text:
    Mrs. Joyce Fascio Leaber, wife of/and Elroy LEABER v. JOLLEY ELEVATOR CORPORATION, Hartford Accident & Indemnity Company, Financial Property Development Corporation, and American Motorists Insurance Company.
    No. 8728.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearings Denied Feb. 14, 1978.
    Writs Refused March 31, 1978.

      Lambert J. Hassinger and Richard A. McGuire, New Orleans, for plaintiffs-appellants.
    John G. Munoz, Baton Rouge, for defendant-appellee Esco Elevators, Inc.
    Ethel Harriet Cohen, Jefferson Heights, for defendants-appellees Jolley Elevator and Hartford.
    Hammett, Leake, Hammett, Hulse & Nelson, Michael E. Wanek, New Orleans, for defendants-appellees Financial Property Development Corp. and American Motorists.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   SCHOTT, Judge.

This suit arose out of an incident in which an elevator fell while Mrs. Leaber was a passenger with the result that she was injured.

The office of Mrs. Leaber’s employer was located on the third floor of a building owned by Financial Property Development Corporation (FPDC). While on her way to work she boarded the building’s only elevator on the ground floor. Upon pressing the button for the third floor the door closed but the elevator did not ascend, whereupon she pressed the button again. The elevator then rose to the second floor but the doors still would not open. She pressed the alarm bell and the button to open the door, but the elevator then fell to the bottom of the elevator shaft. This elevator had been manufactured by Esco Elevators, Inc. and installed by Jolley Elevator Crop, when the building was constructed in 1965. Pursuant to a contract between Jolley and FPDC, the former provided maintenance on the elevator continuously from the time of its installation until the time of the incident sued upon.

The defendants were FPDC and its insurer, American Motorists Insurance Co., Jol-ley and its insurer, Hartford Accident & Indemnity Co. and Eseo. Various third-party demands were filed among these defendants for contribution and indemnity. The case on the main demand was tried to a jury, while the third-party demands were decided by the trial judge. Mrs. Leaber was awarded a judgment for $8,000 against FPDC and its insurer only. All third-party demands were dismissed. From this judgment appeals were taken by Mr. and Mrs. Leaber and by FPDC and its insurer.

At issue on the appeal taken by Mr. and Mrs. Leaber are, 1) liability of the defendants against whom their suit was dismissed, 2) the quantum of damages awarded to Mrs. Leaber for her injuries, and 3) the failure of the jury to award Mr. Leaber anything for the medical expenses incurred by him or the community on Mrs. Leaber’s behalf. At issue in the appeal by FPDC and its insurer is its own liability and the liability of the co-defendants by way of indemnity and/or contribution.

This elevator was an hydraulic jack type as distinguished from a cable suspended elevator. The car was mounted on a piston which moved vertically in a cylinder buried upright under the ground at the base of the elevator shaft. This cylinder was connected to an oil supply tank situated on the roof of the building. When the elevator was on the ground floor and was activated this started a pump which sent the oil from the tank into the cylinder and pushed the piston up with the result that the elevator ascended. When the elevator was on one of the upper floors and the down signal was given the oil was released from the cylinder and the elevator descended driven by the force of gravity being exerted against the oil, which was returned to the reservoir tank.

According to Mrs. Leaber, the elevator had come to a stop when the second floor signal light appeared on the inside of the car. This would mean that the car was then located at least halfway between the first and second floors when it fell. Mrs. Leaber described the fall as a rapid free fall, so that the car came to rest on two springs on the floor of the pit at the bottom of the elevator shaft. As a result, the floor of the elevator was one or two feet lower than the surface of the first floor, and Mrs. Leaber had to crawl up and out of the elevator after the incident.

It was established that the cause of the elevator’s failure was a leak of the oil from the cylinder underground. Apparently, the pump was able to force enough oil into the cylinder for the elevator to rise to a point approaching the second floor, but as the oil leaked from the cylinder the car descended and this descent was more rapid than would normally result from the release of the oil back into the reservoir under the elevator’s normal operating conditions.

The leak was caused by the process of electrolysis, a natural phenomenon whereby some point in the wall of the cylinder because of its contact with the soil surrounding it became sufficiently deteriorated to open a hole in the cylinder permitting the oil to escape into the surrounding soil.

At the outset, our task is to assess liability to Mrs. Leaber on the part of FPDC as the owner of the building and elevator, Jolley as the building owner’s elevator maintenance contractor, and Esco as the manufacturer of the elevator.

LIABILITY OF FPDC

We have concluded that the concept of liability without fault applies to the facts of this case under LSA-C.C. Art. 2317 as interpreted by the Supreme Court in Loescher v. Parr, 324 So.2d 441 (La.1976). Art. 2317 provides:

“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.” (Emphasis supplied)

One of the “modifications” is provided by Art. 2322 as follows:

“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.” (Emphasis supplied)

As will be discussed in greater detail later in the opinion the process of electrolysis is a phenomenon which, at the time of the construction of this building, was a known possibility for which there was no known preventive. Thus, it was built into the building itself when it was constructed so that it surely qualified as a vice in the original construction of the building.

The hydraulic cylinder buried thirty feet underground in the early stages of the building’s construction must surely be a component of the building. This cylinder’s wall deteriorated to the extent that the oil seeped into the surrounding soil with the result that the elevator fell out of control down the shaft.

In Davis v. Royal Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1971), the court held that the “ruin” contemplated by Art. 2322 “has reference to the actual fall or collapse of a building or one of its components,” and declined to apply the article to a condition wherein paint was flaking and dropping from a building’s ceiling. The court reasoned in part that “to satisfy the meaning of ‘ruin’ as used in Article 2322 the fall or collapse must involve a more or less substantial component of the structure.”

In Adamson v. Westinghouse Electric Corporation, 236 So.2d 556 (La.App. 4th Cir. 1970) this court held that Art. 2322 applied to the situation where there was a malfunction of the electrical and/or mechanical features controlling the closing of an elevator door allowing plaintiff to recover from the building owner for injuries she sustained. While it is difficult to harmonize the liberal interpretation given to the word “ruin” in the Adamson case with the stricter interpretation given in the Davis case, we have concluded that the failure of the elevator in the instant case is within the stricter definition of the word “ruin.” This was not merely a failure in a switch or connection as in the Adamson case, or something superficial like the paint flakes in the Davis case. On the contrary, it was a failure in one of the building’s original components installed when the building was constructed and reasonably expected to hold up as well as any other underground components of the building, like the foundations. Thus, we have concluded that the position of the judgment holding FPDC liable to plaintiff should be affirmed.

LIABILITY OF JOLLEY

When this building was constructed Jol-ley installed the elevator. There is no evidence that the initial installation was in any way faulty. On the contrary, we can infer from the testimony that the elevator was installed in accordance with the manufacturer’s specifications and in a workmanlike manner. Following the owner’s occupancy of the building, it entered into a maintenance contract with Jolley, under which Jolley would inspect the elevator and all of its equipment and provide regular maintenance on the machinery with the following exception:

“The Contractor will not be required to maintain in any manner whatsoever, power switches and feeders to controllers; cabs; - cab and hoistway doors and gates, door astragal strips; hoistway door frames and sills; oil-hydraulic jack cas.ings and underground pipe connections. However, the Contractor will be required to maintain all operating accessories of cab and hoistway doors and gates and keep them in good adjustment.” (Emphasis supplied)

Because of this exception Jolley cannot be said to responsible to plaintiff because it was the failure of the hydraulic jack casing due to electrolysis which caused the accident. Thus, the remaining question on liability to plaintiff is that of Esco.

LIABILITY OF ESCO AS THE MANUFACTURER OF THE ELEVATOR

In Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (1971), the Court held that a manufacturer of a product which involved the risk of injury to the user is liable for an injury caused by a defect in the design, composition or manufacture of the article if the injury might reasonably have been anticipated, that the plaintiff has the burden of proof that the product was unreasonably dangerous to normal use, and that plaintiff’s injuries were caused by reason of the defect.

It was established that electrolysis is a well known problem to Esco. Two mechanics employed by Jolley with a combined experience of 25 years testified that they had seen at least 25 cases where hydraulic casings had ruptured due to electrolysis. Despite the fact that precautions can be taken to minimize the risk or retard the process, modern technology does not provide any certain method of preventing the process. In 1965 when this installation was made the hydraulic cylinder was “tape coated” in order to retard the process, and in 1970 a method was devised of constructing a double wall on the cylinders to retard the process or minimize the consequences, but even this was unavailable in 1965. Thus, it was established that there was an inherent defect in this type of elevator.

The next question is whether plaintiff’s resulting injury might reasonably have been anticipated by Esco. Its engineer testified that electrolysis was not considered a safety hazard because when the process reached the point of a leak in the cylinder the loss of oil would be a slow seepage allowing only a slow unintended descent by the car. In effect, he would not admit of the possibility that the oil would all suddenly run out of the cylinder and cause a rapid free fall for the car.

There was an issue in the case with respect to the rapidity of Mrs. Leaber’s descent. Although she testified that it was quite rapid there was no structural damage to the car or the buffer springs. The fact that the elevator was able to ascend to some point between the first and second floor indicates that some oil was left in the system at the beginning of Mrs. Leaber’s ride and it seems unlikely that a hole in the casing suddenly opened at this point to permit the oil to rush out and provide the circumstances for a rapid descent.

Nevertheless the jury’s award to Mrs. Leaber constitutes a factual determination that she suffered some injury as a result of this fall and the facts of the case show that the elevator was out of control to the extent that it did not come to rest until it made contact with those buffer springs past the ground floor. The modest amount of the award might be interpreted as a sign that the jury did not believe that there was a rapid free fall but that the fall was sufficient to produce a very frightening experience for Mrs. Leaber with mental, as well as physical, pain and suffering.

From these facts we have concluded that Esco might reasonably have anticipated such relatively minor injuries resulting from the defect in its elevator.

Our conclusion is bolstered by the fact despite this known risk Esco gave no warning of such to FPDC whatsoever. It would seem anomalous to hold FPDC liable to Mrs. Leaber on a theory of strict liability because of a condition unknown to FPDC but well known to Esco and at the same time exonerate Esco.

No warning was placed on the elevator itself as to the phenomenon of electrolysis and its attendant effects. The only method of checking the oil supply in the system was to go on the roof and visually inspect the reservoir tank, but there were no gauges or warning devices of any kind which might readily warn users or owners that the oil supply was low indicating that electrolysis had taken place. We have thus concluded that Esco and its insurer are liable to plaintiffs along with FPDC and its insurer, and the judgment must be amended accordingly.

QUANTUM OF DAMAGES AWARDED TO MRS. LEABER

The jury awarded Mrs. Leaber $8,000 for her damages and she contends that this is inadequate for her claimed injuries.

She testified that while the elevator fell she was thrown about in the car and after she crawled out of the elevator she was quite distraught and shaken up. She was taken to the hospital for emergency treatment, and saw her physician, an orthopedic surgeon, three days thereafter. He testified that Mrs. Leaber was suffering before the accident from Paget’s disease which weakens the bones. He diagnosed an aggravation of this condition by means of a contusion in her left shoulder and a cervical strain. He prescribed some medication and advised her to rest her arm. Three days later he gave her an injection of cortisone in her shoulder to alleviate pain, and in June, because of her complaints of neck pain, physical therapy was prescribed. A course of physical therapy was given to her twelve times between June 27 and July 24. Although she was better on August 20 she came back in October complaining of her shoulder and was given deep therapy by way of ultrasound. He considered her as recovered by that time.

In addition to these injuries, and more importantly, from plaintiff’s point of view she claims that she suffered a phobic neurosis consisting of a fear of elevators as a result of this accident. She testified that until the time of the trial in November, 1976, she had never taken an elevator since the day of her accident, even to the extent of walking eight flights of stairs in order to visit her husband while he was hospitalized on one occasion. She testified as to great inconvenience and embarrassment she suffers because of this phobia. She saw a psychiatrist, a Dr. Sanders, for the first time in April, 1976, and he testified that she at first presented a fear in thinking about elevator riding as well as one associated with the physical riding of elevators itself. After a course of some twelve treatments in which he tried hypnosis she had gotten over her problem as far as thinking about elevators but still had the fear of elevators themselves. He characterized her condition as a phobic neurosis for which no cure could be effected.

On the other hand, defendants produced a psychiatrist, Dr. Carlos, who characterized her situation as a free choice on her part that she would never ride in an elevator again and that psychiatric treatment would necessarily require a choice on her part that she would try to get back into elevators. He had seen Mrs. Leaber in May and October, 1976, and stated that she was asymptomatic from a psychiatric standpoint. She was eating well, she had not lost interests, she was in good spirits and she had no symptoms of anxiety or depression on the first examination. She simply had a fear of riding in an elevator, but this was not a psychiatric condition.

We are not convinced that there was any abuse of discretion on the part of the jury in setting this award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). The jury was properly instructed with respect to quantum and there is no basis for substituting our judgment for the jury’s.

FAILURE OF THE JURY TO AWARD ANY RECOVERY TO PLAINTIFF ELROY LEABER

Mrs. Leaber’s husband was a plaintiff in his own right seeking reimbursement for the special medical expenses he incurred in connection with Mrs. Leaber’s injuries. The verdict of the jury made a specific award of $8,000 to Mrs. Joyce Fascio Lea-ber, wife of Elroy Leaber, and the judgment was in her favor pursuant to that verdict. In effect, no recovery was given to Mr. Leaber despite the fact that he as head and master of the community was the proper party to bring the claim for the medical expenses incurred by her, and he did in fact sue for such damages. Charles v. Sewerage & Water Board, 331 So.2d 216 (La.App. 4th Cir. 1976). It cannot be said that any part of the $8,000 belongs to Mr. Leaber because it was awarded to her, so that we must conclude that Mr. Leaber was not allowed to recover that which he was entitled as a matter of law to recover. Therefore, the judgment must likewise be amended to allow recovery to Mr. Leaber in the sum of $813, consisting of $540 for Dr. Sanders, $144 for physical therapy treatments, and $129 for Dr. Rodriguez.

FPDC’S CLAIM FOR INDEMNITY

From the foregoing it follows that FPDC and Esco are liable in solido to plaintiffs, so that we are confronted with the same question as the court was in Truxillo v. Gentilly Medical Building, Inc., 225 So.2d 488 (La.App. 4th Cir. 1969), i. e., is FPDC limited to contribution or is it entitled to indemnity?

The court in Truxillo awarded indemnity to the building owner against the janitorial company for liability to an invitee on the theory that the janitorial company’s negligence caused injury to the building owner, namely, the building owner’s being liable on theoretical grounds. The same reasoning applies to the instant case. FPDC’s liability to plaintiff is predicated on liability without fault. Its being cast in judgment is an injury caused by the negligence of Esco for which it is entitled to indemnity.

Accordingly, that portion of the judgment dismissing plaintiff’s suit against Esco Elevators, Inc. is reversed. In addition, the judgment on the main demand is amended. That part of the judgment dismissing the third party demand of Financial Property Development Corporation and American Motorists Insurance Company is reversed.

Accordingly, there is judgment in favor of plaintiff, Mrs. Joyce Fascio Leaber, wife of Elroy Leaber, in the sum of $8,000.00, and in favor of Elroy Leaber in the sum of $813.00, both with legal interest from date of judicial demand until paid and for all costs of these proceedings against Financial Property Development Corporation, American Motorists Insurance Company and Esco Elevators, Inc. in solido.

There is judgment in favor of Financial Property Development Corporation and American Motorists Insurance Company against Esco Elevators, Inc. in full indemnity for the amount owed by Financial Property Development Corporation and American Motorists Insurance Company to plaintiffs.

There is judgment in favor of Jolley Elevator Corporation and Hartford Accident & Indemnity Company, dismissing all claims against them.

AFFIRMED IN PART, AMENDED, AND REVERSED IN PART.


source: Caselaw Access Project

author: BEER, Judge.

license: Public Domain

text:
    Mrs. Shirley Latreyte, wife of Richard GIRAUD et al. v. Alford G. CLARK et al.
    No. 9128.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.

      Roos & Roos, Leo S. Roos, New Orleans, for defendants-appellants.
    Racivitch & Wegmann, William J. Weg-mann, New Orleans, for plaintiffs-appellees.
    Before GULOTTA, BEER and BOWES, JJ.
   BEER, Judge.

This is an appeal from an eviction proceeding in which the lessors successfully terminated a lease which, in pertinent part, provided as follows:

“Lessee is granted the provilege (sic) to renew this lease for an additional five (5) years on the same terms and conditions of this lease, except the rent shall be One Thousand ($1,000.00) Dollars per month. Should Lessee elect to renew this lease, he shall notify Mrs. Shirley L. Giraud, 342 Jefferson Heights Avenue, New Orleans, La. 70121, by registered or certified mail of Lessee’s intention to renew, which said notice shall be delivered to Mrs. Shirley L. Giraud not less than ninety (90) days prior to the expiration of this lease.”

The term of the lease was from March 1, 1972 to February 28,1977. Alford G. Clark, appellant-lessee, paid rent regularly to Mrs. Giraud until October, 1973. Thereafter, in November, 1973, Clark entered into a sort of hybrid sublease with Bill Colacurcio, Jr. (styled “Management Agreement”), by which Colacurcio managed the premises and retained the income produced therefrom. Under this new agreement, Colacurcio took over the responsibility of paying Mrs. Gi-raud and, from November, 1973 onward, was in touch with Mrs. Giraud — at least for the purpose of making the monthly payments. In May, 1974, Mrs. Giraud moved to Covington, Louisiana, and notified Colacur-cio, who, thereafter, mailed the rental payments to her new address.

It is essentially undisputed that the deadline for notification of extension of the lease had to be delivered to Mrs. Giraud no later than November 30, 1976. Apparently aware only that she no longer resided at 342 Jefferson Heights Avenue, Clark unsuccessfully attempted to contact Colacurcio on November 29, 1977, to ascertain her new address. By reference to the Covington phone book, Clark found a listing of one John Giraud, Highway 59, Covington. Then, in an attempt to notify Mrs. Giraud of his intention to renew the lease, Clark allegedly sent:

1) a mail-o-gram at 4:22 p.m. on November 30, 1976 to Highway 59, Coving-ton, Louisiana,
2) a certified letter addressed to Highway 59, Covington, Louisiana, dated November 29, 1976 and postmarked November 30, 1976,
3) a certified letter addressed to 342 Jefferson Heights Avenue, dated November 29, 1976 and postmarked November 30, 1976, and
4) a Western Union telegram to 342 Jefferson Heights Avenue, on November 30, 1976.

On Friday, December 3,1976, Mrs. Giraud received the mail-o-gram and, also, notice from the post office that mail was being held there for her. She actually picked up (from the post office) the certified letter addressed to her at Highway 59, Covington, Louisiana, on Tuesday, December 7, 1976. The other certified letter was never received by her, and was returned unopened to Clark. Mrs. Giraud testified that she did not ever receive the telegram allegedly sent to her former address.

Apparently concluding that none of Clark’s efforts to notify Mrs. Giraud by November 30, 1976, were successful nor that timely notification had been waived, the trial court awarded plaintiffs possession of the premises.

Clark appeals, contending that Mrs. Gi-raud’s own action in failing to notify him of her new address constituted waiver of her right to timely delivery of the notice to renew.' He also raises the contention, not affirmatively pled below, that Giraud and Colacurcio apparently colluded to prevent Clark’s renewal of the lease, contending that the trial judge improperly prevented his attorney from cross-examining Colacur-cio concerning this possible collusion.

However, at the time of trial, Co-lacurcio was a co-defendant with Clark, and Clark had not filed a third-party demand against him. Since Colacurcio was not an adverse party, we cannot say that the trial judge erred in limiting cross-examination of him by Clark’s able counsel. Furthermore, as against Giraud, Clark may not allege collusion or fraud for the first time on appeal. See, La.C.C.P. arts. 856, 1005.

It is clear from the lease provisions that delivery of notice to renew, not merely attempted delivery of notice to renew, was required. Only two communications were received, the mail-o-gram (on December 3) and the certified letter addressed to Highway 59 (notice of which was received on December 3).

Since time is of the essence in the renewal of a lease (see, e. g., Jackson Brewing Co. v. Wagner, 117 La. 875, 42 So. 356 (1906); Le Blanc v. Barielle, 25 So.2d 638 (Orl.La.App.1946), we must determine whether attempted timely notification, received after expiration, is sufficient when the lessor has moved without prior notice but where notice may be implied. Other jurisdictions are split on the question of whether such notice is sufficient. See, 51 A.L.R.2d 1404, 1429-1431.

In support of his argument that timely notice was waived, or that his notice was sufficient, appellant cites Woods v. Cities Service Oil Company, 142 So.2d 168 (La. App. 3rd Cir. 1962). The facts are close. In that case, on November 29, 1961, a telegram was sent to the lessor at his proper address. On the following morning, the telegraph agent phoned lessor to advise of receipt of the telegram, but was unable to reach him. On the same morning, the agent was able to reach lessor’s son, who advised him that lessor was out of town, and instructed him to mail the notice to him, which the agent did. Lessor picked up the telegram on December 2, which was after the expiration of the renewal period, but admitted he was out of town during much of the interval. The court concluded that the notice would have been received timely had lessor been in town, and held the attempted notice was sufficient.

If, here, the appellant had absolutely no knowledge of lessor’s move from her former address, the rule of Woods, supra, might well apply. However, Clark is, himself, one of the authors of the Clark-Colacurcio “Management Agreement,” and Colacur-cio’s apparently undisputed knowledge of Giraud’s new address must, we believe, be imputed to Clark as far as Giraud is concerned. See e. g, Russell v. Armington, 162 So.2d 91 (La.App. 4th Cir. 1964); Office Equipment, Inc. v. Hyde, 145 So.2d 86 (La. App. 4th Cir. 1962).

Even were this not so, Clark apparently knew, at least, of the move to some address in Covington and, even on November 29th, had the opportunity to call the two Giraud listings in the Covington phone book in order to ascertain the proper new address. Furthermore, he lived in Slidell, only 45 minutes away by car, and could have driven to the two addresses, determined where Shirley L. Giraud lived, and physically delivered the notice to renew.

Clark bore the risk of nondelivery, or untimely delivery, of notification of his intention to renew. The trial court’s apparent factual determination is that no basis exists for concluding that such timely notification was, on the facts found, effectively waived. We do not find this apparent conclusion to be manifestly in error nor unsupported by the record and, accordingly, affirm at appellant’s cost.

AFFIRMED.

      . There were only two Girauds listed. John Giraud was plaintiffs brother-in-law. The other listing, Richard Giraud, Sr., was that of Mrs. Shirley Giraud’s husband, and listed her new address and telephone number.

      . Although Colacurcio’s role in these proceedings is not entirely clear, we can perceive the existence of a situation where his interests may very well be in conflict with those of Clark, at least insofar as the lease with Giraud is concerned. But there is nothing in the record to support the existence of a sublease from Clark to Colacurcio nor even, for that matter, any evidence which clearly signals a different relationship between Colacurcio and Clark than the one described in their so-called “Management Agreement.”


author: GARSAUD, Judge. SCHOTT, Judge,

text:
    STATE of Louisiana ex rel. Linda Louise KILLMAN and Peter John Killman v. Jennifer Louise GURLEY.
    No. 8800.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 31, 1978.

      Mendoza & Hardin, Harry T. Hardin, III, Marrero, for plaintiff and defendant in re-convention and appellee.
    Harry A. Burglass, Metairie, for defendant and plaintiff in reconvention and appellant.
    Before BOUTALL, SCHOTT, and GAR-SAUD, JJ.
   GARSAUD, Judge.

This suit arose from a petition for a Writ of Habeas Corpus obtained by the father of the minor children, Delton Dean Killman, seeking the return of his children and asking that the custody decrees of Utah be given full faith and credit in Louisiana. The mother of the children, Jennifer Kill-man Gurley, answered the writ and by way of reconvention asked that a full custody hearing be had in accordance with Emery v. Emery, 223 So.2d 680 (4th Cir. 1969). After a complete hearing full faith and credit was given to the Utah decrees, the rule to change custody was denied, and the Writ of Habeas Corpus was made peremptory with custody immediately returned to the father. From that judgment the mother appeals.

The Killmans had their matrimonial domicile in Utah until March 1972 when Mrs. Killman (now Gurley) left with the two children of the marriage and came to Me-tairie, Louisiana. In July of 1972, due to financial hardship she felt forced to return the children to their father for proper care. At that time she signed a stipulation to the effect that custody of the two children should be awarded to Mr. Killman, subject to Mrs. Killman’s visitation. This stipulation provided that the children would be allowed three months visitation yearly with their mother, wherever she might be residing. Mrs. Killman (Gurley)-testified that she understood that this custody arrangement would only be temporary until she was financially able to care for her children. There was, however, no such indication in the stipulation and Mr. Killman categorically denied any such agreement. In accordance with this stipulation the Utah court awarded custody to Mr. Killman.

Mrs. Killman attempted to have custody changed in May 1974, but she again with advice of counsel signed a stipulation which granted continued custody with the father. This stipulation, and the judgment resulting from it, also provided for reduced visitation rights to the mother.

The Utah court once again faced the issue of custody in June 1975. The court on her testimony accepted the fact of Mrs. Killman’s remarriage (which, in fact, did not take place until September 1975), but found that that fact alone was insufficient change of circumstances to warrant a change of custody. The court did, however, note that the father might be attempting to alienate the children’s affection for their mother, and any such conduct on the part of the father was enjoined.

When Mrs. Killman’s (Gurley) visitation rights were exercised in the summer of 1976, she chose not to return the children to their father in Utah. Mr. Killman petitioned for the Writ of Habeas Corpus, and these proceedings resulted.

The issue is whether the trial court erred in continuing custody of the children in the father.

It is to be noted that this is not an initial claim regarding custody of these children but rather a claim to change custody which had been granted to the father. Thus, the maternal preference provided in the Civil Code of Louisiana Article 146 is inapplicable. Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955). Rather the principles set forth in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) and specifically reiterated in Estes v. Estes 261 La. 20, 258 So.2d 857 (1972) control. As stated in Fulco these principles are:

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958) and jurisprudence therein cited; see also Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.
“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958); Boatner v. Boatner, 235 La. 1, 102 So.2d 472 (1958); Tullier v. Tullier, 140 So.2d 916 (La.App.1962) (citing numerous decisions of this court to such effect). “(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Decker v. Landry, 221 La. 603, 80 So.2d 91 (1955); Guillory v. Guillo- ry, 221 La. 374, 59 So.2d 424 (1952); Nugent v. Nugent, 232 So.2d 521 (La.App.1970) (citing numerous court of appeal decisions to such effect).
“(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interest of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952).”

As stated by Justice Tate writing for the Court in Fulco, the paramount consideration is the welfare of the children. See also Civil Code of Louisiana Article 157. Principles (2) and (3) above then are simply aids in determining what is in fact in the welfare or best interest of the children. Principle (4) states that once the decision regarding the best interest of the child is made by the trial judge it is entitled to great weight absent a clear showing of abuse.

Applying these principles to the case at hand we find that the trial judge did not abuse his discretion when he concluded that the best interest of the children dictated custody remain in the father. It was his finding that “. . . these children, at a tender age, having been in the physical custody of the Father for some four years, it would not be to'their best advantage to at this stage to transfer custody to the Mother”. (T. pp. 105 & 106). The Court felt that at this time in their lives it would be better for the children not to be uprooted from their home of four years. Such a conclusion is well within his discretion.

In further support of his decision regarding the greater welfare of the children, the trial judge found that the mother did not carry her heavy burden of proving that “the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed”. Ful-co at page 605. The record fully supports this finding as there was no evidence that the father was improperly caring for the children. Other than the one case of eavesdropping on the children’s conversation with their mother which the Utah Court enjoined in their last decree, the record supports the view that Mr. Killman was a good father who provided a wholesome environment in which the children were being reared.

Finally, the paramount right of the mother (Principle (2)) to custody in this instance did not supplant the other considerations relative to the welfare of the children as this was neither an initial custody case nor a change of custody wherein the children are taken from the mother and given to the father.

Appellant relies heavily on Emery v. Emery, supra and Estes v. Estes, supra to justify a change of custody to the mother. Neither case, however, is applicable to the facts in this case. In Emery, custody was originally awarded to the father who had not remarried based upon a consent decree, and later custody of the twelve year old daughter was changed to the mother. In his reasons for judgment, the trial judge made it clear that the change was not attributable to the father’s failure in his parental responsibilities. Rather, at this stage in her life this young girl needed the counsel, guidance and advice that her mother could provide because a strong maternal influence is important for young girls approaching womanhood. Here, not only is the daughter not at such a crucial age, but she also has the benefit and love of her stepmother.

In the Estes case, the primary justification for a change of custody to the mother was that the father had obtained custody through a consent amendment of the original decree which was clearly intended by both parties to be temporary only. The temporary change order had specifically provided that the father was to have custody “until such time as [the mother] can provide a proper home for said children.” Here there was no indication that the custody award to the father was intended by the parties to be temporary. Also, it should be noted that in both Emery and Estes the determination of the trial court was affirmed recognizing the great weight to which the discretion of the trial judge is entitled.

For the reasons stated above, we concluded that the Writ of Habeas Corpus was properly made peremptory and the judgment is affirmed.

AFFIRMED.

SCHOTT, J., concurring.

SCHOTT, Judge,

concurring.

The only practical alternative to concurring in the opinion of my colleagues is a dismissal of this appeal as moot. I do not see that a reversal of the judgment of the trial court would have any practical effect.

After the Utah court signed two judgments awarding custody of these children to the father, appellant attempted without success to have custody of the children given to her by the Utah court. The only way our Louisiana court acquired jurisdiction over this case was because appellant refused to return the children to the father after she exercised visitation rights in accordance with the decree of the Utah court.

At the conclusion of the custody hearing in Louisiana the trial judge declined appellant’s motions for a suspensive appeal and a stay order, and the father was allowed to take immediate custody of the children and return them to Utah.

If we were to reverse the judgment of the trial court appellant would be relegated to going to Utah where the children are now residing and asking a court of that state to give full faith and credit to our judgment and turn the children over to her.

In effect, her position in then attempting to take the children away from the father in Utah would be identical to the position he was in when he came here armed with a custody decree of the Utah court and was required to litigate custody in accordance with the laws and jurisprudence of this state.

Appellant has taken the position that the judgment of the court in Utah is not controlling and that we should decide this case based strictly on Louisiana jurisprudence. If she obtained a favorable decree from this court and then tried to regain the custody of her children in Utah the Utah court would undoubtedly take the same position she has advocated here, namely, that the law of the state where the children are now located controls the result of the case. In no case would our decree control that court.

Thus, whether appellant wins or loses her case here, the result is the same for her. The only way she can regain custody of her children is to win a custody hearing in the Utah court based upon Utah legal principles.


author: DUPLANTIER, Judge.

text:
    Rebecca B. McCUTCHON v. MUTUAL OF OMAHA INSURANCE COMPANY.
    No. 9010.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 31, 1978.

      Horace P. Rowley, III, New Orleans, for plaintiff-appellee.
    Ganucheau & Allmand, Bradford R. Roberts, II, New Orleans, for defendant-appellant.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   DUPLANTIER, Judge.

The district court granted plaintiff’s motion for summary judgment in the amount of $5,937, for hospital and nursing expenses under a health and accident insurance policy issued to plaintiff by defendant. Defendant appealed, and plaintiff answered the appeal, seeking statutory penalties and attorney’s fees denied by the district court judgment.

The facts are not in dispute. They were all established in affidavits filed in support of plaintiff’s motion for summary judgment. Defendant filed no opposing affidavits.

Plaintiff, who was then 84 years old, suffered a fractured hip and shoulder when an automobile struck her while she was walking across a street. She was taken by ambulance to Touro Infirmary, where surgery was performed and where she remained for about a month. She was transferred by ambulance from Touro to Medicenter, an extended care facility. About nine months later, plaintiff was moved from Medicenter to a custodial nursing home.

During the early part of her stay at Med-icenter, plaintiff’s condition became critical. Her physician ordered that she be attended constantly by registered nurses, necessitating three shifts of nurses each day. Because of an acute shortage, after considerable effort Medicenter was able to locate only one registered nurse. Therefore, licensed practical nurses were used for the other two shifts.

Defendant paid various claims under the policy but refused to pay the proportion specified in the policy for the charges expended by plaintiff for room and board at Medicenter and for the fees of the two practical nurses.

Defendant’s refusal to pay these two items is based upon its contention that Med-icenter is not a “hospital” as defined in the policy, and that the policy provides payment for the private duty services of registered nurses only, not licensed practical nurses.

The policy in question defines “hospital” as follows:

“ ‘Hospital’ means a place, other than a convalescent or nursing or rest home, having accommodations for resident bed patients, a laboratory, a registered nurse always on duty and an operating room where surgical operations are performed by a legally qualified physician.”

Medicenter occupies the second and third floors of a modern building, located across the street from Touro Infirmary. Medicen-ter regularly accepts resident bed patients. It provides within the Medicenter building x-ray services, physical therapy and a fully equipped pharmacy. Registered nurses are always on duty, and a physician is always on call. The care provided is effectively the same as that provided by an acute general hospital for its recuperating patients. While Medicenter does not have an operating room nor a laboratory in the building in which plaintiff was a patient, it does have written contracts with two other nearby hospitals to use their operating room facilities for Medicenter patients who need surgery and with a full-scale laboratory operated by pathologists in an adjacent building.

It is defendant-appellant’s position that since Medicenter does not have a laboratory or operating room on its premises, it does not come within the policy definition of hospital. The trial court reached a contrary conclusion, with which we agree.

For over twenty years, the jurisprudence in Louisiana has been that if a facility in which an ill policyholder is confined for treatment substantially meets the definition of a “hospital” within a health and accident policy, the insured’s expenses while a patient therein are covered by the policy. McKinney v. American Security Life Insurance Company, La.App., 76 So.2d 630 (1955). That Medicenter substantially complies with the policy definition is hardly arguable. Indeed, Medicenter literally complies with the policy definition, for it has “accommodations” for both a laboratory and operating room. Nothing in the policy requires that the “accommodations” for these facilities must be in the same building in which the patient’s bed is situated. Considering the tremendous costs which would be involved in duplicating all such facilities, costs which would have to be passed on to the patients and their insurers, such duplication would certainly not be in the best interest of the general public nor of health insurers.

Plaintiff’s total expenses related to her injuries were substantially reduced by her transfer from Touro Infirmary to Medicen-ter, to her insurer’s benefit. To adopt appellant’s interpretation of the policy definition would effectively thwart the entire purpose of extended care facilities such as Medicenter, to the particular detriment of health insurers and their policy holders who would be compelled to pay higher premiums, and to the detriment of society in general.

Appellant’s second contention, that it is not liable for expenses for nursing services ordered by plaintiff’s physician while she was critically ill, because the services were not provided by registered nurses, is equally without merit.

The treating physician ordered that plaintiff be attended constantly by registered nurses because she was in danger of death. Attempts by Medicenter and plaintiff’s family to comply with the doctor’s orders were partially unsuccessful, due to a shortage of registered nurses. Plaintiff’s family advised defendant insurer’s representative that licensed practical nurses were being used during two of three daily shifts, instead of registered nurses, and sought in vain defendant’s assistance in obtaining registered nurses. The licensed practical nurses who attended plaintiff during her crisis worked under the close supervision of a registered nurse constantly on duty at the nurses’ station, 40 feet from plaintiff’s room, with “intercom” communications between the room and the nurses’ station.

It is true that the policy by its terms covers expenses of “private duty services of a registered, graduate nurse, other than a practical nurse.” However, under the circumstances of this case, appellant certainly should not be denied reimbursement for expenses which she actually incurred for nursing services essential to her treatment, simply because it was impossible to obtain the registered nurses ordered by her physician.

The trial court failed to award plaintiff penalties and attorney’s fees. Under LSA-R.S. 22:657 plaintiff is entitled to recover a penalty of double the amount of the claim plus attorney’s fees unless “just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard” form the basis for the insurer’s denial of the claim. We conclude that no “just and reasonable grounds” existed for the denial of plaintiff’s claim and that penalties should have been awarded, for the following reasons:

(a)No reasonable ground existed for the contention that Medicenter is not a hospital, in view of the nature of the institution, the condition of plaintiff’s health and the treatment she received while confined there, and particularly in view of the substantial compliance rule in effect in Louisiana for the period of over 20 years since the McKinney case.
(b) The contention that the expense for practical nurses is not covered was equally unreasonable. While the issue may be res nova in this state, it is hardly reasonable for an insurer to deny a claim for a lesser expense for practical nurse wages on the ground that the policy covers only registered nurses, when the treating physician orders registered nurses for a patient in danger of death, and when a nurse shortage makes it impossible to obtain registered nurses despite considerable effort. Defendant’s position would penalize the policy holder because of a shortage of registered nurses. If that is a reasonable application of the policy, then the insurer would never be liable for necessary nursing expenses in a community in which no registered nurses are ever available.
(c) All of the above facts were well known to defendant before suit was filed, and were established in extensive and specific detail in the affidavits in support of plaintiff’s successful motion for summary judgment. Although it filed not one affidavit in opposition to the facts set forth in plaintiff’s affidavits, defendant nevertheless continued to resist reimbursement of these items of expenses. For the reasons assigned, the judgment

appealed from is amended, and it is now ordered that there be judgment in favor of plaintiff, Rebecca B. McCutchon, and against the defendant, Mutual of Omaha Insurance Company, in the full sum of $11,-874, plus attorney’s fees in the sum of $1,500. Costs in both courts are to be paid by appellant.

AMENDED AND AFFIRMED.

      . $4,650 (75% of $6,201 paid by plaintiff).

      . $1,286 (75% of $1,715 paid by plaintiff).

      . Double the amount of plaintiff’s claim as recognized by the trial court.


author: BOWES, Judge. BEER, Judge,

text:
    Thomas BURNS v. Lenba D. Dominique, wife of/and Russell J. DOMINIQUE, City of Westwego, Parish of Jefferson and Liberty Mutual Insurance Co.
    No. 8670.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Refused March 31, 1978.

      Steven R. Plotkin and Jonathan M. Lake, New Orleans, for plaintiff-appellee.
    Denise M. D’Aunoy, Metairie, for Russell and Lenba Dominique and Liberty Mutual Insurance Company, defendants-appellants.
    Bridgeman & Conway, James R. Conway, III, Metairie, for State of Louisiana through the Department of Transportation and Development, defendant-appellant.
    Before GULOTTA, BEER and BOWES, JJ.
   BOWES, Judge.

Plaintiff, Thomas Burns, filed suit against Lenba D. Dominique, her husband, Russell J. Dominique, their insurer, Liberty Mutual Insurance Company, the City of Westwego, and the Parish of Jefferson, seeking to recover personal injury and property damages resulting from a collision at the intersection of Fourth Street and Avenue B in the City of Westwego. Other defendants, including the State of Louisiana, were later joined as defendants.

The Parish of Jefferson was dismissed on a summary judgment, and after trial on the merits the lower court rendered judgment in favor of plaintiff and against Mr. and Mrs. Dominique, Liberty Mutual Insurance Company, and the State of Louisiana through the Department of Transportation and Development, for $7,236.99. Judgment was also rendered dismissing all other defendants from the suit.

The record reflects the accident in question occurred on June 14,1974 at 1:15 in the afternoon. Defendants’ vehicle was traveling in a southerly direction on Avenue B and plaintiff’s vehicle was traveling in a westerly direction on Fourth Street. Fourth Street was the favored street. A stop sign required traffic to stop before crossing Fourth Street. The record indicates the stop sign was partially and considerably obstructed at the time of the accident, and for this reason Mrs. Dominique proceeded across Fourth Street without stopping for the stop sign.

The testimony of Mrs. Dominique leaves little doubt she was negligent for not stopping. She testified that she did not see the stop sign and did not look in either direction before crossing Fourth Street on the theory that the absence of a stop sign gave her an absolute right of way which did not require her to look.

Likewise, there is no doubt regarding the negligence of the State of Louisiana, Through the Department of Transportation. The courts have stated on numerous occasions the governmental authority in charge of maintaining safe roadway conditions is negligent in allowing a dangerous condition to persist. The rule was succinctly stated in Funderburk v. Temple, as follows:

“The law imposes a high degree of care on the part of governmental agencies charged with the responsibility of maintaining traffic signs, signals and other vehicular control devices. McDaniel v. Welsh, La.App., 234 So.2d 833. Failure of a governmental agency to repair a damaged, nonfunctioning or malfunctioning traffic signal, sign or control device, after reasonable notice, either actual or constructive, constitutes negligence rendering the responsible government agency liable for all reasonably foreseeable accidents occurring as a result thereof. McDaniel v. Welsh, above.”

The testimony of Officer Munch of the Westwego Police, and others, leaves no doubt that the sign had been partially obstructed for a very long time — perhaps years.

Defendants urge that plaintiff was guilty of contributory negligence by not looking to his right before proceeding into the intersection. The general rule involving inter-sectional collisions where a stop sign has been destroyed or misplaced was set out in Jenkins v. City of Alexandria, as follows:

“The law is settled that where a street has been properly designated as a right of way street, and appropriate signs showing it to be such have been erected, the preferred status of that street will not be lost merely because a stop sign is misplaced, improperly removed, destroyed or obliterated. Fontenot v. Hudak, 153 So.2d 120 (La.App. 3 Cir. 1963); Kinchen v. Hansbrough, 231 So.2d 700 (La.App. 1 Cir. 1970); Ory v. Travelers Insurance Company, 235 So.2d 212 (La.App. 4 Cir. 1970). Dillman v. Allstate Insurance Company, 265 So.2d 322 (La.App. 4 Cir. 1972).”

The motorist on a favored street has the right to assume that a driver approaching on a less favored street will yield the right of way, but once he sees or should see the other car will not observe the law, he must exercise reasonable care in order to avoid a collision. The trial judge in this case obviously concluded plaintiff exercised the necessary degree of care under all the circumstances and was not guilty of contributory negligence by entering the intersection when defendant failed to stop. We see no abuse of the wide discretion afforded by the jurisprudence to findings of fact of the trial judge and we conclude there is no reason to set aside his finding that plaintiff was not guilty of contributory negligence.

The only substantial issue presented in this appeal is the trial judge’s award for lost wages and property damage. With regard to the lost wage claim plaintiff was employed by Avondale Shipyards as a welder-foreman. It was established that his rate of pay was $5.40 per hour as of April 29, 1974 and the average work week at Avondale was 45 hours per week. Gary Eisler, job placement supervisor at Avon-dale, testified plaintiff was working the night shift for additional compensation, and he computed plaintiff’s normal gross pay as $262.90. Because plaintiff was absent from work eleven weeks and two days the court computed his lost wages at $2,997.06.

Defendants dispute this award on the basis that plaintiff did not introduce his prior work record at Avondale and he did not establish that work would have been available to him during the period of his disability. They also complained that plaintiff did not introduce corroborative evidence such as income tax returns or employment records.

Defendants also urged the court committed error by awarding $1,000 for damage to plaintiff’s truck because plaintiff did not support his claim with proper expert testimony. Plaintiff produced an estimate of damage prepared by a firm which ceased doing business prior to the trial and plaintiff was then allowed to offer testimony to substantiate the content of the estimate. The trial judge did not allow the estimate into evidence, but allowed plaintiff to make an offer of proof. After questioning the plaintiff about the truck and about the nature and extent of the damage inflicted on it, the trial judge awarded plaintiff $1,000 for the truck’s damage.

The Supreme Court in the case of Jordan v. Travelers Insurance Company, set forth the following rule:

“Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case. Civil Code Art. 1934(3); Brantley v. Tremont & Gulf Ry. Co., 226 La. 176, 75 So.2d 236 (1954), and decisions therein cited. This latter principle is also applicable, where the fact of loss of earnings or earning power, past or future, is proved, but not any exact amount. Goode v. Hantz, 209 La. 821, 25 So.2d 604 (1946); Clouatre v. Toye Bros. Yellow Cab Co., 193 So.2d 344 (La.App. 4th Cir. 1966), certiorari denied 250 La. 270, 195 So.2d 147 (1967); Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir. 1960), certiorari denied.”

Applying this principle to the facts of the case before us, it is clear the evidence produced by plaintiff sufficiently substantiates the trial court’s award of lost wages. The plaintiff proved by competent testimony the amount of wages he customarily earned and the amount of time lost because of the accident. The trial judge did not abuse his discretion in making the award, which must stand.

Likewise, the award of $1,000 for property damage was not an abuse of the trial court’s discretion. The damage to the truck was proved by photographs and by the testimony of the plaintiff. There is no adverse presumption that the person who prepared the estimate would have testified against plaintiff because plaintiff issued a subpoena for that person’s appearance, which could not be served. The truck was obviously damaged, and the trial judge’s estimate of damages, which could not be proved with mathematical certainty under the circumstances, is not reversible error.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

BEER, J., concurring with written reasons.

BEER, Judge,

concurring.

I am in general agreement with the majority opinion. However, I use this means to express my concern regarding the tendency to permit recovery of insufficiently proven special damages. I cannot say that the able trial judge went beyond his broad discretionary powers in making the $1,000 award for the damage to plaintiff’s truck. Yet, in my view, the record does not sufficiently support same.

      . La.App., 268 So.2d 689.

      . La.App., 324 So.2d 924.

        . Audubon Insurance Company v. Knoten, La. App., 325 So.2d 624; Fontenot v. Lucas, La. App., 228 So.2d 211.

      . 257 La. 995, 245 So.2d 151.


author: BOWES, Judge.

text:
    Esther M. JOHNSON v. DEPARTMENT OF FINANCE.
    No. 8674.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.

      Guy M. Huard, New Orleans, for plaintiff-appellant.
    Michael A. Starks, Asst. City Atty., Philip S. Brooks, City Atty., for defendant-appel-lee.
    Before GULOTTA, BEER and BOWES, JJ.
   BOWES, Judge.

Plaintiff, a control clerk of the Bureau of Food Stamps, Department of Finance, appeals from the affirmance of her dismissal by the New Orleans Civil Service Commission. Plaintiff was dismissed for insubordination and belligerence to her immediate supervisor and the administrator of the Bureau.

The record reflects that on June 17, 1975 the supervisor requested the administrator to transfer plaintiff to another Bureau or to another job within the Bureau because of repeated mathematical errors made on reports which had to be forwarded to the State.

The administrator called plaintiff to confer with her and the supervisor relative to the problem. Several weeks earlier the three of them had a previous conference relative to the errors. The problem was again explained to plaintiff and she became very excited and agitated. She asked both of them if they were crazy and dashed out into the secretarial area using profanity and hollering as she went.

The administrator followed plaintiff requesting her to return to his office so they might discuss the matter rationally, but she refused, creating a scene in front of the other employees and clients as she left.

Because of what had transpired the administrator terminated plaintiff for insubordination and disrespect and informed her by letter that day of her termination.

The jurisprudential guidelines controlling appeals of this nature are firmly established to the effect that the findings of fact of the Civil Service Commission are binding on the court when supported by the record (as is the case here), and the court may not substitute its conclusion on the facts for that of the Commission. It has been held that only where there is no evidence to support the ruling of the Commission, the court may reverse its decision. We conclude the Commission had sufficient evidence to support its conclusion that appellant’s termination was justified.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5; Mauboules v. Louisiana Wild Life & Fisheries Com’n., La.App., 312 So.2d 899; Bennett v. Division of Administration, La.App., 307 So.2d 118; Biggio v. Department of Safety and Permits, La.App., 299 So.2d 504.


author: BOWES, Judge. PER CURIAM.

text:
    Lillie DUPLESSIS, mother of Darren Duplessis and Darren Duplessis v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 8740.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Rehearing Denied Feb. 14, 1978.

      Dale C. Wilks, New Orleans, for plaintiffs-appellees.
    C. B. Ogden, II, New Orleans, for defendant-appellant.
    Before GULOTTA, BEER and BOWES, JJ.
   BOWES, Judge.

Plaintiff instituted this suit for damages for personal injuries and medical expenses resulting from an incident which occurred on a public service bus. Darren Duplessis, a minor 13 years of age, was injured while a passenger on a bus commandeered by a thief and driven in a careless and negligent manner. Following trial on the merits, judgment was rendered in favor of plaintiffs in the sum of $1,508. Defendant has appealed.

The record reflects the following facts: On October 12,1975 Duplessis was a passenger on the bus which was stopped at the intersection of Piety and North Galvez Streets in the City of New Orleans, when the driver left the bus without turning off the ignition to pick up lunch at a fried chicken outlet, and to take a comfort stop at a nearby gasoline station. The driver was gone for a minute and a half during which time a thief entered the bus and drove it away, crossing a neutral ground and striking a traffic semaphore in the process. Darren and another passenger were finally permitted to disembark some distance from where the bus was hijacked.

The issue presented for our determination is whether the bus driver’s failure to turn off the engine constitutes negligence which was a proximate cause of the injuries sustained by the minor.

The applicable law is that although a public carrier is not an insurer of its passengers’ safety, it is required to exercise the highest degree of vigilance, care and precaution for the safety of its passengers and is liable for the slightest negligence which causes or contributes to an injury. In addition, the mere showing of an injury to a fare paying passenger on a public carrier and his failure to reach his destination safely establishes a prima facie case against the carrier and imposes on it the burden of showing it was free from any negligence which caused or contributed to the injury.

The record reflects that the bus driver was violating Rule No. 48 of the New Orleans Public Service, Inc. Transit Department Transportation Rules and Regulations, which provides that an operator leaving a bus must turn the motor off, put the gears in neutral and set the hand brake.

It is also conceded that the driver violated LSA-R.S. 32:145 which provides in pertinent part:

“No person driving or in charge of any motor vehicle shall permit it to stand unattended without first stopping the motor, locking the ignition, removing the key, and effectively setting the brake thereon, ...” LSA-R.S. 32:145.

Defendant contends that these violations do not make defendant responsible for the carelessness of a thief who steals the car and thereafter injures someone else with his driving.

Our jurisprudence has long been settled to the effect that merely leaving the keys in a car is not a proximate cause of injuries received through subsequent negligence of a thief.

While the owner of an automobile who leaves his vehicle unattended with the keys in the car may owe no duty to the public at large against the risk of a thief’s negligent operation of an automobile, the jurisprudence is also to the effect that “a carrier of passengers is liable for the slightest negligence which contributes to an accident that causes injury to a passenger.”

The highest degree of care doctrine is not synonymous with a guarantee of the passenger’s safety against possible injury, until there is some indication which would require a vigilant, competent, and experienced driver exercising the highest degree of care to observe the contemplated reckless and unlawful act of another. The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted, to prevent injury to passengers.

Should an individual suffer injury while riding on a public carrier, he may establish a prima facie case of negligence by proving he was a fare paying passenger on the vehicle in question along with the nature of his injuries. This the plaintiff has done. At this point the burden of proof shifts to the carrier to exculpate itself of fault contributing to the individual’s injuries.

In order to exculpate itself, it is not necessary that the carrier establish the manner in which the plaintiff was injured. Rather the carrier need only to prove that its actions at the time of the passenger’s injury were not negligent ones.

We are of the opinion that the bus driver in leaving the bus unattended with its motor running and the doors open, particularly in view of the fact that at least one of the passengers was a minor, was negligent, and that such negligence was a proximate cause of the injury.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

PER CURIAM.

A typographical error has been called to our attention in the application for rehearing. The correct amount of the judgment rendered in favor of plaintiff in the lower court is the sum of $2,508, and not, as incorrectly listed, the sum of $1,508.

We correct this error herewith. Rehearing refused.

      . Wise v. Prescott, 244 La. 157, 151 So.2d 356; Gross v. Teche Lines, 207 La. 354, 21 So.2d 378; Baughn v. New Orleans Public Service, Inc., La.App., 314 So.2d 545; Aime v. Hebert, La.App., 282 So.2d 566; Jones v. New Orleans Public Service, Inc., La.App., 254 So.2d 652.

      . Roach v. Liberty Mutual Insurance Company, La.App., 279 So.2d 775; Berluchaux v. Employers Mutual of Wausau, La.App., 194 So.2d 463; Call v. Huffman, La.App., 163 So.2d 397.

      . Mire v. LaFourche Parish School Board, La. App., 62 So.2d 541.

      . Jones v. New Orleans Public Service, Inc., La.App., 254 So.2d 652; Coleman v. Shreveport Railways Company, La.App., 86 So.2d 590.

        . Hurst v. New Orleans Public Service, Inc., La.App., 235 So.2d 103; Baptiste v. New Orleans Public Service, La.App., 161 So. 783.


author: GULOTTA, Judge. BEER, Judge, BEER, Judge,

text:
    STATE of Louisiana, ex rel. William J. GUSTE, Jr., Attorney General and Charles W. Tapp, Director, Governor’s Consumer Protection Division, in their Official Capacity and on behalf of Barry Simon and all Louisiana Consumers similarly situated v. GENERAL MOTORS CORPORATION.
    No. 9045.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 17, 1978.
    Rehearing Denied Feb. 14, 1978.
    Writ Granted March 31, 1978.

      William J. Guste, Jr., Atty. Gen., Winston G. Decuir, Asst. Atty. Gen., Charles L. Porter, Staff Atty., Baton Rouge, Charles L. Patín, Jr., Staff Atty., New Orleans, for plaintiffs-appellees.
    Bernard, Micholet & Cassisa, Peter L. Bernard, Jr., Walter M. Babst, Metairie, and Otis M. Smith, Gen. Counsel, General Motors Corp., Detroit, Mich., for defendant-appellant; Fulbright & Jaworski, Blake Tartt, and Martin Beirne, Houston, Tex., of counsel.
    Before GULOTTA, BEER and BOWES, JJ.
   GULOTTA, Judge.

In this deceptive trade practice case, defendant appeals from trial court’s determination that plaintiffs’ claim is properly brought as a class action. In a motion to dismiss the appeal, plaintiffs argue no appeal lies because the trial court’s judgment is interlocutory and no showing of irreparable injury is made. Both the motion to dismiss and the case on the merits are now before us.

The suit, brought by the Attorney Gener.al in the name of the State and on behalf of Dr. Barry Simon, a consumer and purchaser of a new 1977 Oldsmobile automobile, alleges that General Motors Corporation, through its Oldsmobile Division, deceptively installed Chevrolet engines manufactured by the Chevrolet Division of General Motors into 1,467 1977 Oldsmobile automobiles which were sold to Louisiana consumers in Louisiana. According to the petition, the purchasers were not advised of the installation of the Chevrolet engines either prior to or at the time of the purchase of the automobiles. The petition further alleges other unfair and deceptive trade practices allegedly prohibited by the Unfair Trade Practices and Consumer Protection Law, LSA-R.S. 51:1401 et seq. The Attorney General, on behalf of the State and on behalf of the consumer Simon, seeks 1) in-junctive relief, 2) restitution and 3) actual damage awards to each consumer. According to the Attorney General, authority for injunctive relief is set forth in LSA-R.S. 51:1407 and for restitution and damages under LSA-R.S. 51:1408.

While acknowledging that LSA-R.S. 51:1407 authorizes the Attorney General to seek injunctive relief in deceptive trade practice cases, and acknowledging also that LSA-R.S. 51:1408 permits a court to issue any orders necessary to compensate aggrieved persons, defendant contends that no authority exists for the Attorney General to assert a class action seeking injunctive relief, restitution and actual damages in the name of the State and on behalf of a consumer in these cases.

According to General Motors, the “sever-alness” of the transactions, i. e., differences in the dealerships from which purchases were made, purchase prices paid, extent of damages claimed and a myriad of other divergent factual circumstances, supports the contention that the right sought to be enforced is not “common to all members of the class”, a prerequisite to a class action suit. Because the Attorney General is not a member of the class, i. e., a consumer, General Motors further contends the action fails to meet the requirement of LSA-C. C.P. art. 592 that the plaintiff be a member of the class who will fairly ensure the adequate representation of all members. Finally, it is defendant’s contention that while the consumer, Dr. Simon, is alleged to be a class member who will adequately represent the consumers comprising the class, the Unfair Trade Practices Law, under which this suit is brought, permits the consumer to bring an action individually for actual damages but specifically prohibits a claim by the consumer for “actual damages” in a “representative capacity”.

ON MOTION TO DISMISS

Plaintiffs seek to dismiss this appeal on the ground that the trial court judgment permitting the class action is interlocutory and not an appealable judgment. It is true, as pointed out by plaintiffs, that the judgment which holds this matter is properly filed as a class action is interlocutory in nature; nevertheless, we conclude that irreparable injury may result. Under these circumstances, an interlocutory judgment is appealable.

If a definitive and final judgment is not rendered, initially, on the class action question, irreparable injury may result not only to General Motors but also to the consumer. If it should be determined at a later date (after the matter has been heard on the merits) that no entitlement to a class action exists, the delay resulting to the consumer to file a suit, individually, would make a fair assessment of damages difficult because of the resulting depreciation of the vehicle. Furthermore, from defendant’s standpoint, any delays resulting in depreciation of the automobiles could conceivably result in added immeasurable damages to the defendant causing confusion in the proper evaluation of damages.

Though it is generally true that costs entailed in the litigation of a matter have been held not to constitute irreparable damages, nevertheless, in the instant case, the maintenance of plaintiffs’ claim as a class action involves the cost of an overwhelming number of notices and court days to be set aside for trial of the matter. If, at a later time, after trial on the merits and review, it is determined that the trial judge erred in permitting the matter to be tried as a class action, immeasurable expense and innumerable wasted court days will have resulted. Furthermore, litigants in other matters will have been needlessly delayed. Accordingly, we conclude the motion to dismiss is without merit. The motion is denied.

ON THE MERITS

Louisiana recognizes only the “true” class action as distinguished from the “spurious” or “hybrid” class action in the Federal system. See Stevens v. Board of Trustees of Police Pension Fund of City of Shreveport, 309 So.2d 144 (La.1975). However, in Williams v. State, 350 So.2d 131 (La.1977), the Supreme Court has recognized that a class action may be filed in a mass tort suit where 600 prisoners allegedly had suffered varying degrees of damages resulting from the tort. The Williams court visualized a similarity of actual damages.

While we recognize, in the instant case, some minimal differences in the circumstances surrounding the sales of new automobiles involving different dealerships and different profit margins and some varying claims, nevertheless, the proof related to the purchases of automobiles and the consumers’ claims will, to a large extent, be similar in nature. Under the circumstances of this case, we reject defendant’s argument that the right sought to be enforced is not common to all members of the class because sales were made from different dealerships at different prices, resulting in different degrees of damages in every case. We conclude, therefore, that class action procedure is permitted in the instant case unless the Unfair Trade Practices and Consumer Protection Law prohibits its use.

As hereinbefore pointed out, the Attorney General seeks, in this class action, 1) injunctive relief, 2) restitution and 3) actual damages. We find little difficulty in concluding that plaintiff is entitled, in a class action, to seek injunctive relief in the name of the State and on behalf of the consumer. See LSA-R.S. 51:1407; LSA-C.C.P. arts. 591 and 592; LSA-R.S. 51:1414. Realizing that allegedly 1,467 automobiles with substituted engines have been sold in Louisiana and considering other allegations of the petition set forth hereinabove, we conclude the prerequisites for a class action for in-junctive relief have been met. See Williams v. State, supra.

Conversely, we have little difficulty in concluding that the consumer, i. e., Dr. Barry Simon, and the Attorney General, on the consumer’s behalf, are not entitled to seek, in a class action, actual damages. See LSA-R.S. 51:1409.

The most serious problem with which we are confronted is whether or not the Attorney General, on behalf of the State and on behalf of a consumer, is entitled to seek restitution and/or diminution in a class action in view of the prohibition contained in LSA-R.S. 51:1409.

LSA-R.S. 51:1408 provides a remedy for compensation to an aggrieved party. We construe this section to mean that in a deceptive trade practice case restitution, as compensation to an aggrieved party, may be sought. Having concluded that the prerequisites, generally, for a class action have been met and being aware of the provisions of LSA-R.S. 51:1414 which authorize the Attorney General to use procedures available to persons under the Civil Code, Code of Civil Procedure and Revised Statutes, we might reasonably conclude further that the Attorney General has the right to assert a claim for restitution in a class action. However, LSA-R.S. 51:1409 specifically prohibits an action in a representative capacity for actual damages in a deceptive trade practice case. If restitution by definition is an aspect of “actual damages”, then it cannot be asserted in a class action and a conflict would exist between LSA-R.S. 51:1408 and LSA-R.S. 51:1409.

A basic rule in statutory construction, however, is that, where possible, apparent contradictions between different sections of the same act will be resolved so as to give meaning to all parts of the statute. See LSA-C.C. art. 17; Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (1952). In this respect, it is significant that LSA-R.S. 51:1409 uses the phrase “actual damages” which we interpret to mean relief other than the refund of the purchase price and the return to the status quo that constitute restitution. This interpretation resolves the conflict and allows the Attorney General, in a class action under LSA-R.S. 51:1407 and LSA-R.S. 51:1408, to seek restitution or diminution, even though LSA-R.S. 51:1409 prohibits a class action for any claim for actual damages.

Though we have been unable to find any Louisiana cases directly on point to support our conclusion that restitution is not a part of actual damages, we are cognizant of the distinction between restitution and damages made by LSA-C.C. arts. 2545 and 2547, dealing with redhibition. LSA-C.C. art. 2545 states:

Art. 2545. Liability of seller for concealment of vice
“Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

LSA-C.C. art. 2547 further provides that cases involving a seller’s fraud “may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages ... in favor of the buyer”. The use of the word “besides” in LSA-C.C. art. 2545 and the conjunctive “and” in LSA-C.C. art 2547 clearly indicates that within the context of these articles damages is a remedy available in addition to restitution and/or diminution. Though we recognize that the instant suit is not one brought under the redhibition articles but rather under the deceptive trade practice statute, both actions involve a vice or defect in a thing sold, an alleged misrepresentation and the buyer’s entitlement to restitution of the purchase price and damages. The distinction between the terms restitution and damages in the Code articles dealing with redhibition is, therefore, supportive of our conclusion that restitution is not a part of “actual damages” within the meaning of the deceptive trade practice law. See cases in other jurisdictions relating to class actions by the Attorney General for restitution to consumers and other citations offered by the State.

In addition to the authority cited above, we consider it significant that LSA-R.S. 51:1414 allows the Attorney General to use “all other authority and procedures available to persons under the Louisiana Civil Code, Code of Civil Procedure and Revised Statutes” in enforcing the deceptive trade practice law. Had the Legislature intended to prevent the use of a class action for restitution of aggrieved consumers, it would seem that some limiting language would have been placed in Section 1414 such as “except as otherwise provided in Section 1409” or “except for class action procedure”. Section 1414 does not contain such a limitation, but rather authorizes the Attorney General to use “all” procedures.

We conclude, therefore, the Attorney General may, on behalf of consumers, file a class action suit for injunctive relief and for restitution and/or diminution under LSA-R.S. 51:1407 and LSA-R.S. 51:1408. Whether or not a consumer is entitled to restitution is dependent upon proof whether he was, in fact, aggrieved, the extent to which he was aggrieved or, indeed, whether he desires restitution or diminution.

Accordingly, the judgment maintaining the rule for a class action is modified as follows. Plaintiffs’ right to seek injunctive relief, in a class action, on behalf of the State and on behalf of Dr. Barry Simon, is recognized. Plaintiffs’ right to seek restitution and/or diminution, as such, in this class action, on behalf of Dr. Barry Simon is recognized. Plaintiffs are not entitled, in a class action, to seek actual damages on behalf of Dr. Barry Simon. As amended, the judgment is affirmed.

Consistent with the above, the matter is remanded to the trial court for further proceedings.

AMENDED, AFFIRMED AND REMANDED.

BEER, J., concurs.

BEER, Judge,

concurring.

Agreeing fully with the majority’s opinion with respect to the right of the Attorney General to seek injunctive relief in a class action and the lack of the Attorney General’s entitlement to seek actual damages, the following observations are restricted to the majority’s consideration of the Attorney General’s right to seek restitution and/or diminution in this class action.

I am in general agreement with the majority’s treatment of the restitution and/or diminution issue but with some reservations.

For example, there may be a number of purchasers of 1977 Oldsmobile (or other General Motors) automobiles into which were installed engines manufactured by the Chevrolet Division of General Motors who either knew that this was the case prior to purchase of the vehicle or who, upon discovery, were totally indifferent with respect thereto. In such instances, I perceive no basis upon which General Motors Corporation is obliged to make restitution or to diminish the purchase price of the vehicle.

Where the purchaser has experienced disgruntlement or apprehension, his right to be recompensed for same can be addressed along with his claim for such actual damages as have been allegedly suffered. Thus, I am of the view that the class able to be represented by the Attorney General insofar as restitution and/or diminution is concerned should be further restricted so that it includes only those disgruntled or apprehensive purchasers who have no actual damage claim (beyond their disgruntlement and apprehension) and whose claim will, thereby, be limited to the relief apparently envisioned by the legislature when, in its wisdom, it enacted LSA-R.S. 51:1408.

Finally, I believe that LSA-R.S. 51:1408 is, essentially, punitive in nature or, at least, more susceptible to be defined as punitive. With that in view, I believe that it must be strictly construed and administered in such a way as to obviate any misplaced overzealousness which might result in civil penalties that are as onerous as criminal fines without the attendant due process safeguards.

BEER, Judge,

dissenting from the denial of granting the application for rehearing filed on behalf of General Motors Corporation.

Upon additional reflection and being to some extent influenced by the application for rehearing of General Motors Corporation, I would vote to grant a rehearing in this matter, being of the view that the proposed class action will be of little or no benefit to those who have been seriously aggrieved as a result of the alleged improprieties of General Motors Corporation and that those who are merely disgruntled or apprehensive are not, on the showing made, necessarily a part of the class which Dr. Simon supposedly represents.

      . Several alternative claims for restitution are sought, including a return of the vehicle to General Motors and refund of the purchase price to the consumer; replacement of the Chevrolet engine with the proper Oldsmobile one; a return of the automobile to General Motors in exchange for a new Oldsmobile automobile equipped with the proper Oldsmobile engine; or a return to the consumer of the amount in excess of the diminuted value resulting from the installation of the Chevrolet engine.

      . LSA-R.S. 51:1407 provides:
      § 1407. Restraining prohibited acts
      “Whenever the director and the attorney general has reason to believe that any person is using, has used or is about to use any method, act or practice declared by R.S. 51:1405 to be unlawful, the director may instruct the attorney general to bring an action for injunctive relief in the name of the state against such person to restrain and enjoin the use of such method, act or practice. The action may be brought in the district court having civil jurisdiction in any parish in which such person resides, or is domiciled or has his principal place of business, or, with consent of the parties, may be brought in the district court of the

        parish where the state capítol is located. These courts are authorized to issue temporary restraining orders or preliminary and permanent injunctions to restrain and enjoin violations of this chapter, and such restraining orders or injunctions shall be issued without bond.”

      . LSA-R.S. 51:1408 provides:
      § 1408. Additional relief
      “The court may issue such additional orders or render judgments against any party, as may be necessary to compensate any aggrieved person for any property, movable or immovable, corporeal or incorporeal, which may have been acquired from such person by means of any method, act or practice declared unlawful by R.S. 51:1405, whichever may be applicable to that party under R.S. 51:1418.”

      . LSA-C.C.P. art. 591(1) provides:
      Art. 591. Prerequisites
      “A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:
      (1) Common to all members of the class; or * * *"

      . LSA-R.S. 51:1409(A) provides:
      § 1409. Private actions
      “A. Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. * * *”

      . LSA-C.C.P. art. 1841 provides:
      Art. 1841. Judgments, interlocutory and final
      “A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
      “A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
      “A judgment that determines the merits in whole or in part is a final judgment.”

      . LSA-C.C.P. art. 2083 provides:
      Art. 2083. Judgments appealable
      “An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

      . See Trice v. Simon, 233 So.2d 609 (La.App. 3d Cir. 1970); Green v. New Orleans Public Service, Inc., 194 So.2d 398 (La.App. 4th Cir. 1967).

      . In State v. Ralph Williams' North West Chrysler Plymouth, Inc., 87 Wash.2d 298, 553 P.2d 423, 438 (1976), the Washington Supreme Court, in a deceptive trade practice case, distinguished a class action for restitution from one for damages. In Kugler v. Romain, 58 N.J. 522, 279 A.2d 640 (1971), the New Jersey Supreme Court permitted the Attorney General to bring a class action for restitution of consumers under the state deceptive trade practice statute. See also Kugler v. Koscot Interplanetary, Inc., 120 N.J.Super. 216, 293 A.2d 682 (1972).
      We also recognize the distinction in the law of contracts in the common law between restitution and damages for breach. See Calamari and Perillo, Contracts, §§ 237-242 (1970).

      . Breeden and Lovett in “Louisiana’s New Unfair Trade Practice and Consumer Protection Laws,” 20 La.Bar.J. 307, 321 (1973) indicate that restitution may be awarded in a multi-party action by the Attorney General even though a class action for actual damages is prohibited by LSA-R.S. 51:1409. See also the discussion in Comment, “Louisiana’s Consumer Protection Law — Three Years of Operation,” 50 Tul.L. Rev. 375, 386 (1976).


author: GUIDRY, Judge.

text:
    John E. JONES, Plaintiff-Appellee, v. Ora Cripps YOUNGBLOOD and Wayne D. Joiner, Defendants-Appellants.
    No. 6453.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 25, 1978.
    Wayne D. Joiner, in pro per.
    Cucullu & Barnes, A. D. Barnes, Jr., New Orleans, plaintiff-appellee.
    Neblett & Führer, Robert D. Downing and Michael Johnson, Alexandria, third-party plaintiff-appellee.
   MOTION TO DISMISS APPEAL

Before GUIDRY, FORET and JOHNSON, JJ.

GUIDRY, Judge.

The plaintiff-appellee, John E. Jones, moves to dismiss the appeal of defendant-appellant, Wayne D. Joiner. The motion is opposed.

We grant the motion to dismiss.

On March 26, 1976, plaintiff filed suit against defendants Ora Cripps Youngblood and Wayne D. Joiner, seeking cancellation of a buy-sell agreement and judgment for the amount deposited at the time said agreement was confected. Youngblood then filed a third party demand against Joiner. On June 9, 1976, the trial court granted plaintiff’s motion for summary judgment as to defendant Youngblood only.

On August 19,1977, the trial court signed a final judgment in favor of the third party plaintiff, Ora Cripps Youngblood, and against the third party defendant, Wayne D. Joiner. Joiner’s timely motion for a new trial was denied on September 20,1977, and on September 21, 1977, he applied for and was granted a devolutive appeal from both the judgment of June 9, 1976 and the judgment dated August 19, 1977. Plaintiff-ap-pellee Jones seeks dismissal of Joiner’s appeal insofar as the June 9,1976 judgment is concerned on two grounds; first that Joiner has no standing to appeal from said judgment and secondly, in any event the delay for appealing from said judgment has long expired.

We need not determine whether Joiner has standing or sufficient interest entitling him to appeal from the judgment of June 9, 1976, for assuming arguendo that he does it is obvious that the delay for appealing from said judgment has long expired.

A summary judgment is a final judgment, and an appeal must be taken within the time and in the manner specified for final judgments. LSA-C.C.P. art. 968. Barrois v. Service Drayage Company, 250 So.2d 135 (La.App. 4th Cir. 1971). Since Joiner’s appeal was not perfected until well over a year after the summary judgment was granted, it is untimely insofar as it relates to the summary judgment.

However, the appeal is timely as to the final judgment signed on August 19, 1977.

For the reasons assigned, the appellant’s appeal is dismissed as to the judgment of June 9, 1976, but is maintained as to the judgment of August 19, 1977.

APPEAL DISMISSED IN PART AND MAINTAINED IN PART.

      . For purposes of trial, this suit was consolidated with the suit entitled Youngblood v. Joiner, trial docket Number 97,520.


text:
    Doris McNeill LEWIS et al. v. James McNEILL et al.
    No. 49883.
    Supreme Court of Mississippi.
    Jan. 18, 1978.
    Rehearing Denied Feb. 15, 1978.
    Jimmie H. Fields, Meridian, for appellant.
    Riddell & Dabbs, Gilford F. Dabbs, III, Quitman, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    Lottie NEWELL, Conservator of the Estate of Ralph E. Newell and Harold Noe v. A. B. CATLETT.
    No. 49906.
    Supreme Court of Mississippi.
    Jan. 25, 1978.
    Bourdeaux & Jones, Thomas Bourdeaux, Harold Noe, Meridian, for appellant.
    Covington & Roberts, Larry E. Roberts, Meridian, for appellee.
    Before INZER, P. J., SUGG and WALKER, JJ., and BILLY G. BRIDGES, Commissioner.
   AFFIRMED.