author: CHIASSON, Judge.

text:
    Ruth HECKEL v. TRAVELERS INSURANCE COMPANY et al.
    No. 10995.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Lloyd R. Walters, Slidell, for Ruth Heck-el, plaintiff, appellee-appellant.
    France W. Watts, III, Franklinton, for defendant, Travelers Ins. Co., appellee.

      Robert R. Thorne, Slidell, for defendant, Jerry L. Dennis, appellee.
    Robert M. Johnston, New Orleans, for defendant, Hartford Ace. & Indem. Co., appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

On October 14, 1971, at approximately 6:45 A.M. on U.S. Highway 11 near Slidell, Louisiana, an automobile driven by Ruth Heckel, plaintiff-appellee/appellant, collided with a pick-up truck owned and driven by Jerry Dennis, defendant-appellee. The accident occurred when Jerry Dennis pulled from the shoulder of the highway on which he had been parked into the path of Ruth Heckel’s automobile. At the time of the accident both Ruth Heckel and Jerry Dennis were on their way to work in New Orleans. Riding with Ruth Heckel were several passengers who had agreed to pay seven dollars per week in return for transportation to and from their jobs in New Orleans. Riding with Jerry Dennis was his son. Jerry Dennis did not have personal insurance for his truck. Uninsured Motorist coverage for the car driven by Ruth Heckel was provided by the Travelers Indemnity Company, defendant-appellee.

Following the accident Ruth Heckel filed suit against Jerry Dennis and Travelers to recover for personal injuries and property damage. Jerry Dennis answered denying liability and brought a third-party demand against his employer’s insurer, Hartford Accident and Indemnity Company, defendant-appellant, alleging that the accident occurred in the course and scope of his employment. Travelers answered denying liability because the “policy of insurance did not apply ‘to any automobile when used as a public livery or conveyance’ and that at the time of the alleged accident the automobile was being operated to come within the scope and meaning of the said exclusionary policy.” Hartford answered denying liability on the basis that the accident had not occurred during the course and scope of Jerry Dennis’s employment. Ruth Heckel did not amend her petition to include Hartford as a defendant.

After a trial on the merits, the District Court found that the negligence of Jerry Dennis was the sole proximate cause of the accident, and that the accident occurred during the course and scope of his employment by the Chartres Company. The District Court then rendered judgment in favor of Ruth Heckel and against the Hartford Accident and Indemnity Company in the amount of $7,005.87. It is from this judgment that appeals have been brought.

The errors specified by Hartford are: “(1) Hartford Accident & Indemnity Company contends that the Lower Court erred in rendering a judgment in favor of the plaintiff and against it, when Hartford Accident & Indemnity Company was not a defendant in the law suit, but was only a third-party defendant.
“(2) Hartford Accident & Indemnity Company further contends that, at the time of the accident in question, Jerry L. Dennis was not acting within the course and scope of his employment so as to render his employer, Chartres Corporation, and thereby its liability insurer, Hartford Accident & Indemnity Company, liable to plaintiff, Ruth Heckel, for the damages sustained in the accident in question.”
The errors specified by Ruth Heckel are: “(1) The trial court erred in failing to render judgment against Jerry L. Dennis, the defendant responsible for the collision.
“(2) The trial court erred in failing to award adequate damages to plaintiff for the injuries sustained.”

The question of whether a Trial Court may render judgment against a third party defendant and in favor of a plaintiff where the plaintiff has not amended his petition to include the third party defendant as a direct defendant in the plaintiff’s action was considered in Ferrantelli v. Sanchez, 90 So.2d 351 (Ct. of App., Orleans, 1956). In that case it was held that under R.S. 13:3381 (replaced by Code of Civil Procedure Article lili) it was necessary that the plaintiff amend his petition to make the third party defendant a direct defendant before a judgment could be rendered in favor of the plaintiff and against the third party defendant. While it has been suggested that the rule of Ferrantelli v. Sanchez, supra, should be restricted to cases in which there is no contentious activity between the plaintiff and third party defendant sufficient to establish an adversary relationship between them, 34 Tulane Law Review 84, we feel that the direct judgment permitted under Code of Civil Procedure Article 1111 is proper only when the necessary pleadings are filed.

Civil Code Article 2320 provides in part that “employers are answerable for damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” It is often stated that there is no precise rule by which it can be determined in every case whether an employee driving a motor vehicle is acting within the course and scope of his employment. The general rule is that an employee going to and coming from his place of employment is not considered to be acting within the scope of his employment to the extent necessary to render his employer liable to third parties for the employee’s negligent acts. Wills v. Correge, 148 So.2d 822 (La.App. 4th Cir. 1963). An exception to this rule exists where a factual showing can be made that the motor vehicle, whether personally owned or owned by the employer, was being used in the service of the employer or for the employer’s business. Rollins v. New York Fire & Marine Underwriters, Inc., 225 So.2d 663 (La.App. 3rd Cir. 1969).

The Trial Judge in giving oral reasons for judgment stated:

“The Court appreciates the facts to be that the man owned his own vehicle. He lived in Slidell, but the major, principal place of business of the Chartres Corporation was in New Orleans. He commuted on a somewhat daily basis from his home in Slidell to New Orleans. He would then work in and around the city of New Orleans doing the construction-type work that he did for the Chartres Corporation. He was a supervisor of some sort, a construction worker or supervisor. He testified his work would call on him to travel outside the city of New Orleans to other cities in this state and even into Mississippi. This accident occurred on a morning when he, as well as all the other people involved, were on their way from Slidell to New Orleans. I’ll get to Mrs. Heckel’s situation in a moment. The facts indicate that there was no consistent pattern on Dennis’s part as to just what he did each morning. Some mornings he would leave his home and drive his truck directly to his employer’s place of business in New Orleans and then go from there to the different job sites. It is apparent, however, that on other mornings he would not go to his employer’s place of business, but would go directly to the job site. It is his testimony that on the morning in question, that is what he was doing. He was going to a job at the Behrman High School in New Orleans, and that he had provisions on his truck, tools and some sand material, that were to be used in his work in New Orleans. The substance of the testimony leads me to the conclusion that there was a sufficient pattern of conduct here and such often use of his vehicle in the work of his employer that although one can say, as did Mrs. Band, the treasurer of the corporation, that it was for his convenience, it is also to be seen that it was for their convenience as well, because he was essentially doing basically their work. They let him have a credit card to use, they loosely supervised his use of the credit card. By the testimony of Mrs. Band as well, there were even cash advances or reimbursements made for gasoline which was purchased. He testified that they actually purchased tires for his vehicle. There’s been no contradiction of that testimony. The Court is of the conclusion that he was sufficiently within the course and scope of his employment.”

Where there is evidence before the trier of fact which furnishes a reasonable factual basis for the Trial Court’s conclusions, the Appellate Court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring Company, La., 283 So.2d 716 (1973). There is ample testimony supporting the Trial Judge’s conclusion that the accident occurred within the course and scope of Jerry Dennis’s employment.

The Trial Judge’s oral reasons indicate that he found the negligence of Jerry Dennis to be the sole cause of the accident. The evidence adduced at trial supports this conclusion. Therefore, as to the principal demand, judgment should have been rendered by the Court in favor of Ruth Heckel and against Jerry Dennis. The record also indicates that the Trial Judge concluded that Hartford was Jerry Dennis’s insurer and liable on his third-party demand.

The Trial Judge awarded Ruth Heckel $2,505.87 as special damages and $4,500.00 as general damages. The appellate review of awards for general damages is limited to a determination of whether the Trial Court abused its much discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances of the case under review. The awards made in other cases serve only as an aid in determining if the present award is greatly disproportionate to similar awards. In any case, the record must clearly demonstrate an abuse of Trial Court discretion before an Appellate Court will tamper with an award of general damages. Anderson v. Welding Testing Laboratory, Inc., La., 304 So.2d 351 (1974).

While there is a substantial disparity between the award for general damages in the present case and the award for general damages in Smith v. Maxent, La.App., 283 So.2d 313 (4th Cir. 1973), there is also a difference as to the degree of injury in each case. In Smith the foot injury required surgical repair, there was a 15% loss of functional use of the foot, and a permanent need for a special shoe. In the present case there was no surgery and the testimony of Dr. Cook indicated that as of September, 1972, the foot problem was completely resolved. The record does not indicate a clear abuse of discretion by the Trial Court in awarding general damages.

For the reasons assigned, the judgment appealed from is reversed insofar as it grants judgment in favor of Ruth Heckel and against Hartford Accident & Indemnity Company, and it is now ordered, adjudged and decreed that there be judgment in favor of Ruth Heckel and against Jerry L. Dennis and in favor of Jerry L. Dennis and against Hartford Accident & Indemnity Company in the amount of $2,505.87 as special damages and $4,500.00 as general damages, with legal interest thereon from date of judicial demand. The action is dismissed as to the Travelers Indemnity Company. Cost to be paid by appellant, Hartford Accident & Indemnity Company.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    PARISH OF EAST BATON ROUGE v. INDUSTRIAL ENTERPRISES, INC., et al.
    No. 10974.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Edward V. Fetzer, Asst. Parish Atty., Baton Rouge, for plaintiff Parish of East Baton Rouge, appellant.
    Donald L. Beckner, Baton Rouge, for defendant Industrial Enterprises, Inc., and others, appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit by the Parish of East Baton Rouge to require Industrial Enterprises, Inc. to sign a contract or alternatively to require Industrial Enterprises, Inc. and Commercial Union Insurance, its surety, to pay the amount of a bid bond. The trial court granted a motion for summary judgment filed by the defendants. Plaintiff has appealed.

The issue before this court is whether or not there is a binding contract between the parties. We affirm.

On November 20, 1973, plaintiff received bids for street paving. Industrial was the low bidder. On December 12, 1973, the Parish Council for the Parish of East Baton Rouge adopted Resolution Number 10833 which accepted the bid of Industrial and “awarded” it the contract. Plaintiff gave Industrial notice by letter of December 20, 1973. After approval and review of various governmental agencies as required by LSA-R.S. 33:3689.1 through 3689.17, plaintiff-appellant mailed on September 26, 1974, a written contract to Industrial for signature. On October 11, 1974, Industrial informed the Parish of East Baton Rouge by letter that Industrial would not perform the work because “more than 180 days . (had) elapsed since the proposal was made,” and that “the extraordinary delays involved with this particular project and the resulting price increases . (made) it impossible for . (Industrial) to honor . . . (the) bid almost one year later.”

Plaintiff cites Cox-Hardie Company v. Rabalais, La.App., 162 So.2d 713 (4th Cir. 1964) and argues that since the parties had agreed to all essential terms of the contract and the agreement was complete in itself, the refusal of Industrial to sign the written document did not destroy the effect of the contract already negotiated. It is plaintiff-appellant’s contention that the Parish Council’s acceptance of the bid by resolution on December 12, 1973, made the bid irrevocable from that point on.

However paragraph 24.00 of the bid proposal specifically provides that: “No contract shall be considered as effective until it has been fully executed by all of the parties thereto.” Furthermore in paragraphs 21.00 and 22.00 the plaintiff makes a clear distinction between an “award” and a contract. The latter paragraph reserves to the Council the right to cancel without liability an “award” of any contract prior to the execution of the contract.

The bid proposals required the bid be firm for a period of 180 days but “in the event that all legal formalities have not been completed within the 180 day period the contractor will be contacted by the Department of Public Works to negotiate an extension of time.” Thus for the bid to be outstanding beyond the 180 days, the Department of Public Works must have, at the least, made contact for the negotiation of an extension. There is no contention that such contact was made.

Plaintiff-appellant further contends that even if a written agreement is deemed necessary, when the written contract was tendered by plaintiff on September 26, 1974, and Industrial waited until October 11, 1974, to revoke the bid offer and refuse to sign the contract, a contract came into existence pursuant to La.C.C. Art. 1801.

This Code Article reads as follows:
“The party proposing shall be presumed to continue in the intention, which his proposal expressed, if, on receiving the unqualified assent of him to whom the proposition is made, he do not signify the change of his intention.”

In order for plaintiff to avail itself of the terms of this article, the acceptance must be within a reasonable time under the circumstances. Here, the written offer was “firm” for only 180 days, and subject to negotiation for an extension. An “acceptance” almost six months late certainly was not within a reasonable time. The only obligation imposed on Industrial after 180 days was the requirement to attempt to negotiate for an extension.

Therefore, the decision of the court below is affirmed; appellant is to pay all costs.

AFFIRMED.


text:
    Perry M. SEGURA d/b/a Perry Segura and Associates, v. LOUISIANA ARCHITECTS SELECTION BOARD, et al.
    No. 10980.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writ Refused Feb. 18,1977.

      J. Burton Willis, St. Martinville, Max N. Tobias, Jr., New Orleans, William P. Brum-field, Baton Rouge, for plaintiffs-appellees.
    William J. Guste, Jr., Atty. Gen., Kenneth C. DeJean, Asst. Atty. Gen., Baton Rouge, for defendants-appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit for declaratory judgment on an alleged contract for architectural services. The lower court held that the contract was binding on the State of Louisiana. Defendants, the Governor of the State of Louisiana and the Division of Administration, have appealed.

Appellants allege the following as their specifications of error:

1. The trial judge erred in determining that a valid and binding contract was entered into between the parties on January 10, 1973.

2. The trial judge erred in not ruling that appellee failed to comply with the requirements of R.S. 38:2220. (execution of the non-collusion affidavit).

3. The trial judge erred in determining the requisites of a valid and binding contract had been fulfilled under Article 1779 of the Civil Code.

We affirm.

Shortly after the death of Senator Ellen-der, various state officials began to discuss the possibility of constructing a memorial library. Appellee, who was and is a licensed architect in this state, became aware of the plans and made known his desire to be appointed principal architect for the structure.

On January 10,1973, with the approval of Governor Edwards, Mr. Robert Baskin, director of the Capital Outlay Budget Board, wrote appellee that he had been “selected” as architect for the project. Because the legislature had not appropriated any money for the project and no other type of funding had been obtained, appellee’s commission was predicated on subsequent availability of funds. After receipt of this letter, appel-lee wrote acknowledging receipt of the appointment and began certain preliminary work.

The legislature passed Act 823 of 1975 appropriating the money for the project. Mr. Edward Land, assistant director of the Facility Planning and Control Department of the Governor’s office, on August 5, 1975, mailed a contract to appellee, who signed it as prepared, as well as an affidavit of non-collusion, the latter required by the provisions of La.R.S. 38:2220. These documents were returned on August 8, 1975.

Mr. Land forwarded the contract to the contract review section of the Division of Administration. Mr. James H. Clinton, director of this department, then signed the contract on October 29, 1975.

The legislature, also in 1975, passed Act 721, which became effective September 12, 1975. Among other things, the act requires that architects to be retained or employed by a state agency shall be selected by the Architects Selection Board. The Attorney General ruled that the Segura contract was a nullity and plaintiff filed suit.

The trial judge, in his oral reasons for judgment, found that a contract was entered into between Mr. Segura and the State of Louisiana in January, 1973. He determined that the contract was one based on the suspensive condition that funds become available for the project. The formal written contract was merely a memorial of the prior agreement.

ERRORS NUMBER ONE AND THREE

There are some cases which hold that if parties understand that their contract is to be reduced to writing, the reduction to writing is necessary to the perfection of the contract, whether all terms of the contract have been verbally agreed to or not. Evans v. Dudley Lumber Co., 164 La. 472, 114 So. 101 (1920); Sterkx v. Gravity Drainage District No. 1 of Rapides Parish, 214 So.2d 552 (La.App. 3rd Cir. 1968); Van Way v. Communications Broadcasting, Inc., 228 So.2d 175 (La.App. 3rd Cir. 1969).

Some cases have held that a verbal agreement is a binding contract, even when a writing is contemplated, unless there is a specific understanding that neither party will be bound until the agreement is reduced to writing and executed. Laroussini v. Werlein, 52 La.Ann. 424, 27 So. 89 (1899); Montague v. Weil & Bros., 30 La.Ann. 50 (1878); Johnson v. Williams, 178 La. 891, 152 So. 556 (1934).

Still other cases have stated that when the agreement to reduce to writing is made part of the original bargain, there is no binding contract until the execution of the writing; but when made subsequent to a complete verbal contract, the execution of the writing is immaterial to the existence of a binding contract. Fredericks v. Fasnacht, 30 La.Ann. 117 (1878); Breaux Brothers Construction Co. v. Associated Contractors, Inc., 226 La. 720, 77 So.2d 17 (1954).

We conclude that, if the facts of the case reveal that the parties did not intend to be bound until the execution of a written document, no contract can exist until that event takes place. However, even when a written document is contemplated, if the parties intend to be bound by their original verbal agreement, then a contract subsists from that time, and the writing, if executed, is a memorial of that agreement. See Litvinoff, Offer and Acceptance in Louisiana Law: A Comparative Analysis, 28 La.L.Rev. 1, 9 (1967); The Work of the Louisiana Supreme Court for the 1954-1955 Term, Smith, Conventional Obligations, 16 La.L.Rev. 237, 238 (1956).

We therefore need to determine the intent of the parties as of January, 1973. The trial court found that they intended to bind themselves as of that date. The testimony of Governor Edwards and of plaintiff is to that effect. Even though there are circumstances that might have led to an opposite conclusion, we cannot say that the trial court manifestly erred in its acceptance of this line of testimony.

Under those circumstances, we are of the opinion that there was a binding contract between plaintiff and the State of Louisiana as of the date on which Mr. Segu-ra accepted his selection as architect for the Ellender Memorial Library.

ERROR NUMBER TWO

Defendants also urge that the contract is void because of non-compliance by plaintiff with the provisions of R.S. 38:2220. This section provides that no contract for architectural services shall be awarded to one who refuses to sign the affidavit required thereby. There is no merit to the contention. Plaintiff signed the affidavit as soon as it was sent to him, on August 8, 1975, and never refused to do so.

Plaintiff has answered this appeal asking for $15,000.00 in damages for defendants’ frivolous appeal. Damages for frivolous appeal are not allowable unless the appeal is taken solely for delay or counsel for the appellant did not sincerely believe his position had merit. Ratliff v. Roy, 260 So.2d 171 (La.App. 2nd Cir. 1972). This case involved a substantial legal question; therefore, the claim for damages has no merit.

The judgment appealed from is therefore affirmed. The State shall pay whatever costs it may be responsible for under the law.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY v. MALLARD TRUCK LINES, INC., et al. Mrs. Mabel SKINNER v. MALLARD TRUCK LINES, INC., et al.
    Nos. 11057, 10993.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writs Refused Feb. 9, 1977.

      William C. Kaufman, III, Baton Rouge, for plaintiff-appellant Trinity Universal Ins. Co.
    Ben F. Lightfoot, Baton Rouge, for defendant-appellee Mallard Truck Lines, Inc., and others.
    Joseph A. Gladney, Frederick A. Blanche, III, Baton Rouge, for plaintiff-appellant Mrs. Mabel Skinner.
    Henry D. Salassi, Jr., of Breazeale, Sachse & Wilson, Baton Rouge, for defendant-appellee Feliciana Sand & Henry E. Johnston, Ind.
    Frank M. Coates, Jr., Michael Dufilho, Baton Rouge, for appellee T. L. James Co., and others.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a wrongful death action filed by Mrs. Mabel Skinner, widow of James M. Skinner who died as a result of an automobile-truck collision. From a judgment in favor of the plaintiff, and against Mallard Truck Lines, Inc. (sometimes hereinafter referred to as Mallard), Materials Transport, Inc. d/b/a Southeastern Materials Company (sometimes hereinafter referred to as Materials and/or Southeastern), and Employers Commercial Union Insurance Company (sometimes hereinafter referred to as Employers) in the sum of $123,000.00, but limiting the amount of the judgment against Employers to its policy limits of $5,000.00, the plaintiff has appealed.

In addition, Trinity Universal Insurance Company (hereinafter sometimes referred to as Trinity), the workmen’s compensation insurance carrier of Mr. Skinner’s employer filed an independent suit as well as intervening in this suit for recovery of the amount of compensation paid as well as those sums that Trinity may be obligated to pay in the future. Consolidation was had for trial below, the intervention being tried by the jury and the independent suit by the judge alone. From a judgment in favor of Trinity and against Mallard, Materials, and Employers in the amount of $11,192.00, as well as all sums paid in the future under the Louisiana Workmen Compensation Act, with the judgment against Employers being limited to the $5,000.00 policy limits, and that said judgment be paid prior to the award in favor of Mrs. Mabel Skinner, Trinity has appealed. Both of these appeals have been consolidated and will be handled in this opinion, but separate judgments will be rendered.

Mrs. Skinner in filing this wrongful death action named various individuals and corporations, as well as the State of Louisiana through the Department of Highways as defendants, to wit: Roderick W. Lacombe, driver of the truck which collided with the car the decedent was operating, and later dismissed by agreement; Mallard Truck Lines, Inc., owner of the truck operated by Lacombe; H. Allen Thomason, principal stockholder or sole owner of Mallard Truck Lines, Inc. and Materials Transport, Inc. doing business as Southeastern Materials Company; Louisiana Sand & Gravel Company of Baton Rouge, Inc., later dismissed by motion of both plaintiff and intervenor; Kenny L. Riley, later dismissed on a motion for summary judgment; Feliciana Sand & Gravel Company, Inc. (hereinafter sometimes referred to as Feliciana); Hauling, Inc.,; Henry Johnston, principal stockholder and sole owner of Feliciana Sand & Gravel Company, Inc. and Hauling, Inc.; T. L. James & Company, Inc. (sometimes hereinafter referred to as T. L. James); State of Louisiana, through the Department of Highways, later dismissed on a motion for summary judgment; Highland Insurance Company, insurer of T. L. James; Employers Commercial Union Insurance Company, insurer of Mallard; General Motors Corporation, later dismissed on a motion for summary judgment; Capitol Mack, Inc., later dismissed on a motion for summary judgment; G.M.C., Inc., later dismissed on a motion for summary judgment; and Materials Transport, Inc., doing business as Southeastern Materials Company. Trinity basically sued the same defendants, though not all of them, and in addition named Fidelity and Casualty Company of New York as a defendant.

The record points out that on March 13, 1972, the decedent, James M. Skinner, while employed by Arrow Tobacco Company, and while on company business, was driving on Hooper Road, north of Baton Rouge, when he was involved in a head-on collision with a large gravel truck operated by Lacombe, owned by Mallard, but leased to Southeastern. The head-on collision took place in Skinner’s lane of travel. There seems to be no question as to the cause of the death of Mr. Skinner as well as the negligence of the driver of the truck, for the defendants did not appeal from this judgment. Lacombe had been hauling sand and gravel to a highway construction site near the Ramah-Gross Tete section of I — 10 highway project in Iberville Parish. It further appears quite evident from the record that the truck was overweight. T. L. James was the general contractor in charge of the highway project.

In the furtherance of the completion of this project, it was necessary for T. L. James to purchase sand and gravel to be used in the construction of the highway. Thus, in September of 1970, T. L. James issued a purchase order to Feliciana for the delivery of sand and gravel to the construction site. The purchase order was for all sand and gravel needed in the project and placed in a stock pile, with the option remaining in T. L. James to exempt from the purchase order that material required for structural concrete. The purchase order stipulated that the materials would be delivered as required for $3.50 per yard. Several months elapsed between the issuance of the purchase order and the preparation and readiness of the stock pile site, and in the meantime Feliciana had secured additional work closer to its home base. Henry E. Johnston was contacted by H. Allen Thomason for the purpose of determining whether Southeastern could supply the sand and gravel to T. L. James under the purchase order issued to Feliciana. Johnston informed Thomason that it was perfectly alright with him if he could receive the approval of Henry Spohrer, the field supervisor for T. L. James on this particular project. Since Johnston had found work closer to his home base, and could realize a greater margin of profit, he was happy to have someone else fulfill his contractual obligations with T. L. James. This approval was apparently received and Southeastern commenced the delivery of sand and gravel. Southeastern did not own the trucks in which the sand and gravel was transported, but rather leased them from Mallard.

The pits from which the sand and gravel came were neither owned nor controlled by T. L. James. There were no James’s employees at the pit to either load or weigh the trucks. The trucks were weighed when they arrived at the stock pile area by scales operated by James’s employees, though at times they were operated by the truck drivers. The weight tickets of each truck which are in evidence show that as a general rule all trucks delivering the sand and gravel were overweight. Though it could not be proved that the truck involved in the accident was overweight, because its load was dumped on the highway during the collision, it was presumed that it was overweight. The only instructions and directions from T. L. James as to the delivery of the sand and gravel was that a sufficient stock pile be created and maintained. Further instructions and directions were given to truck drivers as they entered the stock pile area to show them where to deposit the sand and gravel.

Southeastern would send its invoice to Feliciana for the sand and gravel delivered to T. L. James as well as the delivery cost, and in turn Feliciana would bill T. L. James for the sand and gravel delivered, and Hauling, Inc. would bill T. L. James for the delivery cost. T. L. James would pay these two invoices by check, and Feliciana and Hauling, Inc. would deposit the payments, and within one to two weeks Southeastern would be paid. The reason the billing was done in this fashion was to avoid a sales tax on the delivery cost and thus save T. L. James money.

At the end of the trial, and after having been charged by the court, the jury was presented with various interrogatories, and in answer to these found that Lacombe was negligent in the operation of his truck, that his negligence was a cause in fact of the accident, that he was qualified to drive the truck, that the truck was overloaded, and that this overload was a contributing cause in fact of the accident. It found, however, that the responsibility of seeing that the truck was not overloaded belonged to Mallard and/or Materials doing business as Southeastern. The jury determined that Lacombe was employed by Materials, that he was not a borrowed servant but that an agency relationship existed between T. L. James, Feliciana, Hauling, Southeastern, Materials and Mallard. It further found that Mallard was an independent contractor, Materials a supplier, Feliciana a supplier, Hauling an independent contractor, and T. L. James the prime contractor. It did not find that a joint adventure existed nor were any of the parties alter egos of the companies in which they were officers or stockholders.

Plaintiff, Mrs. Mabel Skinner, contends that (1) the jury erred in failing to find that Lacombe was an agent and employee of Materials, and Materials was an agent of T. L. James, thus making T. L. James liable; (2) in the alternative, the jury erred in failing to find that Hauling, Inc. was the hauling servant of T. L. James, thus making T. L. James liable; (3) in the alternative, the jury erred in failing to find that Materials was a hauling servant of Hauling, Inc., and if Hauling, Inc. was not a servant of T. L. James, it was a subcontractor, and as such T. L. James was required to carry insurance in a minimal amount of $200,-000.00 since it failed to require Hauling, Inc. to insure itself, under the terms of the contract between T. L. James and Department of Highways; (4) the jury erred in failing to find that T. L. James, Hauling, Inc., Henry Johnston, Feliciana, H. Allen Thomason were additional parties responsible and legally liable for the overloading of the truck; and (5) the jury erred in granting an inadequate award for damages.

Plaintiff-intervenor, Trinity, contends that (1) the Court erred in not correctly explaining the concepts of “agency”, “independent contractor” and “subcontractor” to the jury and (2) the jury erred by failing to find Lacombe was a borrowed employee of T. L. James and also erred in finding that T. L. James had no duty to remedy the gross overloading of the gravel trucks arriving at the job site.

As to the specification of error concerning the Trial Judge’s instructions to the jury, we are of the opinion that in light of the Supreme Court’s decision of Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975), there is no need for us to determine whether the Trial Judge was in error or not. Even if we would find the Trial Judge in error, under the holding of Gonzales, supra, rather than remanding for a new trial, we are compelled to render a decision.

A basic question to a resolution of the issues presented by this case is whether or not the sand and gravel haulers were hauling servants or employees of T. L. James, or simply an independent contractor, or whether Roderick Lacombe was a borrowed employee of T. L. James?

Based on the facts as found in the record, we are of the opinion that the sand and gravel haulers were independent contractors and Roderick Lacombe was not a borrowed employee.

Plaintiff-Skinner argues that the relationship between T. L. James and Hauling, Inc. or Materials Transport could be terminated at will, thus making the sand and gravel haulers mere employees. Though there are statements in the records by witnesses for both sides that they were of the opinion that their relationship was terminable at will, we are not convinced that it was. When T. L. James issued the purchase order for so many yards of sand and gravel to be delivered at a certain price, to a particular sand and gravel hauler, it committed itself to purchase the sand and gravel under the terms of the purchase order. Though there was no formal written contract, T. L. James was obligated to pay for the sand and gravel, and the recipient of the purchase order was obligated to deliver. As long as the sand and gravel was being delivered as contemplated under the purchase order, the relationship could not be terminated.

We do not believe that T. L. James exercised the requisite control and direction over the hauling contractor so as to remove the hauling contractor from the class of independent contractor. It is argued by plaintiff that T. L. James could direct when, where and how the sand and gravel was to be delivered, thus giving him complete control over the hauling contractor’s activities. We do not interpret the facts as found in this case to be as such. The general instructions of T. L. James to the hauling contractor was simply that a sufficient stock pile of sand and gravel be built up and be maintained once T. L. James began using sand and gravel in the manufacture of concrete. Other than designating where the sand and gravel were to be deposited at the construction site, T. L. James did not exercise any control over which routes the sand and gravel trucks were to take, the frequency of deliveries, nor which drivers could deliver, other than possibly to disapprove of an individual who drove carelessly at the construction site.

We have reviewed the case of Richardson v. Tate, 269 So.2d 278 (La.App. 4th Cir. 1972) which held that the driver of the hauling contractor was a borrowed employee of the general contractor. After comparing the facts as presented in Richardson v. Tate, supra, to the facts presented in the instant case, we do not find Richardson v. Tate to be controlling and is distinguishable from the facts in the instant case.

It is additionally argued that the trial judge and jury erred in failing to find that T. L. James, Hauling, Inc., Henry A. Johnston, Feliciana, and H. Allen Thomason were additionally responsible and legally liable for failing to remedy the overloading of the sand and gravel truck. Both appellants argued that these defendants had knowledge of the overloading, that it was in violation of state law, that this overloading created a highly dangerous condition on the highways of the state, and thus it was their duty to either stop the overloading or refuse to accept delivery of the sand and gravel because of the violation.

It occurs to us that these defendants, and in particular, T. L. James, are in no different position than an ordinary land owner who ordered several truck loads of land fill, and after several deliveries realized that they were overloaded but did nothing about it. We know of no duty imposed on these defendants, who had no direct control over the loading process, to stop the overloading or to refuse delivery. Since we conclude there is no duty, there is no error on the part of the judge or jury in failing to find them liable.

It is further argued that T. L. James was required to have insurance to cover its subcontractors, and thus it is liable. It could be reasoned that the State of Louisiana through the Department of Highways in letting contracts for various projects throughout the state mandates certain minimum insurance requirements from both the general or prime contractor as well as subcontractors doing work thereunder so as to protect members of the general public who may be injured by activities relating to the particular contract by having sufficient insurance coverage on behalf of those parties who may be at fault. It could be further said that it is the policy of the Highway Department to only let contracts to those individuals, partnerships, associations and corporations who are willing and show a desire to carry a requisite amount of public liability and property damage insurance so as to guarantee at least up to the insurance coverage payment for any damage occasioned by any member of the general public by the fault of an insured.

Carrying then this statement of public policy on the part of the State of Louisiana to its logical conclusion, one must then reason that the state would want any individual, partnership, association or corporation doing business with the state under a contract let to another to be covered by the insurance as required by the state, regardless of the legal definition or relationship that this particular entity may have with the prime contractor. As above noted, the general contract provides that not only must the prime contractor carry a certain amount of public liability and property damage insurance, but if any part of the work is sublet, similar insurance shall be provided by or in behalf of the subcontractors to cover their operations. The question therefore remains as to whether, even though Mallard Truck Lines, Inc. was classified by the jury as an independent contractor and Materials Transport, Inc. d/b/a Southeastern Materials Co. having been classified by the jury as a supplier could be further classified under the general terms of the contract and the above stated policy of the state as subcontractors.

It has been argued to the Court that the suppliers of sand and gravel must be treated as subcontractors under the interpretation of the contract since these provisions of the contract were placed in the contract by federal authorities as the United States Government was financing all interstate operations on the basis of 90% paid by the United States Government and 10% paid by the state government, and that federal law provides that a subcontract may call for the furnishing of supplies. Inasmuch as this is a contract entered into by a state agency, rather than a federal agency, we are of the opinion that any interpretation of the terms used in the contract must be controlled by applicable state law rather than federal law, irrespective of the fact that federal monies were being used partly for the funding of the contract.

We have searched the terms of the general contract, and in particular that portion requiring minimum insurance coverage, and can find no language therein defining the term “subcontractor” so as to aid this Court in determining whether the contract intended to include within the term subcontractor the suppliers of material. Further, we find no language within the contract setting forth a general policy on the part of the State of Louisiana through the Department of Highways of an intention to mandate that any and every individual, partnership, association and corporation doing business on the project authorized by the contract be covered by a minimum amount of public liability and property damage insurance. Absent these two findings, this Court must conclude that the terms “subcontractor” as used in the contract was not intended to include the supplier of materials as regards the minimum insurance coverage, and this Court cannot add that to the contract, nor can we establish such as state public policy.

Plaintiff-Skinner lastly contends that the quantum awarded by the jury was manifestly erroneous in that it was excessively low. The jury awarded Mrs. Skinner $123,000.00 without designating any breakdown in the award for loss of financial support, special damages, and damages for loss of companionship, love and affection.

Dr. Jan W. Duggar testified on behalf of Mrs. Skinner as an expert in the field of economics. In arriving at the conclusion that the economic loss to Mrs. Skinner as the result of the death of her husband amounted to $120,491.00, Dr. Duggar took into consideration the age and life expectancy of Mr. Skinner, the number of years he could be expected to continue to work, his past and future earnings, deduction therefrom personal expenses or the cost of maintenance of Mr. Skinner if he had lived, as well as discounting the total figure inasmuch as it was to be received in a lump sum rather than over a period of time.

Mrs. Skinner argues that in addition to the $120,491.00 economic loss, there was an additional loss of $3,707.85 which included the deductible amount for damages to the Skinner’s automobile, funeral and burial expenses, as well as ambulance service. She argues that it is obvious the jury gave her nothing for the loss of love, companionship and affection. She further argues that she and the deceased were a very close couple, had no children of their own, and as she testified, “if all the homes in Baton Rouge was as happy as ours there would be no divorces, the judges would have to go out of business, so all I have got to say is that when they killed my husband they took all I had.” She cites to this Court the case of Cacibauda v. Gaiennie, 305 So.2d 572 (La. App. 4th Cir. 1974), rehearing denied (1975) as authority for an award of $95,000.00 for the loss of love, companionship and affection.

As we pointed out above, the jury did not itemize the damages awarded. We know not whether the jury gave any award for the loss of love, companionship and affection. By the same token, the jury could have awarded as an economic loss an amount less than that recommended by the expert witness, and thus also award damages for loss of love, etc. Though we are of the opinion that this award taken in its totality is conservative, we are not convinced that it is so conservative or low so as to allow this Court to declare it an abuse of that discretion granted juries in the awarding of damages.

JUDGMENT IN NO. 10993

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED

JUDGMENT IN NO. 11057

For the reasons stated above the judgment of the Trial Court will be affirmed. All costs of this appeal to be paid by plaintiff-appellant.


author: BEER, Judge. LEMMON, Judge

text:
    Emogene Jones CHAMBLEE v. Charles Burr CHAMBLEE.
    No. 7683.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.

      Ley decker, Bates & Hand, Gerald J. Ley-decker and Paul J. Galuszka, New Orleans, for plaintiff-appellee.
    Martin A. Welp, New Orleans, for defendant-appellant.
    Before LEMMON, MORIAL and BEER, JJ.
   BEER, Judge.

Emogene Jones Chamblee, plaintiff-appellee, commenced this litigation with a petition seeking separation from bed and board from defendant-appellant, Charles Burr Chamblee. As grounds therefor, she alleged abandonment without legal cause. Subsequently, an amending and supplemental petition was filed alleging that Mr. Chamblee “was dating another woman” prior to the physical separation which caused Mrs. Chamblee “undue embarrassment, humiliation, and mental anguish.” A second supplemental and amending petition was filed with further particularized allegations of mental cruelty stemming from “many occasions” when Mr. Chamblee would stay away from the matrimonial domicile. In his answer, Mr. Cham-blee denied Mrs. Chamblee’s allegations, and prayed for a dismissal of her suit. Following various discovery procedures, there was a hearing on May 29, 1975, which resulted in the awarding of alimony pendente lite and, on October 9, trial on the merits was concluded. On October 17, 1975, final judgment decreeing a separation a mensa et thoro was rendered in favor of Mrs. Cham-blee and against Mr. Chamblee, and, concurrently, a prematurely filed application for new trial was refused. Mr. Chamblee devolutively appeals, seeking reversal of the trial court judgment and rendition of judgment in his favor.

Emogene J. Chamblee testified to numerous instances (starting in September, 1974) when her husband left the house without explanation, to return at odd hours the next morning. For example, Mrs. Chamblee testified that Mr. Chamblee left the domicile on Christmas Eve, 1974, at about 5:00 p. m. and returned at about 3:30 a. m. Christmas Day. She further testified that on the day before her husband abandoned the matrimonial residence, she had followed him to a grocery store. Asked about this event, she reported:

Q. And what did you see there?
A. I saw him take one of the cashiers in my car, the car that I used. They left together in my car about 8:00, or 8:15.
Q. Do you know who that cashier is?
A. Patricia Gomez Turner. I had been over there several times and had seen her .

She contends that Mr. Chamblee returned home late that night and left the next morning (January 26, 1975) after packing a suitcase. Mrs. Chamblee described the prevailing marital climate existent during this event:

Q. Did you ask him “Where are you going,” or anything?
A. No, because our marriage had deteriorated so badly to this point I really didn’t care.

Charles B. Chamblee testified that he and Mrs. Chamblee were married on May 25, 1963. He is a retiree, formerly employed by the U. S. Immigration Border Patrol. In describing the events which culminated in his departure from their home, Mr. Cham-blee testified that on the morning of January 25, 1975, he played golf, then brought his old car around to a gas station, and, thereafter, returned to the Woodland West Country Club late that afternoon where he encountered his wife and her sister at the bar. He related that at the time she “appeared to be inebriated.” Subsequently, Mr. Chamblee returned to their home and waited for her but to no avail since apparently Mrs. Chamblee went directly to her daughter’s house for a planned dinner to which Mr. and Mrs. Chamblee had been previously invited. Mr. Chamblee drove to the apartment of Mrs. Chamblee’s daughter, but did not stay for dinner. He reports:

“At this time, I was really upset because I had been waiting for her at the house and she didn’t show up and they were already eating and I just kind of felt like I wasn’t wanted. So, I said ‘No, thank you, I will go out and eat.’ And she says T don’t want the son of a bitch to eat here anyhow.”

Mr. Chamblee further testified that he thought his wife was “loaded” at the time. Leaving the home of Mrs. Chamblee’s daughter, he went to the Buck Forty-Nine Restaurant and had a drink, drove to the gas station to check again on the estimate of repairs to his car and then went to a place called the Schivaro Room and to have another drink. Thereafter, he stopped at the A & P to purchase certain toilet articles and checked out through the line where Patricia Turner was the “checker.” Cham-blee denied that Patricia Turner accompanied him when he departed the store, contending that she was still working at the time. He denied ever going out with her on social occasions.

When he returned to the apartment of Mrs. Chamblee’s daughter at about 8:45 p. m. that same evening, Mrs. Chamblee had left, so he went home. Mr. Chamblee testified that his wife returned home after midnight and described her as being “really drunk.”

As lawful cause for his departure from the common dwelling, Mr. Chamblee testified that Mrs. Chamblee’s drinking problem and her- personal threats to harm him caused him to leave:

“I felt that someone was going to get hurt and probably it would be me because of instances that happened in the past that I didn’t feel like my life was safe with her.”

Mrs. Chamblee denies ever having any arguments with her husband concerning heavy drinking on her part.

Patricia Turner corroborates Chamblee’s testimony in the respect that she did not leave the A & P store with him. She denies ever being in a car with Mr. Chamblee except on one occasion — when he acted as a pall bearer and chauffeur at the burial of her father. She averred that Chamblee was a friend of the family.

Abandonment, properly proven and without lawful cause, supports a judgment of separation from bed and board. The Louisiana Civil Code describes the burden of proof when abandonment is alleged:

Art. 143 Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconventional demand in any suit for separation from bed and board.
Art. 145 In all suits filed hereafter, whether or not there has been an answer filed, the abandonment with which the husband or wife is charged shall be proved as any other fact in a civil suit and such case shall be set and tried as any other suit.

Recently, we decided the thus far unreported case of Gilberti v. Gilberti, La. App., 338 So.2d 971, which provides that:

“The party seeking a legal separation on the grounds of abandonment must prove the elements thereof. Boudreaux v. Tanner, 295 So.2d 511 (La.App. 1st Cir., 1974). Once proven, the burden then shifts to the opposing party to prove the alleged abandonment was done with lawful cause or adequate provocation. Farkas v. Farkas, 264 So.2d 721 (La.App. 1st Cir., 1972).”

The case at bar raises the issue of whether or not the mere act of “leaving” the common dwelling is proof of the elements constituting abandonment sufficient for the burden to shift.

The jurisprudence appears to be in conflict. Some cases clearly hold that all three codal elements must be proven in order to be successful in any separation suit grounded on abandonment. Kuchta v. Kuchta, 296 So.2d 326 (La.App. 4th Cir., 1974), app. den. La., 299 So.2d 801; Boudreaux v. Boudreaux, 295 So.2d 511 (La.App. 1st Cir., 1974); James v. James, 325 So.2d 762 (La. App. 1st Cir., 1976). Contrarily, other jurisprudence supports Mrs. Chamblee’s position to the effect that once the mere incident of “leaving” is proven, the burden shifts to the opposing spouse to justify his leaving. Stalnaker v. Stalnaker, 204 So.2d 779 (La. App. 2nd Cir., 1967); Kleinpeter v. McCulloh, 312 So.2d 146 (La.App. 1st Cir., 1975); Farkas v. Farkas, 264 So.2d 721 (La.App. 1st Cir., 1972); Legleu v. Legleu, 187 So.2d 6 (La.App. 1st Cir., 1966).

The case at bar appears to be similar to Belou v. Belou, 231 So.2d 580 (La.App. 4th Cir., 1970), writs ref. 256 La. 70, 235 So.2d 97, where we noted:

“In the present case the husband having admitted that he withdrew from the matrimonial domicile there remains for our consideration only the question of whether he ‘constantly refused to return’ to the domicile.”

In Belou, the only evidence submitted was that the husband left the matrimonial domicile. We observed:

“The parties separated on September 12, 1968. Plaintiff filed her suit some eight days later on September 20, 1968. This fact alone would not be enough to satisfy this court that the husband did not intend to return. This would be particularly true in this case because during the four months of this marriage each party had left the domicile once prior to this occasion. However, after the husband was served with citation in this matter he made no attempt to contact his wife to advise her of any intention to return, nor did he try to reconcile their differences. Three weeks after the suit was filed his wife contacted him to discuss with him her plans to get a divorce. The record does not indicate that he at that point made any effort toward reconciliation. Defendant continued to pay the rent on the apartment, the telephone bill and the utility bill but made no attempt to see his wife. It is the court’s opinion that these acts and the attitude of defendant after suit was filed for the separation manifested his intention not to return to the matrimonial domicile.”

Here, the record does not provide an acceptable basis upon which any conclusion can be reached beyond establishing the fact that Mr. Chamblee left the matrimonial domicile.

We are of the view that a prima facie case which shifts the burden to the defendant must be affirmatively proven as to all three elements required by Article 143. When this is accomplished, then the burden will shift to the opposing party to show that the alleged abandonment was for lawful cause. But, a mere showing on the part of the complaining party that the other spouse has withdrawn from the matrimonial domicile is not, standing alone, sufficient to trigger the burden-shifting process.

Very often in these complex times, the decision to leave the matrimonial domicile is the result of a bilateral understanding on the part of the spouses. See Loyd v. Loyd, 336 So.2d 912 (La.App. 2nd Cir., 1976). To shift the burden to the “leaving” spouse to justify his or her simple act of departure puts the departing spouse in a posture not contemplated by the Code. The jurisprudence seems to have wandered from the Code’s clear intendment. We believe that the clear requirements imposed by the redactors should be followed inasmuch as they provide for a showing of more than the physical act of leaving the matrimonial domicile. There must be affirmative proof that the “leaving” spouse withdrew without lawful cause and constantly refused to return. LSA-C.C. Art. 143; Azar v. Azar, 185 So.2d 113 (La.App. 4th Cir., 1966); Sciortino v. Sciortino, 188 So.2d 224 (La.App. 4th Cir., 1966), writ ref. 249 La. 726, 190 So.2d 237; Kuchta v. Kuchta, 296 So.2d 326 (La.App. 4th Cir., 1974), appl. den. La., 299 So.2d 801; Seals v. Jacobs, 292 So.2d 885 (La.App. 1st Cir., 1974); Boudreaux v. Boudreaux, 295 So.2d 511 (La.App. 1st Cir., 1974); James v. James, 325 So.2d 762 (La.App. 1st Cir., 1976); Broughton v. Broughton, 188 So.2d 720 (La.App. 2nd Cir., 1966).

Other than the parties, Louise Wood-roof and Patricia Turner were the only witnesses called. They partially corroborated Mr. Chamblee’s testimony but what they said was of no probative value insofar as proof of abandonment was concerned. Hence, Mr. Chamblee further contends that Mrs. Chamblee was awarded judgment of separation a mensa et thoro solely on her own contradicted and uncorroborated testimony. However, the trial judge apparently concluded, as a matter of fact, that Mr. Chamblee’s departure was substantiated by the petition and testimony of Mrs. Cham-blee as well as the testimonial evidence of Mr. Chamblee himself. Even assuming Mr. Chamblee’s testimony failed to corroborate the testimony of Mrs. Chamblee, we have held heretofore that the unsupported testimony of a party in a divorce or separation suit as against the unsupported testimony of the other party may constitute a preponderance of the evidence provided that it is believed by the trier of the case. Seeling v. Seeling, 133 So.2d 161 (La.App. 4th Cir., 1961).

The trial judge’s conclusions, inferred from the testimony of witnesses whose credibility he must determine, will be accorded substantial weight on review. Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581 (1947). Likewise, in the most recent case of Morris v. Morris, 336 So.2d 254 (La.App. 1st Cir., 1976), the court observed:

“The trial judge viewed the witnesses and evaluated their credibility. Especially in domestic relations cases, his determinations of fact are entitled to great weight on appeal and will not be disturbed unless manifest error is shown.”

Accordingly, we do affirm the finding that Mr. Chamblee departed from the matrimonial domicile. But, on this record, we are unable to also conclude that failure to return without lawful cause can be, then and there, imputed to him, only because he did, indeed, depart. In light of the conflicting jurisprudence reviewed hereinabove, we feel obliged, in fairness, to remand this case to permit Mrs. Chamblee to adduce further evidence on the issue of abandonment. Since the appeal was limited to a challenge of the trial court’s finding of abandonment, the decision constitutes a res judicata barrier to any further consideration on the cruelty issue. Each party shall bear its own costs of this appeal.

AFFIRMED IN PART AND, IN PART, REMANDED FOR FURTHER PROCEEDINGS.

LEMMON, J., filed a specially concurring opinion.

LEMMON, Judge

(concurring).

I agree with the result and the basic reasoning of the majority opinion. I submit this concurring opinion to state my somewhat different approach in analyzing the necessity of remand and my disagreement on a technical point.

Analysis of Merits

To be entitled to a judgment of separation based on abandonment, the wife as plaintiff had the burden of proving that her husband withdrew from their domicile without lawful cause and that he unjustifiably refused to return.

As to the husband’s withdrawal from the matrimonial domicile on January 26, 1975 the wife testified that their marriage had already deteriorated beyond repair because (at least over the prior four-month period) he had stayed away from home at night until late hours and had withdrawn large sums of money from their savings, all without explanation. The husband did not specifically deny this conduct, but in effect blamed his actions and the general deterioration of their marriage on his wife’s excessive drinking.

Thus the parties basically agreed things had reached a point so that they could no longer live together happily, and both in effect consented to separate. However, each presented a different version of facts bearing on the visceral issue of whose fault brought about the deterioration of their relationship. Stated otherwise in terms of elements of proof, the parties both agreed that the husband withdrew and that neither desired that he should return; they disagreed as to whose fault caused the ultimate mutual decision to live separately.

Presented with this conflicting testimony and with the fact that neither party’s version was corroborated with other evidence, the trial judge could have simply accepted the wife’s version and rendered judgment in her favor. Or he could have rejected the wife’s version, either on insufficiency of her evidence or on acceptance of the husband’s testimony (or perhaps on a finding of a simple incompatibility), and could have dismissed her suit. (Since the husband had not filed a reconventional demand or an affirmative defense to the wife’s suit for separation, he had no burden to prove anything.) Nevertheless, the trial judge granted judgment in favor of the wife, specifically finding in oral reasons for judgment that the “burden has not been carried”.

With due deference to a trial judge for whom I have great respect, and mindful that appellate courts should not discourage submission of reasons for judgment or findings of fact, I cannot affirm a judgment based on this reasoning under the circumstances of this case. The conflicting versions must be resolved before a decision can be properly rendered.

Since an appellate court should not undertake an independent determination of the merits of a case on the record when a credibility evaluation is essential to the decision, the proper result is to remand the case for the necessary credibility determination.

Shifting of the Burden of Proof

The burden of proof never shifts. The burden of proof is always on the plaintiff (or plaintiff in reconvention or third party plaintiff) to prove all of the essential elements necessary to support the demand for relief.

Loose wording in some decisions would lead one to believe that the plaintiff in a separation suit based on abandonment need only prove the other spouse withdrew from the domicile, at which point the burden of proof then shifts to the leaving spouse to show lawful cause for his departure. Such reasoning is patently incorrect..

This erroneous reasoning (also prevalent in circumstantial evidence cases further made mysterious by use of the Latin term “res ipsa loquitur”) confuses the burden of proof (which is applied only at the conclusion of the case) and the burden of proceeding forward with the evidence (which does shift during the trial after certain evidence has been presented). This latter burden, however, is a relatively insignificant concept in Louisiana, which has no procedural vehicle, such as the motion for directed verdict, by which a dismissal can be obtained during the trial but before its conclusion. Under our procedural law the burden of proof is all important, and the defendant who believes that the plaintiff upon resting has failed in his burden of proof must decide whether to simply rest or to proceed with additional evidence.

I therefore technically disagree with language in the majority opinion about shifting of the burden of proof. In my appreciation of our procedural law, the burden of proof always remains with the plaintiff, and when the burden is applied by the trial judge at the conclusion of the case, the plaintiff loses if he has failed to carry his burden.

      . Immediately after trial, the court ruled from the bench in favor of Mrs. Chamblee, and counsel for Mr. Chamblee filed an application for new trial on October 10, 1975. When the court signed the written judgment on October 17, 1975, the application was acted upon, being then denied. Petition for appeal was filed on October 23, 1975, and the appeal was granted on October 24, 1975. The appeal bond was filed on November 19, 1975. Normally, under LSA-C.C.P. Art. 3942, which adopts the applicable dates provided in Art. 2087(l)-(3), appellant has thirty days to take an appeal and furnish security therefor from “the court’s refusal to grant a timely application for a new trial . . . Under C.C.P. Art. 1974, the delay for applying for a new trial commences to run on the day after the judgment was signed. Here, we find that the application for new trial was premature, not timely, and, thus, without legal effect. Hence, this matter falls under subsection (1) of Art. 2087. Accordingly, under LSA-C.C.P. Art. 1974, the delay for new trial commences to run on the day after the judgment was signed, viz. on October 18, 1975. Using this date as the starting point for computing the delay periods for the appeal application and appeal bond, we find the appeal bond to have been timely filed.

      . Although “leaving” may be the harbinger of abandonment, there are many instances where such is not the case. Often the “leaving” party has “left” the matrimonial domicile completely free of any “fault” and has taken himself (or herself) away from the matrimonial domicile to prevent added financial drain, the uprooting of children, the uprooting of elderly parents, the overall social implications, etc., etc.

      . The wife speculated, but failed to prove that these actions were connected with a romantic interest in another woman.

      . Admittedly, I would have affirmed the judgment in favor of the wife, if unaccompanied by reasons, on the presumption that the trial judge had accepted the wife’s version and rejected the husband’s.

      . Of course, some otherwise valid demands may be defeated by affirmative defenses or exceptions (such as a defense or exception based on prescription), and the party urging the defense or exception has the burden of proof in that respect.

      .If such a plaintiff were to prove merely that the other spouse withdrew and then rested his case, the other spouse could also rest and thereby win the case on insufficiency of proof.


author: DOMENGEAUX, Judge.

text:
    ESTORGE DRUG COMPANY OF RAPIDES, INC., Plaintiff and Appellant, v. Carl SVEBEK d/b/a Svebek Pharmacy, Defendant and Appellee.
    No. 5561.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 1, 1976.
    Mansour & Davis by Alfred A. Mansour, Alexandria, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by Henry B. Bruser, III, Alexandria, for defendant-ap-pellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   DOMENGEAUX, Judge.

Plaintiff sued defendant on open account, and after trial was granted judgment. Plaintiff appealed the portion of the judgment which allowed defendant certain credits.

Subsequent to the District Court judgment but before hearing on appeal this court was furnished with an order of the U.S. District Court for the Western District of Louisiana, Alexandria Division, which adjudicated the defendant a bankrupt. Plaintiffs total claim was listed in the bankruptcy proceedings.

This court stayed the appeal under the provisions of Rule 13-401 of the Federal Bankruptcy Rules.

Defendant has now been discharged in bankruptcy by the above referred to U.S. District Court and relieved from any claim of indebtedness to the plaintiff-appellant. Plaintiff admits this but suggests that we should nevertheless elucidate upon the trial judge’s actions in granting defendant the aforementioned offset credit. Even though we would find that the district judge erred in awarding offset to the defendant, this would have no effect on the bankruptcy edict.

Accordingly, plaintiff’s appeal becomes moot and is hereby dismissed at appellant’s costs.

APPEAL DISMISSED.


author: STOULIG, Judge.

text:
    SPECIALIZED ELECTRONICS, DIVISION OF OAKMONT CORPORATION v. OIL AND NATURAL GAS COMMISSION OF INDIA et al.
    No. 8217.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 6, 1976.

      Joaquin Campoy, John F. Brewer, New Orleans, for relator.
    Garon, Brener & McNeely, Jacques F. Bezou, New Orleans, for Specialized Electronics, Div. of Oakmont Corp., respondent.
    Knight, D’Angelo & Knight, Harry C. Stumpf, Gretna, for Guaranty Bank & Trust Co., respondent.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Specialized Electronics, Division of Oakmont Corporation, as assignee of Royal Communications Corporation (hereinafter referred to as Royal), filed suit to recover $7,065.80, representing the unpaid purchase price for electronic equipment sold to defendant Oil and Natural Gas Commission of India, a company domiciled in India.

On or about November 20, 1973, the buyer directed the New York branch of its depositary, State Bank of India, to forward a draft in payment of the purchase price. Pursuant to these instructions a draft of the State Bank of India dated November 20, 1973 payable to Royal Communications Corporation was mailed from New York addressed to the payee at Post Office Drawer 412, Harvey, Louisiana. The check fell into the hands of someone having access to Royal’s mail who cashed the check. It was not until January 1976 that an internal audit of plaintiff company records disclosed the proceeds of this check were never received.

Named defendants in this suit were the purchaser; the State Bank of India; and the Guaranty Bank & Trust Company in Gretna, Louisiana, where the check was cashed on a forged endorsement reading “Royal Communications J. A. Briddle 567-8-987.”

The State Bank of India filed a declinato-ry exception to the jurisdiction of the court ratione personae, which the trial court overruled. Exceptor applied to this court for a supervisory writ and we issued an order directing the trial judge to either render judgment maintaining the declinatory exception or to transmit the entire record to this court so that we could act. The district court elected the latter course of action.

From the record it is clear the State Bank of India simply mailed from its New York office a check payable to Royal at the instruction of its customer Oil and Natural Gas Commission. This in itself is insufficient contact within Louisiana to warrant any court exercising personal jurisdiction over the State Bank of India. R.S. 13:3201 —enacted to permit courts of this State to exercise personal jurisdiction over nonresidents to the full extent approved in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) — outlines the situations where jurisdiction attaches, as follows:

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or
(e) having an interest in, using, or possessing a real right or immovable property in this state.”

R.S. 13:3202 specifies the bases for exercising jurisdiction in the preceding section are exclusive. Exceptor’s banking activities of mailing the check to Louisiana does not constitute “transacting business” as contemplated by Section (a) nor does it fall within any other category enumerated in this section.

The State Bank of India, a corporation organized under the laws of the Republic of India, has not appointed an agent for service of process in this State; does not maintain any employees, offices, or bank accounts in Louisiana; does not conduct any business in this State; nor was its action of issuing the draft taken in pursuit of a profit but was in fulfillment of a banking obligation owed to its customer.

Although International Shoe recognizes the need to expand the personal jurisdiction of state courts to certain nonresidents in order to protect its own citizens, it emphasizes that courts are still bound by “traditional notions of fair play and substantial justice” in meeting the due process requirements of the Fourteenth Amendment of the United States Constitution. Were we to conclude Louisiana courts acquired jurisdiction over a corporation that simply mailed a check to a Louisiana address we would do violence to this concept. To hold that the mere mailing of a check to a payee in Louisiana is sufficient to subject the drawee bank to the jurisdiction of our courts under the long arm statute would stifle all foreign banking transactions in this State. Accordingly we conclude the exception to the jurisdiction is sound.

For the reasons assigned, the judgment overruling the declinatory exception of the State Bank of India is reversed and it is now ordered the exception is maintained and this suit against the State Bank of India is dismissed at plaintiff’s cost.

REVERSED AND RENDERED.

      . See R.S. 13:3201 Comment (a).

      . Riverland Hardwood Co. v. Craftsman Hard. Lbr. Co., 259 La. 635, 251 So.2d 45 (1971).


author: BOLIN, Judge.

text:
    Robert Claude FERRINGTON et ux., Plaintiffs-Appellants, v. Cleavon R. McDANIEL et al., Defendants-Appellees.
    No. 12773.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Holloway, Baker, Culpepper & Brunson by D. G. Brunson, Jonesboro, for plaintiffs-appellants.
    Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for defendants-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

When this trip and fall case was first before us we affirmed the judgment denying plaintiffs [husband and wife] the right to recover because of the wife’s contributory negligence. 328 So.2d 880 (La.App. 2nd Cir., 1976). The Louisiana Supreme Court granted certiorari, reversed and remanded the case to this court for the assessment of damages. 336 So.2d 796 (La.1976).

Since all background facts are set forth in the previous opinions, we shall not restate them in detail.

On March 5, 1974, Mrs. Ferrington fell in defendants’ grocery store and landed on her knees, hands and stomach. She immediately began to vomit blood. She was taken to the emergency room of the hospital where she was seen by Dr. Winters, her family physician, who admitted her to the hospital and administered medication to stop the bleeding. X-rays revealed there were no broken bones. ■ She was diagnosed as suffering from bruised knees, contusions, vomiting blood, and stomach ulcer. Six days later her condition stabilized and she was sent home.

Although she missed some time from her job because of her health problems, Mrs. Ferrington, in her late fifties, worked regularly as a nurse’s aid for several years before the accident. She has not worked since that time and claims permanent inability to work as a result of the accident. In the lower court plaintiffs attempted to attribute to the fall her many complaints, such as stomach ulcers, bleeding, hypertension, pains in her back, knees and hip, and in the joints of her hands and thumbs. She testified that prior to the accident she had no ulcer, back trouble or hypertension, but this testimony was refuted by the medical evidence.

In this court plaintiffs do not contend the accident was the sole cause of Mrs. Ferring-ton’s present ailments, but merely that it aggravated any preexisting condition from which she was suffering.

Mrs. Ferrington was off from work the week before the accident and Dr. Winters gave her injections for back pains and arthritis on the morning of March 5,1974, and discharged her to return to work. Later, on that same day, Mrs. Ferrington fell, allegedly causing the injuries for which this suit was brought. Suit was filed in August, 1974 and tried in March, 1975.

Dr. Winters reviewed Mrs. Ferrington’s medical history and testified he had periodically treated her for back pain, degenerative arthritis, and stomach trouble since 1964. He noted she made no complaints referable to her back immediately following the accident nor during her hospitalization. He testified Mrs. Ferrington’s fall could have aggravated her pre-existing ailments; in any event, considering her total condition, she was unable to return to work. However, he testified her ailments pre-dat-ed the fall and were chronic in nature; that he believed anyone would be justified in not hiring her if she were suffering from any one of the ailments; that “in this day and time we find that people have difficulty getting jobs when they have high blood pressure, back problems, or peptic ulcers.”

Mrs. Ferrington was examined by Dr. Rambach, orthopedic surgeon, in May 1974; by Dr. Hand, orthopedic surgeon, and by Dr. Phillips, an internist, in January, 1975. These doctors were of the opinion the fall could have and probably did aggravate Mrs. Ferrington’s ailments. However, these doctors agreed that any aggravating effect of the fall should have terminated within four or five months and that her condition at the time of trial, twelve months after the accident, was no worse than it would have been had she never had the accident.

We find Mrs. Ferrington’s health problems for a period of four or five months following the accident were aggravated by her fall. However, we find that within six months she had returned to approximately the same condition she would have been in if she had not fallen, and that her injuries, while painful and temporarily disabling, did not cause her inability to return to work.

There is now judgment in favor of plaintiff Robert Claude Ferrington and against defendants in the following amounts, plus costs and legal interest from judicial demand until paid: hospital and medical expenses $665.30; loss of six months’ wages for Vergie Ferrington, $1,872.00; and in favor of Vergie Ferrington for physical pain, suffering and temporary disability, $5,000.00.


text:
    James ARKANSAS, Individually and on behalf of his minor son, Jeffery Arkansas, Plaintiff-Appellant, v. Ishmell CLINTON, Sr., Defendant-Appellee.
    No. 13066.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.
    Piper & Brown by Robert E. Piper, Jr., Shreveport, for plaintiff-appellant.
    Lewis Weinstein, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

The father of a 13-year-old boy seeks medical expenses and damages for injuries received by his son when the boy’s bicycle collided with a car driven by defendant. The lower court rejected plaintiff’s demands for lack of proof and we affirm.

The issue is whether plaintiff proved the automobile-bicycle collision was caused by the fault of defendant automobile driver.

The boy testified that about “dusk dark” he was operating his bicycle on the left shoulder of a two-lane highway. He said defendant’s automobile, traveling in the same direction, struck his bicycle from the rear; that the collision knocked him forward into the left ditch, causing him to lose consciousness. His father, who arrived soon after the wreck, testified his boy was on the right side of the road when he arrived.

The only other witness who testified was defendant who said he was driving along the right side of the highway after dark, about 35 miles per hour, when the boy suddenly rode his bicycle from a driveway on defendant’s right, directly into the path of defendant’s automobile; that he suddenly swerved his car to the left in order to avoid striking the bicycle; that he did not strike the bicycle with the front of his car; and that the bicycle could have struck the rear of his car.

While there was some reference to a policeman having investigated the accident, no evidence of his findings was offered. No photographs were offered depicting the damage to the automobile or the bicycle.

We find the lower court was eminently correct in finding:

“The plaintiff has the burden of establishing causation in the factual structure of the accident. Based on the physical facts and the testimony which the Court heard, the accident could have happened under either set of circumstances. The physical facts are not sufficiently clear to substantiate which way the accident occurred.”

The judgment is affirmed at appellant’s cost.


author: MARVIN, Judge.

text:
    Dale N. MONTGOMERY and Mark Montgomery, d/b/a Montgomery Realty & Development Company, Plaintiff-Appellant, v. Victor F. VANTIGER, Defendant-Appellee.
    No. 13069.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      Thomas, Prestridge & Burchett by Dewey E. Burchett, Jr., Bossier City, for plaintiff-appellant.
    John Paul Woodley, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiffs appeal from a summary judgment rejecting their demands for damages arising from defendant’s alleged breach of a real estate listing contract between them. We reverse.

Defendant’s motion for a summary judgment was filed a year after plaintiffs’ original petition. Defendant’s motion was based on the sole grounds that defendant’s wife— who had not signed with him the listing contract and other instruments — had recently filed a declaration of homestead under R.S. 9:2801-2802.

The trial court relied on two eases to support the summary judgment. Each case denied recovery to a realtor under an apparently similar contract as here. In each case, however, the court emphasized that the defendant property owner was prevented from consummating the sale before the sale could be consummated because defendant’s wife filed the declaration of homestead without defendant’s knowledge or collusion and that defendant’s inability or failure to deliver title was beyond his control.

In Deano, the court said:

“. . . Michel was powerless to prevent the filing of the declaration of family home by his wife which was not done until after he had accepted Miss Bau-man’s offer, the title had been examined, and the act of sale had been prepared. “. . . But the failure of Michel to complete the sale was not due to any defect in the title .
% sj¡ * * #
“We do not think that it can be said that Michel, when he listed his property for sale with Deano, Inc., intended to pay the agent $340 if his wife subsequently, without his knowledge and consent, recorded the declaration of family home, making the contract of sale impossible of fulfillment . . . ” 185 So. 10. (Emphasis Ours).
In Dutel, the court said:
“The record shows that defendant had no knowledge whatever that his wife had executed the declaration or that she was opposed to the sale until sometime after the declaration was recorded He testified that he first learned of the declaration through plaintiff’s office and that he was at all times willing and anxious to consummate the sale. The record shows that he co-operated with plaintiff’s office endeavoring to expediate the sale until he was informed by plaintiff that a sale was no longer legally possible without his wife’s signature to the act .
“Plaintiff does not allege fraud on the part of defendant nor collusion between defendant and his wife and the record would not sustain such allegations if made. There is nothing in the record to overcome the presumption of good faith on the part of defendant.” 166 So.2d 527-528.

We also observe that the result in each case [correct in our opinion] was reached after trial and not on a motion for summary judgment.

Additionally, there are allegations in the instant case which the courts in Deano and Du tel particularly stressed were absent.

1. This loan closing was set for July 22, 1974. On that date defendant and the buyer appeared and refused to sign the loan closing documents (deed, mortgage, etc.). With their petition, defendants made a request for Admissions of Fact to defendant. One such request was that the defendant paid or reimbursed the buyer $300 to refuse to consummate the transaction.

2. Defendant has never answered plaintiffs’ original petition or plaintiffs’ request for Admission of Facts filed on August 19, 1974.

3. A supplemental or amended petition alleging that the alleged payment of $300 by the defendant to the buyer was “. for the express purpose of defrauding plaintiffs of their . . . realty fee . This supplemental petition was filed before summary judgment was granted. Defendant did answer the supplemental petition with a general denial.

4. The declaration of homestead was filed more than a year after the date the sale was scheduled for consummation and more than a year after plaintiffs filed suit.

5. Plaintiffs’ supplemental petition also alleged “no disagreement” between the defendant and his wife and that the homestead declaration was filed “. . . for the specific purpose of defeating plaintiff’s [sic] claim for a realty fee.”

Plaintiffs’ allegations are required to be construed liberally and against a motion for summary judgment asserting no material issue of fact. Jones v. Davis, 233 So.2d 310 (La.App.2d Cir. 1970). The allegations of plaintiffs’ petitions are sufficient to raise the general issue- of fraud and collusion and the absence of good faith on the part of defendant.

Our courts have recognized that when an issue requires determination of a state of mind (collusion, fraudulent intent, bad faith, etc.) it is unusual that disposition of the issue may be made by summary judgment. “It is important, and ordinarily essential, that the trier of fact be afforded the opportunity to observe the demeanor, during direct and cross-examination, of a witness whose subjective motive is at issue.” Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976) and Roy & Roy v. Riddle, 187 So.2d 492 (La.App.3d Cir. 1966).

Judgment below is reversed and there is judgment denying defendant’s motion for summary judgment at defendant’s cost and the case is remanded for further proceedings.

REVERSED, RENDERED and REMANDED.

      . Under these provisions the wife, if the husband neglects to do so (R.S. 9:2802), may designate property as the family home, which under R.S. 9:2801, “. . . may not thereafter be validly sold or mortgaged during the marriage by the husband except with the consent of his wife . .

      . Guy L. Deano, Inc. v. Michel, 191 La. 233, 185 So. 9 (La.1938) and Dutel v. Bitterwolf, 166 So.2d 526 (La.App. 4th Cir. 1964).


author: JONES, Judge.

text:
    Laverne DOYAL, Plaintiff-Appellant, v. BOSSIER PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 13071.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 6, 1976.

      James B. Wells and Associates by A. R. Snell, Bossier City, for plaintiff-appellant.
    Henry N. Brown, Jr., Dist. Atty., Benton, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

This is a suit by a dismissed tenured school bus driver to recover unpaid salary and be reinstated to her job because she was terminated without a hearing before the School Board as required by LSA-R.S. 17:493. The defense is that plaintiff’s action is barred by the doctrine of laches. This defense is based on the long delay which elapsed between the termination and the institution of suit and the fact that during this period the Board incurred the expense of employing a replacement driver for plaintiff’s bus. The lower court rejected plaintiff’s demands. We affirm.

The only issue on appeal is. whether the trial court was correct in holding the doctrine of laches barred plaintiffs claim.

Plaintiff had been employed by the Bossier Parish School Board as a bus driver for approximately 15 years. On October 30, 1974 she was arrested and charged with 2 counts of burglary. On the following day, based on instructions from the School Superintendent, the Director of Transportation verbally suspended plaintiff and employed another driver to run her route. On February 3, 1975 plaintiff entered a plea of guilty to one charge of burglary. On February 6, a meeting of the Transportation Committee, composed of 6 members of the 12 man School Board was held and a decision reached to terminate Mrs. Doyal because of her guilty plea. The Superintendent of Schools was instructed to advise her of the termination. The formal letter of termination was received by plaintiff February 12, 1975. The letter gave no reason for the termination, although plaintiff was verbally advised by the Transportation Director and the Superintendent of Schools as to the reason for her termination. There was no compliance whatsoever by the Board with the provisions of the cited statute which sets forth the proper method of terminating a tenured bus driver. The evidence reflects the failure to comply with this statute and hold a hearing was because of the belief such procedure would embarrass plaintiff. Plaintiff gave no indication to her employer she desired to contest her dismissal or to have a hearing in connection therewith as provided by the statute. The first notice received by the Board of plaintiff’s desire to contest the procedure of her dismissal was the service of this suit, which was filed November 4, 1975.

The trial court relied on the decision of Arrington v. Grant Parish School Board, 130 So.2d 443 (La.App., 3d Cir. 1961) wherein the court upheld a defense of laches and denied a dismissed, tenured bus driver’s claim for wages. In that case the bus driver was terminated because of the discontinuance of his particular bus route. The route was discontinued without complying with the provisions of LSA-R.S. 17:493 which requires that before a permanent bus operator may be removed from office due to discontinuance of his route, a hearing before the Board must be held to establish it is in the best interest of the school system to discontinue the route. The Arrington bus driver made no objection to his discharge until one year less two days following his termination, when he sued to recover his unpaid salary for the period following the allegedly illegal discontinuance of his route.

The cases have generally found the doctrine of laches applicable to a discharged public employee’s claim for wages when his delay in pursuing the claim could result in double payment for one service. In State v. Sewerage & Water Board, 177 La. 740, 149 So. 441 (1933) the court discussed the requirement for prompt action on the part of a public employee, stating:

“The necessity for prompt action on the part of a public employee who is unlawfully removed from his position is so generally recognized by the courts that we deem it unnecessary to cite any of the cases exemplifying the rule. We think it suffices to say that the principle underlying all the decisions is based on considerations of public policy, so that an aggrieved employee should promptly take effective action to assert his rights, to the end that if he is successful in his action the public service may be disturbed as little as possible and two salaries may not be paid for but one service.
“* * * [i]n legal significance, laches is regarded as not mere delay, but delay that works a disadvantage to another. ...” Id. 149 So. p. 442

Arrington, supra, did not involve the problem of possible double payment for one service because it arose under circumstances where plaintiff lost his job due to discontinuance of a bus route and there was no employment of another driver such as in the instant case. Arrington pointed out that the factual situation faced by the Board due to delay on behalf of plaintiff in asserting his claim would still result in a dissipation of public funds if plaintiffs claim was recognized since if the driver had promptly contested dismissal, the Board could have immediately terminated the route in accordance with the requirements of the statute, and thus avoided plaintiffs claim for unpaid salary for a full period of one year.

In Albritton v. Union Parish School Board, 307 So.2d 676 (La.App., 2d Cir. 1975) the court discussed the doctrine of laches and its application, quoting extensively from Fields v. Rapides Parish School Board, 231 La. 914, 93 So.2d 214 (1957):

“ ‘The doctrine of laches with respect to a public employee, invoked by this defendant, is well stated in Williams v. Livingston Parish School Board, La.App. First Circuit, 191 So. 143, 144, as follows: “Sound public policy requires that an employee of a public body who claims to have been illegally discharged should press his claim for reinstatement with diligence and without unnecessary delay. The rule that laches on the part of such public employee will bar his claim for reinstatement is not based on any law of prescription or limitation of actions, but it arises from reasons of public policy. The processes of government must go on and employees and officials must be paid out of public revenue for carrying on the functions of government. Where a discharged employee sits idly by for an unreasonable length of time without pressing his claim for reinstatement, those charged with the duty of securing the necessary working personnel cannot hold up the administrative functions of government awaiting a decision on the part of the discharged employee as to what course he will take. The prevention of duplication of positions and the payment of double salaries requires such discharged employee, not only to press his demands, but also to submit his claim to the courts for adjudication without unnecessary delay.”
“ ‘The holding of the trial court in this cause that plaintiff’s claim is barred by laches is in keeping with the above pronouncement and is amply supported by the well settled jurisprudence of this state. Incidentally, the delay in each of the previously decided cases was much shorter than that involved in the instant controversy. See State ex rel. Calmari v. Orleans Parish School Board, 189 La. 488, 179 So. 830 (delay of one year, less four-days); State ex rel. McMurray v. Orleans Parish School Board, 189 La. 502, 179 So. 834 (delay of about one year); Fontenot v. Evangeline Parish School Board, La. App., 185 So. 104 (delay of about two years); Williams v. Livingston Parish School Board, supra (delay of eleven months); State ex rel. Eberle v. Orleans Parish School Board, 221 La. 243, 59 So.2d 177 (delay of one year, less three days).’ ” Id. page 215

Plaintiff asserts that defendant’s plea of laches should be rejected on the authority of Devillier v. City of Opelousas, 247 So.2d 412 (La.App., 3d Cir. 1971) where the court refused to apply the doctrine of laches to deny city firemen payment for overtime services performed by them within a period of one year prior to the institution of suit. The city was aware the overtime services were being performed and any delay attributable to plaintiffs in asserting their claim for payment for the overtime wages awarded in this case cannot be said to have in any way prejudiced the city or worked to its disadvantage. Devillier is factually distinguishable from the instant case and from State v. Sewerage & Water Board, Fields and Albritton, supra, wherein employees sought pay for services not rendered, whereas the Devillier claimants were held entitled to wages duly earned by them. Bradford v. City of Shreveport, 305 So.2d 487 (La.1974), which cited Devillier, is distinguishable on the same basis.

Plaintiff was aware October 31, 1974, the date of her initial suspension, that her job was in jeopardy and yet she delayed for a period of one year and 3 days before instituting suit. Her awareness of her situation was made even more acute on February 12 when she received the letter of termination and she waited approximately 9 months from this date before taking any affirmative action to inform the Board she contested her dismissal. The delays on her part in this connection clearly constitute laches as defined in the cited jurisprudence. As a result of her delays in asserting her opposition to the illegal termination, plaintiff is now claiming salary for a period in excess of one year for work not performed. The board employed and paid another driver for plaintiffs bus commencing October 31, 1974. To reinstate the plaintiff and pay her claim would be a clear disadvantage to the Board and would amount to a substantial prejudice or upset to its fiscal affairs.

For the reasons set forth, we affirm the trial court’s decision at plaintiff’s cost.

Affirmed.

      . § 493. Removal of bus operators; procedures; right to appeal

      A permanent school bus operator shall not be removed from his position except upon written and signed charges of willful neglect of duty, or incompetence, or immorality, or drunkenness while on duty, or physical disability to perform his duties, or failure to keep his transfer equipment in a safe, comfortable and practical operating condition, or of being a member of or contributing to any group, organization, movement or corporation that is prohibited by law or injunction from operating in the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish in which the school bus operator is employed. An additonal ground for the removal from office of any permanent school bus operator shall be the abolition, discontinuance or consolidation of routes, but then only if it is found as a fact, after a hearing by the school board of the parish, that it is in the best interests of the school system to abolish, discontinue, or con-solídate said route or routes. All hearings hereunder shall be private or public, at the option of the operator or operators to be affected thereby. At least fifteen days in advance of the date of the hearing the school board shall furnish the affected operator or operators a copy of the written grounds on which said abolition, discontinuance or consolidation of routes is sought. The operator or operators affected shall have the right to appear in their own behalf and with counsel of their selection, and be heard by the board at the hearing. Nothing herein shall impair the right of the parties to appeal to a court of competent jurisdiction.
      In the event that one or more school bus operators must be removed due to the abolition, discontinuance or consolidation of routes, the principle of seniority shall apply, so that the last school bus operator hired to serve within the school system to be affected shall be the first to be removed.