author: SCHOTT, Judge.

text:
    SAVE OUR PARKWAYS, INC. and Mrs. Carol Wright v. CITY OF NEW ORLEANS and Department of Streets of City of New Orleans.
    No. 8870.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Guste, Barnett & Shushan, Sidney L. Shushan, New Orleans, for plaintiffs-appellants.
    Philip S. Brooks, City Atty., for defendant-appellee.
    Thomas P. Anzelmo, Sr., and Philip D. Lorio, III, Asst. City Attys., for defendant-appellee.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   SCHOTT, Judge.

Plaintiffs brought this suit in connection with the neutral ground of Harrison Avenue between Vicksburg Street and Argonne Boulevard in the City of New Orleans. A summary of their allegations is as follows: Defendants were embarking on a project to surface this neutral ground with asphalt purportedly on the basis of Ordinance 5581 MCS. This ordinance is unlawful and void because it violates Section 43-9 of the New Orleans Municipal Code and Section 5-902 of the City Charter, in that it infringes on the jurisdiction of the Parkway and Park Commission of the City. It is also unlawful in that it violates Sections 43-25(4) and 38-239(13) of the New Orleans Municipal Code relative to parking on neutral grounds. They prayed for an injunction against defendants from spending public funds in connection with the project and from interfering with the jurisdiction of the Parkway and Park Commission over the neutral ground, ordering defendants to enforce the parking provisions of the Municipal Code and seeking a declaratory judgment.

Their suit against the Department of Streets was dismissed on an exception of no cause of action and that judgment is not on appeal. Plaintiffs have appealed from a judgment in favor of the City of New Orleans by declaring that Ord. 5581 is valid and a lawful exercise of the power of the City Council and that parking on this particular neutral ground is not in violation of the two sections of the code relative to parking.

With respect to the parking provisions of the Municipal Code, Section 38-239(13) found in the Traffic Code, contains a prohibition against parking “upon a neutral ground other than those designated and operated as parking facilities.” Section 43-25(4) is found in the chapter on parks and recreation and provides that no one shall “park a car, truck or other equipment on neutral grounds . . . ” In the first place the ordinances themselves came into being because the City Council passed them and that body has the authority to supersede its own ordinances. In the second place, these two ordinances which are on the same subject matter must be read together, and Section 38-239(13) specifically excludes from the prohibition against parking on a neutral ground those so designated and operated as parking facilities. Without laboring the history of this particular neutral ground, until 1948 there was an open drainage canal in this neutral ground area and when the City and the Sewerage and Water Board closed that canal it was immediately converted into a parking facility with shell surface and has been continuously used as such since that date. Thus, it was at all times since the canal was covered and continues to be a designated parking area and was never intended to be covered by these particular prohibitory ordinances.

In this court plaintiffs do not seem to attach much weight to their case based on the parking provisions of the Municipal Code but instead focus on their contention that the Parkway and Park Commission have jurisdiction over this neutral ground to such an extent that the action being taken by the Department of Streets and the Council are an unlawful infringement on that jurisdiction. From our review of the City Charter, we have concluded that that argument has no merit.

Art. Ill of the Home Rule Charter of the City of New Orleans grants all legislative powers of the City to the City Council. Sec. 3-101. Art. IV provides for the executive branch of the City of New Orleans, and under Sec. 4-102 the executive branch includes “unattached” boards including the Parkway and Park Commission. These unattached boards are so called because they are not attached to specific departments under the executive branch. Sec. 4-108 outlines the powers and duties of boards and commissions as follows:

“All boards shall have the same powers and duties with respect to their functions as those prescribed in this chapter for officers and department heads, unless otherwise provided by this Charter or applicable State law . . . ”

Sec. 4-107 which outlines the powers and duties of officers and department heads contains the following:

“(3) The Mayor, or each officer or department head with the consent of the Mayor, shall submit to the Council for its approval such reasonable regulations affecting the public and necessary to the performance of the functions assigned to such office or department. No such regulation shall become effective until approved by resolution of the Council and inscribed in the Book of Regulations. Any such regulation may be rescinded or amended either by the same process as when originally submitted or by the Council at any time. All regulations shall be subordinate to the ordinance of the Council.”

From this scheme it appears obvious that the Parkway Commission is far from the autonomous kind of a board which plaintiffs conceive it to be. On the contrary, it is in the same category as all the other departments and boards of the City and that much of its activity is subject to regulation and control by the City Council “unless otherwise provided by this Charter” as set out in Section 4-108.

In Art. V which is entitled Executive Branch — Unattached Boards and Commissions, is found the grant of authority to the Parkway and Park Commission. Sec. 5-902 lists the functions of the Commission as follows:

“(1) Administer, control and manage all parks, except those otherwise provided for by applicable state laws.
(2) Cultivate, place, maintain and remove trees, shrubs, flowers, grass and other plants on public grounds.
(3) Embellish parks, parkways, highways and other public grounds.
(4) Designate the portion of parks and other areas under its control for the activities under the direction of the Department of Recreation.”

We note that this section does not mention the term neutral ground, but speaks of parks, public grounds, parkways and highways. Sub-section 1 confers on the Commission the function of administering, controlling and managing parks, but we do not perceive that this includes neutral grounds. Sub-section 2 seems to refer to such public grounds as those surrounding City Hall and other public buildings. The only sub-section which seems to refer to neutral grounds is sub-section 3 and that is only because of the inclusion of the terms parkways and highways in those areas for the Parkway Commission to embellish. We deem this grant of authority to be quite limited. If there is a neutral ground at all the Commission may embellish it but it has no jurisdiction beyond embellishment over the neutral ground as distinguished from parks. It does not have the authority to administer, manage and control neutral grounds.

Section 38-17 of the Municipal Code defines street as the entire width between the boundary lines, and it defines a neutral ground as “that portion of the street” between the roadways. Referring back to the City Charter, Sec. 4-901 of Chapter 9 grants to the Department of Streets the function of designing streets and this surely embraces the width of the neutral ground within the street. Thus, the street department could eliminate the Harrison Avenue neutral ground subject to authority from the City Council without regard to the Parkway and Park Commission.

Plaintiffs also referred to Sec. 43-9 of the Municipal Code as authority for their position. This provision is identical to the provisions of Sec. 5-901 of the City Charter. Thus, we find no grant of jurisdiction over the neutral grounds in that section beyond embellishment where such neutral grounds exist. Also, it is significant that Sec. 43-9 was enacted by the City Council as a part of the Municipal Code and by that enactment the City Council was apparently unwilling to confer any more power on the Parkway and Park Commission than was already conferred by the Charter. By enactment of the provision they indicated an intention to limit the Commission to embellishment of neutral grounds as opposed to control and management over those neutral grounds.

The judgment appealed from is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    CITY OF NEW ORLEANS By and Through the PUBLIC BELT RAILROAD COMMISSION OF the CITY OF NEW ORLEANS v. H. E. SCHURIG & CO. OF LOUISIANA.
    No. 8872.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.

      Raymond J. Salassi, Jr., and James P. Lambert of Jones, Walker, Waechter, Poi-tevent, Carrere & Denegre, New Orleans, for City of New Orleans By and Through the Public Belt R.R. Commission of the City of New Orleans, plaintiff-appellant.
    Robert Scott McIntosh, II, New Orleans, for H. E. Schurig & Co. of Louisiana, defendant-appellee.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

This is an appeal from the grant of defendant’s motion for summary judgment dismissing plaintiff’s suit.

The Public Belt Railroad Commission of the City of New Orleans brought suit against H. E. Schurig & Co. of Louisiana for demurrage and switching charges for certain railroad cars for which defendant was a named consignee. The defendant responded with a motion for summary judgment contending that it was an “independent ocean freight forwarder” licensed by the Federal Maritime Commission and that it was not a consignee nor did it have any beneficial interest or control either as a matter of fact or law. Because plaintiff has filed no countervailing affidavits or other proof required by C.C.P. Art. 967 contesting this fact, we accept it as true.

However mover does not contest that it was a named consignee on the freight way bills, but contends only that this was erroneous. The general rule is that a consignee binds himself to pay freight charges, if he accepts delivery of a shipment in interstate commerce, and no railroad carrier may deliver at destination any freight transported by it until the charges have been paid, 49 U.S.C.A. § 3(2). At issue here are charges which arose after the delivery of the shipment, and that same section of the Interstate Commerce Act, § 3(2) provides further in pertinent part:

“ * * * * Where carriers by railroad are instructed by a shipper or consignor to deliver property transported by such carriers to a consignee other than the shipper or consignor, such consignee shall not be legally liable for transportation charges in respect of the transportation of such property (beyond those billed against him at the time of delivery for which he is otherwise liable) which may be found to be due after the property has been delivered to him, if the consignee (a) is an agent only and has no beneficial title in the property, and (b) prior to delivery of the property has notified the delivering carrier in writing of the fact of such agency and absence of beneficial title, and, in the case of a shipment reconsigned or diverted to a point other than that specified in the original bill of lading, has also notified the delivering carrier in writing of the name and address of the beneficial owner of the property.”

In the interpretation of the statute, it has been determined that the requirement of written notice of the fact of agency and absence of beneficial title prior to delivery is essential to avoid liability, for the additional charges. Northwestern Pacific Railroad Company v. Burchwell Company, Inc., 349 F.2d 497 (5th Cir. 1965). The affidavit filed by plaintiff states that no written notification was ever given to the shipper. Mover contends to us in argument that the fact of its legal relationship as independent ocean freight forwarder has been well known to the shipper for a number of years due to many transactions between them in writing and otherwise. However this is not put at issue by affidavit, only by argument. On summary judgment we cannot consider facts set out only in argument. Even if we did consider them here, they would create a contest of material fact and would not serve to support summary judgment, but cause its denial because of contest.

In considering a motion for summary judgment, we do not presume to pass upon the validity of facts argued or presented by affidavits or upon the relative ehance of success or failure of the mover’s case after trial upon the merits to establish such facts. We simply determine in this case that under the facts presented to us, the lack of written notice precludes granting the motion for summary judgment as a matter of law. Accordingly, we reverse the judgment appealed from and dismiss the motion for summary judgment.

REVERSED.


author: GULOTTA, Judge.

text:
    Yvonne M. HILL, etc. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 8887.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.
    Garon, Brener & McNeely, Jacques F. Bezou, New Orleans, for defendant-third-party plaintiff-appellee, John J. Capretto.
    Bruce J. Borrello, George J. Richaud, Me-tairie, for defendant-third-party defendant-appellant, Liberty Mut. Ins. Co.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

We are confronted with the issue whether the liability insurer under a homeowner’s policy is responsible for the defense of its named insured in a suit against the insured (and the insurer) for injuries arising out of an automobile accident where the trial judge held that no coverage is provided under the policy. The trial judge concluded the insurer has the responsibility to provide a defense to its insured and rendered judgment against the insurer (in favor of the insured) for the amount of the attorney’s fees paid by the insured. We reverse.

By way of background, plaintiff’s suit against defendants (insured and insurer) was compromised with the insured after the insurer, in answer, denied coverage and failed to provide a defense to the insured.

The judgment appealed from was rendered upon the insured’s third-party demand against its insurer for the amount of the attorney’s fees incurred for his defense. In answer to the appeal, the insured seeks a reversal of that part of the judgment which holds that no coverage is afforded under the policy.

POLICY COVERAGE

Considering the answer to the appeal first, we conclude, as did the trial judge, that the provisions contained in the policy exclude coverage under the circumstances in our case. The pertinent part of the homeowner’s policy relating to personal liability states that the insurer agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage. The exclusions are as follows:

“This policy does not apply:
1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) . . .
(2) any motor vehicle owned or operated by, or rented or loaned to any Insured; . . .

An insured is defined under the policy as:

“a. ‘Insured’ means
(1) the Named Insured stated in the Declarations of this policy;
(2) if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured, and
(3) . . ..”

The petition alleges that the insured’s minor son was driving a borrowed motorbike on which plaintiff’s minor son was a passenger. It is clear from a reading of the policy provisions that the minor son was an “insured” under the policy provisions and that the personal injury to the guest passenger, plaintiff’s minor son, occurred while he was riding a loaned motorbike. Clearly the policy exclusion is applicable and no coverage is afforded by the homeowner’s policy for bodily injury arising out of the use of a motor vehicle.

We find no merit to the argument of the insured that because of the vicarious liability of a parent which makes him strictly liable for the damage occasioned by his minor the policy exclusions are inapplicable. It is the insured’s contention that it is not the minor’s negligent operation of the motorbike which gives rise to plaintiff’s cause of action .but the strict liability of a parent for damages caused by his minor. According to the insured, it is his alleged “legal fault” which makes him a defendant and this liability as expressed in LSA-C.C. art. 2318 is not excluded from the policy. This argument, however, ignores the unambiguous provision of the policy. We fail to understand how the strict liability concept of LSA-C.C. art. 2318 can be applied to circumvent the clear provisions of the policy. This policy is a contract between the parties which is neither prohibited by statute nor against public policy. If unambiguous, it has the effect of law between the parties and must be given effect. LSA-C.C. art. 1901; Mauterer v. Associated Indemnity Corp., 332 So.2d 570 (La.App. 4th Cir. 1976); Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir. 1972), writ refused, 261 La. 824, 261 So.2d 230 (1972). An insurer may limit its liability and, in the absence of ambiguity or conflict with a statute or public policy, this limitation must be given effect. Muse v. Metropolitan Life Ins. Co., 193 La. 605, 192 So. 72 (1939); Cormack v. Prudential Insurance Company of America, supra. Accordingly, we conclude the trial judge properly found that there existed no coverage under the policy.

COSTS AND ATTORNEY’S FEES FOR DEFENSE

We disagree with the able trial judge’s conclusion that the insurer, in the instant ease, is required to provide a defense to the named insured under the homeowner’s policy. The leading case on this question is the Louisiana Supreme Court decision in American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969). The Czarniecki policy contained a provision relating to the defense of the insured similar to the policy in our case. In Czarniecki, as in our case, the court concluded no coverage existed under the policy. In awarding attorney’s fees and costs against the insurer for the insured’s defense, the court stated:

“ * * * And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Benoit v. Fuselier, 195 So.2d 679 (La.App.1967).”

For our purposes, it is important to note that the Supreme Court stated the duty of the insurer to defend suits is determined by the allegations of the petition and the insurer is obligated to furnish a defense “unless the petition unambiguously excludes coverage”.

The pertinent part of the petition in paragraph I reads:

ll He * *
“At all times relevant herein, the defendant, Liberty Mutual Insurance Companies, were the insurers of the defendant, John Capretto, insuring him against any and all liability that the laws would attribute to him on account of any personal injury and or property damage suffered by any third parties as the result of the operation of any motor vehicle by himself or any member of his family, which said policy of insurance was in full force and effect . . and rendered the said insurer liable to petitioner for the damages hereinafter itemized:
(i # * * >>

However, the pertinent part of paragraph 2 of the petition, which reads,

“ . . . James W. Hill, petitioner’s minor son, was a passenger on a 1967 Honda Motorcycle . . which vehicle was being operated by a minor, David Capretto [the insured’s minor son] and travelling . .’..*** The 1967 Honda Motorcycle was owned by Mrs. J. Couch and was being operated by David Capretto with her consent and permission at the time of the accident on November 3, 1971. * * * ”

specifically excludes coverage under the policy. The exclusions provide that no personal liability coverage is afforded for bodily injury arising out of the ownership, operation or use of a motor vehicle owned or operated by or loaned to the insured.

Although we recognize the insurer’s obligation to defend suits against its insureds is broader than its liability for damage claims, nevertheless, the allegations of the petition considered, we are led to conclude that the petition unambiguously excludes coverage and under Ihese circumstances the insurer does not have the obligation to defend a suit against its insured. Accordingly, the judgment in favor of the insured for attorney’s fees, interest and costs is reversed and set aside. Costs to be paid by third-party plaintiff.

REVERSED.

      . LSA-C.C. art. 2318 provides:
      Art. 2318. Acts of minors
      “Art. 2318. The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or un-emancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
      “The same responsibility attaches to the tutors of minors.”


author: GULOTTA, Judge. LEMMON, Judge, REDMANN, Judge,

text:
    Leonard H. ROSENSON v. Patty F. BEL and ABC Insurance Company.
    No. 8891.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, J. David Forsyth, New Orleans, for plaintiff-appellant.
    James J. Morse, Grayson H. Brown, Me-tairie, for defendants-appellees.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

The trial judge, in dismissing plaintiff’s suit, unquestionably made a credibility call in which he apparently found plaintiff was “backing up” at the time of the accident. The defendant driver and her sister, a passenger in defendant’s automobile, both stated that plaintiff was backing up at the time of the accident. Their testimony is not internally impossible or otherwise incredible. Accordingly, there exists evidence in the record to support the trial court’s conclusion. In such instance we are not at liberty to substitute our factual findings based upon credibility for those of the trial judge. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Accordingly, the judgment is affirmed.

AFFIRMED.

LEMMON, Judge,

dissents and assigns reasons.

The assertion that plaintiff backed up on the exit ramp is inherently improbable, although admittedly not impossible. However, my review of defendant’s own testimony convinces me that she did not really see plaintiff back up, and therefore her own testimony does not support such a conclusion.

The accident occurred at the point where an exit ramp off Causeway Boulevard merges with the eastbound traffic lanes of Jefferson Highway. Darkness had just set in on the clear, dry evening, and the traffic was heavy.

Prior to the collision plaintiff had proceeded south on Causeway, had taken the overpass across Jefferson Highway, and was situated in traffic on the exit ramp, awaiting an opportunity to enter the eastbound stream of traffic on Jefferson Highway. He testified that he “negotiated very carefully” on the ramp, with his foot on the brake, and that when he reached a point fairly close to the highway, with no one in front of him he was suddenly struck from the rear. He did not recall whether he was stopped or in motion at impact, since he was “inching” his way while looking for an entry, but he emphatically denied backing up at any time.

On the other hand, defendant, while admitting that she was going forward at time of impact, also asserted that plaintiff was backing at the time. (p. 8) The following excerpts from her testimony demonstrate that she did not observe such conduct by plaintiff.

Defendant thusly described plaintiff’s conduct as he attempted to enter the stream of traffic (p. 9):

“Well, he kind of — he had slowed and he didn’t really use like an acceleration. He just went out a little bit and then stopped. And then he went out a little bit more, and then he started going in, and then he stopped and came back.”

In relation to this she testified that she was at the very beginning of the acceleration lane and was two or three car lengths behind plaintiff when he first hesitated, and that the last time he stopped or hesitated he actually went out into traffic, whereupon (p. 19):

“When he pulled out, I stayed where I was and I was looking. I saw that he was pulling in traffic, so I looked for the next space, and then I started to pull into traffic. And then I saw him backing up at me and braked, so I was just using it to accelerate in. I wasn’t — like he went out a little at a time. I was just going to go straight into, just use it to speed up and get into the flow of traffic.” (Emphasis supplied)

She further stated that she had seen the opening in traffic that plaintiff was attempting to enter and had also noticed another opening, about six cars behind the first, which she planned to enter. And when asked the interval between the time when she turned back from looking to her left and the time when she saw white lights flash on plaintiff’s car (she identified the flashing of white lights as the first indication that plaintiff was backing up), she answered (p. 23):

“A. It was just, you know, a second or so. I mean, like when I would look sideways and I saw a spot, I just started to accelerate. And as soon as I turned my head forward, I saw the lights and I braked. So just, you known, not even a second.
“Q. So you saw it as soon as you turned back?
“A. Right.
“Q. Could you approximate how long were you turned to the left looking down Jefferson Highway?
“A. Just a couple of seconds.” (Emphasis supplied)

Defendant postulated that plaintiff was backing up because he hadn’t properly timed his entry into the stream of traffic. However, she stated (p. 32-36):

“Q. You weren’t really looking at Mr. Rosenson’s car, were you?
“A. Well, I saw him go into traffic and then I looked at the highway.
“Q. Why were you looking at the highway as opposed to looking at Mr. Rosen-son’s car?
“A. Well, he had his nose enough into the traffic that he was either going to get hit by traffic or get into traffic, so I was looking for the next space.
“Q. You were looking for the next opening?
“A. Yes.
“Q. Now, you said a few minutes ago that you saw an opening. I’m not sure about the number of cars, maybe five or six cars back, that you thought you could fit into. And you also said that you saw an opening that Mr. Rosenson could get into, is that right?
“A. Because I saw him getting into one.
“Q. And there was an opening there?
“A. Well, yeah, he would have made it, just step on the gas enough, he would have been in.”
* * * * * *
“Q. You said that you saw Mr. Rosenson for some time, I think hesitating until he got an opening in traffic, is that right?
“A. Yes.
“And described that you were looking over on the left to look for an opening?
“A. Not then, not until I saw him go into traffic far enough that he had to get in.
“Q. And then you pretty much quit looking at him and looked over to the left?
“A. Yeah.
“Q. And then you were moving forward, and then the next thing you knew, you had this collision, is that right?
“A. Well, I mean, it wasn’t the next thing I knew because I saw what was happening and braked before we actually hit. My foot was on the brake before the cars touched. I have a — I can’t measure things.”

Later, she answered a similar question as follows (p. 54):

“Q. At the time that you looked to the left, where was the nose of his car? “A. I still say it was about a foot and a half into the lane and he was still moving. So I assume by the time I turned around, he should be in the lane.”

Finally, defendant describes the occurrences just before the collision as follows (p. 37-38):

“Q. But right before this accident occurred, you were pretty close to Mr. Ro-senson, weren’t you?
“A. I wasn’t really that close to him. I mean, there was probably a car distance between us, at least.
“Q. At what point was this? At what point was there a car distance?
“A. Right before I started to accelerate. “Q. So you had just about a car?
“A. Yes.
“Q. Now, at this point when there was a car distance between you, is it fair to say at that time that both of you were pretty much stopped?
“A. Yeah.
“Q. And somehow from that car distance apart, your testimony is that Mr. Rosenson started forward and you started forward and then Mr. Rosenson backed up and then you had the collision?
“A. (Witness nods head affirmatively.)
“Q. Now, how fast were you going when you started to accelerate?
“A. Not that fast, only about 35. The speed limit is only about 45, maybe 50.”

The foregoing excerpts of defendant’s own testimony establish her negligence and the implausibility of her statement that plaintiff backed into her. She saw plaintiff begin to move toward an opening in the stream of traffic and turned to her left to look for the next opening; then, erroneously assuming plaintiff had entered the highway, she began to accelerate in the acceleration lane so as to enter the opening she had spotted, but upon returning her attention to the front, she saw to her surprise that plaintiff was still in the acceleration lane. She admitted that she accelerated at a fast speed when she saw plaintiff start into an opening which he should have been able to enter. She admitted that “as soon as” she returned her attention to the front, after looking to the side, she saw that plaintiff was backing up (or stopped) and braked to stop her forward movement. She admitted that she determined plaintiff was backing up because they were “getting closer” (of course, she was moving forward rapidly, after they had both started forward while only about a car length apart) and because she saw a white light flash on plaintiffs car.

In my opinion defendant’s own testimony does not reasonably establish that she actually observed plaintiff perform the improbable- maneuver of backing up on the exit ramp. I would reverse.

REDMANN, Judge,

concurring in refusing rehearing.

Plaintiff suggests that we can as well evaluate defendant Patty Bel’s credibility as did the trial judge, because she testified by deposition rather than in person. This suggestion has merit but our credibility evaluation problem is a different one. Plaintiff testified in person (as did Patty Bel’s sister). The trial judge disbelieved plaintiff (and believed the Bel sisters). Another trier of fact might have believed plaintiff, but we are not triers of fact, and we are not free to substitute another credibility evaluation for that of the trial judge.

      . The entire flavor of defendant’s testimony was that plaintiff did not properly use the acceleration lane to accelerate and merge into moving traffic. Perhaps the record bears out the occurrence of this aggravating conduct of motorists unfamiliar with use of acceleration lanes, but this fact does not give a following motorist the right to accelerate in the acceleration lane until the preceding motorist has in fact left that lane.

      . There is no evidence that a white light on plaintiff’s car either flashed when the car was in reverse gear or did not flash when the brakes were applied.


text:
    KILCREASE, EHLINGER AND FAULKNER, INC. d/b/a the KEF Corporation v. Janet C. McLEOD and W. J. Tessier, Realtor, a partnership.
    No. 8897.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    George Scariano, Scariano & McCranie, Metairie, for Kilcrease, Ehlinger & Faulkner, Inc., d/b/a The KEF Corp., plaintiff-appellee.
    Edmond H. Fitzmaurice, Jr., New Orleans, for appellee.
    Edward J. Villere, New Orleans, for Janet C. McLeod, defendant-appellant.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

This is an appeal from two judgments on a motion to withdraw funds held in the Registry of Court, allowing the plaintiff and a defendant/intervenor to withdraw sums prayed for and won under previous judgment of the District Court.

The original lawsuit was begun by a petition to enforce an agreement to purchase or sell real estate, praying for 1) specific performance by Janet McLeod, one defendant, on a contract to buy from the plaintiff the property at 3116 5th Street, Metairie, La., or alternatively 2) $34,400 cash from McLeod representing her two deposits of earnest money, or alternatively 3) to order Tessier, the second defendant, a realtor handling the transaction, to turn over to plaintiff a $15,000 cashier’s check and a $19,400 note of McLeod’s which represent McLeod’s earnest money deposits with Tes-sier as real estate agent. Tessier intervened for his agent’s commission of $5,820.00 by third party demand and deposited the certified check and note in the Registry of Court.

Kilcrease, the plaintiff, and Tessier both moved for summary judgment, which resulted in judgment of September 25, 1975 as follows:

“After hearing the argument of counsel: IT IS ORDERED, ADJUDGED AND DECREED that the motions for summary judgment, filed on behalf of Kilcrease, Ehlinger and Faulkner d/b/a The KEF Corp. and W. J. Tessier, are hereby granted, and the suits against these parties are hereby dismissed.”

The motions for summary judgment referred to do not specify which of Kil-crease’s three alternative demands is sought but merely moves for summary judgment for plaintiff.

This judgment was appealed to this court by defendant McLeod under our previous appeal, # 7848, but was dismissed on McLeod’s own motion January 6, 1977. No further action was taken, and that judgment has now become final and definitive. C.C.P. 1842.

Subsequently, Kilcrease and Tessier under the judgment of September 25, 1975 moved the District Court to withdraw the funds granted them. After hearing, these motions were granted and from this defendant McLeod appeals.

Appellant attempts to attack the prior judgment of September 25,1975 collaterally through this appeal. She sets out as error that this prior judgment was “ineffective” or defective because of three points raised in McLeod’s answer to the motion to withdraw funds, i. e.:

1.) That under the terms of the September 25, 1975 judgment as written, it is impossible to determine what relief should be granted, since it does not specify which of plaintiff Kilcrease’s alternative demands is granted, and is thus ambiguous.

2.) That the Motions to Withdraw Funds of Kilcrease and Tessier are conflicting and cannot both be granted.

3.) That Kilcrease cannot comply with the judgment of September 25, 1975, in regard to specific performance, because Kil-crease has since sold the property in question to another.

Appellant argues that because of these three specifications, “It is impossible to determine what relief should be granted and to whom.”

In construing an ambiguous judgment, resort may be had to the entire record to aid in arriving at its meaning or to clarify its intentions, where susceptible of different constructions regarding material parts. Rodrigue v. Ziifle, 288 So.2d 630 (La.1974), Appeal after remand 297 So.2d 793 (La.App. 4th Cir. 1974); Lumbermen’s Mutual Cas. Co. v. Younger, 158 So.2d 341 (La.App. 3rd Cir. 1963).

By reference to the record, we see that two alternative demands of plaintiff have become moot, since rendition of judgment on appeal could not now have any practical legal effect on the controversy. Cook v. Cook, 320 So.2d 612, (La.App. 4th Cir. 1975).

By appellant’s own admission as seen in his Opposition to Motions to Withdraw Funds, the property has since been sold, and plaintiff Kilcrease’s alternative demand for specific performance, if still sought after the judgment of Sept. 25, 1975, has become moot. Kilcrease’s prayers for $34,400 cash or alternatively the $15,000 cashier’s check and $19,400 note, amount to the same thing. Kilcrease by Motion to Withdraw funds has asked and received the note plus the remaining cash after Tessier’s agent’s commission was withdrawn by him. By this action Kilcrease has acknowledged Tessier’s claim to his commission of $5,820.00 prayed for, which had been granted by the judgment of Sept. 25, 1975.

Therefore, there is no real conflict between Kilcrease’s demand and Tessier’s demand by their motions to withdraw funds and there is no ambiguity left in the judgment of Sept. 25, 1975, only one logical meaning being left to it after reference to other parts of the record: that of adjudication to Tessier of his $5,820.00 agent’s commission, and to Kilcrease of the remaining cash amounting to $9,180.00 and the $19,-400.00 note.

The judgment of Sept. 25, 1975 not being void on its face ab initio, having been rendered by a court of competent jurisdiction, cannot be collaterally attacked. Price v. Price, 326 So.2d 545 (La.App. 3rd Cir. 1976); Collins v. Zachary Hardwood Lumber Co., 207 So.2d 796 (La.App. 1st Cir. 1968).

No errors are specified to the two judgments on the motions to withdraw funds appealed from, nor any irregularity alleged to the deposit of funds. On the face of the record we see no error here, and indeed they flow logically from and reinforce the construction of the judgment of Sept. 25, 1975, as outlined above.

Accordingly, the judgments appealed from are affirmed.

AFFIRMED.


text:
    Mrs. Judith Homes, w/o Norman L. JOHNSON v. Norman L. JOHNSON.
    No. 8900.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.

      Tucker, Schonekas & Garrison, Russell J. Schonekas, Trial Atty., New Orleans, for Norman L. Johnson, defendant-appellee.
    Reed, Reed & D’Antonio, Floyd J. Reed, Trial Atty., Metairie, for Mrs. Judith Homes, wife of Norman L. Johnson, plaintiff-appellant.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment decreasing child support and increasing the father’s visitation privileges.

Originally, in the judgment of divorce between them, Judith Homes Johnson was awarded custody of the three minor children and Norman L. Johnson was granted reasonable visitation. Child support was fixed, at the sum of $5,000 per month and Mr. Johnson was further ordered to pay for the benefit of his children a number of other expenses in an indeterminate amount, subject to a maximum figure, for example, travel expenses to the extent of $6,000 per year; appliance and house repairs to the extent of $6,000 per year; tuitions in the approximate sum of $306.00 a month; etc. As a result of further proceedings, the visitation rights were fixed at specific times such as every other weekend, certain holiday arrangements and three weeks during summer vacation. The present judgment arose as a result of three rules filed by Mrs. Johnson seeking, 1.) executory judgment of past due child support; 2.) modification and structuring of visitation privileges and 3.) modification of child support and alternatively for increase. Mr. Johnson filed two rules seeking to increase visitation and to reduce child support. The court awarded judgment in favor of Mr. Johnson and Mrs. Johnson appeals. There is no issue raised on appeal as to the executory judgment for past due child support.

ON THE ISSUE OF CHILD SUPPORT

The basic issue raised by the appellant, Mrs. Johnson, is that the child support should not be decreased because there is no showing of a change in circumstances to warrant a decrease. The rule is stated in the case of Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) which held that a consent judgment of alimony is not subject to reduction unless a change of circumstances supporting reduction is proved. See also Ducote v. Ducote, 339 So.2d 835 (La.1976). This rule applies to child support awards as well as alimony awards. Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir. 1975). It is apparent that the trial judge was cognizant of this rule and its effect on the case before him. However he was faced not with a fixed determinate amount of alimony, but a composite judgment which fixed an amount of $5,000 per month, and then additionally provided for some 14 items of expense for which no amount was fixed but only a maximum, not to be exceeded. As a result, he concluded that he was not bound strictly by the Bernhardt rule, but, because of the difficulties which arose between the parties and in order to eliminate one source of friction between them, he was compelled to set a lump sum amount based upon the needs of the children and the ability of the father to pay. We agree with his determination to proceed in this fashion, although we do not agree with the results reached.

It is apparent from the record, in which there are allusions to a number of sources of difficulty not specifically brought out in the evidence, that there was a problem between the parties as to the payment of a number of these bills, resulting in Mrs. Johnson’s difficulties with school tuition, etc. and the necessity for her to bring the rule to make past due alimony executory. After considering the evidence presented to him, the court was of the opinion that the child support should be decreased to the sum of $3,500 per month plus any and all hospital bills incurred for the said children and bills for doctors and medicine incurred in connection with any such hospitalization of the children.

In our consideration of the evidence, we cannot say that the judge was wrong as a matter of fact in determining this amount as sufficient for the support of the children. He is granted wide discretion in determining such an award, and for us to say that some other amount should be set would merely be to substitute our opinion for his. We would affirm his opinion except that we are faced with a legal proposition that prevents the decrease of the alimony to that figure. Referring again to the principle in Bernhardt, we find that there has been no change in the circumstance as relates to the expenses of the children, and the amount of support that can be provided by their father, a multi-millionaire. Under these circumstances, we conclude that that portion of the consent judgment which was fixed, the sum of $5,000 per month, comes under the Bernhardt rule. We do not conclude that the consent judgment can be reduced below that figure, without a showing of change of circumstances. Accordingly, purely on this issue of law, we would amend the judgment of the trial court to provide for child support in the sum of $5,000 per month,' plus the hospitalization expenses stated which were included in this judgment by consent of both parties.

THE ISSUE OF VISITATION

Appellant contends that the trial judge erred in denying her motion to decrease visitation, and in increasing the visitation as requested by appellee. Mrs. Johnson testified that Mr. Johnson had not cared for the children properly, that his taking of the children on weekend trips to far places in his private airplane not only caused great concern for the safety of the children, but interfered with their ability to attend school upon their return, that Mr. Johnson did not properly consider the medical condition of the children, and that he encouraged them to disobey their mother. Mr. Johnson denied this, but asserted that he had taken the best of care of the children. The trial judge obviously accepted the testimony of Mr. Johnson as true, because he actually increased his visitation privileges. On the matter of a credibility call between the witnesses and particularly in a case such as this where the parties have been before the court with their matrimonial and domestic disputes any number of times, this court accords much discretion to the trier of fact, and sees no reason to disagree with those conclusions. We agree with the dismissal of Mrs. Johnson’s request for decrease.

However, on the matter of the increase in visitations, we do feel that the trial judge erred. The paramount consideration in determining visitation rights is the welfare of the child. If an exercise of the visitation rights awarded by the trial court is deemed to be injurious to the child’s welfare upon appellate review, the Court of Appeal will reverse the trial court’s award. LeBouef v. LeBouef, 325 So.2d 290 (La.App. 4th Cir. 1975). Larroquette v. Larroquette, 293 So.2d 628 (La.App. 4th Cir. 1974); Ogden v. Ogden, 220 So.2d 241 (La.App. 1st Cir. 1969). On the other hand, if an appellant fails to show that the provisions of the trial court’s judgment would be detrimental to the health and welfare of the children, the Court of Appeal will affirm the trial court’s award. Johnson v. Johnson, 214 La. 912, 39 So.2d 340 (1949); Shows v. Shows, 345 So.2d 975 (La.App. 2nd Cir. 1977) writ denied 347 So.2d 248; Doherty v. Mertens, 326 So.2d 405 (La.App. 3rd Cir. 1976); Spencer v. Spencer, 273 So.2d 605 (La.App. 4th Cir. 1973); Gallagher v. Gallagher, 212 So.2d 233 (La.App. 2nd Cir. 1968), appeal after remand 218 So.2d 366 (La.App. 2nd Cir. 1969).

In the original visitation judgment of June 23, 1976 the court granted visitation as follows:

* * every other weekend from 4:00 p. m. Friday until 5:00 p. m. Sunday, beginning Friday June 18,1976; and further on Christmas ^days from 3:00 p. m, until 9:00 p. m. beginning with Christmas, 1976, and on alternating Easter Sundays and Thanksgiving day from 9:00 a. m. until 6:00 p. m., beginning with Easter 1977; and further, for three weeks during the summer vacation.”

In the judgment appealed, March 16, 1977, the visitation privileges were fixed as follows:

“a. In odd numbered years from December 25, at 5:00 p. m. until December 29, at 5:00 p. m. and on even numbered years from December 25, at 5:00 p. m. until December 27, at 5:00 p. m., commencing with the year 1977.
“b. In even numbered years, from Friday, 5:00 p. m. until Friday 5:00 p. m. of the 'Easter school vacation and in odd numbered years on Easter Sunday from 5:00 p. m. until 9:00 p. m., commencing with the year 1977.
“c. The Thanksgiving holidays in even numbered years only, from Wednesday, 5:00 p. m. through Saturday, 5:00 p. m. commencing with the year 1978.
“d. Alternate weekends from Friday, 4:00 p. m. until Sunday, 5:00 p. m. commencing Friday, March 11, 1977.
“e. Every Wednesday from 4:00 p. m. until 7:00 p. m., commencing Wednesday, March 16, 1977.
“f. For three weeks during summer vacation during August and September.”

Appellant contends that such a grant of visitation amounts to divided custody and refers us to a number of cases wherein the appellate courts have reduced visitation to a much lower level than that shown. At the same time it is contended that this seriously interfered with the ability of the mother to properly insure their schooling and religious education and interferes with her general control over the behavior of the children as well as the children’s social life. We note that each case involving visitation rights is dependent upon its own facts. Vinet v. Vinet, 184 So.2d 33 (La.App. 4th Cir. 1966). The particular facts in each case determine whether the visitation rights constitute prohibitive divided custody. Doherty v. Mertens, 326 So.2d 405 (La.App. 3rd Cir. 1976). As a consequence of this, it follows that the trial judge must necessarily be granted wide discretion in fixing visitation rights, and our task is to review the record to determine the basis upon which the trial judge reached his conclusion.

We note that the trial judge made some changes in altering the structure of the visitation during the holiday periods, and with this we have no concern. Our concern is only with the additional visitation granted every Wednesday from 4:00 P.M. until 7:00 P.M. In view of the large amount of visitation already granted, it seems to us that the increase should not have been granted unless extraordinary conditions exist which would warrant such an intrusion into the children’s routine both during the school year and every week of vacation time. We point out that under this plan, the mother is unable to have the children with her either at home or on vacation for an entire week at a time. During school term, these children, who are now approximately 11, 10 and 8 years of age, must spend an evening during the school week with their father and we cannot help but conclude that it will interrupt their schooling process to their detriment.

In our examination of the record, we note that there is practically no evidence to support the Wednesday visitation, except that there are some references that at one time it may have been considered to be agreed upon by the parties; although this is disputed by Mrs. Johnson. The only reference for the need for such visitation by Mr. Johnson was that the children needed both parents to grow up and be stable. We do not believe that this unsupported statement can outweigh the disadvantage that it will effect on the children. Accordingly, we feel that the increase of Wednesday visitation should be annulled, based on the considerable visitation already granted, which is converted almost to a situation of divided custody, as well as the interference with the children’s schooling and social life.

For the reasons above assigned, we amend the judgment rendered so as to change the sum of $3,500 per month as child support to the sum of $5,000 per month, and to delete from the visitation granted section (e) “Every Wednesday from 4:00 p. m. until 7:00 p. m., commencing Wednesday, March 16, 1977.”, and as thus amended, the judgment is affirmed. Each party to pay its own appellate costs.

AMENDED AND AFFIRMED.


author: STOULIG, Judge.

text:
    Maureen Lier, wife of/and Anthony Joseph CASH v. Carol W. HIGHT.
    No. 8909.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.

      Pitard, Pitard & Porobil, Gregory M. Po-rotal, New Orleans, for plaintiffs-appellees.
    George P. Vedros, Gretna, for defendant-appellant.
    Before STOULIG, BEER and GAUDIN, JJ.
   STOULIG, Judge.

Defendant, Carol W. Hight, has appealed the judgment awarding plaintiffs, Maureen and Anthony Cash, $937 for termite damage in the garage of the residence they purchased from defendants on June 15, 1976. Appellant seeks a reversal, asserting plaintiffs failed to prove their case. We agree and reverse.

This is an action in quanti minoris (C.C. art. 2541), which is subject to the same rules and limitations as a redhibitory action (C.C. arts. 2520, 2521 and 2544). The limitation pertinent here is the buyer’s inability to base quanti minoris on a defect that could have been discovered prior to the sale by simple inspection. Thus the plaintiffs’ case rests on two premises: (1) the defect existed at the time of the sale, and (2) it was not discoverable by simple inspection.

The vendees’ duty to inspect was discussed in Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963), and the Court held the inspection required by C.C. art. 2521 connotes more than a casual observation. This inspection requires the buyer to examine the item he is to purchase to ascertain its soundness. If this inspection discloses no discoverable defects, such as could be found by the ubiquitous reasonable man, then the vice, latent in nature, gives rise to an action to reduce the purchase price by the cost of remedying the defect. Justice McCaleb stated the criterion in Pursell that is applicable in this case:

“The proper test to be applied * * * is whether a reasonably prudent buyer acting under similar circumstances, would have discovered the presence of termite damage in the premises. * * * ” 152 So.2d at 41.

There was evidence of termite damage to the garage when the house was purchased. Within a month after plaintiffs took title, Foster Desselles, plaintiffs’ expert in the field of general contracting and repairing, noticed termite holes to the wooden frame of the garage door and the adjacent siding. And this was at a time when he said it was too dark for him to make a termite inspection of the entire garage. He advised plaintiffs in July 1976 to call a “Mr. Hoffman” for a termite inspection because of the evidence he saw. The record is silent as to whether Mr. Hoffman was called and what, if anything, he found if he was in fact asked to inspect (he garage.

In any event in January 1977 Desselles returned and minutely inspected the garage and found the rafters and sheathing of the roof infested with termites. He estimated the termites had been in the garage rafters for at least six months, noting that the pine material of which they were constructed was damaged particularly fast. He estimated cost of repairs at $937.

While defendant called an expert who found no infestation in March 1977, we have not weighed this as a factor in our evaluation. This is because plaintiffs have not established a prima facie case sufficient to warrant our weighing the adequacy of the defense. Title passed June 15,1976 and no certification of termite free premises was required. Plaintiffs’ expert saw termite damage to the garage door in July 1976 by casually glancing at it when it was too dark to properly inspect the interior. Desselles’ inspection of the rafters occurred in January 1977. He stated the damage was at least six months old and told the court he did not know if there was termite infestation in the rafters in July.

C.C. art. 2530 requires one seeking redhibition (or quanti minoris) to prove the defect existed at the time of the sale. Des-selles failed to establish the presence of the termite problem in the rafters at the time plaintiffs acquired the property. The sale occurred one month before what Desselles gave as the approximate date of infestation. Further, the termite damage at the doorway was apparent immediately after the property was sold, indicating casual observation should have apprised vendees of potential termite damage. The Pursell criterion suggests this was the type of defect that should have been discovered by simple inspection and we so held in Fraser v. Ameling, 259 So.2d 95 (1972).

We conclude plaintiffs are not entitled to have the purchase price reduced by the amount estimated to repair garage roof damage.

For the reasons assigned, the judgment appealed from is reversed and plaintiffs’ suit is dismissed at their cost.

REVERSED.

      . Desselles had also inspected the den, which was a subject of dispute in the trial court but is no longer because plaintiffs did not appeal the judgment dismissing that aspect of their claim.


author: LEMMON, Judge.

text:
    Claude C. MELANCON, Jr., Amelie P. Melancon, widow of Claude C. Melancon, Sr., Edward Melancon, James H. Melancon, Elizabeth M. Haydel, Roy J. Melancon, Yolande M. Bolline, Lucille M. Dolbear, Corinne M. Bouquet, Mildred M. Ladner and Gerald N. Melancon v. Sidney E. WOOD, John Wood and Gerry Wood.
    No. 8926.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.

      Bernard S. Dolbear, New Orleans, for plaintiffs-appellants.
    Martin, Himel, Peytavin & Nobile, Lloyd R. Himel, Lutcher, for defendants-appel-lees.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

This is a petitory action in which plaintiffs are claiming an undivided ownership in 233 acres of immovable property. Plaintiffs now appeal from a judgment which maintained defendants’ exception of ten-year acquisitive prescription and dismissed the suit.

I

John Mire, Sr. acquired the property by two purchases, in 1932 and 1936, during his marriage to Naomi Bertaut. One child (John Mire, Jr.) was born of this marriage, but from previous marriages Mr. Mire had three children (George Mire, Emile Mire and Rita M. Feitel) and Mrs. Mire had one (Claude Melancon, Sr.).

Mrs. Mire died in 1938. The judgment of possession in her succession recognized plaintiffs (her grandchildren) as her residuary legatees, but the subject property was not included in the succession inventory and not described in the judgment of possession. Mr. Mire died in 1939, and the judgment of possession in his succession recognized his four children as owners of the subject property. Both successions were handled by the law firm of Martin and Himel.

In 1949 defendant Sidney Wood acquired the property by act of sale from John Mire, Jr., George Mire, Emile Mire and Edward Feitel. The act purported to transfer complete ownership, and no mention was made of any outstanding interest belonging to Claude Melancon, Sr. or to plaintiffs. Subsequently, Claude Melancon, Sr. died, and plaintiffs were recognized as his sole heirs, but the subject property was not mentioned in his succession proceedings.

Plaintiffs’ petition in this action alleges they discovered their “rights” on October 31, 1966, exactly one year before this suit was filed.

II

Plaintiffs first complain that the question of ten-year acquisitive prescription under C.C. art. 3478 et seq. is not before the court, because defendants’ exception pleaded prescription based specifically on R.S. 9:5682. They contend that since C.C. art. 3478 was not mentioned until a post-trial brief, they were prejudiced because their evidence was presented to meet the plea of prescription under R.S. 9:5682.

Defendants’ exception did specifically plead R.S. 9:5682 as the basis for prescription, but the two-page pleading also alleged the act of sale in 1949 and continuous, uninterrupted, peaceable, public and unequivocal possession since July 8,1949, the date of the sale. Thus, the pleading alleged facts which, if proved, would constitute all of the elements (except good faith) required for relief under C.C. art. 3479, although no specific Codal article was named.

Furthermore, at the trial of the exception plaintiffs attempted to prove Wood’s lack of good faith. Therefore, while plaintiffs may have been surprised when defendants argued in post-trial brief for relief under C.C. art. 3478 et seq., we perceive no prejudice caused by insufficient pleading or by insufficient opportunity for presentation of evidence.

Ill

Immediately after the 1949 act of sale Wood utilized the property for raising cattle and constructed a fence on three sides, (a fence on the fourth side being unnecessary, because he leased the adjoining property on that side for cattle grazing). He built sheds and chicken houses, and in 1951 he built a home where he resided from 1951 until the time of trial. He also dug ditches and canals, granted servitudes, executed mineral leases, and sold two portions of the property to his sons (who were joined as defendants). He testified that from the date of his acquisition until the date of this suit he believed that he was indeed the owner of the property which he possessed as owner.

Thus, Wood proved without contradiction that he exercised continuous and uninterrupted, peaceable, public and unequivocal possession as owner for more than ten years and a legal title sufficient to transfer the property. C.C. art. 3479, 3483, 3487. The final requirement for ten-year acquisitive prescription is good faith on the part of the possessor. C.C. art. 3479. To be in good faith, a possessor must have legitimately and reasonably believed that the person from whom he acquired title was the true owner of the property. C.C. art. 3451; Board of Comm’rs., Lafourche Basin Levee Dist. v. Elmer, 268 So.2d 274 (La.App. 4th Cir. 1972). Good faith is always presumed, and the burden of proving lack of good faith is on the party opposing acquisitive prescription. C.C. art. 3481.

Woods, the only witness presented at the hearing on the exception (at which time he was 80 years old), testified that he had rented the property from the Mires for six or seven years, or perhaps since as far back as 1938, when Paul Melancon (described as an old man, related by marriage to Mr. Mire, Sr., who sometimes collected the rent) asked him if he was interested in purchasing the property; that “when I decided to buy the place I was dealing with John Mire”, who lived in New Orleans; that Mire contacted the law firm of Martin and Hi-mel, and “they fixed up everything”; that Martin and Himel had never represented him, although he “knew of them”; and that he met Himel and John Mire at the court house in Convent, where they completed the transaction, and he paid the purchase price.

On the basis of this evidence, apparently accepted as credible, the trial judge could reasonably have concluded that Wood purchased the property, without the benefit of any title examination whatsoever, having just reason to believe that those who transferred the property to him were conveying full and perfect ownership. Knowledge of the seller’s lack of right or interest in the property is not imputed to the buyer, and the buyer’s error in buying from that seller is an error of fact. A buyer who purchases under an error of fact does so in legal good faith.

Furthermore, legal bad faith is not imputed to the purchaser because a complete title examination would have revealed a possible title problem (which in this case may then have dictated further inquiry into possible interest of Mrs. Mire’s heirs and legatees). Land Development Co. v. Schulz, 169 La. 1, 124 So. 125 (1929); Johnson, Good Faith as a Condition of Ten Year Acquisitive Prescription, 34 Tul.L.Rev. 671 (1960). Good faith is determined by reference to any defects suggested in the title deed itself or any knowledge of the purchaser at that time. If bad faith is imputed to a purchaser because a complete title examination would have revealed that the seller had no title or a defective or inadequate title, then there would be little usefulness in the provision for good faith acquisitive prescription.

Finally, plaintiffs’ argument that the firm of lawyers who represented the sellers at the act of sale should have been aware of a possible claim by Mrs. Mire’s heirs and legatees and that such knowledge is imputable to the clients is not significant, because legal bad faith on the part of the sellers is not a relevant determination as to the issue of good faith possession by the purchaser. And the argument that the same firm represents Wood in this proceeding is likewise insignificant, because the critical time for the existence of good faith is at the commencement of possession. C.C. art. 3482; Ryan v. Ribbeck, 83 So.2d 650 (La.1955).

The judgment is affirmed.

AFFIRMED.

      . Thus, the property was apparently treated as Mr. Mire’s separate property, and in Mr. Mire’s interdiction proceeding the property was in fact listed as his separate property. Neither of the deeds by which Mr. Mire acquired the property contained a declaration to this effect.

      . We were informed in oral argument that Mrs. Rita Mire Feitel had died between 1939 and 1949.

      . This matter has been to this court before, when we reversed a dismissal based on non-prosecution for five years. See 303 So.2d 222.

      . As interpreted in All-State Credit Plan of Natchitoches, Inc. v. Ratliff, 279 So.2d 660 (La.1973), R.S. 9:5682 (before the 1973 amendment) requires good faith as an element of the cause of action.

      . Wood testified:
      “But, I live across the river. In those days it was pretty hard to get across the river and I didn’t know any lawyers at the time; I was a young man. So, when I decided to buy the place I notified Mr. Mire and he’s the one that got all the papers fixed up and I didn’t know anything about all this. I went ahead and signed because it was done by the lawyer.” (Emphasis supplied)

      . On this basis we reject plaintiffs’ argument that Wood purchased the property under an error of law, which under C.C. art. 1846(3) cannot be used as a means of acquiring property.
      There is a dispute among doctrinal writers whether good faith is involved in errors of law as well as errors of fact. See, generally, 5 Civil Law Translations, Bandry-Lacautinerie & Tissier, Prescription, §§ 680, 684 (La.St.L.Inst. Trans. 1972). But Louisiana jurisprudence has consistently regarded a purchase from other than the true owner as an error of fact for purposes of ten-year acquisitive prescription.

      . Any recourse available to plaintiffs against the sellers is not before us in this action.


text:
    Mrs. Gladystean Robinson, wife of/and Freddie PORTER, Individually and as Administrator of the Estate of Cynthia Porter and J. U. Robinson v. SAFECO INSURANCE COMPANY OF AMERICA and Albert F. Hensel, III.
    No. 8929.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Marvin C. Grodsky, New Orleans, for plaintiff s-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, Darryl J. Foster, New Orleans, for defendants-appellees.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   SCHOTT, Judge.

This is an appeal by plaintiffs from a judgment based on a jury verdict in their favor. They complain that the awards for general damages to Mrs. Robinson, Mr. Porter as the administrator of the estate of his minor child Cynthia, and Mr. Robinson were inadequate and that Freddie Porter who was awarded nothing individually was enti-tied to recover the medical expenses and lost wages incurred by his wife and child.

One of the errors specified by plaintiffs is in connection with an excerpt from the trial judge’s instructions to the jury which plaintiffs contend misled the jury and produced the inadequate awards.

Beginning with plaintiff’s complaint about the instructions, the excerpt in question reads as follows:

“Whether you find the injuries — whatever you find them to be — the injuries to the plaintiffs, they have already occurred and no amount of money can erase the fact that these injuries can occur. The law, therefore, recognizes and requires only that damages be fair and reasonable in amount to provide legal compensation for such injuries.”

This excerpt is from the second paragraph of one of the special charges requested by defendants and plaintiffs made a timely objection to all of the charges requested by them. We will assume that the excerpt complained of is properly before us on appeal even though this particular charge was not objected to on an individual basis. But see LSA-C.C.P. Art. 1793 and Watts v. Aetna Casualty & Surety Company, 309 So.2d 402 (La.App. 2nd Cir. 1975) writs refused, La., 313 So.2d 601.

It is arguable that the language used by the trial judge may be objectionable when lifted from the context of all the other instructions, but when it is read in context the conclusion follows that its inclusion was at worst harmless error and was not of sufficient import to have an undue influence on the jurors in making their awards. They were instructed to include in their award as damages to the plaintiffs reasonable compensation for the personal injuries which they sustained and to compensate them for past and future pain and suffering as well as mental anguish. We have concluded that this specification of error has no merit.

The accident happened on November 25, 1975, and plaintiffs saw Dr. Julius Levy on November 28. As to the child, Cynthia, who was nine years old at the time, he diagnosed the probability of mild bruises or contusions but the child had no complaints at that time and no treatment was prescribed for her.

Mrs. Porter had cervical and lumbosacral strains for which she was given medication and 22 microtherm therapy treatments between December 2 and March 9, at which time she was discharged as asymptomatic.

Mr. Robinson’s injuries were also diagnosed as cervical and lumbosacral strains for which medication was prescribed and microtherm therapy administered on 22 occasions between December 2,1975, and February 25, 1976, when he was discharged as asymptomatic.

In response to special verdicts the jury awarded Mrs. Porter $1620, Freddie Porter as administrator of the estate of his minor daughter, Cynthia, $50 and Mr. Robinson $2367. Freddie Porter individually was specifically awarded nothing by the jury.

Plaintiffs argue that the awards to Mrs. Porter and Cynthia Porter necessarily include the medical expenses of $625 and lost wages of $44 incurred by Mrs. Porter, and medical expenses incurred by Cynthia in the amount of $20, so that Mrs. Porter was awarded only $950 for her general damages and Cynthia only $30 for her general damages. They likewise argue that Mr. Robinson’s award necessarily includes $576 of medical expenses and $91 of property damage to his automobile, so that he was awarded only $1700 in general damages.

Plaintiffs’ argument that the awards are inadequate does seem meritorious considering the testimony of Dr. Levy that he found muscle spasms on examining Mrs. Porter and Mr. Robinson almost throughout their courses of treatment. However, it was the jury’s function to weigh and evaluate the testimony of Dr. Levy as well as that of the plaintiffs. They apparently did not believe that Cynthia had any injury at all as a result of this accident and that Mrs. Porter and Mr. Robinson suffered only mild injuries.' The evidence shows that Mrs. Porter went back to work a few days after the accident, incurring only 12V2 hours of time lost from her job, and they may not have been convinced that all of Mr. Robinson’s complaints were the result of this accident. They may have also considered the fact that the damages to Mr. Robinson’s vehicle were light, requiring replacement only of a bumper face bar, new bumper brackets, one tail light lens and the other tail light assembly. We can only speculate on the reasoning process of the jurors, and while we agree with plaintiffs that these awards are low we. cannot say that the jurisprudence would entitle them to have the awards increased. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

As to Freddie Porter, we have concluded that there was an error of law in that he was not compensated for the medical expenses and lost wages of his wife and the medical expenses of his child. As head and master of the community and the father of the injured child plaintiff was the proper party to bring the claim for these expenses. Charles v. Sewerage & Water Board, 331 So.2d 216 (La.App. 4th Cir. 1976). If the medical expenses and lost wages incurred by Mrs. Porter were included in the $1620 awarded to her the award belongs to her and cannot be reduced since no appeal was taken from her award by defendants. In order to do justice Freddie Porter must therefore be awarded the sum of $625 for medical expenses and $44 for loss of wages by his wife, and $20 for medical expenses incurred by his child, for a total of $689.

Accordingly, that portion of the judgment in favor of defendants and against plaintiff, Freddie Porter, individually, dismissing his suit is reversed and set aside, and there is judgment in favor of plaintiff, Freddie Porter, and against defendants, SAFECO Insurance Company of America and Albert F. Hensel, III, in the full and true sum of $689 with legal interest from date of judicial demand until paid. In all other respects, the judgment appealed from is affirmed. All costs are to be paid by defendants.

AFFIRMED IN PART.

REVERSED IN PART AND RENDERED.


author: GARSAUD, Judge.

text:
    CITY OF NEW ORLEANS and the Department of Safety and Permits, through its Director, Edward C. Kurtz, v. The STATE of Louisiana, the Louisiana Department of Corrections, Board of Corrections and C. Paul Phelps, Director of Corrections.
    No. 8931.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Granted June 2, 1978.

      Philip S. Brooks, City Atty., David S. Cressy, Deputy City Atty., Thomas P. An-zelmo, Sr., Asst. City Atty., for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Ronald C. Davis, T. A., Staff Atty., New Orleans, for defendants-appellees.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

Suit was brought by the City of New Orleans and the Department of Safety and Permits against the State of Louisiana, the Louisiana Department of Corrections, and C. Paul Phelps, Director of Corrections, on September 30, 1976, pursuant to R.S. 33:4728, which provides for the enforcement of building and zoning regulations by a municipality. The City sued to enjoin the use of Jackson Barracks by the State Department of Corrections as a prison for the housing and/or treatment of convicted criminals, and from the transfer of convicted felons under the control of the Department of Corrections of the State of Louisiana to the state-owned facility located at Jackson Barracks. The petition specifically alleges that on a certain date, the Department of Corrections established a Special Treatment Unit on the site at Jackson Barracks for emotionally disturbed inmates of the state penal system. The City maintained that such use was in violation of city zoning ordinances because that area of the City of New Orleans is zoned RD-3, Two-Family Residential, and such a designation prohibits the use of any land within the district as a prison.

In response to this petition for an injunction, the State has filed an exception of prescription, contending that under appropriate statutes the City has failed to complain timely about the use of Jackson Barracks to house prisoners. The trial court maintained the State’s exception of prescription. The City has appealed from that ruling.

The question of whether the City has timely complained about the nonconforming use in an RD-3 residential district can only be resolved by a review of the history of Jackson Barracks and its use by the Department of Corrections, as it is the initial use by the Department of Corrections which ultimately led to this particular litigation.

It appears from the testimony that in February, 1969, a Work Release Program was instituted at Jackson Barracks through a memorandum of understanding entered into between the Military Department of the State of Louisiana and the Department of Corrections of the State of Louisiana. There is no doubt that the use of Jackson Barracks as a work-release center, as the State contends, has been continuous, uninterrupted, and notorious since February 1969. The initial use involved approximately 14 inmates for the purpose of renovating existing buildings. This number eventually grew to approximately 300 inmates under the Work Release Program when the federal courts ordered the prison population reduced at the state penitentiary. This increase to about 300 occurred about 1976. For the last two years, the inmate population has been approximately 200.

With regard to this use, it is clear that the use would otherwise violate the city zoning ordinance which, in effect, prohibits a prison in a two-family residential district, if it were not for the question of prescription. However, under R.S. 9:5625 as amended by Act 415 of 1962, the City had two years to complain about that use, which it failed to do. The applicable statute at that time read as follows:

“A. All actions, civil or criminal, created by statute, ordinance or otherwise, which may be brought by parishes, municipalities or their instrumentalities or by any person, firm or corporation to require enforcement of and compliance with any zoning restriction, building restriction or subdivision regulation, imposed by any parish, municipality or their instrumentalities, and based upon the violation by any person, firm or corporation of such restriction or regulation, must be brought within two years from the first act constituting the commission of the violation . . . and provided further that with reference to violations of use regulations all such actions, civil or criminal, must be brought within two years from the date the parish, municipality or their instrumentality first had knowledge of such violation .
“B. In all cases where the prescription provided for herein shall have accrued, the particular property involved in the violation of the zoning restriction, building restriction or subdivision regulation shall enjoy the same legal status as land uses . . made non-conforming by the adoption of any zoning restriction . (Emphasis added.)

With regard to the knowledge requirement of the City, £he testimony shows that the City, through its police department and health department, had the requisite notice of the nonconforming use. In oral argument before this Court, the City did not strenuously object to the conclusion that, insofar as the work release program is concerned, the City has no remedy and can seek no relief, as two years have expired from the time the City had knowledge of the utilization of Jackson Barracks for a Work Release Program. Thus, prescription has accrued, prohibiting the City from now complaining about the nonconforming use as a Work Release Center.

The point of difference, then, becomes the introduction in 1976 of the medical unit for mentally-disturbed inmates. It should be noted that these are not inmates of the Work Release Program who may require medical attention, but are convicted felons previously housed at the state penitentiary who are transferred to this special unit at Jackson Barracks.

R.S. 9:5625 was amended by Act 54 of 1972 to state as follows:

“A. All actions civil or criminal, created by statute, ordinance or otherwise, except those actions created for the purpose of amortization of nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, which may be brought by parishes, municipalities or their instrumentalities or by any person, firm or corporation to require enforcement of and compliance with any zoning restriction, building restriction or subdivision regulation, imposed by any parish, municipality or their instrumentalities, and based upon the violation by any person, firm or corporation of such restriction or regulation, must be brought within two years from the first act constituting the commission of the violation; provided, that where a violation has existed for a period of two years prior to August 1, 1956, except those actions created for the purpose of amortization of non-conforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, the action must be brought within one year from and after August 1, 1956, and provided further that with reference to violations of use regulations all such actions, civil or criminal, except those actions created for the purpose of amortization of non-conforming signs and billboards in conformity with the provisions of R.S. 33:4722, must be brought within two years from the date the parish, municipality and their properly authorized instrumentality or agency if such agency has been designated, first had been actually notified in writing of such violation. Except as relates to nonconforming signs and billboards, any prescription heretofore accrued by the passage of two years shall not be interrupted, disturbed or lost by operation of the provisions of this section.
“B. In all cases where the prescription provided for herein has. accrued, the particular property involved in the violation of the zoning restriction, building restriction or subdivision regulation shall enjoy the same legal status as land uses, construction features of buildings or subdivisions made nonconforming by the adoption of any zoning restriction, building restriction or subdivision regulation. However, the governing authority may provide for the removal of nonconforming signs and billboards in accord with the provisions of R.S. 33:4722.” (Emphasis added.)

For our purposes, the major change in R.S. 9:5625 introduced by Act 54 of 1972 is that the notice to the municipality must now be in writing in order for the two-year period to begin to run. If it can be shown that the introduction of the medical unit is a new nonconforming use and is not simply an extension of the prior legally-obtained nonconforming use, then the two-year prescriptive period does not bar the City from pursuing its injunction under this statute, as amended, as the City has brought its suit well within two years from the time of the establishment of the medical unit, and further there is no evidence to show that any written notice of this change was sent to the City which would have enabled the prescriptive period to begin to run.

This brings us to the primary issue in the case, that is, whether the nonconforming use of the Work Release Program which had been obtained as a result of its introduction in 1969 and the City’s failure to complain timely is a use which has converted Jackson Barracks to a facility that can house inmates of the state penitentiary of any type or description or, simply, has Jackson Barracks, by the legal establishment of the nonconforming Work Release Program, become another state penitentiary? If it has, then of course the use as a medical treatment unit is merely a permissible extension, and the City cannot complain.

The City argues that, with the inception of the medical treatment program for mentally disturbed inmates, and the concomitant erection of guard towers and additional wire fences of greater height than previously existed, the use of Jackson Barracks has changed substantially, and a new nonconforming use exists, against which the City can request an injunction under R.S. 33:4728 and R.S. 9:5625.

To determine whether this is simply a continuation of the nonconforming use established by the Work Release Program, it is helpful to review the testimony of the witnesses. On direct examination, Mr. C. Paul Phelps, the Secretary of the Department of Corrections, testified regarding an interoffice memorandum between former Superintendent Joseph Giarfcusso and Major Henry Morris, Chief of Detectives, of the ¿w Orleans Police Department. This in-eroffice memo was dated June 12, 1969. Secretary Phelps said:

“As I said, this is the document that is signed by Major Morris, and the result of a conference which starts off, ‘Work Release Center, Metropolitan New Orleans area, located in Jackson Barracks, comes under the direction of the State Department of Corrections. Mr. John J. Kelly is the local Administrator of the Work Release Program. Mr. Kelly resides at one of the permanent quarters at Jackson Barracks. He can be reached at telephone number 271-6262, extension 361, after 4:30 p. m., at 271-6271. At present he has no home phone number. The program began locally on February 24, 1969, when Mr. Kelly came to Jackson Barracks with Angola convicts to renovate the Barracks. The Work Release Program did not start until about three weeks ago. The main purpose of the Work Release Program is to find jobs for those convicts who would be eligible for parole six to eight months. This program was selected through the classification at the state penitentiary at Angola.’ They would go to the jobs in the morning and report back in the afternoon.” (Tr. 9-10)

The following dialogue took place on cross-examination of Secretary Phelps:

“THE WITNESS:
Our agreement with the Military Department was that in return for certain facilities that they would provide them, inmates to provide basic maintenance functions that go on at Jackson Barracks, grass cutting, carpenter work, this sort of thing.
“CROSS EXAMINATION BY MR. CRESSY:
“Q I asked you, did your agreement with them give you a right to establish a prison at Jackson Barracks?
“A Our agreement with them gave us the right to establish a Work Release facility. I’m not sure what your definition of a prison is.
“Q You’re better qualified — well, would Work Release establishments make a prison out of a facility?
“A Does Work Release make a prison? No, you can have Work Release at prisons or have Work Release outside of prisons. You could have both ways.
“Q Because of the Act of 1968, 187 of 1968 gave you the right to have Work Release in prisons and outside of prisons?
“A That’s right.
“Q So Jackson Barracks wasn’t a prison with a Work Release?
“A If a prison is where you don’t allow people to leave voluntarily, it’s a prison.
“Q Say that again.
“A If a prison is a facility where you do not allow people to come and go as they want to, it would be a prison.
“Q And you don’t allow them to come and go here?
“A They come — we do not allow them to come and go as they want to, as you and I can come and go in a building.
“Q When was the medical unit treatment established in Jackson Barracks?
“A Oh, within the last — I don’t know, year or so. I don’t know the exact details.
“Q Is that different from Work Release?
“A Yes, sir.
“Q The medical treatment people, they are not on Work Release?
“A That’s correct.
“Q They don’t come and go under any circumstances, do they?
“A Hopefully not.
“Q But they are not allowed to go and come, they don’t go through the gate and go to work, they stay there and are guarded with armed guards, is that correct?
“A Same as other inmates are, yes sir.” (Tr. 30-32)

Further, on rebuttal examination, Mr. Phelps testified as follows:

“Q Mr. Phelps, are Work Release inmates permitted — you have a Work Release Program at Jackson Barracks, is that not correct?
“A Yes, sir.
“Q And that is also related to a maintenance program, is that correct?
“A That’s correct.
“Q Are all inmates who are in the Work Release or maintenance program permitted to leave the facility or whatever?
“A No, sir. Those on Work Release, they sign out to go to work, sign in when they come out. They are not allowed to go and come at any time they choose to. Those on maintenance are not allowed to work outside of the facility, but work for the Department of Corrections, the National Guard. They also may not leave and go on their own free will.
“Q Was this maintenance program established in 1969?
“A Yes, sir.
“MR. DAVIS:
I have no further questions.
“THE COURT:
These people are forceably detained within the institution?
“THE WITNESS:
Yes, sir.
“THE COURT:
According to the Rules and Regulations of those authorities and that is the prison authorities, I presume, the Department of Corrections, is that correct, sir?
“THE WITNESS:
Yes, sir.
“THE COURT:
Okay.” (Tr. 35-36)

Finally, on cross examination of Mr. Lloyd Lamy, the Captain at the Department of Corrections at Jackson Barracks, we find the following:

“Q When did the medical treatment — do you have anything to do with the medical treatment facility out there?
“A Yes, sir.
“Q What do you do with that?
“A I’m Chief Security down there. I’m the head captain.
“Q When a medical treatment facility was — when was a medical treatment facility established there? What, about a year ago?
“A Yes, sir.
“Q Did you all have to substantially increase the amount of security you used?
“A Yes, they increased the staff. Yes, sir.
“Q Built a fence?
“A Yes, sir.
“Q Put a tower up?
“A Yes, sir.” (Tr. 44-45)

On the basis of this testimony, it appears the trial court concluded that, because prisoners under the Work Release Program were housed at Jackson Barracks, that facility was converted to a prison, and as the medical unit simply housed other prisoners, the use has not changed. Accordingly, he sustained the exception of prescription, as more than two years had elapsed since the inception of Work Release in 1969.

This is not an easy case to resolve, but it is our view that the trial court was in error in its conclusion that a new use has not been undertaken by the introduction of the medical unit for mentally disturbed prisoners. We do not believe that the Work Release Program at Jackson Barracks converted that facility to a state penitentiary. The most that happened is that the State, through the City’s failure to pursue its legal remedies, has converted Jackson Barracks to a facility to be used for a special program developed in the penal system, that of Work Release. Work Release is part of a theory of penology dealing with rehabilitation for purposes of returning the prisoner to society as a contributing member. Although one would have to admit that when an individual participates in a Work Release program, he is still a prisoner or an inmate or is imprisoned, nevertheless it remains true that the facility in which he is imprisoned may or may not be a penitentiary, and his imprisonment or confinement in a particular building(s) does not convert that building(s) to a state penitentiary. If that were the case, and Jackson Barracks were converted to a prison, then the State could, without any interference, simply move the state penitentiary from Angola to Jackson Barracks. We do not believe the location of the major state penitentiary was intended by the legislature to be determined by such a circuitous route. The introduction of the medical treatment center for mentally disturbed prisoners is not part of the rehabilitative theory ingrained in the Work Release Program. The introduction of these inmates at Jackson Barracks is an essential change and not merely a continuation and permissible expansion of its former use. The State itself was aware of a dramatic change in the use when, concurrently with the introduction of the mental unit, it erected guard houses and the new fence. It is a change in kind, and not a change in degree.

For these reasons, we reverse the lower court’s decision sustaining the exception of prescription, and remand for a trial on the merits consistent with this opinion.

REVERSED.


author: BEER, Judge. GAUDIN, Judge,

text:
    Doris Ann SCOTT, Individually and as tutrix of the minor child, Lionel Bell v. KEMPER INSURANCE COMPANY and Christian Brotherhood of Homes of Marrero, Inc.
    No. 8938.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    E. Howard McCaleb, III, New Orleans, in pro. per.
    Windhorst, Heisler, DeLaup & Wysocki, Melvin G. Ripp, Jr., New Orleans, for plaintiff-appellee.
    Before STOULIG, BEER and GAUDIN, JJ.
   BEER, Judge.

Doris Ann Scott, individually and on behalf of her minor child, Lionel Bell, sought to prosecute a tort claim and, accordingly, entered into a contingent fee contract with attorney-intervenor E. Howard McCaleb, III. That contract provided, in part:

“In consideration of services rendered or to be rendered, I hereby assign to my said attorney an undivided 3314% interest in and to said claim if it is to be resolved that the claim is one for damages.
It is understood and agreed that neither I nor my said attorney may settle, compromise or dismiss or in any way discontinue my claim without the written consent of the other.”

The record shows that intervenor proceeded, timely, to file this suit, depose the treating physician, prepare pre-trial orders, and otherwise proceed with this litigation until he was discharged by Scott prior to trial. Melvin Ripp, Jr., attorney at law, became counsel of record and McCaleb sought to protect his one-third contingent interest in the litigation by filing the contract referred to above as well as a petition in intervention, all in compliance with La. R.S. 37:218. By amended and supplemental petition of intervention, McCaleb alleged that since the filing of his original petition for intervention, the Scott claim had been settled for $3,000 without his written consent. Also in this amended pleading he sought, alternatively, an award in quantum meruit for services rendered. At the trial of the intervention, it became apparent that an agreement to settle for $3,000 (out of which medical expenses were to be paid to intervenor Charity Hospital) had been reached, but that the funds had not yet been disbursed.

The trial court then concluded that McCaleb’s recovery was limited to quantum meruit and awarded him $350. He appeals.

Wright v. Fontana, 290 So.2d 449 (La.App. 2nd Cir. 1974); Kramer v. Graham, 272 So.2d 716 (La.App. 3rd Cir. 1973), and Cabral v. Heitkamp, 252 So.2d 353 (La.App. 4th Cir. 1971), all involved an attorney who had been dismissed and was, thereafter, obliged to proceed in quantum meruit notwithstanding the contingent fee contract. The basis for these holdings was the unrestricted acceptance of the premise that a contract between attorney and client is a mandate revocable by the principal at any time with or without cause and that the contract, therefore, is at an end the moment that the attorney is, for whatever reason, discharged. See, La.Civ.Code art. 3028. Those eases, however, do not squarely deal with the issue at hand for none involves a contingent fee contract filed and recorded in compliance with La.R.S. 37:218.

In Smith v. Westside Transit Lines, Inc., 313 So.2d 371 (La.App. 4th Cir. 1975), writ refused, La., 318 So.2d 43 (quoting from Carlson v. Nopal Lines, 460 F.2d 1209 (5th Cir. 1972)), we observed:

“ ‘. . . A client may discharge his attorney, even a contingent fee attorney, and the attorney may not then insist that the attorney-client relationship continues after discharge. But the power to discharge, and the fact of discharge, are not determinative of the discharged attorney’s rights under a Louisiana statutory contingent fee contract. The lawyer’s rights under such a contract turn at least in part on whether the lawyer’s performance gives the client good cause for dismissal or whether the dismissal frustrates what had been satisfactory performance of the attorney’s obligations.’ ”

Although in Smith the lawyer had competently and diligently served his client, cause for dismissal was found, and Smith’s attorney was relegated to a quantum meruit recovery. Though it is also noted that the attorney had not complied with the provisions of R.S. 37:218, a careful reading of that case indicates that compliance with the statute would simply have served as a lien against the proceeds and non-compliance was not the basic reason for non-enforcement of the contingent fee contract.

Then, in Saucier v. Hayes Dairy Products, Inc., et al., 353 So.2d 732 (La.App. 4th Cir. 1977), we stated:

“Recent cases have implied, but did not hold, that irrespective of compliance with the provisions of R.S. 37:218 the attorney-client relationship is a mandate revocable at the discretion of the client pursuant to Civil Code Article 3028. However, research into the application of this statute by the courts of Louisiana shows that a contract which is drawn in total compliance with this statute will be enforced if the attorney has performed his obliga tions thereunder in a satisfactory manner. (Emphasis ours.)”

In Saucier, we also observed that an important condition for enforcement of a contract drawn in strict conformity with R.S. 37:218 is that the attorney perform his services as contracted. We construed the jurisprudence to be that an attorney-client contingent fee contract drawn and executed in strict compliance with R.S. 37:218 may not be terminated at the will of the client in the absence of cause and went on to note that such contracts should be enforced even when performance has not been complete in cases where the client has made completion of performance impossible. Thus, if an attorney had a valid contingent fee contract executed pursuant to R.S. 37:218 and competently performed his duties thereunder but his full compliance with those contractual duties is prevented because he is discharged without good cause, the attorney is entitled to his contractually provided for contingent fee.

Accordingly, we are of the view that the compromise entered into in this case is inhibited by McCaleb’s compliance with La. R.S. 37:218 and that such compliance suspends the settlement until there is recognition and payment of the attorney’s claim.

We are also of the view that McCaleb is entitled to a day in court in order that he might prove — if indeed he can — that he has performed all of his obligations under the contract in a satisfactory manner and has only been prevented from fulfilling same because of being discharged without good cause. If he carries this burden, then he is entitled to'the full contingent fee as provided for in the contract — even though he has been discharged prior to the successful termination of the litigation. Otherwise, he can proceed only in quantum meruit, but, even in that instance, he must be given an opportunity to prove the extent of services rendered, costs incurred, etc.

Accordingly, this case must be remanded to the Honorable Twenty-Fourth Judicial District Court for the Parish of Jefferson for further proceedings consistent with the views expressed herein. The costs of this appeal are to be borne by the appellee.

REMANDED.

GAUDIN, Judge,

concurring.

This case concerns an attorney whose contingency fee contract was terminated after litigation was instituted but before final settlement.

The attorney in the instant matter, E. Howard McCaleb III, recorded his contract in accord with LSA-R.S. 37:218, and he asks us to follow the apparent dictates of the statute and declare the settlement null and void.

He had made the same request in the district court but the trial judge, in a well-reasoned opinion, said that LSA-R.S. 37:718 “. . . does not operate to prevent settlement of the claim where the client has discharged the attorney, retained another, and subsequently settled the case.”

We should have been just as explicit, although our suspension of the settlement— i. e., the enjoining of the distribution of funds — until Mr. McCaleb’s claim is determined and paid certainly protects his financial interest.

However, we do not say that the settlement is null and void; to the contrary, we recognize the validity and finality of the settlement and do not suggest or authorize renegotiation, even though the terms and condition of Mr. McCaleb’s contract may well be recognized and enforced by the trial judge and the client ultimately required to pay considerably more in attorney fees than he anticipated.

      . In Carlson v. Nopal Lines, supra, the U. S. Fifth Circuit remanded the case for a determination of whether there was good cause for dismissal of the attorney, and left open the possibility of full recovery of the contingent fee.