author: BOUTALL, Judge. GULOTTA, Judge

text:
    STATE of Louisiana ex rel. Murray M. PITTS et al. v. The BOARD OF ZONING ADJUSTMENTS OF the CITY OF NEW ORLEANS et al.
    No. 7201.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.

      William R. Pitts, Camile Jones, Thomas W. Tucker, New Orleans, for appellants.
    John A. Stassi, II, of Shushan, Meyer, Jackson, McPherson & Herzog, New Orleans, for the United States Life Ins. Co. in the city of New York, respondent-appellee.
    Joseph E. Berrigan, Jr., Asst. City Atty., Philip S. Brooks, City Atty., for the Bd, of Zoning Adjustments of the city of New Orleans, Edward Kurtz and the city of New Orleans, respondents-appellees.
    Judge SAMUEL, GULOTTA, BOU-TALL, MORIAL and SCHOTT, JJ.
   BOUTALL, Judge.

This is an appeal by certain neighboring property owners from a judgment of the Civil District Court for the Parish of Orleans affirming a decision of the Board of Zoning Adjustments of the City of New Orleans which granted some five variances from the requirements of the Comprehensive Zoning Ordinance for the City of New Orleans for proposed construction of a high rise apartment complex incorporating some commercial use on a square of property. The property is square #201 bounded by St. Charles Avenue, Polymnia, Felicity and Prytania Streets. The building is to be identified as Municipal No. 1750 St. Charles Avenue.

The applicant, Simmons-Peterlynn a Louisiana Partnership in Commendam, applied to the Department of Safety and Permits for a permit to construct upon the square a proposed complex consisting of a basic building encompassing nearly the entire square, with the bottom stories to be arranged in a tiered and terraced fashion consisting mostly of commercial on the first floor, together with a parking garage and other uses, to be surmounted with two high rise towers, containing 436 apartment units. The square is Zoned' C-l General Commercial, but because of the proposed preponderant residential use, the structure is governed by the zoning regulations for RM-4 Multiple Family Residential District as set forth in Article 5, § 6 of the Comprehensive Zoning Ordinance. The Director of the Department of Safety and Permits denied the application for the following reasons:

Insufficient lot area, insufficient side yard area, insufficient front yard area, insufficient loading spaces and insufficient open space.

The applicant then appealed to the Board of Zoning Adjustment for a waiver or variation from the requirements of the Comprehensive Zoning Ordinance. Several hearings were held on the application by the Board, and the Board visited the premises to make personal inspection of the area. During the course of these proceedings, it developed that the Board announced that it could not approve a project containing 436 dwelling units and accordingly the applicant reduced its request to 360 dwelling units, mainly by removing several stories of the proposed high rise towers. Additionally, the applicant amended its proposal to meet with certain Environmental Design and recommendations of the Mayor’s Aesthetics Review Committee. As thus amended, after a final public hearing, the Board granted the application for waiver of the requirements directing the Department of Safety and Permits to issue the necessary building permit. The opponents, neighborhood property owners, then applied for a writ of certiorari to the Civil District Court, which affirmed the decision of the Board, and they now have appealed to us.

The appeal to this Court rests basically upon two major issues: (1) That under the statutory law and city ordinances, the Board had no authority to consider the amended plan, and (2) that the decision of the Board is arbitrary, and not in accordance with the evidence presented and the applicable law. Although the appellants have raised several serious procedural objections worthy of consideration, because of our conclusions that the Board is in error in granting the proposed variances, and the circumstances surrounding this case indicating that a speedy determination of the merits of the controversy will be beneficial to all parties and to the City of New Orleans in general, we will not here determine the procedural aspects of the case. Accordingly, we pass to consideration of the merits.

At the outset it may be well to point out that the true issue here is not whether a project such as the proposed complex can be built at all, but whether this particular structure which exceeds the requirements of the Zoning Ordinance, is entitled to a variance from those requirements. To put it another way, the Board was of the opinion that the proposed complex would be beneficial to the growth of this city and to the proper development of the downtown business district and this particular area of St. Charles Avenue. We have no quarrel with that finding. Additionally, the Comprehensive Zoning Ordinance permits the type of usage here proposed, and it is axiomatic that a landowner may use his property in any legal method unless it is restricted in some manner by law. The narrow issue is that this applicant desires to exceed those limitations imposed upon him by law, and only the necessity of relief from these limitations is before us.

The precise points of variance sought under the amended application are as follows:

(1) Density or minimum lot area per family; the Ordinance requires 400 square

feet per dwelling unit, permitting a maximum of 324 dwelling units, but the application seeks 360 dwelling units.

(2) .The floor area ratio is required to be four or less, and the applicant seeks a ratio of 4.5;

(3) The front yard, rear yard and side yard requirements are 20', 2(7 and 10' respectively, and the applicant proposes 27', 20' and 12'at the first level set back or 27', 5' and 4' at ground level;

(4) Offstreet loading: The Ordinance requires 8 spaces, and the applicant provides 4 spaces;

(5) Open space ratio: The Ordinance requires a ratio of 0.10 or 12,967 sq. ft., and the applicant provides 0.0923 or 11,970 sq. ft.

The authority of The Board of Zoning Adjustments is both statutory and by City Ordinance, and while it has the authority to consider such variances as proposed and grant the relief prayed for, that authority is not unlimited. The statutory law is LSA-R.S. 33:4727, which we quote in pertinent part:

“§ 4727. Board of adjustment; membership, powers, and procedure; appeals from decisions
“The local legislative body may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of R.S. 33:4721 through R.S. 33 :4729 may provide that the board may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules contained therein.
* * * * * *
“3. In passing upon appeals, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, to vary or modify the application of any of the regulations or provisions of the ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.

In accordance therewith the City of New Orleans by virtue of Ordinance 4264 M.C. S. has adopted a Comprehensive Zoning Ordinance for the City of New Orleans and Article 13 thereof provides for the Board of Zoning Adjustments.

In contest here is the authority of the Board to grant variances under § 11 of Article 13, which we quote in pertinent part:

“Section 11. Variances.
“Consistent and in accord with the provisions of Article 15, Section 2.3 of this Ordinance, the Board shall have the power to grant the following variances:
1. A variation in the yard, lot width, depth or frontage, lot area per family, spacing of buildings, floor area ratio, open space ratio and parking requirements in any district so as to relieve practical difficulties or particular hardships in cases when and where, by reason of exceptional narrowness, shallowness, or shape of a specific property at the time of the enactment' of such regulation or restriction or by reason of exceptional topographical conditions or other extraordinary and exceptional situations or conditions of such property, the strict application of such regulation or restriction would result in peculiar and exceptional practical hardship upon the owner of such property. Such grant or variance shall comply, as nearly as possible, in every respect with the spirit, intent, and purpose of this ordinance and the gr'anting of a variation shall be only for reasons of demonstrable and exceptional hardship as distinguished from variation sought by applicants for purposes or reasons of convenience, profit, or caprice.”

Article 15, § 2.3 further delineates the standards for variances.

“Variances, the Board of Zoning Adjustments.
“The purpose of the ‘Variance’ provision permits an applicant to apply for relief from the requirements of the letter of the Ordinance when unnecessary hardship or practical difficulty exists. The Board of Zoning Adjustments shall authorize Variances in harmony with the general purpose and intent of this Ordinance, consistent and in accord with the provisions of Article 13, Section 11 of this Ordinance, and also in accordance with the standards and procedures hereafter prescribed:
“1. Standards for Variances. The Board of Zoning Adjustments shall not authorize a Variance from the requirements of this Ordinance unless it shall make findings based upon the evidence presented to it that each special case shall indicate all of the following:
a. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district.
b. Literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Ordinance.
c. The special conditions and circumstances do not result from the actions of the applicant or any other person who may have or had interest in the property.
d. Granting the Variance requested will not confer on .the applicant any special privilege which is denied by this Ordinance to other lands, structures, or buildings in the same district or similarly situated.
e. The Variance, if granted, will not alter the essential character of the locality.
f. If the strict adherence to the regulation for the property would result in a demonstrable hardship upon the owner as distinguished from mere inconvenience.
g. The purpose of the Variance is not based exclusively upon a desire to serve the convenience or profit of the property owner or other interested party(s). •
h. The granting of the Variance will not be deterimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.
i. The proposed Variance will not impair an adequate supply of light and air to adjacent property, or increase substantially the congestion in the public streets, or increase the danger of fire, or endanger the public safety.
“2. Variances from this Ordinance. Variances from this Ordinance shall be in accordance with the standards and conditions of this section, and may be granted only in the following instances:
a. To permit any yard, lot width or frontage less than the yard, lot width or frontage required.
b. To reduce the requirement for lot area per family.
c. To allow a floor area ratio greater than that permitted.
d. To reduce off-street parking or loading requirements.
e. To reduce the requirements for space between buildings.
f. To allow an open space ratio smaller than that permitted.

In our application of the facts of this case to the law above stated, we first call attention to the fact that the property in question is an entire city square of almost perfect rectangular shape. The parcel of ground consists of 2.977 acres or an area of 129,676.6 sq. ft. The only irregularity is a slight indentation caused by the angling of the street on the Felicity Street side, however the record does not reflect that this is the cause of any problems in connection with the variances sought here. We note that the application has requested a variance for almost every requirement of the regulations. The applications for variance and the statements made before the Board make it clear to us that the principal grounds for the variance request is based on the economics of the project and considerations relating to the convenience of the developers. Despite the finding of the Board that “ * * * * actually, under present day conditions, it has been pointed out that it will be a practical difficulty to develop the site other than as submitted under this ‘revised plan’. * * * ” the only practical difficulty we can find in the record is that alluded to by the applicant stating it will be difficult obtaining financing for the project unless the property could be used as proposed. There is no proof offered of this statement nor is there any evidence of any other hardship that will be suffered if the applicant is denied the over-limit dwelling units. It is clear that the only reason for the increase in dwelling units above the Ordinance requirements, resulting in a violation of the minimum lot area family, increased floor area ratio and decreased open space ratio is the ease in financing based upon an anticipated increase in revenue by the use of the property beyond the limitations of the Ordinance.

We recognize that each zoning case should be considered on its own merits, and we are of the opinion that our conclusions above are decisive of this case. We refer to the cases of State ex rel Phillips v. Board of Zoning Adjustments for the City of New Orleans, 197 So.2d 916 (La. App. 4th Cir. 1967) and State ex rel Korns v. Board of Zoning Adjustment of the City of New Orleans, 223 So.2d 505 (La.App. 4th Cir. 1969). These cases arose under the prior Ordinances of the City of New Orleans, but we consider that the rationale therein expressed applies to the facts and circumstances of this case.

The Zoning Ordinance provides that the granting of a variation shall be only for reasons of demonstrable and exceptional hardship as distinguished from variations sought by applicants for purposes or reasons of convenience, profit, or caprice. The Board has erred in its application of the terms of this provision of the Ordinance to the facts in the present case. Article 15 § 2.3 requires the Board to deny variance unless the applicant meets all of the standards of variance, and in this case the standards provided in Sub-section If. and lg. have not been met.

In reaching our conclusion above, we have only discussed the evidence as it relates to three of the variances requested. In connection with back and side yard set back and the lack of sufficient loading space, there is some evidence in the record to support the Board’s findings in connection therewith. Certainly there is sufficient evidence to require the opponents to affirmatively show some countervailing evidence that those variances would not be proper. However, this project comes to us as a unified plan, and there is insufficient evidence in the record to reflect how we could properly separate the requests. Under the circumstances herein, we consider the application as a unified whole, and concluded that the entire application should be rejected.

Accordingly for the reasons above assigned, the judgment of the Civil District Court appealed from is reversed; the decision of the Board of Zoning Adjustments of the City of New Orleans is reversed and annulled, and judgment is entered denying the application for variances.

We further find that the Board did not act with gross negligence, or in bad faith or with malice in making the decision appealed from and hence costs shall not be allowed against the Board. R.S. 33:4727. Accordingly we assess all costs against in-tervener-appellees.

Reversed.

GULOTTA, Judge

(dissenting).

I am not in agreement with the conclusion reached by the majority that standards for variance, Article 15, § 2.3(1) (f) which reads:

“If the strict adherence to the regulation for the property would result in a demonstrable hardship upon the owner as distinguished from mere inconvenience.”
and (1) (g) which reads:
“The purpose of the Variance is not based exclusively upon a desire to serve the convenience or profit of the property owner or other interested party(s).”
were not met.

When these two provisions are read together, it appears that in order for a variance to be granted and to be in accordance with (f) and (g), it is necessary that the property owner must show a “demonstrable hardship” not based “exclusively upon a desire to serve the convenience or profit of the property owner” (underline ours).

The Board of Zoning Adjustments in its reasons for granting .the variance stated:

“WHEREAS, in relation to the variation in lot area per family, there is unquestionably a need for attractive apartments located close to the Central Business District. The thirty-six additional units herein permitted will in no manner create congestion in the public streets, in any manner affect the public health or welfare, and at the same time will permit development of an unusual plot of ground in an area close to the Central Business District. Attempts to develop this site have on several occasions been unsuccessful. Development of this unusual site will be good for the City of New Orleans as a whole. Actually, under present day conditions, it has been pointed out that it will be a practical difficulty to develop the site other than as submitted under this ‘revised plan’;”

From a reading of these reasons, it seems clear that the granting of the variance was not based “exclusively” for convenience or profit of the property owner. Other valid considerations entered into the reasons why the variance was granted. As was stated in Times Picayune Publishing Corporation v. City of New Orleans, 316 So.2d 147 (La.App. 4th Cir. 1975), “ . . . almost all matters coming before a zoning tribunal have some financial implications”. Unquestionably, there are financial implications in the request for the variance by the owners in the instant case. This, however, while a consideration, is not the exclusive basis for the variance.

The responsibility of the Board of Zoning Adjustments is to make allowance for variances based upon practical considerations which are not detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located. Because the property in question occupies an entire square, the side, rear and front yard requirements serve no purpose insofar as adversely affecting any neighbors. There are no neighbors in the square to be adversely affected. The variance in height requirements and loading platform requirements has not been demonstrated in the record to be detrimental or injurious to the welfare of property owners in the neighborhood. More apparent from the record and from the reasons assigned by the Board of Zoning Adjustments is that the neighboring owners, and the neighborhood in general, will benefit from the construction as proposed by the property owners in the instant case.

The test for reversal of a decision of an administrative body, such as the Board of Zoning Adjustments, is whether or not the decision of the Board was capricious, arbitrary or not based on reason. See LSA-R.S. 49:964(5); Times Picayune Publishing Corporation v. City of New Orleans, supra; Thornton v. F. Strauss & Son, Inc., 240 La. 455, 123 So.2d 885 (1960); River Oaks-Hyman Place Homeowners Civic Association v. City of New Orleans, 288 So.2d 420 (La.App. 4th Cir. 1974), writ refused, 290 So.2d 909 (La.1974).

Because I am of the opinion that the Board of Zoning Adjustments based its decision on reason and not arbitrariness,' I am of the opinion that the decision of the trial court upholding the conclusions of the Board of Zoning Adjustments permitting the variance should be affirmed. Accordingly, I respectfully dissent.


source: Caselaw Access Project

author: CULPEPPER, Judge. PAVY, Judge DOMENGEAUX, Judge

license: Public Domain

text:
    Jewel HORNSBY, Plaintiff and Appellee, v. Edward RAY et al., Defendants and Appellants and Appellees.
    No. 5088.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 22, 1976.
    Concurring Opinion Jan. 26, 1976.
    Rehearing Denied March 4, 1976.
    Writs Refused April 27, 1976.

      Olivier & Brinkhaus by Armand J. Brinkhaus, Sunset, Walter Hunter, Jr., Alexandria, for defendants and appellants and appellees.
    Dubuisson, Brinkhaus, Guglielmo & Dauzat by James T. Guglielmo, Opelousas, for plaintiff-appellee.
    Voorhies & Labbé by Mark Bienvenu, Lafayette, for defendant-appellee.
    Before HOOD, CULPEPPER, DO-MENGEAUX, GUIDRY and PAVY, JJ.
   CULPEPPER, Judge.

This is a tort action for damages for personal injuries. The plaintiff, Mrs. Jewel Hornsby, was working as a nurses’ aide at the Headstart Center in the town of Sunset, Louisiana. A rotten portion of the floor gave way when she stepped on it. Her right leg went through the broken floor, causing the injuries for which damages are sought. The defendants are: (1) Mr. Edward Ray, in his capacity as owner and lessor of the building; (2) Rockwood Insurance Company, liability insurer of the executive officers of Tri-Parish Progress, Inc., which was plaintiff’s employer and the lessee of the building. The employer’s workmen’s compensation insurer, Continental Casualty Company, intervened seeking reimbursement for compensation benefits paid to plaintiff. Mr. Ray, as owner-lessor of the building, filed a third party demand against Tri-Parish for indemnity or contribution.

The district judge held that as owner and lessor of the building, Mr.. Ray was liable to the plaintiff for damages in the sum of $36,558. He held that Rockwood Insurance Company, as liability insurer of Mrs. Betty Bryant, an executive officer of Tri-Parish Progress, Inc., was jointly liable with Ray to plaintiff to the extent of its coverage in the sum of $10,000. The intervention of the workmen’s compensation insurer for reimbursement in the sum of $16,477 was recognized. All other claims and demands were rejected. The defendants, Edward Ray and Rockwood Insurance Company, appealed. Plaintiff answered the appeal, seeking an increase in the award.

The issues on appeal are: (1) Is Edward Ray liable as owner-lessor of the building, absent an agreement whereby Tri-Parish, as lessee, assumed responsibility? (2) Did the lessee, Tri-Parish, assume responsibility for the condition of the premises? (3) Is Rockwood Insurance Company liable as insurer of Mrs. Betty Bryant, an executive officer of Tri-Parish?

The accident occurred on April 14, 1970 in a building in Sunset being utilized as a “Headstart Center”. Mrs. Hornsby was entering the back door of the structure and had taken one or two steps inside the building when a wide, rotten board in the floor gave way and her right leg slipped through to the ground below.

At the time of the injury, Mrs. Hornsby was employed as a “nurse’s aide” in the Headstart program. Her employer was Tri-Parish Progress, Inc., a Federal government-sponsored organization which operated under the auspices of the Office of Economic Opportunity and later the Department of Health, Education and Welfare. This organization operated in a three-parish area. Mr. Peter Vallot was its executive director. He was in charge of its general over-all administration and was especially concerned in its fiscal aspects. Subordinate to him was Mrs. Betty Bryant, who was the director of Headstart for St. Landry Parish. The defendant-appellant, Rockwood Insurance Company, insured Mrs. Bryant as an executive officer of Tri-Parish.

The building, which was about ten years old, had been leased as a Headstart Center since the program started. The leased premises were owned by Mr. Edward Ray, who was also a member of the Board of Directors of Tri-Parish. Several successive leases had been in effect over the years. The lease in effect at the time of Mrs. Hornsby’s injuries was written and dated September 8, 1969 for a term of eight months at a rental of $100 per month. The written lease contained no provision whereby the lessee assumed responsibility for the condition of the premises.

Several months after this lease had been in effect, Mr. Ray discovered that under certain Federal regulations he could not continue to lease the building to this organization of whose Board of Directors he was a member. He requested that the lease be terminated and Ray contends that he and the Board of Directors finally agreed that since no other building was available, and the school year was almost ended, the Headstart Center could remain in the building, but the lessee agreed to assume all responsibility for the condition of the premises. Tri-Parish did remain in the building and thereafter Mrs. Hornsby’s injuries occurred.

RAY’S LIABILITY AS OWNER

The first issue is whether Ray is liable as owner of the building, absent a contract whereby the lessee assumed responsibility for its condition. Applicable here is LSA-C.C. Article 2322, which provides:

“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

As used in Article 2322, “ruin” has reference to actual fall or collapse of a building or one of its substantial component parts, and the owner is liable "to anyone lawfully on the premises. Davis v. Royal-Globe Insurance Company, 257 La. 523, 242 So.2d 839 (S.Ct.1970). A wooden front step has been held to be such a substantial component part and it is of no consequence under this article that the owner neither knew nor should have known of the defect. Crawford v. Wheless, 265 So.2d 661 (2d Cir. 1972). In the present case, the floor of the building is certainly a “substantial component part”. Clearly, Mr. Ray is liable under Article 2322 for damages for the defective floor, absent an agreement whereby the lessee assumed responsibility.

LESSEE’S ASSUMPTION OF ' RESPONSIBILITY FOR PREMISES

LSA-R.S. 9:3221 provides:

“The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.”

The testimony is overwhelming that after Mr. Ray became aware of his conflict of interest in renting the building and concurrently serving on the Board, the existing lease was changed and a new contract was made. Mr. Ray wanted Tri-Parish out of his building, so that he could continue serving on the Board. He felt he could be of greater benefit to the organization as a director than as a lessor. However, because the fiscal year was almost at an end, and because he did not wish to force TriParish to abandon the building when another would be difficult to find, he agreed to allow them to remain until another suitable structure could be found, provided the lessee assumed all responsibility for the condition of the premises. The Board of Directors of Tri-Parish agreed to this condition. Several members of the Board and the Secretary of the Headstart program so testified. There is no testimony to the contrary.

Corroborating the fact that the lessee assumed responsibility for the condition of the premises, is a resolution adopted by the Board of Directors of Tri-Parish after plaintiff’s accident, that Tri-Parish accept responsibility for any damages sought in plaintiff’s suit. We do not give effect to this resolution as a contract to indemnify Ray, but it is corroborative of the Board’s previous action in assuming responsibility for the premises.

We note here that the original lease was written but the modification thereof was oral. Nevertheless, our law recognizes that any contract may be later modified, abrogated or revoked by consent of the parties. Priscock v. Boyd, 199 So. 2d 373 (2d Cir. 1967). And a written contract may be modified by oral agreement, provided the original contract was not required to be in writing. WWOM, Inc. v. Grapes, 181 So.2d 289 (4th Cir. 1965).

An agreement for the lessee to assume liability is allowed by LSA-R.S. 9:3221. Hebert v. Valenti, 235 So.2d 193 (4th Cir. 1970). And it may be either oral or written. Phillips v. Cohen, 183 So.2d 473 (4th Cir. 1966). The written lease involved here contained no agreement that the lessee assume responsibility for the condition of the premises. However, the subsequent oral agreement modified that written contract and became a binding part of it.

The evidence does not show that Mr. Ray either knew or should have known of the defect in the floor. The testimony is in conflict as to whether Ray visited the Center. But he was not notified when repairs were needed and particularly had never been notified of this particular defect. The evidence was conclusive, though not uncontradicted, that the defect in the floor was a latent one. Several witnesses stated that they had never noticed the floor shaking or being weak. Only one witness stated she had noticed the weak floor prior to the accident.

We conclude that under LSA-R.S. 9:3221, the lessee assumed responsibility for the condition of the premises, and that the owner, Mr. Ray, is not liable for the injuries to plaintiff. Having decided Ray is not liable, it is unnecessary for us to consider his third party demand against Tri-Parish for indemnity or contribution.

ROCKWOOD’S LIABILITY AS INSURER OF MRS. BRYANT

The next issue is whether Rock-wood Insurance Company is liable as insurer of Mrs. Betty Bryant, an executive officer of Tri-Parish. Mrs. Bryant was the St. Landry Parish Director of Head-start, one of the programs of Tri-Parish. As such, she was responsible for the total conduct and administration of the head-start program in the parish. She had 16 centers under her supervision. One hundred and eighty-six employees were under her direct control, including social workers, teachers, teachers’ aides, nurses, nurses’ aides, janitors, cooks and cooks’ aides.

The liability of executive officers was discussed at length by our Supreme Court in Canter v. Koehring, 283 So.2d 716 (S. Ct.1973). There the court said that in order to hold an executive officer of an organization liable for personal injuries the following criteria must be met:

“1. The principal or employer owes a duty of care to the third party (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
“2. This duty is delegated by the principal or employer to the defendant.
“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances— whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
“4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.”

In the present case, the employer, TriParish, did owe a duty of care to the plaintiff. It was required to keep the premises reasonably safe for the children and employees as well as others lawfully on the premises.

The second criteria of Canter is also present. The duty of looking after safety in the Headstart Centers in St. Landry Parish was delegated by Tri-Parish to Betty Bryant. Although she stated it was not in her “job description”, she admitted safety was one of her duties.

However, the third and fourth criteria are not met. Mrs. Bryant had no personal duty toward plaintiff. And she had delegated to responsible subordinates the duty to keep the premises safe. She testified that she delegated the responsibility to fire and health inspectors and to supervisors of each center. The supervisor of each center was required to see that needed repairs were made. There is no evidence that Mrs. Bryant was negligent in delegating these responsibilities.

Mrs. Bryant was in charge of the general over-all administration of the program in St. Landry Parish. She reasonably relied on the persons to whom she delegated these duties, for she was unable to perform all of them herself. Reliance on fire and health inspectors was not negligent. Re-ndía Henry, to whom responsibility was delegated at the center here involved, was competent to perform her safety duties. She was head teacher at the school. And though she had had no special training in safety inspection procedure, the duty delegated her was only one of ordinary care. There were no Federally promulgated guidelines. As Mrs. Bryant testified, she did expect Mrs. Henry “to keep her eyes open” for hazards. Meetings were held at least twice a week with supervisors as a follow-up procedure, and the supervisors were required to submit weekly reports.

Mrs. Henry was certainly a proper person to whom to delegate the duty to inspect for safety. There was no money in the program to hire a special person to inspect buildings, and there was apparently no one with any greater authority or ability than she possessed. She admitted her duties included inspection and safety. Further, she performed these duties diligently and efficiently, for immediately after she learned of the defective condition of the floor she warned others of it, and she called a carpenter to repair it.

Mrs. Bryant was not negligent in delegating her duties for safety. Once she had reasonably delegated these duties, the only responsibility remaining was to see that defects of which she knew or should have known were repaired. Canter v. Koehring, supra. There is no evidence that Betty Bryant either knew or should have known of the defective floor. Bertha Mae Dixon was the only person who had noticed the floor was in need of repair. No other witnesses had noticed the defect, although several had walked over the area many times. The plaintiff herself testified she had been over the area at least a dozen times prior to the accident and it just appeared to be an “old clean floor”.

We conclude that under the criteria of the Canter case, Mrs. Bryant was not negligent. See also Lyle v. National Surety Corporation, 304 So.2d 743 (3rd Cir. 1974), where a similar result was reached.

Because we find no negligence on the part of Betty Bryant, it is unnecessary to consider the policy exclusion defenses urged by her defendant insurer.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered in favor of the defendants-appellants, Edward Ray and Rockwood Insurance Company, dismissing plaintiff’s suit. All costs in the trial and appellate courts are assessed against the plaintiff.

Reversed and rendered.

PAVY, J., concurs and assigns reasons.

DOMENGEAUX, J., dissents and assigns written reasons.

PAVY, Judge

(concurring).

I agree with the majority opinion in its reasons for releasing the executive officers from liability. I concur in the exoneration from liability of the owner-lessor, Edward Ray, but on a different basis from that stated in the majority opinion.

The evidence does not show that there was any formal assumption of responsibility under R.S. 9:3221 by the board of directors of Tri-Parish Progress, Inc. The trial judge did not so conclude. A fair appraisal of the evidence leads to the conclusion that the board of directors was attempting to excuse Ray from violation of the federal conflict of interest rule so that he could remain on the board and still allow use of the only available building. This is borne out by the very language inserted by Ray in the written lease. This lease was subsequent to and not before the previously described action of the board of directors. That language was substantially to the effect that they (Ray and his wife as lessors) were not in the real estate business and that, if another building became available, the lease could be cancelled. This has nothing to do with responsibility for maintenance or repair and clearly indicates it was designed to provide against a claim of violation of the conflict of interest rule.

In my view, under the very peculiar facts of this case, Ray should be relieved of liability under the rule in Lowe v. Homeowner’s Loan Corporation, 199 La. 672, 6 So.2d 726 (S.Ct., 1942), which held that, absent actual negligence on his part, an owner-lessor is not responsible to a third party on the leased premises for injury caused by a condition resulting from the lessee’s failure to fulfill his repair obligations legally imposed by Civil Code Articles 2716 and 2717. Even if the language of those articles does not precisely fit the facts of this case, I think there was an implied modification of the legally allotted repair obligations by the parties’ conduct generally during the lease and specifically as to the particular defect causing the injury herein. From the very beginning of the lease the lessee’s employees actually undertook to and did make all repairs including those similar in kind and degree to that due to be made herein. Specifically, Renella Henry, the head of the program at the Sunset center, called a carpenter to repair the defect, allowed ten days to two weeks to pass without making any efforts to have the repair made by the carpenter earlier, warned some but not all of the individuals using the building of the defect and failed to condemn or sign off the dangerous area. Although a lessee may not be obligated to notify lessor of the necessity for repairs, there is normally an expectation of such which was denied to Ray when the lessee in effect practically arrogated to itself the repairing role. Accordingly, I think it would be unjust to hold Mr. Ray under these circumstances unless he knew or should have known of the defect and I cannot conclude that the evidence preponderately shows any such actual or constructive knowledge.

DOMENGEAUX, Judge

(dissenting).

I would affirm the judgment of the District Court.

LIABILITY OF OWNER-LESSOR-DEFENDANT, EDWARD RAY

There is testimony in the record that Mr. Ray visited and inspected the building in question frequently, as often as once a week. Mr. Ray on the other hand indicated that he had not checked the building for two years. This is a fact question. Mr. Ray contends that he was not responsible for the condition of the building and the resulting injuries to plaintiff. He bases this position on the proposition that TriParish had assumed all responsibilities for the condition of the building. (LSA R.S. 9:3221). A careful reading of the record does not bear this out. It is evident that the trier of fact placed little weight on the benevolent efforts of Tri-Parish and some of its board members to protect Mr. Ray. Additionally, a written lease agreement, which was introduced in evidence and considered by the District Judge contains no provision for the assumption of liability of Tri-Parish. But, even if Tri-Parish had assumed such responsibility, Edward Ray (based primarily upon factual findings by the District Judge) should still be liable under C.C. Article 2322. It is my judgment that the facts, as found by the District Judge, do not allow Mr. Ray to seek solace under LSA R.S. 9:3221, in that there is ample evidence in the record to conclude that Mr. Ray actually knew or should have known of the defect on the premises which he had leased to Tri-Parish. Bolstering this conclusion reached by the trial judge is the fact that the building in question was visibly in a state of disrepair and deterioration.

LIABILITY OF DEFENDANT-EXECUTIVE OFFICER, BETTY BRYANT

The trial court concluded, obviously under the guidelines set out in Canter v. Koehring Company, 283 So.2d 716 (La. 1973), that Mrs. Bryant imprudently delegated the responsibility of general safety of the building to Mrs. Henry. I would find no manifest error in the findings of the trial court in that regard. The majority finds that the first two criteria of Canter were met but that the last two were not. It is clear that Tri-Parish owed a duty to the plaintiff of keeping the premises reasonably safe for her, for the children in the program, and anyone else legally on the premises. It is also clear that Mrs. Bryant was assigned the responsibility of safety by her employer. She in fact admitted that safety was one of her duties and responsibilities. A reading of the whole record leaves me with the impression that Mrs. Bryant merely gave lip service to her own alleged delegation of that responsibility to Mrs. Henry. Even assuming that Mrs. Bryant delegated her authority in that regard, the overall situation indicates to me that it was not a prudent delegation, and, under the fourth criteria of Canter, she should have known of the generally bad condition of the building, and should have seen to it that the building be made safe. In addition to the Canter case, see Simmons v. Travelers Insurance Company, 295 So.2d 550 (La.App.3rd Cir. 1974); writs refused, 299 So.2d 795.

I suggest that the record establishes that Mrs. Bryant did not carry out her responsibilities in connection with the safety and maintenance of the building in question. She of course attempted to exonerate herself by stating that she had delegated her responsibility to Mrs. Henry and relied upon the health and fire inspectors for the safety of the building. However, there is evidence in the record that she made numerous visits to the building in question while the defective condition existed. For an executive officer to delegate a responsibility to an employee, and then fail to see that the employee carries out this delegated responsibility is negligence in itself if tor-tious injury results. In Canter it was said:

“If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance, or malper-formance and has nevertheless failed to cure the risk of harm.” (Emphasis mine).

Finding no manifest error in the trial court’s factual findings I would affirm his determination that Mr. Ray and Rockwood (as executive officer insurer of Mrs. Bryant) are jointly liable herein, with Rockwood’s liability being limited to $10,000.00. Reaching this conclusion I would then consider the issue of quantum and find that the amount awarded does not constitute an abuse of discretion. I would further reach the issue raised by Rock-wood Insurance Company on its policy exclusion defenses and deny same on the basis of the Louisiana Supreme Court case of Pullen v. Employers’ Liability Assurance Corporation, 230 La. 867, 89 So.2d 373 (La.1956). See also Bardwell v. England Transportation Company, 169 So.2d 537 (La.App.4th Cir. 1964).

For the above and foregoing reasons I would affirm the decision of the trial court, and accordingly, I respectfully dissent.


author: WATSON, Judge.

text:
    Mrs. Yvonne HONEYCUTT et al., Plaintiffs-Appellants, v. TOWN OF BOYCE, Louisiana, et al., Defendants-Appellees.
    No. 5313.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.
    Writ Granted April 27, 1976.

      Michael M. Wahlder, Alexandria, and Voorhies & Labbé, by Mark Bienvenu, Lafayette, for plaintiffs-appellants.
    James C. Downs, Alexandria, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Mrs. Yvonne Honeycutt, widow of Merlin Honeycutt, and decedent’s two children by a prior marriage, Lonnie Honeycutt and Mrs. Diana Honeycutt Daley, filed this suit against defendants, the Town of Boyce, Louisiana, and Jim Hillman, individually and as Marshal of the Town of Boyce, to recover damages for Merlin Ho-neycutt’s death. Marshall Hillman shot Honeycutt on or about January 8, 1973, while serving a warrant from the Town of Boyce for Honeycutt’s arrest. It was stipulated that the cause of Honeycutt’s death was Hillman’s shot.

Defendant Boyce filed an exception of no cause of action to plaintiffs’ petition and this exception was sustained by the trial court on the basis that the Town was not liable for a tort committed by an elected official such as the Town Marshal. Plaintiffs have appealed from the trial court’s dismissal of their suit as to Boyce.

Exceptions of judicial estoppel and no right of action and a motion for summary judgment also filed by defendant Boyce were overruled by the trial court prior to judgment on the exception of no cause of action. The exceptions and motion were based on a release of Hillman “in his capacity as deputy sheriff” signed by all plaintiffs. Defendant Boyce has answered plaintiffs’ appeal asking that, in the event the trial court’s judgment sustaining defendant’s exception of no cause of action is overruled, the exceptions of judicial es-toppel and no right of action be sustained and that summary judgment be granted.

Plaintiffs have moved to dismiss Boyce’s answer to the appeal. We will consider first the motion to dismiss.

Motion to Dismiss

LSA-C.C.P. art. 1005 requires that estoppel, extinguishment of the obligation in any manner, and transaction or compromise be pleaded as affirmative defenses in the answer. The answer of Boyce “reiterates and reurges” (TR. 32) the pleas of judicial estoppel and no right of action and the motion for summary judgment filed prior to answer. Therefore, judicial estoppel and no right of action and the motion for summary judgment have been timely pleaded. Compare Brooks v. Fondren, 199 So.2d 588 (La.App. 3 Cir. 1967). Although not the basis for the trial court’s dismissal, these defenses may be considered by this court to the extent that they are supported by the record. Roloff v. Liberty Mutual Insurance Company, 191 So.2d 901 (La.App. 4 Cir. 1966); LSA-C.C.P. art. 2164; see also 28 La.L. R. 406-408; Allen v. Michell, 303 So.2d 214 (La.App. 4 Cir. 1974); LSA-C.C.P. art. 2163. Plaintiffs’ motion to dismiss the answer to the appeal is denied.

Issues

The other issues for decision are:

(1) Was the trial court correct in sustaining the exception of no cause of action on the theory that Boyce was not responsible for its Marshal’s actions because there was no element of control ?
(2) Are plaintiffs barred from pursuing this suit because of a release of Hillman in a federal suit in his capacity as deputy sheriff and, if so, is the proper disposition judicial estoppel, no cause of action or summary judgment?
I.The trial court granted Boyce’s exception of no cause of action on the basis advanced by Boyce’s counsel, the rationale of the trial court being that:
“As Jim Hillman was an elected official carrying out the functions authorized to him by State Statute and no allegations of direction or control are presented in the petition whereby the Town of Boyce whose duties and responsibilities are likewise set out by Statute could have controlled the conduct of this elected official, there are no properly pled facts whereby the Town of Boyce can be held responsible for the general law enforcement duties of the elected marshal. Consequently, the plaintiff’s petition against the Town of Boyce does not state a cause of action and the suit is dismissed at plaintiff’s costs.” (TR. 116) ■

The test of control applied by the trial judge is based on the language of LSA-C.C. art. 2320:

“Art. 2320. Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.”

The history of LSA-C.C. art. 2320 is that the restriction on the liability of masters in the third paragraph has been read out of the text because it virtually nullifies any liability of masters for the acts of their servants. Johnson v. Butterworth, 180 La. 586, 157 So. 121 (1934)a The test for vicarious liability under this article is not whether the employer could have controlled or prevented the act causing the damage but whether the employee was in the scope of his employment at the time the damage occurred. LeBrane v. Lewis, 292 So.2d 216 (La., 1974). The jurisprudence is thus in accord with the general language of LSA-C.C. art. 2317 which provides that we are responsible for the damage:

“. . . . caused by the act of persons for whom we are answerable, ...”

It is clear that in the instant case Marshal Hillman was performing a duty incident to his employment at the time he shot Honeycutt. Although the Marshal of the Town of Boyce is an elected official (LSA-R.S. 33:381), whose functions are provided by statute (LSA-R.S. 33:423), the answer of Marshal Hillman admits that, at the time of Honeycutt’s shooting, he was acting in his capacity as Marshal of the Town of Boyce, was dressed in some of the paraphernalia of the Marshal of the Town of Boyce and was serving a warrant of arrest as Marshal of the Town of Boyce. See Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3 Cir. 1974), where the City was held liable for the tortious conduct of its police officers who were acting under orders from the elected Mayor of the City.

The trial court erred in sustaining defendant Boyce’s exception of no cause of action, on the basis that Boyce had no control over its Marshal’s actions.

II. Exceptions of judicial estoppel and no right of action and a motion for summary judgment by Boyce are all based on a release executed by plaintiffs in August, 1973, which states that plaintiffs release and discharge Jim Hillman in his capacity as Deputy Sheriff of the Parish of Rap-ides in connection with a federal suit.

The release states that plaintiffs:

“. . . do hereby expressly release, relinquish, acquit and forever discharge Jim Hillman in his capacity as Deputy Sheriff in and for the Parish of Rap-ides, the said Hillman’s insurers as set forth above, the Louisiana Sheriff’s Association, Marshall T. Cappel, individually and in his capacity as Sheriff of Rap-ides Parish and all of Sheriff Cappel’s deputies and/or employees in connection with any liability of the above stated acts or omissions.” (TR. 71)

Defendant Boyce contends that the release of Hillman in his capacity as deputy sheriff also releases him generally and that the release of Hillman precludes any vicarious liability of the Town of Boyce.

The release acknowledges receipt of a total of $40,750 by plaintiffs divided as follows :

Lonnie Honeycutt: $ 4,750
Diana Honeycutt Daley: $ 4,750
Mrs. Yvonne Honeycutt: $31,250

The general Louisiana law of compromise is LSA-C.C. art. 3071:

“Art. 3071. A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.

This contract must be reduced into writing.”

The language of LSA-C.C. art. 3073 indicates that a compromise can be limited by its terms:

“Art. 3073. Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises.”

It is significant to note that, while the release discharges Hillman in his capacity as deputy sheriff, and also releases other parties, it does not contain a reservation of rights against the Town of Boyce. Counsel have suggested in argument that the federal court suit, to which the release refers, contains a reservation of rights.

The record in “Honeycutt v. Cappel et al”, Civil Action No. 18627, W.D.La., Alexandria Division, has been filed in this court as a part of the record in the instant appeal. Our study of the record indicates only the following as to any reservation of rights:

On June 12, 1973, a summary judgment was signed dismissing the Town of Boyce and its Mayor and Aldermen from the suit and containing this language:

“Plaintiffs’ rights as to all other defendants and plaintiffs’ rights to proceed in the Courts of the State of Louisiana against these defendants are hereby reserved.”

The judgment was signed by Judge Scott of the United States District Court.

The judgment of June 12, 1973 antedates the release of August, 1973 and is not a final judgment.

The final judgment is an “Order of Dismissal” signed by Judge Scott on August 1, 1973, reciting that the action has been settled and is dismissed contingent on the consummation of the settlement. No reservation of rights is contained in this order.

The last relevant entry is an order dated August 6, 1973, again signed by Judge Scott, reciting:

“Let the above captioned case remain open as to Jim Hillman, individually.”

We entertain substantial doubts as to whether plaintiffs have reserved their right to proceed against the Town of Boyce. It has been held that a reservation of rights in a judgment is sufficient. New York Life Ins. Co. v. Palermo, 30 So.2d 228 (La.App.Orl.1947). Also, we find no specific reservation of rights against Hill-man, other than as a Deputy Sheriff, if such be possible.

If plaintiffs did not release all of their rights against Hillman and Boyce, the question remains whether a party can be released in one capacity, here Hillman as deputy sheriff, and the right to proceed against him individually and in another capacity, here as city marshal, can be reserved.

There are cases in which parties have released claims for property damage without releasing claims for personal injuries despite the wording of the instruments. Mooneyhan v. State Farm Mutual Automobile Ins. Co., 290 So.2d 405 (La. App. 2 Cir. 1974) ; Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961). In these cases, the parties signing a full release were found to be under a misapprehension as to the subject matter. The question in the instant case is different. We are concerned not with plaintiffs’ intention 'in signing the release and accepting the funds but the legal result. Despite the apparent intention of plaintiffs to grant a limited release, they inadvertently released all claims arising from the death of Merlin Honeycutt. Plaintiffs executed the release under an error of law. LSA-C.C. art. 3078 provides that compromises cannot be attacked “. . . on account of any error in law .” Plaintiffs have one cause of action for Honeycutt’s wrongful death based on LSA-C.C. art. 2315

Generally, a cause of action can not be split. LSA-C.C.P. art. 425; Thigpen v. Guarisco, 197 So.2d 904 (La.App. 1 Cir. 1967). The Louisiana Supreme Court has recently reaverred that:

“A cause of action in tort has no identity independent from the defendant upon whose fault it is based.” Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 at 353 (La., 1975).

In Carney v. Hartford Accident & Indemnity Co., 250 So.2d 776 (La.App. 1 Cir. 1971), the court considered

“ . . . the novel question as to whether or not a reservation of rights in a compromise precludes a defense based upon LSA-C.C.P. art. 425.” 250 So.2d 779.

Summary judgment by the trial court was reversed on a holding that:

“ . . . the voluntary dismissal of plaintiff’s other action with prejudice did not split her cause of action if said judgment of dismissal was in fact predicated upon a compromise which reserved plaintiff’s right to pursue her claim for personal injuries arising out of the same accident.” 250 So.2d 780

One distinguishing feature of Carney, supra, is that the compromise there apparently related to one item of damages. There was no attempt to reserve rights against a party in a different capacity. The court concluded that summary judgment was inappropriate where there was a factual dispute as to the terms of an alleged release.

“Art. 425. Division of cause of action, effect
An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of the obligation, and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion.”

In Fortenberry v. Clay, 68 So.2d 133 (La.App. 1 Cir. 1953), distinguished in Carney, supra, on the ground that plaintiff in Fortenberry had pursued his claim to judgment, we find a closer analogy to the instant case. There, the court stated the decisive consideration in allowing only one cause of action for one wrongful act and that is the endless litigation that would be created by the opposite holding. Thompson v. Kivett & Reel, 25 So.2d 124 (La. App. 1 Cir. 1946), is to the same effect.

There are no allegations of primary negligence by the Town of Boyce. Boyce is not a joint tortfeasor. LSA-C.C. art. 2324 .

In Lee v. City of Baton Rouge, 243 La. 850, 147 So.2d 868 (1963), there were allegations of primary negligence on the part of the City in its maintenance of a defective sidewalk. The Supreme Court held that, since liability of the City was not secondary, vicarious or derivative, the plaintiff could release the abutting property owner and reserve its rights against the City. Implicit in the Lee decision is that where, as in the instant case, there are no allegations of primary negligence on the part of the town and its liability is only vicarious, the one primarily liable cannot be released and rights reserved against the party secondarily liable. Any liability on the part of the Town of Boyce here is secondary to that of Hillman. Any negligence of Boyce is vicarious under the doctrine of respondeat superior. Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960). Thus, based on the reasoning of Fortenberry, Thompson and Lee:

(a) plaintiffs can not, as a matter of law, release rights against Hillman in one capacity and reserve rights against him in other capacities; and

(b) the release of Hillman in the instrument of August, 1973 released the vicariously liable Town of Boyce also.

‘ The final question concerns the proper procedural disposition of the case, that is, whether the exception of judicial estoppel, the exception of no right of action, or summary judgment should be maintained or granted.

Judicial Estoppel

In Williams, the Supreme Court stated that the result in Muntz v. Algiers & G. St. Ry. Co., 116 La. 236, 40 So. 688 (1906), and McKnight v. State, 68 So.2d 652 (La.App. 1 Cir. 1953), which held that release of the alleged tortfeasor effected a discharge of a master’s vicarious liability, is correct. Although identity of the parties was lacking and res judicata was incorrectly applied in those cases, the court stated that a plea of judicial estoppel would have been appropriate. See 14 La.Law Review 901. In Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3 Cir. 1967), this court held that the defense of extinguishment of the obligation cannot be raised by peremptory exception. Here, we are dealing with compromise rather than extin-guishment of the obligation but the compromise does not support a plea of res ju-dicata because identity of the parties is lacking and the exception has not been filed. The doctrine of judicial estoppel or estoppel by judgment has been recognized in Louisiana, California Company v. Price, 234 La. 338, 99 So.2d 743 (1957), although there is language to the contrary:

“ . . ., our later cases make it clear that the common law doctrine of estoppel by judgment is not recognized in Louisiana.” Johnson v. Sweat, 265 So.2d 801 at 802 (La.App. 3 Cir. 1972) writ denied 263 La. 105, 267 So.2d 211.

The doctrine is discussed at length in Olsen Engineering Corp. v. Hudson Engineering Corp., 289 So.2d 346 (La.App. 1 Cir. 1974) writ denied 293 So.2d 170, where the court states that there is a line of cases involving vicarious liability where judicial estoppel has been applied notwithstanding lack of identity of parties in two suits. Cauefield v. Fidelity & Casualty Company of New York, 378 F.2d 876 (5 Cir. 1967) and Friedenthal v. Williams, 271 F.Supp. 524 (E.D.La.1967) affirmed Fried-enthal v. General Insurance Company of America, 395 F.2d 202 (5 Cir. 1968). Voluntary compromise agreements are equivalent to definitive judgments. LSA-C.C. art. 3078 . However, in the instant situation, contrary to Cauefield, California and Friedenthal, supra, the issues have not been tried, and judicial estoppel is therefore not applicable.

No Cause of Action

In Williams v. Marionneaux, supra, the Court of Appeal upheld exceptions of res judicata and no cause of action on the basis of a compromise settlement and release of an employee which discharged the vicarious and secondary liability of his master. The Supreme Court concluded that an essential element of res judicata, that is that the suit be between the same parties, was lacking and stated that a plea of judicial estoppel would have been appropriate, plaintiff’s cause of action having abated against one secondarily liable because the primary tortfeasor was without fault. The Supreme Court then sustained the exception of no cause of action, the rationale being that plaintiff’s one cause of action, could not be' split and an attempted reservation of rights against the employer was ineffective since, with release of the tort-feasor employee, plaintiff no longer had any rights to reserve. However, no evidence may be introduced to support an exception of no cause of action. LSA-C.C.P. art. 931. American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3 Cir. 1975). In Bielkiewicz, supra, this court held that releases should not have been considered in connection with an exception of no cause of action.

Summary Judgment

As related above, the Town of Boyce moved for summary judgment but it was denied by the trial court.

An appeal does not lie from a trial court’s refusal to grant a summary judgment, LSA-C.C.P. art. 968 . However, the fourth circuit in Roloff v. Liberty Mutual Insurance Company, supra, in a procedural situation identical to that here, where the trial court sustained an exception of no cause of action and should have granted an alternative motion for summary judgment, treated the trial court .disposition as a summary judgment. Also, see Spillers v. Northern Assurance Co. of America, 254 So.2d 125 (La.App. 3 Cir. 1971); writ refused 260 La. 288, 255 So.2d 772 (1972), from this circuit.

We conclude that the better disposition of this matter is by summary judgment. Since there is no issue of material fact, in contrast to Carney, supra, mover Boyce is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

For the foregoing reasons, we conclude that the judgment of the trial court sustaining defendant Boyce’s exception of no cause of action is correct in its result. Summary judgment is granted in favor of defendant, Town of Boyce, and against plaintiffs, Mrs. Yvonne Honeycutt, Lonnie Honeycutt and Mrs. Diana Honeycutt Daley, dismissing plaintiffs’ suit as to the Town of Boyce. All costs are assessed against plaintiffs-appellants, Mrs. Yvonne Honeycutt, Lonnie Honeycutt and Mrs. Diana Honeycutt Daley.

Affirmed.

      . LSA-C.C.P. art. 1005:
      “Art. 1005. Affirmative defenses
      The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly diesignated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.”

      .LSA-C.C.P. art. 2164:
      “Art. 2164. Scope of appeal and action to be taken; costs
      The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

      .LSA-C.C.P. art. 2163:
      “Art. 2163. Peremptory exception filed in appellate court; remand if prescription pleaded
      The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the ease for a decision, and if proof of the ground of the exception appears of record.
      If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.”

       a. Overruled on other grounds in Turner v. Bucher, 308 So.2d 270 (La., 1975).

      . LSA-C.C. art. 2317:
      “Art. 2317. Acts of others and of things in custody
      Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

      . The release was signed by the three plaintiffs on August 16, 17 and 20, 1973.

      . LSA-C.C. art. 3078:
      “Art. 3078. Res judicata; error; lesion
      Art. 3078. Transactions have, between the interested parties, a force equal to the authority of things adjudged. • They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.”

      . LSA-C.C. art. 2315 :
      “Art. 2315. Liability for acts causing damage; survival of action
      Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
      The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if lie left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
      As used in this article, the words “child”, “brother”, “sister”, “father”, and “mother” include a child, brother, sister, father, and mother, by adoption, respectively. (Amended by Acts 1948, No. 333, § 1; Acts 1960, No. 30, § 1.)”

      .LSA-C.C.P. art. 425:

      . LSA-C.C. art. 2324:
      “Art. 2324. Liability for assisting or encouraging wrongful act
      Art. 2324. He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

      . We also distinguish Benroth v. Continental Casualty Company, 132 F.Supp. 270 (W.D.La.1955) where the primary insurer was released but rights against the excess carrier were carefully and'explicitly reserved. The insurer was not released in Benroth except as to a certain monetary limit satisfied by the primary insurer. The same distinction applies to Futch v. Fidelity & Casualty Company, 246 La. 688, 166 So.2d 274 (1964) where the Louisiana Supreme Court held that the release of the primary insurer did not constitute splitting the cause of action.

      . Boyce has not pleaded res judicata, as required by LSA-C.C.P. art. 927; a plea of res judicata by Hillman was not decided by the trial court and is not subject to review in this appeal.

      . LSA-C.C. art. 3078:
      “Art. 3078. Res judicata; error; lesion
      Art. 3078. Transactions have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.”

      . LSA-C.C.P. art. 931:
      “Art. 931. Evidence on trial of peremptory exception
      On the trial of the peremptory exception pleaded at or prior to the trial of the ease, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.
      When the peremptory exception is pleaded in the trial court after the trial of the case, but prior to a submission for a decision, the plaintiff may introduce evidence in opposition thereto, but the defendant may introduce no evidence except to rebut that offered by plaintiff.
      No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.”

      . LSA-C.C.P. art 968:
      “Art. 968. Effect of judgment on pleadings and summary judgment
      Judgments on the pleadings, and summary judgments, are final judgments and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced. If the judgment does not grant mover all of the relief prayed for, jurisdiction shall he retained in order to adjudicate on mover’s right to the relief not granted on motion.
      An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.”

      . LSA-C.C.P. art. 966:
      “Art. 966. Motion for summary judgment; procedure
      The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at an'y time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”


author: DOMENGEAUX, Judge.

text:
    In re LIQUIDATION OF DELTA SECURITY BANK AND TRUST COMPANY, and Federal Deposit Insurance Corporation, Plaintiff-Receiver-Appellant.
    No. 5332.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearings Denied March 4, 1976.

      Snellings, Breard, Sartor & Inabnett by D. R. Sartor, Jr., Monroe, for plaintiff-appellant.
    William L. Koerber, Vidalia, for defendants-opponents.
    Norman M. Magee, Ferriday, Smith, Taliaferro, Seibert & Boothe by Leo Boothe, Jonesville, for opponents-appellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

On January 19, 1973, pursuant to a resolution of its Board of Directors, and after petitioning the Commissioner of Financial Institutions of the State of Louisiana, the Delta Security Bank and Trust Company of Ferriday, Concordia Parish, Louisiana, was closed and placed in receivership by order of the Seventh Judicial District Court in and for Concordia Parish. The following day the Federal Deposit Insurance Corporation accepted appointment as receiver and liquidator of the bank and has continued in that capacity to date.

As receiver and liquidator the Federal Deposit Insurance Corporation (hereinafter referred to as plaintiff) proceeded with the task of liquidation and distribution of the bank’s assets. On November 30, 1973, the District Court approved an ex parte motion by plaintiff to pay a dividend of seventy per cent of the claims of the depositors and unsecured creditors. Plaintiff did not advertise its intent to make this interim distribution, and there was no opportunity for opposition to this plan of disbursement. No interest was paid to the depositors and unsecured creditors for the period of approximately eleven months during which their claims had been unsatisfied. The actual distribution of the seventy per cent dividend was made on December 10, 1973. However, all deposits of the bank’s directors were frozen by plaintiff pending a separate suit against the former for alleged negligent management of the bank’s affairs. (This latter suit is not before us and we therefore do not concern ourselves with its status).

On March 19, 1975, plaintiff petitioned the court for permission to pay all depositors and other creditors interest at the rate of 7% per annum on the principal amount of their claims from the date of commencement of the receivership until the date of the initial 70% dividend. Plaintiff also requested that it be allowed to pay a second dividend consisting of the remaining 30% of the principal amount of the claims of depositors and creditors, including interest at the rate of 7% per annum from the date of commencement of the receivership to the date of actual payment of said final dividend.

The bank’s directors filed an opposition to plaintiff’s petition seeking to block payment of the 7% interest on either the first or second dividends. The directors further sought a release of their deposits and a termination of the receivership.

The Court ordered a distribution of the 30% dividend constituting a final satisfaction of the claims of the depositors and creditors and referred the matters of the interest payments, release of the directors’ deposits, and termination of the receivership to the trial on the merits. The second distribution was properly advertised and the judgment ordering it was homologated without opposition as to the distribution itself. However, the claimants accepted payment with reservation of their rights to interest on this final 30%. The second dividend was paid on April 10, 1975.

After a trial the District Judge ordered plaintiff to pay interest at the rate of 7% per annum on the principal amount of the second 30% dividend for the period from January 18, 1973 to April 10, 1975. The trial judge ruled, however, that no interest was due on the initial 70% dividend since this payment was accepted without any reservation of rights to interest. The District Judge further ordered that the directors be paid 100% of their deposits, but inasmuch as he had denied the other depositors’ claims for interest on the initial 70% dividend, he allowed payment of interest upon only 30% of the deposits returned to the directors. Finally, he ruled that the receivership should be terminated as soon as the aforementioned orders could be executed.

From that portion of the judgment denying the depositors interest on the initial 70% dividend and from the order terminating the receivership, the plaintiff has appealed. Two of the opponents have answered the appeal requesting that the interest on the 70% dividend be paid only to them, as directors, and not to the remaining depositors and creditors.

There are essentially three questions which must be answered by this appeal:

First, did the depositors and creditors waive their rights to interest on the initial 70% dividend?

Second, are the directors, whose deposits were frozen throughout the period of the receivership, entitled to interest on the total amount of their deposits?

Third, should the receivership be terminated at this time?

The trial judge based his finding of waiver of rights to claim interest by the depositors and creditors on the first 70% distribution upon the three major cases of Liquidation of Canal Bank and Trust Company, 211 La. 803, 30 So.2d 841 (1947); Bank of Baton Rouge v. Hart Estate, 216 La. 603, 44 So.2d 311 (La. 1950); and In Re Interstate Trust and Banking Company, 222 La. 979, 64 So.2d 240 (La.1953). Each of these cases involved factual situations similar to the one presently before this court.In all three cases claims were being made for interest on those portions of the distribution which were approved and homolo-gated by the court. The Supreme Court stated in Canal Bank that:

. . judgments homologating accounts are final and have the authority of the thing adjudged.’ .... The judgments approving such accounts become ‘res judicata, and the issue so determined cannot be re-opened by way of opposition to a subsequent account rendered by the receiver.’ ”

The jurisprudential rule is clear that once the depositors allow the distribution to be approved by the judgment homologating it they waive all rights to any claims to interest due on the funds distributed. However, in the instant case there was never an homologation of the initial 70% distribution. As above noted, this dividend was paid upon ex parte motion by the plaintiff. There was never any advertisement nor were any potential opponents ever afforded proper notice. Therefore, we cannot say that the court’s order granting plaintiff’s motion for payment of the first dividend enjoys the status of a final judgment. We thus hold that the depositors are not estopped by res judicata from contesting the failure to pay interest on the first dividend.

However, even finding the initial distribution open to attack, another hurdle presents itelf as a possible bar to the depositors’ claim for interest on the first dividend. The three above cited cases all took cognizance of Civil Code Article 2925 which reads:

“Art. 2925. Payment of interest presumed in release of principal
The release of the principal, without any reserve as to interest, raises the presumption that it also has been paid, and operates a release of it.”

Thus it becomes apparent that the depositors and creditors may have waived their rights to claim interest since they accepted payment of the first dividend without any reservations thereto, for the above cited code articles creates a presumption that the interest due has been paid. The effect of a legal presumption is set forth in Civil Code Article 2287 as follows:

“Art. 2287. Effect of legal presumption
Legal presumption dispenses with all other proof, in favor of him for whom it exists.

No proof is admitted against the presumption of the law, when, on the strength of that presumption, it annuls certain acts, or refuses a judicial action, unless it has reserved the contrary proof, and saving what will be said on the judicial confession.” (Emphasis added.)

Civil Code Article 2291 dealing with the judicial confession states:

“Art. 2291. Judicial confession
The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked on a pretense of an error in law.” (Emphasis added.)

At the beginning of the trial the parties agreed upon several stipulations, the most pertinent to this issue being:

“Stipulation Number 6
Sartor: . . . and it is also stipulated that no interest has been paid by the receiver on any claim in this receivership.
Court: All right.”

This stipulation or agreement between the parties meets the requirements of a judicial confession. It was entered into and made by the parties to this litigation in the course of a judicial proceeding. Therefore, it is an admission by the opponents of the fact that no interest has actually been paid on the 70% dividend distributed on December 10, 1973. As such, this stipulation presents adequate proof to rebut the presumption created by Civil Code Article 2925.

We find the factual issues presented by this case distinguishable from those present in the jurisprudence relied upon by the trial judge in rendering his decision. In the instant litigation there was no homo-logation and acceptance of the original distribution. Also, in this case there has been a judicial admission of sufficient force to rebut the presumption that interest had in fact been paid on the 70% dividend. Therefore, since adequate funds exist for the payment to depositors and unsecured creditors of the interest due on the initial dividend, we find that said parties are entitled to receive said payment at the rate of 7% from the date of January 18, 1973, until December 10, 1973, on that portion of their claims represented by the first dividend. We agree with the trial judge’s conclusion that these same parties are entitled to the payment of 7% interest on the remaining 30% of their claims from January 18, 1973, until April 10, 1975.

Since the directors have yet to receive any portion of their claims for funds on deposit, we fail to see how they have waived their rights to interest thereon. The record reveals no' justification for withholding interest on the total amount which the directors had on deposit, and we reverse the trial judge on this issue and order that the directors of the bank be paid interest at the rate of 7% per annum on 100% of their deposits from January 18, 1973, until such date that said funds on deposit are actually returned to the directors.

Plaintiff shall remain in its capacity as receiver and liquidator until such time as it has discharged its duties in accordance with the orders set forth herein. All reasonable delays shall be allowed for the maturation of those securities necessary to complete liquidation, the completion of clerical work, and the distribution of funds. Upon completion of this task the receivership shall be terminated and the remaining assets of Delta Security Bank and Trust Company shall be turned over to its stockholders as provided for in the judgment of the trial court.

The judgment of the District Court is reversed insofar as it denies payment of interest on the initial 70% dividend and on the total amount of the directors’ deposits, and it is accordingly ordered that all depositors and unsecured creditors be paid interest at the rate of 7% per annum on the funds represented by the dividend of December 10, 1973, and that the directors be paid interest of 7% per annum on their deposits held by the receiver from January 18, 1973, until such deposits are received by the directors The judgment of the District Court is amended so as to continue the receivership until the necessary duties of the receiver are completed in accordance with this judgm'ent. In all other respects the judgment of the District Court is affirmed.

Costs of this appeal are assessed against the opponents.

Affirmed in part, amended in part, reversed in part, and rendered.

      . In due course the FDIC, as insurer, paid depositors (other than those who were also directors of the Bank) the amounts of their deposits up to the limits of coverage and became subrogated to the rights of those depositors.


author: BOLIN, Judge. MARVIN, Judge

text:
    LaDorothy LOGAN, Plaintiff-Appellant, v. E. L. SWIFT et al., Defendants-Appellees.
    No. 12810.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.

      Huckaby, Piper & Brown by Frank E. Brown, Jr., Shreveport, for plaintiff-appellant.
    John Gallagher, Roland J. Achee, Neil Dixon, Shreveport, for defendants-appel-lees.
    Before BOLIN, MARVIN and SMITH, JJ.
   BOLIN, Judge.

Plaintiff sues for damages for personal injuries inflicted by a Shreveport policeman who was attempting to arrest her for criminal mischief. Defendants are E. L. Swift, the policeman; T. P. Kelly, Chief of Police; George W. D’Artois, Commissioner of Public Safety; and the City of Shreveport. Plaintiff and defendant policeman are both members of the black race. Judgment below rejected her demands and she appeals. We affirm.

About 1:00 p. m., on a school day, the policeman was on patrol in the area of a Shreveport high school when he stopped at a pool hall to question teenagers to determine why they were not in school. Before departing he saw plaintiff sitting in a window of the pool hall on the second floor of the building. Swift called to her and asked how ■ old she was, to which she replied “thirteen”. The officer then went inside and asked the owner, Preston Mays, if he knew he had a juvenile on the premises.

Mays testified Swift asked him about plaintiff’s age and he told the officer he thought she was as old as the officer because she had a child in school. He informed Swift he could go and talk to plaintiff. Mays testified plaintiff refused to talk to Swift; that the officer told plaintiff she was under arrest, to which she replied that he couldn’t arrest her; that Swift attempted to place handcuffs on her but she grabbed them and threw them out the window; that he then reached for his “billy club” or night stick and plaintiff knocked it from his hand and it rolled across the floor. Mays said Swift and plaintiff wrestled and the officer removed his pistol from its holster and struck plaintiff on the head with it.

Swift says when he asked plaintiff how old she was in the pool hall she again responded “thirteen”. He then asked her for an identification card and she said “catch me later”. At that time he told her she was under arrest for criminal mischief [La.R.S. 14:59] and that he was taking her “down”, but she refused to go with him. He attempted to handcuff her but she grabbed the handcuffs away from him and threw them out the window. He testified that in the ensuing scuffle she grabbed his night stick and hit him with it and that it was necessary to hit her with his pistol to subdue her.

Plaintiff testified she never hit Swift with the night stick and that Swift hit her six or more times with the pistol.

A number of other witnesses who were in the pool hall testified essentially in accord with the testimony of the pool hall owner as to the scuffle. None of these witnesses corroborated the officer’s testimony that plaintiff hit him with the night stick. These witnesses also generally corroborated plaintiff’s testimony that the officer struck her with the pistol more than once.

Although the evidence is conflicting as to the number of times plaintiff was struck with the pistol, a .38 caliber revolver, the policeman admitted hitting her twice. Photographs and the hospital report show plaintiff suffered two' blows on the head which rendered her unconscious. She was bleeding from these wounds when Swift called for an ambulance and for other officers to come to the scene. Plaintiff was taken to the hospital where she was treated and held overnight for observation. She returned to the doctor several times and complains that she continues to suffer from headaches and dizziness. She did not suffer any major residual disability.

Plaintiff is 26 years old, five feet, four inches tall, and weighs 125 pounds. Swift is six feet tall, weighs 170 pounds, and has been trained in basic police procedures.

The trial judge found Swift was justified in using the force he did since “it was obvious he had to do this or he would never have brought her under physical control.” The lower court predicated this finding on the premise that the arrest was lawful under Louisiana Revised Statutes 17:221, et seq., which requires school attendance of children seven through fifteen, and Section 28-19 of the Shreveport City Code regulating the operation of billiard halls in Shreveport.

Officer Swift was well within the performance of his duties when he attempted to question plaintiff. He was in uniform and was near his marked patrol car when she first saw him. She undoubtedly knew he was a police officer. Plaintiff violated La.R.S. 14:108 in that she resisted an officer by her intentional opposition or resistance to, or obstruction of, the policeman acting in his official capacity and by refusing to give her name and make her identity and age known to the arresting officer.

The determination that the officer was making a lawful arrest does not answer the question of whether the officer used excessive force. Louisiana Code of Criminal Procedure Article 220 provides:

A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance of the person being arrested or detained. (Emphasis supplied)

We agree the officer had to use some force under the circumstances, but we are required to weigh the force used against the statutory test of reasonableness.

The evidence preponderates that the following sequence of events occurred: The policeman placed his hands on plaintiff and informed her she was under arrest and would have to come with him; plaintiff pulled away from him; the officer got the handcuffs to place on plaintiff, whereupon she grabbed them and threw them out the window; a scuffle ensued and plaintiff got the policeman’s night stick and struck Swift with the stick one or more times; during the scuffle Swift struck plaintiff on the head twice with his pistol; plaintiff was rendered unconscious and taken to the hospital.

We find that in each action taken by the policeman in the sequence of events set forth above he used reasonable force in order to make a lawful arrest. The unfortunate striking of plaintiff by Swift with a pistol was merely the culmination of a chain of events which was caused entirely by the unreasonable conduct of plaintiff and not Swift. This is not a case where the policeman merely informed plaintiff of her arrest on a misdemeanor and then struck her twice on the head with a pistol because she initially refused to submit to such arrest.

We find there is sufficient evidence to support the ruling of the trial court and it is accordingly affirmed at appellant’s cost.

MARVIN, J., dissents and assigns written reasons.

MARVIN, Judge

(dissenting).

The officer in this case testified:

“Q Did Miss . . . Logan ever hit you with that night stick . . .”
A She tried to.
“Q That’s not what I asked you, sir?
“A Well, I don’t recall whether—
iji ‡ ‡ * * ‡
“Q Did Miss . . . Logan hit you with that night stick, sir ?
“A On the hand, probably on my hand, yes.
iji % % ‡ i}c ifc
“Q So now when you hit her with your pistol she had the night stick in her hand?
“A Either she had it then, or it fell to the floor, I don't know. I let it go after I saw I couldn’t get it back.
“Q At the time you pulled your pistol, Officer Swift what was she doing?
“A We had one another like this, see (indicating)
“Q You were embracing each other?
“A Well fighting, you know fighting, whatever you want to call it.
“Q And you pulled your pistol out while you had her embraced, and hit her in the head ?
“A Well, we were fighting and I hit her.
“Q ... could you have subdued her without hitting her in the head with a gun ?
“A Maybe if she had stopped fighting, but if she had kept on fighting— I would have had to hit her either with my fist or my gun — one of the two.” (Emphasis supplied).

All other witnesses testified that the night stick went rolling across the floor during the “tussle” between Miss Logan and the officer. All witnesses testified that it was after the night stick was on the floor [out of the picture, so to speak] when the officer pulled his pistol and used it as a bludgeon. Moreover, the testimony of the officer does not suggest that he considered plaintiff’s actions as endangering his life.

In addition to the basic police academy training program mentioned by the majority, Officer Swift admits he was a Viet Nam war veteran who had been trained in methods of hand-to-hand combat. His testimony expressly states an alternative course of action to hitting her with the pistol “. . . [I] had to hit her with either my fist or my gun.”

Considering the sex, size, weight, military and police training of the individuals, and considering the officer’s testimony of one alternative (“fist or gun”), the only reasonable conclusion is the officer could have subdued the resisting, but unarmed female by hitting her with his fist, by throwing her to the floor or otherwise pinning her down, and without resorting to a bludgeon.

Also under Art. 219, La.C.Cr.P., the officer could have called upon the pool hall owner or as many other persons as he considered necessary to aid him in making the arrest.

Under the circumstances as I view the record, there is no evidence to support the conclusion that the officer used reasonable force, even assuming arguendo that he struck her only twice with the pistol.

“Louisiana jurisprudence reveals that the officer is liable if the force he uses exceeds the reasonable force allowed. In Stoehr v. Payne [132 La. 213, 61 So. 206] and Espenan v. Carona [La.App., 179 So. 119] the court held the defendant policemen liable for damages resulting from ‘unnecessary violence’ or ‘unnecessary brutality’ whether the arrest they were effecting was lawful or not. In Stoehr the town marshall used his pistol to strike an intoxicated citizen who had become rowdy. Although the court found that the officer was justified in arresting the plaintiff, he was not justified in using such force to subdue him. A similar situation arose in Espenan. The defendant officer arrested the plaintiff, an ice cream vendor, for selling without a license. In the ensuing hassle, the plaintiff sustained injuries. Although the court was satisfied that the arrest was in order, the issue of the officer’s liability was to be determined by the reasonableness of the force he employed. One factor which Louisiana courts have used to determine whether or not the force employed by police officers was reasonable has been the relative physical size and strength of the officer. The court in Musmeci v. American Auto Ins. Co., La. App. [146 So.2d 496] was impressed by the fact that the plaintiff was a 125-pound drunk, as opposed to a 250-pound officer, in finding that the officer had acted with unreasonable force. Similarly, in Stoehr v. Payne, the court felt that defendant marshall and his deputy were men of sufficient strength to handle the boisterous and drunken plaintiff without striking him in the head with a pistol. The fact that an officer often must make a quick decision is appreciated by the court. In Crawford v. Maryland Cas. Co. [La.App., 169 So.2d 612] the plaintiff was stopped by an officer and thrust his hand suspiciously into his pocket. The officer, alarmed by his sudden action, struck plaintiff with his club. Although finding that the force used had an ‘unfortunate and tragic result,’ the court determined that the officer had acted reasonably under the circumstances.” Comment, “Tort Liability of Law Enforcement Officers: State Remedies,” 29 La.L.R. 130, 131. Emphasis supplied. Citations and footnotes omitted.

The majority labels the striking of plaintiff by the officer with a pistol as “unfortunate.” I would hold it unreasonable under the circumstances and would award damages. If a 125-pound, 5'4" unarmed and unthreatening woman, is forcibly resisting a 170-pound, 6' policeman who is trained in hand-to-hand combat and basic police techniques, he is not entitled to hit her two or more times with a pistol to render her unconscious and bleeding.

I respectfully dissent.