.2d 598, writ refused 295 So.2d 809, is questioned by Sims v. Sims, La.1978, 358 So.2d 919, 922, n. 1. However, there is no argument that the wife’s circumstances in this case require a Sims rather than a Lynch formulation, and the husband does not ask for any change. The wife’s assertion that a mathematical formula was stipulated is unfounded. We therefore leave this provision of the judgment also undisturbed.

The judgment did fix attorney’s fees of both parties’ lawyers. The wife asks that the award of fees to the husband’s lawyer be reversed and that her own attorney’s fees be increased by $3,000. She misreads the judgment. This partition suit was filed three months after the judgment of divorce, a year and a half after the effective date of termination of the community. Thus C.C.P. 4613 governs, and it expressly prohibits charging any represented party any part of another party’s attorney’s fee. The fees are not due from the community. Talbert v. Talbert, 1942, 199 La. 882, 7 So.2d 173; Lane v. Lane, La.App. 4 Cir. 1978. Thus the wife has no interest in the fixing of the amount of the husband’s attorney’s fee and vice versa. As to her own attorney’s fees, she may increase them if she wishes, but we will not fix an increase when, as we have pointed out, it is not a matter of dispute between the two parties before us.

Affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

We have since our opinion of November 8 learned that on April 3, five months before the hearing of this appeal, the trial court rendered a judgment homologating a partition “as provided for in the proees verbal” and distributing the funds. The proees verbal’s accounting includes the funds due the wife on the Mississippi property and the attorneys’ fees of both parties, and it recites that, with the exception of the Exxon stock (to “be divided in kind as those [retirement] rights accrue”), “. . . additional items of movable property . . . [have] already been equally divided in kind.”

No appeal was taken from the April 3 judgment and the parties do not here attack it. It may be subject to attack on the basis that the trial court lacked “jurisdiction” under La.C.C.P. 2088 as to the “matters in the case reviewable under the appeal”, which included (at least) the Mississippi property and Exxon stock questions. Or it may be that, by failure to object to the homologation of a proees verbal proposing a final, net dollars-and-cents partition, the former appeal was abandoned as a matter of law.

It thus may be that not only this application for rehearing but the entire appeal is moot and has been since before it was heard. But insofar as it is not moot, rehearing is refused.


author: SCHOTT, Judge.

text:
    Victor J. BRADBURY v. Washburn PAUL, Jr.
    No. 9847.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      Victor Bradbury, in pro per.
    Jerald L. Album, Metairie, for defendant-appellee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff brought this suit for a permanent injunction against his next door neighbor to prevent him from erecting any sort of barrier across an alley which runs behind the properties and from obstructing his use of the alley behind defendant’s property. In his petition plaintiff alleged that he is the owner of Lots 12 A and 12 B, each measuring 25 feet front on Hesper Avenue in Jefferson Parish by 150 feet deep, in Square 31 of Bonnabel Place Subdivision, in accordance with a plan made by Bonnabel on October 30, 1924. Attached to the petition is a copy of the sale, but the map of 1924 is not a part of the record. Plaintiff alleged further that Bonnabel had registered in the Conveyance office on June 9, 1916, a dedication of the streets in the Subdivision and filed a map, copy of which is annexed to the petition.

According to this map Square 31, bounded on the north by Socrates Street, south by Hesiod Street, east by Helios Street and west by Hesper Avenue, was divided into thirty lots with six fronting on Socrates and Hesiod Streets and nine each fronting on Helios and Hesper. It further shows running north-south along the rear of the nine lots fronting on Hesper in common with the rear of the nine lots fronting on Helios an alley, the ends of which open into alleys running east-west along the rear of the six lots fronting on Hesiod and the six fronting on Socrates. These two alleys are parallel with Hesiod and Socrates and open on each end into Hesper and Helios Streets. Thus, every lot in the square was accessible to Hesper and Helios Streets from its rear.

In his petition plaintiff further alleged that defendant occupied Lots 13 A and 13 B of the Square and violated plaintiff’s rights by erecting fences across the alley thereby preventing him from the use of the alley. Finally, in his petition plaintiff alleges that the alley running along the rear of his and defendant’s property constituted a servitude in his favor, of which he has been deprived by defendant.

In answer to this petition, defendant denied all of plaintiff’s allegations, and in the alternative alleged that plaintiff’s use of this alley was a “discontinuous and apparent servitude” which was extinguished by non usage for ten years under LSA — C.C. Arts. 789 et seq.

At the trial of the case defendant testified that he bought Lots 13 A and 13 B in 1949. His lots were next door to and in the direction of the lake from plaintiff’s. Since his acquisition the Interstate Highway was built on the lake side of his property, but he bought 12 feet more of frontage on Hesper from the Highway Department so that his property now consists of 62 feet along Hes-per and the lake side is along the Interstate Service Road. With respect to the alley behind his house, he and his neighbor to the rear of his property erected a fence across the alley in 1968 and he gave the following explanation:

“. . . the way that alley has been handled, it’s never been used, not to my knowledge. So as a consequence, the people on each side of the alley would — if you wanted to use or take in six feet of it which it’s a twelve foot alley, then they got together themselves and — for instance, the man in back of me, he — I tried to get him to take six feet and put his back fence in the middle, and I'd have a back fence ’cause my fence had fallen down, you see, and I hadn’t replaced it. But he didn’t want to move his fence. So — So, his — my neighbor in the back, his mother and his father cleaned that alley quite a few times, and cut the grass, and then finally when my fence fell down, then both of us started cutting it. But it is — -There’s an agreement between he and I like between the other properties down the block that — both of us use it jointly.”

He went on to testify that he uses the alley as a portion of his lawn.

The other witnesses who testified at the trial were plaintiff, Robert Heintz, the owner of the lot to the rear of defendant’s, and Gerald Cassanova, the next door neighbor of plaintiff on the opposite side from defendant’s property. All of the testimony centered around the use which was made of the alley between Cassanova’s house and the portion of the alley between the property of defendant and Heintz.

The trial court in dismissing plaintiff’s suit found that plaintiff’s use of the alley behind defendant’s property constituted a servitude of passage and from the facts found that this servitude had been lost because of non usage for ten years.

From this judgment plaintiff has appealed and both parties have proceeded to argue on the theory that this is a servitude problem with the issue of prescription for non usage being paramount.

Arts. 647 and 699 seem to contemplate the situation where there are two adjacent estates, with one being subservient, i. e., owing the servitude to the other dominant estate. When no use is made of the servitude for ten years the subservient estate is freed of the servitude so that the owner of the subservient, estate is no longer required to make his land available to the neighbor for passage. Art. 789.

In the instant case plaintiff has not alleged that defendant is the owner of the alley behind his property through which plaintiff seeks to exercise a servitude of passage. The sparse documentary evidence indicates that the rear boundary line of defendant’s record title abuts the alley.

Defendant’s own testimony is to the effect that he did not own the 12-foot alley behind his house but he simply took it over and he did so only after determining his neighbor to the rear was not interested in having any part of the 12 feet. Originally, he had the idea that he would take 6 of the 12 and the neighbor to the rear would take the other 6.

Since there is nothing in the record to suggest that defendant ever acquired the alley behind his lots by title or by acquisitive prescription, the non use by plaintiff of the alley would not operate as a loss of a servitude of passage in defendant’s favor. At best, it might release the alley from a servitude in favor of the owner of the alley. Whether the owner be Bonnabel’s heirs or assigns or the public is not shown in this record.

The record is incomplete in that the 1924 map of the subdivision referred to in plaintiff’s petition is not the map which is annexed to his petition and made part of the record, but from the testimony it appears that the alleys laid out on the 1916 map were the same in dimension and shape as that which the parties testified about at the time of the trial. The jurisprudence indicates that the filing of this map by Bonna-bel in 1916 or 1924 and subsequent sales of lots from that map constituted a dedication of the alleys to public use. Parish of Jefferson v. Doody, 247 La. 839, 174 So.2d 798 (1965), Metairie Park, Inc. v. Currie, 168 La. 588, 122 So. 859, McDonogh v. Calloway, 8 Rob. 92 (1844), Collins v. Zander, 61 So.2d 897 (La.App.Orl.1952), Esposito v. Gaudet, 8 So.2d 783 (La.App.Orl.1942).

The instant case is somewhat complicated by the inclusion in the 1916 act of dedication of the subdivision of the following provision:

“. . . The said Bonnabel declared that the alleys in the various squares are not dedicated to public use because they are intended solely for the use and convenience of the lot owners abutting on said alleys in each square.”

Several points are made with respect to this language; First it was not the 1916 act and map which were referred to in plaintiff’s act of purchase, but rather a 1924 map. The record does not show whether the 1924 map was filed pursuant to the same language as was included in the 1916 act or whether it was filed alone raising the possibility that the quoted language from the 1916 act was repudiated. Second, if we assume that the language from the 1916 act survived after the 1924 map was filed the language is ambiguous in that it purports to deprive the general public of the right to use the alley but it confers the right to use the alley on all of the lot owners in the subdivision.

If there was a public dedication of these alleys in the square, including that portion of the alleys behind the properties of the parties, the formal dedication could only be terminated by revocation in accordance with LSA-R.S. 48:711 et seq. or their predecessor statutes, R.S. 48:701, Act 382 of 1938, or Act 151 of 1910.

We have concluded that plaintiff may be entitled to the relief he seeks in these proceedings if he can show that the alley was dedicated to the public and such dedication has not been revoked in accordance with the law, but he has failed heretofore to state a cause of action for that relief.

The failure to disclose a cause of action may be noticed by this court on its own motion, C.C.P. Art. 927. Since it appears that the petition may be amended to state a cause of action, plaintiff should be given this opportunity, Art. 934.

In the event that plaintiff chooses to carry on this litigation there is a question as to the status of the other owners of lots in the square as necessary or even indispensable parties. C.C.P. Arts. 641 and 642. It may be that every owner has a right to use the alley, which right could be affected by a judgment in this case and, additionally, there was testimony that other owners in the square had fenced off parts of the alleys. The interests of these owners may be affected by a judgment herein.

Accordingly, the judgment appealed from is reversed and set aside and an exception of no cause of action is sustained to plaintiff’s petition. The petition shall be amended within a delay to be fixed by the trial court, and the parties shall join other parties in these proceedings who may be indispensable and may join those who are necessary. The costs of this appeal are assessed against defendant, and the assessment of all other costs will await the outcome of the case. The case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The 1916 map shows Lots 12 and 13 but not 12 A, 12 B, 13 A and 13 B. We can only assume that the 1924 map resubdivided the two lots into four, and perhaps resubdivided all thirty lots.


author: GUIDRY, Judge.

text:
    Clara YOUNG, Plaintiff-Appellee, v. DEPARTMENT OF HOSPITALS, Defendant-Appellant.
    No. 6679.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Refused Feb. 23, 1979.

      Donald E. Puckett, Baton Rouge, for defendant-appellant.
    P. Spencer Torry, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

The appellee in this case, Ms. Clara Young, is a 57 year old woman who cut her leg in the waiting room of the Huey Long Memorial Hospital in Pineville, Louisiana, on August 4, 1976 at approximately 5:00 p. m. Ms. Young had accompanied her mother to the hospital’s emergency room, and was awaiting medical attention for her mother at the time of the accident. After her mother’s name had been called to enter an examination room, the plaintiff walked past the first chair in the first line of chairs in the waiting room and sustained a severe cut on her left leg. The record reflects that this wound was “U” in shape, with the bottom loop beginning approximately 10" from the floor, the point of the “U” on the right side being approximately 12" from the floor, and the point of the “U” on the left side being approximately 14" from the floor. On the evening of the accident, there were three employees of the hospital on duty in the emergency room waiting area: Mr. Willie James Dunkley, a nurse’s aide; Ms. Ada Collins, also a nurse’s aide; and Mrs. Sheila Bardwell, a registered nurse. Mrs. Bardwell was in charge of the emergency room on the evening of the accident.

Ms. Young testified at trial that when she brushed up against the chair, she looked down and observed a “little sharp end” or “. . .a little round . . . metal thing on the side of the chair . . .”. This protrusion, she testified, had been about the length of her index finger, or approximately 3V2" long. Mrs. Bardwell testified that approximately 2 or 3 minutes after the accident she inspected the chair, alleged by the appellee to have caused the injury, and was unable to find any protrusion, sharp edge or abnormality in the chair’s construction. Mr. Dunkley, who assisted Ms. Young into a wheelchair and into an examination room for treatment testified that 45 minutes after the accident he also inspected the chair which Ms. Young claimed had cut her, but was likewise unable to find any sharp edges or protrusions on it.

Mr. Dunkley and Mrs. Bardwell testified that it was the normal procedure of the hospital maintenance staff to clean the waiting room once every day during the 11 p. m.-7 a. m. shift, with the exception of Friday and Saturday nights. These testified that this cleaning procedure entailed stacking all of the chairs on the side of the room, inspecting them to see if any needed to be removed for defects, and then scrubbing the floor. Any broken or defective chairs would then be placed outside or at the nurse’s station. The accident occurred on a Wednesday evening, and presuming the normal maintenance procedures had been followed, the waiting room chairs would have been inspected for defects the day before the accident. Both Mr. Dunkley and Mrs. Bardwell further testified that to their knowledge no chairs had been removed from the waiting room because they were found to be defective on the day of the accident.

No witnesses came forth at trial who actually saw Ms. Young cut her leg on the chair. Mr. Dunkley and Mrs. Bardwell were able only to testify that when they heard the appellee scream, they attended to her immediately. Only Ms. Young herself could testify as to what actually caused her injury.

In his written reasons for judgment, the trial judge concluded as a matter of fact that Ms. Young’s injury was caused by brushing up against a chair in the waiting room of Huey Long Memorial Hospital, and that the most reasonable conclusion to make based upon the evidence presented would be that the chair must have been defective in some manner to have caused such an injury. The court found that exposing the public to this hazard constituted negligence on the defendant’s part, and awarded the appellee recovery as follows:

For pain, suffering and disfigurement .$ 8,000.00
For lost wages for the period of August 4, 1976 to December 17, 1976 . 720.00
For future lost wages subsequent to December 17,1976 .... 8,320.00
For medical supplies. 14.50
TOTAL $17,054.50

Appellant herein appeals the decision of the trial court insofar as it found the appellant negligent, and in the alternative urges that the amount which the court awarded appel-lee for pain, suffering and disfigurement, and for future lost wages is excessive.

There is no evidence in the record to controvert the conclusion that on August 4, 1976, when Ms. Young entered the Huey Long Memorial Hospital, there was nothing physically wrong with her left leg, and that this injury was sustained while she was in the hospital waiting room. Plaintiff testified that she cut herself on a 3W metal protrusion coming from one of the chairs. Witnesses for the defense testified that they had been unable to find any such protrusion when they inspected the chair. The trial court concluded that appellee had in fact cut herself on a chair and that the chair was defective.

Presumably, the trial court also found that appellant had not acted reasonably in the management of its property in failing to discover an unreasonably dangerous condition on the premises and either correct it or warn of its existence. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976). Clearly the trial court was in the best position to evaluate the testimony of the witnesses before it, and on the basis of the record, we are unable to find manifest error in the trial court’s resolution of this issue. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Accordingly, we affirm the trial court’s resolution of this issue.

QUANTUM

Immediately following the accident, a doctor attended the plaintiff for approximately 45 minutes, cleaning and suturing the wound and administering medication to avoid infection. Ms. Young returned to the hospital as an out-patient eleven times for follow-up treatment and was discharged on November 3, 1976. Medical reports admitted into evidence indicated that the plaintiff experienced infection and swelling of the wound, and that edema was present in early October. She was advised by physicians to keep her leg elevated, and to wear surgical hose. Plaintiff testified that she was still experiencing pain in her leg at the time of trial, some thirteen months after the accident. As is apparent from the photographs admitted into evidence, the wound has left a prominent and permanent scar on the plaintiff’s leg. For this pain and suffering and for permanent disfigurement, the trial court awarded Clara Young $8,000.00.

Before this court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its much discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). Taking into consideration the complications involved in the healing process and the fact that the plaintiff is a 57 year old female who will be permanently scarred, we do not find an abuse of discretion on the part of the trial court in setting this award.

For wages which would be lost by the plaintiff for the period from December 17, 1976 until she reached age 65, the trial court awarded Ms. Young $8,320.00. Plaintiff’s former employer, Mrs. Mary Ann Vil-lard, testified that at the time of the accident the plaintiff was employed by her as a domestic earning $40.00 per week. On the day of the accident, Ms. Young, who was then on vacation, called Mrs. Villard and told her that she would no longer be able to work for her due to her injury. Mrs. Vil-lard thereupon asked her sister to come in and take over the plaintiff’s duties.

Ms. Young testified that due to pain and swelling in her leg, she has not been able to return to full-time work. She has taken several part-time jobs, but earns a total of $20.00 per week, one half the amount she was earning at the time of the accident. The trial court’s award was based upon a weekly loss of $20.00 which the plaintiff had allegedly suffered from December 17, 1976 and would continue to suffer until the end of her work life expectancy at age 65. We find the trial court’s award for loss of future earnings to be clearly in error.

The latest medical record admitted into evidence is dated November 3, 1976. In this report, the wound was found to be completely healed, without the presence of infection or edema. There is no indication whatever in this report, nor in any of the medical reports admitted in evidence that the plaintiff would suffer any residual disability as a result of this cut on her leg. No physician testified that Ms. Young was unable to return to full time work after her wound had healed. Likewise, there is no evidence in the record to indicate that Ms. Young saw any doctor after November 3, 1976, or was prescribed any medication because her leg was swelling or causing her pain. The plaintiff’s contention that she is unable to resume full time employment due to her injury is based purely upon her own uncorroborated testimony.

There is no medical evidence whatever to support the plaintiff’s claim of continued disability for the remainder of her work life expectancy. We find that the most liberal interpretation of the medical evidence justifies the conclusion that if Ms. Young was rendered incapable of performing full time work by her injury, such disability did not extend beyond November 3, 1976. The absence of either medical or lay testimony, to the contrary, other than the self-serving testimony of plaintiff, supports this conclusion.

The burden of proving both the existence of the injuries of which she complains and the causal connection between them and the accident rests with the plaintiff. Such proof must be shown to a legal certainty and by a reasonable preponderance of the evidence. A mere possibility is insufficient. Livaccari v. United Jewish Appeal, Inc., 126 So.2d 67 (La.App. 4th Cir., 1961) cert. den., March 3, 1961; Stevens v. Gulf Am. Fire and Casualty Co., 317 So.2d 199 (La.App. 1st Cir., 1975), reh. den. August 26, 1975. The uncorroborated testimony of the plaintiff to the effect that she can no longer work full time does not prove to a legal certainty that she is so disabled.

We find that Ms. Young is not entitled to any recovery for future lost wages subsequent to December 17, 1976. We therefore reverse the judgment of the trial court insofar as it awarded to the plaintiff the sum of $8,320.00 for the loss of such future wages.

Appellant does not question the trial court’s award for medical supplies nor for lost wages from the date of the accident on August 4,1976 until December 17,1976, and therefore these awards will stand.

For the above and foregoing reasons, we amend the decision of the trial court to disallow the award to Clara Young of $8,320.00 for future wages, thereby reducing her award to $8,734.50. In all other respects the judgment appealed from is affirmed. All costs of this appeal are to be paid by appellant.

AMENDED AND AFFIRMED.


author: WATSON, Judge.

text:
    Rick D. MERCHANT et al., Plaintiffs-Appellants, v. Perrell FUSELIER et al., Defendants-Appellees.
    No. 6708.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.

      Ernest R. Eldred, Baton Rouge, for plaintiffs-appellants.
    John E. Demoradle, Kinder, Preston N. Aucoin, Ville Platte, for defendants-appel-lees.
    Before DOMENGEAUX, WATSON and CUTRER, JJ.
   WATSON, Judge.

This matter has been consolidated for purposes of trial and appeal with our docket number 6735, involving identical plaintiffs and defendants, in which a separate opinion has been rendered this date.

Plaintiffs, Rick D. Merchant, Murphy Johnson, Lee E. Brown and Hazel Arp, filed this suit to obtain a writ of quo warranto directing defendants, Troy G. Foyil, Charlene Solomon, T. J. Davis, and Perrell Fuse-lier, to show by what authority they respectively hold the offices of city clerk, treasurer, prosecuting attorney, and city attorney of the City of Oakdale, Louisiana. In the alternative, plaintiffs asked for a declaratory judgment decreeing that the same defendants were validly removed as employees of the City on October 27, 1977, by action of the city governing authority. The trial court dismissed plaintiffs’ suit, and they have appealed. Defendants have answered.

Plaintiffs are four members of the five member Board of Aldermen of the City of Oakdale, which is governed by a Mayor-Board of Aldermen form of government according to LSA-R.S. 33:321, et seq. Plaintiffs contend that the defendant office-holders were validly removed from their offices at a meeting on October 27, 1977, and have no authority to remain.

Various exceptions were filed on behalf of defendants. The trial court sustained an exception of no cause of action as to plaintiffs’ right to a writ of quo warranto.

It is well established that the function of a writ of quo warranto is narrow and its scope limited. LSA-C.C.P. art. 3901 ; Foreman v. Hines, 314 So.2d 460 (La.App. 4 Cir. 1975). Plaintiffs are not personally claiming the offices in dispute as in Slater v. Blaize, 204 La. 21, 14 So.2d 872 (1943). Plaintiffs alleged and defendants admitted that defendants had been initially properly appointed to their present offices. There is no real contest as to their authority and no showing that the offices were usurped. It is admitted that defendants are holding office by appointment. Quo warranto is an improper remedy. The exception was properly sustained by the trial court.

The real issue is not by what authority defendants hold office, but the validity and enforceability of certain action taken to remove them from office.

Plaintiffs’ alternative plea for a declaratory judgment states that a motion, Exhibit “A”, was validly adopted and effectively removed defendants from office on October 27, 1977. The trial court correctly decided that such a declaratory judgment was inappropriate. The resolution shows on its face that it is unsigned, and there is no proof that it was validly adopted. LSA— R.S. 33:406 provides, in pertinent part, that an ordinance, “ . . .if adopted, shall be signed by the mayor or other officer presiding . . ..” A city ordinance must be proved like any other fact unless there is a certified copy filed of which a court can take judicial cognizance. Pacific Fire Ins. Co. v. Employers’ Liability A. Corp., 34 So.2d 796 (La.App.Orl.1948); LSA-R.S. 13:3711 and 3712. This is also the case where a resolution is involved. See Louisiana State Board of Medical Exam. v. Lensgraf, 101 So.2d 734 (La.App. 1 Cir. 1958) writ denied.

A consolidated judgment was rendered involving two other suits, No. C-613-77 and No. C-614r-77 on the docket of the Thirty-Third Judicial District Court for the Parish of Allen. These suits have the same plaintiffs but name as defendant George B. Mowad, M. D., Mayor of the City of Oak-dale, State of Louisiana. Although a consolidated judgment was rendered in the three suits, no appeal has been taken in suits No. C-613-77 and No. C-614-77. In those suits there was judgment in favor of plaintiffs and against Mayor Mowad enjoining the Mayor from certain protested actions in the future. It is these actions which apparently resulted in the ordinance in question, Exhibit “A”, not being passed and/or signed, but the judgment on that issue is not before this court. It is contended that the meeting of the Mayor and Board of Aldermen on October 27, 1977, was not properly conducted by the Mayor, but this argument is only relevant to suits No. C-613-77 and No. C-614-77 in which there has been no appeal.

The answer to the appeal by defendants alleges that they are aggrieved by the overruling of their various objections, but the answer is moot by reason of our decision on the merits.

For the foregoing reasons, the judgment of the trial court herein is affirmed at the cost of plaintiffs-appellants.

AFFIRMED.

      . LSA-C.C.P. art. 3901: “Definition”
      “Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.”


text:
    Rick D. MERCHANT et al., Plaintiffs-Appellants, v. Perrell FUSELIER et al., Defendants-Appellees.
    No. 6735.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Writ Refused Feb. 23, 1979.

      Ernest R. Eldred, Baton Rouge, for plaintiffs-appellants.
    John E. Demoruelle, Kinder, Preston N. Aucoin, Ville Platte, for defendants-appel-lees.
    Before DOMENGEAUX, WATSON and CUTRER, JJ.
   WATSON, Judge.

This suit involves the same plaintiffs and the same defendants as our docket No. 6708, with which it was consolidated for trial and appeal. A separate opinion has been rendered this date in docket No. 6708. Plaintiffs have appealed from an adverse judgment and defendants have answered the appeal.

Plaintiffs, Rick D. Merchant, Murphy Johnson, Lee E. Brown and Hazel Arp, asked that a writ of quo warranto issue to defendants, Perrell Fuselier, T. J. Davis, Charlene Solomon and Troy G. Foyil, alleged to be, respectively, the former attorney, prosecutor, treasurer and clerk of the City of Oakdale, Louisiana, directing them to show by what authority they are presently claiming these offices.

It is admitted that the office holders were duly appointed in the past. There is no allegation that they have usurped the offices in question, and the trial court decided that a writ of quo warranto was an inappropriate remedy.

Plaintiffs also alleged that, at a meeting of the Mayor and Board of Aldermen of the City of Oakdale, a resolution, Exhibit “A”, was duly passed, resulting in the dismissal of these four office holders, and asked a declaratory judgment to that effect. The trial court decided that plaintiffs were not entitled to the declaratory judgment.

For the reasons assigned in our docket No. 6708, the trial court was correct in its disposition of the foregoing two issues, identical in both suits.

This suit also alleges the valid adoption of other resolutions on December 27, 1977, as follows: to appoint Thomas G. Wallace as city clerk, Exhibit “B”; to appoint James Murphy Johnson as city treasurer, Exhibit “C”; to appoint Errol D. Deshotels as city attorney, Exhibit “D”; and to appoint Terry J. Johnson as city prosecutor, Exhibit “E”. Plaintiffs seek a declaratory judgment declaring resolutions “B” through “E”, validly adopted.

Plaintiffs further allege that vetoes of these ordinances by Mayor George B. Mow-ad, not named as a defendant, were null and void and ask declaratory judgment to that effect. The vetoes dated 1/5/78, are shown as Exhibits “F”, “G”, “H”, “I” and “J”. Plaintiffs contend that Mayor Mowad was without authority to veto these resolutions.

The resolutions are unsigned and therefore invalid. A public corporation can act by ordinance or resolution. There is no substantial difference between the two. Sylvestre v. St. Landry Parish School Board, 164 La. 204, 113 So. 818 (1927). However, neither can be recognized as valid unless there is some prima facie evidence of validity. See LSA-R.S. 33:406. Since the resolutions are void on their face, the vetoes were without effect.

Other declaratory relief is asked by plaintiffs relating to a factual stipulation, as follows: at meetings in July and August of 1976, resolutions were introduced to appoint a new clerk, city attorney, city prosecutor and treasurer which resulted in a tie vote of three to three with the Mayor casting the tying vote on the matter. As to these resolutions, LSA-R.S. 33:386 is applicable. The statute in 1976, prior to the 1977 amendment, read as follows:

“At the first regular meeting of the board of aldermen succeeding each regular municipal election, the mayor and board of aldermen shall elect a clerk, tax collector, and all other necessary officers whose election is not provided for in R.S. 33:381.
The clerk and tax collector shall execute a bond to the municipality in such penalty, with such surety and conditions as may be prescribed by ordinance, and shall hold their offices for two years, or until their successors are elected and qualified.
The mayor and board of aldermen may annually appoint an attorney at law for the municipality, prescribe his duties, and fix his compensation, or it may employ counsel to represent the interest of the municipality should occasion require.”

The statute clearly provided in 1976 for the mayor, as well as the board of aider-men, to vote on election or appointment of the officers in question. The mayor was therefore entitled to cast a tying vote.

A supplemental and amending petition refers to a special meeting of the Board of Aldermen, alleged to have been duly called on November 30, 1977, at the instance of Alderman Rick D. Merchant for various items of business including the following:

“6. Consider and take action to fill the offices and/or positions of Oakdale City Attorney, Oakdale City Clerk, Oakdale Mayor Pro Tempore, Oak-dale Street Commissioner, Oakdale City Prosecutor, Oakdale City Treasurer and Oakdale Chief of Police.” (TR. 47)

The supplemental petition also refers to a resolution passed as Exhibit “C”. A hand written resolution at TR. 49 bears the signatures of plaintiffs, Johnson, Brown, Merchant and Arp, but lacks an exhibit number. This resolution, dated November 30, 1977, declares that there are vacant offices and states that the following persons are authorized to serve in these vacant positions:

“CITY ATTORNEY — Errol Deshotel
CITY CLERK — Thomas G. Wallace
MAYOR PRO TEMP — Rick D. Merchant
STREET COMMISSIONER — Lee E. Brown
CITY PROSECUTOR — Terry Johnson
CITY TREASURER — James Murphy Johnson
CHIEF of POLICE — Bob Smith” (TR. 49)

The trial court dealt with various motions and exceptions before ruling on the merits that the ordinances in question were not legally adopted; and were legally vetoed by the Mayor and that the record does not show that the vetoes were overridden. The trial court dismissed plaintiffs’ suit.

The trial court concluded that LSA-R.S. 33:386 was controlling in the matter. LSA-R.S. 33:386 now reads as follows:

“At the first regular meeting of the board of aldermen succeeding each regular municipal election, the mayor, subject to confirmation by the board of aldermen, shall appoint a clerk, tax collector, and all other necessary officers whose election is not provided for in R.S. 33:381.
The clerk and the tax collector shall execute a bond to the municipality in such penalty, with such surety and conditions as may be prescribed by ordinance, and shall hold their offices until their successors are appointed and qualified.
The mayor, subject to confirmation by the board of aldermen, shall appoint an attorney at law for the municipality, prescribe his duties, and fix his compensation, or the municipality may employ counsel to represent the interest of the municipality should the occasion require. The provisions of this Section shall not affect the term of any clerk, tax collector or any other necessary municipal officer who is serving on the effective date of this Section.
Amended by Acts 1970, No. 165, § 1; Acts 1970, No. 594, § 1; Acts 1977, No. 123, § 1.”

In the instant case, the necessary officers were not appointed by the Mayor nor confirmed by the Board of Aldermen. Chapman v. Bordelon, 242 La. 637, 138 So.2d 1 (1962), referred to in brief, was decided prior to the 1970 and 1977 amendments of the statute.

The trial court was clearly correct in ruling that plaintiffs were entitled neither to a writ of quo warranto nor to a declaratory judgment. The present statute enacted in 1977, took effect September 9, 1977, and is controlling as to the actions subsequent to that date.

Even if the 1970 enactment of the statute were applicable to the resolution of November 30, 1977, as contended by appellants, that resolution is not certified, as provided by LSA-R.S. 13:3712.B. It is not self-proving, and its adoption has not been proven.

Our decision on the merits makes it unnecessary to consider the answer to the appeal, which is concerned only with various objections by defendants which were overruled by the trial court.

For the foregoing reasons the judgment is affirmed at the cost of plaintiffs-appellants.

AFFIRMED.

      . After reservation of objections to their validity it was stipulated that Exhibits “A”, “B”, “C”, “D” and “E” are true and correct copies of resolutions adopted by the Board of Aider-men for the City of Oakdale, on December 27, 1977, and that Exhibits “F”, “G”, “H”, “I” and “J” are true and correct copies of vetoes by the Mayor.

      . Prior to 1970, the statute provided for election and appointment solely by the board of aldermen.

      . LSA-R.S. 13:3712.B: “Copies as prima facie proof; judicial notice of municipal and parochial ordinances”
      B. All courts of record in the state shall take judicial cognizance of the municipal ordinances and parochial ordinances which may be enacted by governing authority of any town, city, municipality, or parish within their respective jurisdictions whenever certified copies of such ordinances have been filed with the clerk of said court. The clerk shall keep a record of such ordinances filed with him. It shall not be necessary to file more than one copy of any ordinance with the clerk in order that judicial cognizance be taken thereof. Such certified copies may be filed with the various clerks of court either by the proper custodian of the ordinances of respective town, city, municipality or parish, or any lawful officer of the court. As amended Acts 1958, No. 316, § 1.


author: EDWARDS, Judge.

text:
    Larry DAVENPORT et al. v. NORTHWEST FIRE INSURANCE CO.
    No. 12458.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      Ralph W. Brewer, Baton Rouge, for plaintiff-appellant.
    John S. deGraauw, Baton Rouge, for defendants-appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Defendants filed a motion to dismiss plaintiff’s appeal, contending that the appeal is untimely.

The record reveals the following chronology-

1. Trial by jury resulting in a verdict in favor of defendants. March 15,1978
2. Judgment signed dismissing plaintiff’s suit in accordance with the jury verdict. March 27,1978
3. Notice of judgment sent to counsel. March 27,1978
4. Last day to apply for a new trial. (No timely application filed.) April 5,1978
5. Last day to perfect a devolutive appeal. June 5, 1978'
6. Order of Appeal filed. June 29,1978.

Accordingly, the order of appeal filed on June 29, 1978 was untimely. LSA-C.C.P. arts. 1974 and 2087. This Court therefore lacks jurisdiction to hear this appeal. LSA-C.C.P. art. 2088.

For the above reasons, the appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: GARRISON, Judge.

text:
    Succession of Emmett Joseph BURKE and Succession of Honorah Burke Schreiner.
    No. 9583.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 1978.
    Anita Connick, New Orleans, Floyd J. Reed, J. D., Curator ad hoc, Metairie, for plaintiff-appellant.
    Miriam Cooney Abbott, New Orleans, for defendant-appellee.
    Before REDMANN, BOUTALL and GARRISON, JJ.
   GARRISON, Judge.

This case originally involved the Successions of both Honorah Burke Schreiner and Emmett Joseph Burke, an olographic will of each having been submitted for probate. However, it is only the probate of the purported will of Emmett Joseph Burke which is being challenged on this appeal. Both wills were admitted to probate by the judgment of the court below. This devolutive appeal was brought by Jane Vieages McGuire and Ruth B. Foley, absentees represented by the curator ad hoc, and Martin Joseph Burke.

Honorah Burke Schreiner, a widow died on June 2, 1972, leaving no ascendants or descendants. She left an olographic will in which she bequeathed her entire estate to her brother Joseph Burke. However, her succession was not opened until after the death of Emmett Joseph Burke in 1974. After his death, her will was found in Mr. Burke’s bank box and was duly probated on December 20, 1977. Its validity has not been questioned at the trial level or on this appeal.

Emmett Joseph Burke died on August 14, 1974, and after a search, the disputed testament, dated January 15, 1961, was found. In it he attempted to bequeath his interest in the property at 6315 West End Boulevard to his sister Delia Burke Derbes, as well as the balance in his Whitney Bank account. His life insurance was to be divided equally between his sisters, Mrs. Derbes and Mrs. Schreiner.

Burke left a host of collateral relations, but no forced heirs. His sisters and brothers who survived him were Martin Joseph Burke, Delia Burke Derbes, and Mary Ann Burke Kuttruff. He was also survived by the following nieces and nephews: Joan Burke Kambur, Ruth Burke Foley, Loys Vieages, Gerald Vieages, Jane Vieages McGuire, Carolee Dussom Morton, Peggy Dussom Roberts, and Irvin Dussom, Jr.

The successions of both Honorah Burke Schreiner and Emmett Joseph Burke were opened in Civil District Court for the Parish of Orleans by Delia Burke Derbes.

The only issue presented on appeal is whether the document purporting to be the will of Emmett Joseph Burke which was offered for probate is a valid olographic will under the requirements of Civil Code Article 1588. The trial court held the questioned document to be valid after a contradictory hearing pursuant to Article 2881 of the Code of Civil Procedure.

The questioned will was written by the decedent, Emmett Joseph Burke, on printed will paper designed for a statutory will. The following portions were printed on the face of the document:

“I,_, being of sound and disposing mind and memory, and considering the uncertainty of this life, do make, publish and declare this to be my last WILL and TESTAMENT as follows, hereby revoking all other former Wills by me at any time made.
“First, after my lawful debts are paid, I give. . . .”

In his owji handwriting, Burke had written the date, “Jan. 15, 1961,” and his own name in the blank following the printed “I.” After the printed “I give,” he wrote the following:

“. . .to my sister Delia (Mrs. M. J. Derbes); my interest in property at 6315 West End Blvd — Also whatever Bank Balance I have in the Whitney National Bank, City Branch Bank — and Insurance as covered by Policy of F. F. Hansell & Bro. Ltd. To be shared equally with my other sister Mrs. C. A. Schreiner

The second page of this document had printed provisions for the naming of executors, which Burke began, but did not complete. Below this Burke signed the document and marked through the superscription.

Article 1588 of the Civil Code prescribes that an olographic will must be entirely written, dated and signed by the testator in his own hand. However, the fact that there is other writing or printing, not in the hand of the testator, such as the printed portions here, will not necessarily invalidate the testament. Those words will simply be considered as not written. C.C. Art. 1589; Jones v. Kyle, 168 La. 728, 123 So. 306 (1929); Succession of Robertson, 49 La.Ann. 868, 21 So. 586 (La.1897). Specifically, “an instrument written on a stationer’s printed form with the blanks filled in by the testator in his own handwriting is valid when the will contains, exclusive of the printed matter, all of the essential formalities of an olographic will.” 2 Loyola L.Rev. 164, 168 (1944).

The trial court admitted Burke’s will to probate. We agree. From the words written by decedent, his testamentary intent is unmistakeable. Although the printed form contains many words which must be disregarded, there remain sufficient words in the testator’s own handwriting to provide the essential formalities of an olo-graphic will.

It is true that in Succession of Shows, 246 La. 652, 166 So.2d 261 (La.1964) the language was very similar, with the sole phrase “All to my sister” having been held to lack testamentary intent. However, a distinction is apparent. In that case, Show’s words “All to my sister” could have been, e. g., a reply to a question such as: “To whom shall we send the bills?”

The text which Burke wrote, on the contrary, seems inexplicable other than as a testament:

“to my sister Delia ... my interest in property at 6315 West End Blvd Bank Balance . . . and insurance. To be shared equally with my other sister Mrs. C. A. Shreiner.

That writing speaks of decedent’s immovable property, money (in the bank) and insurance and says it is “to be shared” by two sisters. Thus that writing (like “Pay to” in Succession of Gafford, supra) does contain, in a context referable to the testator’s intent, a verb.

For the reasons assigned we find that the trial judge did not err in finding the will valid and admitting it to probate. Therefore the judgment is affirmed.

AFFIRMED.

      . “The olographic testament is that which is written by the testator himself.
      “In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the State.” C.C. Art. 1588.

      . That the handwritten portions were written by the decedent, Emmett Joseph Burke, is not disputed. Nor is the signature on the second page disputed.