author: SANDERS, Chief Justice. CALOGERO., Justice

text:
    STATE of Louisiana v. Johnson WASHINGTON, Jr.
    No. 55806.
    Supreme Court of Louisiana.
    Oct. 1, 1975.

      Jacques F. Bezou, New Orleans, Garon, Brener & McNeely for defendant-appellant; David E. Kendall, NAACP Legal Defense and Educational Fund, Inc., New York City, of counsel.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Walter L. Smith, Jr., Asst. Atty. Gen., Norman J. Pitre, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The Grand Jury of St. Charles Parish indicted Johnson Washington, Jr. for the first degree murder of James Allen Arter-bury, a deputy sheriff of St. Charles Parish, in violation of LSA-R.S. 14:30. Washington, represented by retained counsel, was arraigned and pleaded not guilty and not guilty by reason of insanity. He was granted sixty days to file preliminary pleadings.

Upon a defense motion, the court appointed a lunacy commission to examine the defendant. After a hearing, the court found him competent to stand trial.

On January 31, 1974, the jury returned a verdict of guilty as charged. Later, the trial judge imposed the mandatory death sentence. The defendant appeals, relying on three assignments of error.

The background facts are as follows: Deputy James Allen Arterbury of the St. Charles Parish Sheriff’s Office answered a disturbance call at the Nite Cap Lounge in Killona, Louisiana about 8:30 p.m., on July 4, 1973. Because the crowd became unruly, the deputy returned to his car, called for assistance, and took his shotgun from the trunk.

Deputy Arterbury walked toward the crowd, keeping the muzzle of the shotgun pointed skyward at all times. The crowd became more belligerent and surrounded the deputy sheriff. Someone grabbed the deputy’s shotgun and it discharged harmlessly into the air. Washington then took the revolver out of the officer’s holster and shot him in the back. The crowd scattered, leaving the fallen officer mortally wounded.

ASSIGNMENT OF ERROR NO. 1

Prior to trial, defense counsel filed a motion to quash the indictment alleging the unconstitutionality of LRS-R.S. 14:30, the first degree murder statute. The defendant asserts that the mandatory death penalty constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and is a denial of equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution.

LSA-R.S. 14:30 reads as follows:

“First degree murder is the killing of a human being:
* * * * * *
“(2) When the offender has a specific intent to kill, or to inflict great bodily harm upon, a fireman or a peace officer who was engaged in the performance of his lawful duties;
******
“For the purposes of paragraph (2) herein, the term peace officer shall be defined and include any constable, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, district attorney, assistant district attorney or district attorneys’ investigator.
“Whoever commits the crime of first degree murder shall be punished by death.”

The defendant relies upon Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, in light of that decision, we have heretofore upheld the constitutionality of the capital punishment provisions of the murder statute. See State v. Hill, La., 297 So.2d 660 (1974); State v. Selman, La., 300 So.2d 467 (1974).

In State v. Hill, supra, where the defendant had been convicted under paragraph (4) of LSA-R.S. 14:30, we held:

“The death penalty for murder, when the perpetrator has the intent to kill or inflict great bodily harm on more than one person, is neither barbarous nor disproportionate to the offense. See State v. Selman, supra; State v. Crook, 253 La. 961, 221 So.2d 473 (1969); 21 Am. Jur.2d, Criminal Law, § 613, p. 563. In fact, the Due Process Clause of the United States Constitution sanctions the death penalty when it is imposed with due process of law.
“We conclude, therefore, that capital punishment per se is not constitutionally proscribed.”

In Hill, we also rejected defense counsel’s equal protection argument, stating:

“As provided in the statute, the death penalty is mandatory for first degree murder. Article 817 of the Louisiana Code of Criminal Procedure, as amended by Act 125 of 1973, prohibits a qualification of the guilty verdict. If the defendant is found guilty as charged, the trial judge must impose the death penalty. The penalty cannot be applied in a discriminatory manner. See Furman v. Georgia, supra; State v. Holmes, 263 La. 685, 269 So.2d 207 (1972). It is true that Article 814, as amended by Act 126 of 1973, lists as responsive verdicts second degree murder, carrying a sentence of life imprisonment, and manslaughter, carrying a sentence of imprisonment up to 21 years. See LSA-R.S. 14:30.1; LSA-R.S. 14:31. The use of these lesser verdicts, however, is contingent upon the jury finding insufficient evidence to convict the defendant of first degree murder, with which he is charged. The jury is concerned only with guilt. It has no sentencing function. LSA-La.Const. Art. 19, Sec. 9 (1921); LSA-C.Cr.P. Art. 802.”

Our prior decisions are controlling. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

During the examination of prospective jurors, the trial court excused fourteen jurors for cause. In so doing, the trial judge relied on Paragraph (2) of Article 798 of the Louisiana Code of Criminal Procedure, which provides that it is good cause for challenge by the State that:

“The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt; . . ..”

The defense argues, however, that the fourteen jurors were improperly excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In that case, the United States Supreme Court held:

“. . . [A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”

At the time Witherspoon v. Illinois was decided by the United States Supreme Court, a Louisiana jury in a capital case could return a verdict of “guilty without capital punishment.” The mandatory sentence for such a verdict was life imprisonment rather than death. LSA-C.Cr.P. Art. 817. After Furman v. Georgia was decided, our legislature restructured its capital punishment provisions to comply with that decision. The death sentence was , authorized for a restricted number of crimes, but it was made mandatory, thus eliminating the discretion formerly exercised by the trial jury. See, e. g., LSA-Í1.S. 14:30; LSA-C.Cr.P. Art. 817, as amended by Act 502 of 1972 and Act 125 of 1973. Thus, in Louisiana, the trial jury now has no role in sentencing.

We can reasonably conclude that under the revised procedure, the sentence is not “imposed or recommended” by the jury. Hence, the holding in Witherspoon, designed to avoid a “hanging jury,” would not be strictly applicable.

In the present case, however, we note that the prospective jurors were informed during voir dire examination that the sentence for first degree murder was death. They were then questioned concerning their attitude toward capital punishment. In the light of the record, therefore, we assume that the holding of Witherspoon v. Illinois applies.

The Witherspoon holding is narrow. The Court stated:

“The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt. Nor does it involve the State’s assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who said that they were opposed to capital punishment and all who indicated that they had conscientious scruples against inflicting it.”

Thus, it is clear that the holding only bans the exclusion of jurors who voiced general objections to capital punishment or expressed conscientious or religious scruples against its infliction. It does not ban the exclusion of jurors who state they will not vote for a verdict that carries capital punishment. See State v. Brown, La., 302 So.2d 290 (1974); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971); State v. Pratt, 255 La. 919, 233 So.2d 883 (1970).

We have examined the record in the present case. Each of the excused jurors was questioned at length by the State and, in most instances, by the trial judge. The prospective juror was excused for cause only when the testimony made clear that under no circumstances could he return a verdict of guilty of first degree murder or that his fixed opinions prevented an impartial determination of guilt based upon the evidence.

We conclude that this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

This assignment relates to the trial court’s refusal to grant the defense motion to suppress a confession made by the defendant. The defense argues that, prior to making the confession, the defendant was not effectively apprised of his rights as enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the confession was given “under grave duress, coercion and fear.”

The three officers present at the arrest, Coleman, St. Pierre, and Kimble, testified that, on his arrest, the defendant was orally advised of his Miranda rights (Tr. 14, 73, 99). Both the defendant and his father indicated that they understood these rights.

Officers Loque and Coleman, who were at the jail during much of the morning of July 5, 1973, testified that they were able to view the defendant in his cell frequently and saw no evidence of intimidation or physical abuse. Officers St. Pierre and Kimble testified to the same effect. Officer Gary Zeringue, who photographed the defendant at about 8:00 a.m., on July S, 1973, described the defendant as looking “normal.” Dr. Wilson Couch, who treated the defendant on August 1, 1973, saw no signs of physical abuse.

Between 8:20 and 9:00 a.m., the defendant signed a statement acknowledging that he had been advised of his Miranda rights. During that time interval, he also signed a confession, which contains a recital that it was given voluntarily and without any threats or promises.

The defense contends, however, that because of defendant’s low intelligence and inadequate education, he did not knowingly waive his rights and had no adequate understanding of what he was signing.

The record reflects that the defendant had an education described by his mother as “sixth or seventh grade.” Defendant, himself, described his education as being “to the fourth grade.” He attended the Leesville School for the retarded for about two years. There can be no doubt that he was of low intelligence. Low intelligence alone, however, does not vitiate the waiver and confession. See State v. Edwards, 257 La. 707, 243 So.2d 806 (1971); State v. Chinn, 229 La. 984, 87 So.2d 315 (1955). The question must always be whether the State has borne its burden of proving that the defendant was advised of his rights, that he voluntarily elected to make a statement, and that his confession was otherwise free and voluntary.

Officer St. Pierre, who witnessed the signing of both documents, testified that he first serially questioned the defendant as to whether he understood the rights waived, a standard method for obtaining an effective waiver from a person of subnormal intelligence. The defendant answered each question affirmatively and then signed the “Voluntary Statement” form. Officer St. Pierre testified that he then transcribed the defendant’s confession as the defendant related it to him.

The defendant was questioned at the hearing on the Motion to Suppress regarding his waiver and the confession. Although he denied being given the Miranda warnings, he testified in substantial accord with his written confession. He stated:

“Then I moved to the side of the deputy, pulled his gun out of the holster and shot him one time in the right back side.” (Tr. 52).

In contending that the waiver executed here was ineffective, the defense also relies on the Miranda principles set forth in Westover v. United States, 384 U.S. 436, 494, 86 S.Ct. 1602, 1638, 16 L.Ed.2d 694, 735 (1966) , Westover had been arrested at 9:45 p. m., not given any Miranda-type. warnings, and was interrogated throughout the night and following morning by the local police. He was turned over to FBI agents at noon and confessed two and one-half hours later. The Supreme Court found “[no] evidence of an articulated waiver of rights after the FBI commenced its interrogation.” In the instant case, however, the Miranda warnings were given to Washington upon his arrest and prior to his confession. The defendant waived individually each right, both orally and in writing.

Westover, therefore, is factually distinguishable.

In connection with this assignment, the defense also argues that the defendant’s written confession was the product of an earlier inadmissible oral confession. The record does reveal that the defendant was questioned during the early morning hours of July 5, 1973. Although the record is not altogether clear, we assume arguendo that the defendant made an earlier inculpa-tory statement to Deputy Coleman.

The State did not introduce the earlier statement at trial. Since Miranda warnings were properly given upon defendant’s arrest, we find no basis in the record for holding that the earlier statement was inadmissible. Moreover, considering the “totality of the circumstances,” we hold that the defendant’s later confession was sufficiently insulated from the earlier statement. See Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968).

The record reflects that the defendant’s confession, which was admitted in evidence, was given sometime later in the morning to Officer St. Pierre, who had not seen the defendant since shortly after his arrest. Our earlier analysis assures us that the Miranda warnings given in conjunction with the taking of the written and oral confessions were adequate to enable the defendant to make an informed waiver. We conclude that the confessions were not infected by the assumed earlier statement.

Hence, the ruling of the trial judge was correct.

For the reasons assigned, the conviction and sentence are affirmed.

DIXON and BARHAM, JJ., concur.

CALOGERO, J., concurs and assigns reasons.

TATE, J., concurs: As to Bill No. 2, see my concurring opinion in State v. Watts, 320 So.2d 146 (rendered this date).

CALOGERO., Justice

(concurring).

I concur in the affirmance of this defendant’s conviction and sentence, but I disagree with the majority’s handling of Assignment of Error No. 2. While the trial court did indeed excuse fourteen jurors for cause, allegedly because they indicated that they could not vote for the imposition of capital punishment despite the evidence of guilt presented by the state, the record reveals that defense counsel acquiesced in those rulings by the trial court. No objection, based upon either Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), or upon Article 798(2) of the Code of Criminal Procedure, was made by defense counsel at the time the jurors were excused. Accordingly, defendant cannot avail himself of this alleged error on appeal. Art. 841, C.Cr.P. See State v. Watts, La., 320 So.2d 146, decision rendered this date.

      . Carl Calvin Westover v. United States was consolidated for treatment with Ernesto A. Miranda v. State of Arizona, Michael Vignera v. State of New York, and State of California v. Roy Allen Stewart. Westover is commonly cited Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, it is separately cited here because of the particular factual circumstances of Westover’s arrest.


source: Caselaw Access Project

author: MORRIS, Judge. PRICE, Judge.

license: Public Domain

text:
    Harold COGSWELL, Plaintiff-Appellant, v. TOWN OF LOGANSPORT, Defendant-Appellee.
    No. 12621.
    Court of Appeal of Louisiana, Second Circuit.
    June 3, 1975.
    On Rehearing Oct. 1, 1975.
    En Banc. Rehearing Denied Nov. 6,1975.
    Writ Refused Dec. 19, 1975.
    Gamble & Sledge by Jack R. Gamble, Jr., and Claude R. Sledge, Mansfield, for plaintiff-appellant. *'

    W. Charles Brown, Mansfield, for defendant-appellee.
    Before BOLIN, DENNIS and MORRIS, JJ.
   MORRIS, Judge.

Plaintiff, Harold Cogswell, brought this suit against the Town of Logansport to recover attorneys’ fees under LSA-R.S. 42:261, subsection (D), now designated subsection (E) as amended by Act No. 696 of 1974. This suit for attorneys’ fees arises out of a suit filed by the Town of Logansport against Harold Cogswell bearing No. 33,190 on the docket of the Eleventh Judicial District Court for the Parish of De Soto, in which the Town of Logans-port sought a Writ of Mandamus against Harold Cogswell who was the duly elected Chief of Police of the town. The facts of that case, as they relate to the present matter, are simple. Harold Cogswell, Chief of Police of the Town of Logansport, had in his possession a house trailer alleged to have been abandoned. The town was attempting to compel him to deliver it in accordance with a town ordinance to a lot provided by the town for abandoned vehicles, there to be disposed of in accordance with law. A judgment was rendered in that suit against plaintiff, Town of Lo-gansport, and in favor of defendant, Harold Cogswell, the decretal portion of which reads as follows:

“IT IS ORDERED, ADJUDGED AND DECREED:
(1) That the exception of unauthorized use of summary procedure be and the same is hereby overruled.
(2) That the alternative writ of mandamus issued on April 5, 1974, is recalled and vacated, and the plaintiff’s suit is dismissed.”

Since the defendant, Harold Cogswell, was successful in that suit and the Town was unsuccessful, he brought the present action to recover the attorneys’ fees incurred in defense of that litigation. By stipulation it was agreed that plaintiff, Harold Cogswell, was a duly elected official of a political subdivision of the State of Louisiana; that the Town of Logans-port is a municipal corporation with capacity to sue and be sued; that in the previous litigation Harold Cogswell was sued in his official capacity; that judgment was rendered dismissing the suit brought by the Town of Logansport, and that the judgment was not appealed and had become final. Judgment was rendered by the trial court on the stipulation of facts and on the record of Suit No. 33,190, filed in evidence, in favor of defendant, Town of Lo-gansport, and against plaintiff, Harold Cogswell, dismissing his suit for attorneys’ fees. Plaintiff appeals from this judgment.

The statute under which plaintiff in the present matter claims attorneys’ fees reads as follows:

“Any party who shall file suit against any duly elected or appointed public official of the State of Louisiana or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office . , and who shall be unsuccessful in his demands shall be liable to said public official for all attorneys’ fees incurred by said public official in the defense of said lawsuit or lawsuits
“The defendant public official shall have the right by rule to require the plaintiff to furnish bond, as in the case of bond for costs, to cover such attorneys’ fees before proceeding with the trial of said cause.” LSA-R.S. 42:261, subd. D (now E) [Emphasis Supplied]

In a well reasoned opinion the trial court held that this statute was intended to protect public officials from harrassment by private citizens and that the term “any party” as used in the statute did not apply to municipalities such as the Town of Lo-gansport. In reaching this construction the trial judge concluded that the intent of the legislature was to grant to public officials protection from harrassment and unfounded suits by private citizens, not to prevent or discourage suits by public officers or political subdivisions against another public officer. He further stated that the court has a duty to restrain the operation of a statute within narrower limits than the words import if the court is satisfied that their literal meaning would extend the statute to cases the legislature never intended to include. While we do not disagree with the reasoning of the trial judge in a proper case, we do not think that it is necessary to confine the words “any party” within narrow limits in order to carry out the intent of the legislature, for, in our opinion, this case does not present a factual situation covered by the statute.

The suit which Town of Logans-port brought against Harold Cogswell, out of which this suit for attorneys’ fees arose, was a suit for a writ of mandamus, defined in Art. 3861 La.Code of Civil Procedure as follows:

“Mandamus is a writ directing a public officer or a corporation or any officer thereof to perform any of the duties set forth in Articles 3863 and 3864.”

Black’s Law Dictionary, Fourth Edition, defines the Writ of Mandamus as follows:

“Writ of Mandamus” is summary writ issued from court of competent jurisdiction to command performance of specific duty which relator is entitled to have performed. People v. Nelson, 346 Ill. 247, 178 N.E. 485, 487.”
* * * * * *
“The writ of mandamus is either preemptory or alternative, according as it requires the defendant absolutely to obey its behest, or gives him an opportunity to show cause to the contrary. It is the usual practice to issue the alternative writ first. This commands the defendant to do the particular act, or else to appear and show cause against it at a day named. If he neglects to obey the writ, and either makes default in his appearance or fails to show good cause against the application, the peremptory mandamus issues, which commands him absolutely and without qualification to do the act.”

A mandamus proceeding is thus a device used to compel performance.

A cursory examination of the Petition for Mandamus in Suit No. 33,190 will show that the Town of Logansport was attempting to have its Town Marshal (Chief of Police) perform. In paragraph IV of the Petition for Mandamus it is alleged that defendant therein (Harold Cogswell) . was obligated and bound by law to place the aforesaid house trailer in the custody and possession of the said town by bringing it to the Town of Logansport parking lot for abandoned vehicles.” This is an allegation of the duty of the Town Marshal. The prayer of the petition then asks that the Town Marshal be compelled to deliver the house trailer to the lot owned by the Town of Logansport on which abandoned vehicles are customarily stored.

The statute on which plaintiff bases his claim states that a duly elected official is entitled to attorneys’ fees “for any matter arising out of the performance of the duties of his office,1’ if he is the successful litigant. The key word is “performance”, which is defined as, “the act or process of carrying out something . . . ; something accomplished or carried out .” Webster’s Third New International Dictionary at page 1878.

The title to acts of the legislature may often be examined to determine legislative intent. In this regard it is appropriate to observe that the title to Act No. 304 of 1960 which added sub-section (D) to LSA-R.S. 42:261 reads as follows:

“To amend Section 261 of Title 42 of the Louisiana Revised Statutes of 1950 by adding thereto a new Sub-section to be designated as Sub-section “D”, to provide for attorneys’ fees incurred by any public official of the State of Louisiana, its agencies or any of its political subdivisions in the successful defense of lawsuits brought as a result of performance of the duties of his office.” (Emphasis Supplied)

The title uses the term “result of performance” and the body of the act reads “arising out of the performance.” The two phrases construed together make it abundantly clear that the statute applies to only one area of litigation against public officials.

Non-performance of what the town considered to be the duty of the Chief of Police was the complaint, not something growing out of performance. The action brought by the town does not come within the ambit of the protection afforded by the statute, for the town was not seeking redress for the public official’s performance of official duties but to compel that performance. The two are not the same, and LSA-R.S. 42:261(D), now (E), provides for the recovery of attorneys’ fees only where the matter arises from performance. It does not include a suit to compel performance.

There are practical reasons for limiting the protection afforded by the statute, for mandamus is the only way to compel the performance of an official duty, and it would not be in the best interest of the public to make liability for attorneys’ fees and the giving of a bond therefor (as the statute so provides) a condition for suing to compel performance of official duties. To do so would be to discourage, if not stop entirely, mandamus suits and allow public officials to disregard the duties of their office without being answerable to the public.

We believe the legislature only intended to provide the protection to suits brought by parties claiming injury growing out of performance of a public official, and if there has been no performance, but only a suit to compel that performance, such as this Mandamus suit, there is no coverage under the statute.

For the reasons; assigned the judgment of the trial court is affirmed at appellant’s cost.

Before BOLIN, PRICE, HALL, DENNIS and MARVIN, JJ.

PRICE, Judge.

Harold Cogswell, the Chief of Police of Logansport, Louisiana, brought this action against the Town of Logansport to recover attorney’s fees for his successful defense of a mandamus action. The lower court denied the fees and we affirmed that decision in our original opinion on this appeal by Cogswell.

Our original opinion held that a public official who was sued to compel his performance of a duty was not afforded the protection of LSA-R.S. 42:261(E) as the language of the statute indicates the legislature intended its provisions to be limited to suits stemming from the performance of his duties.

Cogswell in application for rehearing contends this result is erroneous in view of the stipulation made by the Town at the trial of the matter that the suit brought by it against him was on a matter arising out of the performance of his duties as Chief of Police.

We granted a rehearing primarily to reconsider the effect of this stipulation on the reasons adopted in our original opinion. This matter was submitted to the trial judge for adjudication on the basis of a joint stipulation of fact prepared and executed by the attorneys for both parties. Paragraph 3 of this agreement in pertinent part reads as follows:

“On April 5, 1974, Suit #33,190, Town of Logansport, Louisiana, vs. Harold Cogswell, was filed with the Town of Logansport - - - suing Harold Cogs-well in his official capacity for a writ of mandamus on a matter arising out of the performance of the duties of his office

The subject statute R.S. 42:261(E) provides as follows:

“Any party who files suit against any duly elected or appointed public official of this state of or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking- to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorney’s fees shall be fixed by the court.”

After giving this matter thorough consideration we now conclude that this stipulation by the Town constitutes a judicial confession that the action brought by it against Cogswell was on a matter arising out of the performance of his duties and thus precludes any determination by us of whether a mandamus suit was intended to be within the actions for which the statute offers protection to a public official.

La.C.C. art. 2291 provides as follows:

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

Also see Irving v. Sondheimer, 126 So.2d 401 (La.App. 2nd Cir. 1960), and Smith v. Everett, 291 So.2d 835 (La.App. 4th Cir. 1974). Writ refused.

The Town of Logansport did not urge this interpretation of the statute as a defense in the trial court and has not seriously urged it on oral argument of this rehearing application. It has taken the position that a public official may only claim attorneys fees under the subject statute when he has been sued by a private party and has successfully defended the suit. The district judge accepted this interpretation and found the statute inapplicable to suits brought against a public official by a public body. In our original opinion we found it unnecessary to resolve the correctness of this interpretation as we were then of the opinion plaintiff had no standing under the statute because of the character of the action he had been forced to defend.

We must now address ourselves to the question of whether a public body is within the definition of parties who may become liable under the statute for the attorneys fees of a public official if unsuccessful in bringing an action against the official.

We do not find any ambiguity in the language of the statute which justifies a resort to speculation by the court as to the legislative intent on adopting the statute. “Any party” is such an all inclusive term that it can only be interpreted as including corporations, both private and public. We equate the word “party” to “person” as defined by La.C.C.P. art. 5251. When limiting the applicability of a statute to a natural person we observe the legislature most often uses the word “individual” rather than “person”. For example, see La.C.C.P. art 5181. Also see the opinion of this court in Stump v. City of Shreveport, 255 So.2d 210 (La.App. 2nd Cir. 1971). We therefore conclude the trial judge was in error in holding the statute inapplicable to municipal corporations.

For the foregoing reasons we find plaintiff Cogswell is entitled to recover attorney’s fees from defendant, and the judgment appealed from rejecting his demand is reversed and this case is remanded to the district court for determination of the amount to be awarded plaintiff for this purpose in accord with the law and the views expressed herein. Costs of this appeal are taxed to defendant.


author: MARVIN, Judge.

text:
    Harold COGSWELL, Plaintiff-Appellee, v. TOWN OF LOGANSPORT et al., Defendant-Appellant.
    No. 12691.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.

      W. Charles Brown, Mansfield, for defendant-appellant.
    Gamble & Sledge by Jack R. Gamble, Jr., Mansfield, for plaintiff-appellee.
    Before BOLIN, HALL and MARVIN, JJ-
   MARVIN, Judge.

The mayor and board of aldermen of Logansport appeal from a judgment enjoining the enforcement of a recently adopted ordinance which attempted to define ánd require among other things, “additional duties” of the Marshal and Chief of Police of Logansport, Harold Cogswell, appellee herein who successfully sought the injunction.

Logansport is classified as a town under the Lawrason Act, Act 136 of 1898, as amended, now R.S. 33 :321 et seq. This is the general municipal incorporation law of Louisiana which classifies and bestows powers and privileges upon municipalities according to population, of which the Court is required to take judicial notice. See R.S. 33:341, 345.

The court below held that the ordinance “strips” the chief of police of the inherent power over and general responsibility for law enforcement to which he is entitled as the elected marshal and chief of police.

The mayor and aldermen contend that the law generally empowers them to prescribe the duties of all officers; that such an ordinance is specifically authorized by R.S. 33 :423, which providesi that the marshal and chief of police “ . . . shall also perform all other duties required of him by ordinance.”; and that the ordinance in question speaks only of “additional” duties and does not limit or infringe upon the inherent powers afforded the marshal and chief of police as an elected official.

One section of the statute which we are called on to construe is the former section 25 of the Lawrason Act which was incorporated into the Revised Statutes as R.S. 33:423, and amended by Act 120 of 1970. As originally enacted in 1898, this section read:

“The marshal shall be ex-officio a constable. He shall be the chief of police thereof, and shall perform all other duties required of him by ordinance.” Acts 1898, No. 136, § 25.

Since the 1970 amendment, the statute reads as follows:

“The marshal shall be the chief of police and shall be ex officio a constable. He shall have general responsibility for law enforcement in the municipality, and shall be charged with the enforcement of all ordinances within the municipality and all applicable state laws. He shall also perform all other duties required of him by ordinance.” R.S. 33 :423.

Between 1898 and 1970, there were several cases and numerous published opinions of the Attorney General of Louisiana wherein there was considered the respective rights, powers, duties and responsibilities of the mayor, the aldermen and the marshal-chief of police of municipalities which were incorporated under the Lawrason Act.

In a 1968 decision, the Supreme Court noted that the duties and powers of the chief of police of a Lawrason Act municipality were not defined by statute or by jurisprudence, but observed:

“Because of the nature of his office, however, he is the chief law enforcement officer of the City and, as such, has supervision of the police department.” Lentini v. City of Kenner, 252 La. 413, 211 So.2d 311, 312 (La.1968).

These powers and duties are often referred to as “inherent powers” and it is an established principle that the mayor and aldermen may not revoke the “inherent powers” of an elected chief of police of a Lawrason Act municipality. See Lentini, supra, page 314. Except for the above quoted language from Lentini and in Act 120 of 1970, now R.S. 33 :423, the inherent powers of an elected chief of police have not been defined in Louisiana insofar as we are able to determine. Act 120 of 1970, in language similar to that used by our Supreme Court in Lentini, states in part that the chief of police

“ . . . shall have general responsibility for law enforcement in the municipality, and shall be charged with the enforcement of all ordinances within the municipality and all applicable state laws' ...” R.S. 33:423.

This act was one of five acts of the 1970 Legislature which amended parts of the Lawrason Act of Title 33.

Act 120 of 1970 in its last sentence, reiterates the language of former section 25 of the Lawrason Act in expressly providing that the chief of police:

“ . . . shall also perform all other duties required of him by ordinance.” R.S. 33:423.

Other sections of the Lawrason Act, as amended and contained in Title 33, are pertinent here. Section 401 grants to the mayor and aldermen the power

“ . . . (6) To make all police regulations necessary for the preservation of good order and peace of the municipality
“ . . . (30) ... to prescribe the duties ... of all officers and employees .
“ . . . (31) To provide for the removal of officers and discharge of employees for misconduct or neglect of duty . . . ”

Section 402 grants “additional powers” to the mayor and aldermen

“ . . . (2) To adopt measures which are deemed necessary or proper for the protection of the traveling public .
“ . . . (4) To establish, regulate, and support . . . police and define the duties thereof . . . ”

Section 404 states that the mayor

“ . . . shall have the superintending control of all offices and affairs of the municipality; shall actively and vigilantly see that all the laws and ordinances are properly executed and enforced . He may require any officer of the municipality to exhibit his accounts or other papers, and to make report to the board of aldermen, in writing, on any matter pertaining to his office. He shall cause all other officers to be dealt with promptly for any neglect or violation of duty . . . ”

Section 401(A) vests in the mayor and aldermen the “care, management, and control of the municipality and its property and finances.”

We apply here

“ . . . [the] recognized rule of statutory construction that the act as a whole ought to be interpreted so that no clause, sentence, or word shall be superfluous, or meaningless, if that result can be avoided.” Bartley, Incorporated v. Town of Westlake, 237 La. 413, 111 So.2d 328, 333 (1959).

In Lentini, the City of Kenner adopted an ordinance which imposed certain duties on its chief of police and other duties on the senior police captain. The chief of police there sought to enjoin enforcement of the ordinance on the grounds that his duties were restricted or exclusively limited to those enumerated in the ordinance and that the duties assigned to the senior police captain divested the chief of police of his general and inherent power of supervising the police department. The Supreme Court agreed in this language:

“[1] Section IV of the ordinance enumerates nine specific duties of the Marshal, including the duty of personally investigating all felonies. Nowhere in the ordinance do. we find language indicating these prescribed duties are nonexclusive or additional. Hence, as we construe it, the section is restrictive.
“[2] Section V specifically vests the power of making personnel and division assignments in the Police Captain. It also gives the Police Captain charge of all city police property. Although defendants contend the Police Captain will perform these duties under the supervision of the Chief of Police, we find no language in the ordinance reserving this supervisory authority. The language of the ordinance, by which we are bound in our consideration of this case, deprives the Chief of Police of his authority to control the property and assign personnel in the police department.” Lentini, supra, 211 So.2d page 314 (Emphasis supplied)

We believe the statutory design, especially as reiterated in the 1970 amendments, and the jurisprudence are clear. The “general responsibility for law enforcement” granted the chief of police by section 423 means the power to supervise the operation of the police department and assign its personnel and equipment, subject to the statutory authority which may be exercised by the mayor and aldermen under other sections of the Lawrason Act, as amended.

Being generally empowered to prescribe duties of municipal officers and employees by section 401, and to require by ordinance the performance of “other duties” by the chief of police by section 423, the mayor and aldermen of a Lawrason municipality may exercise their authority over an elected chief of police and the police department as long as the power of the chief of police to supervise the operation of the department and assign its personnel and property is not revoked, restricted or limited.

In the context of these principles, we shall examine the ordinance in question which we reproduce as an appendix to this opinion.

Unlike the ordinance in Lentini, the ordinance in this case states that the duties prescribed therein are “[i]n addition to the powers, duties and responsibilities imposed upon the chief of police . . . , by the laws and statutes of this state . . . ” Sec. 1(B).

Sec. 1(C) requires nothing more than Art. 228, La.C.Cr.P.

Sec. 1(D) is authorized by R.S. 33:404.

Sec. 1(E) implements the provision of R.S. 33:403(4) that “all mayors shall have the power of committing magistrates” and the provisions of Title 8 of the Code of Criminal Procedure relative to bail.

Sec. 1(F) adopts what apparently is recognized procedure for the hiring of personnel by a municipality. In the interest of efficiency, certainly the chief of police should be required to recommend personnel to the hiring authority. See Chapman v. Bordelon, 242 La. 637, 138 So.2d 1 (1962), for a discussion on hiring authority of a Lawrason municipality.

Sec. I, sub-parts (G)(H) and (L) implement that part of R.S. 33:401 (A) relating to control over municipal property and directs the chief of police to exercise his statutory supervisory power over the police department.

Sec. 1(1) does not revoke or restrict the inherent powers of the chief of police but assigns him what could legally be called “other duties” of maintaining the town jail. This is clearly in accord with R.S. 33:423.

Sec. I(J) relegates the chief of police, an official of the town, to the status of a policeman, an employee of the town, when the chief is working a “duty shift”.

The elected chief of police is an “officer” of the town and may not be relegated to the status of an employee. See R.S. 33 :381. This does not mean however, that the mayor and alderman may not assign certain duties to the chief of police and to policemen-employees as well, within the guidelines discussed herein. Some of the duties imposed on policemen in Section III of this ordinance, as shall be discussed hereafter, can be imposed on the chief of police as well.

Sec. I(K) requiring the chief to attend regular meetings of the aldermen is obviously in the interest of governmental efficiency and does not revoke or restrict the inherent powers of the chief of police.

Sec. II, “Additional Duties of Assistant Chief of Police”, pertains only to the assistant chief of police and does not revoke or restrict the inherent powers of the chief of police in any way. The requirements of sub-part (C) are discussed hereafter under section III of the ordinance.

Sec. Ill imposes certain duties on policemen which by Section I(J) are also imposed on the chief of police. We shall discuss which of these duties may lawfully be imposed on the employees-policemen and on the chief of police.

Sec. Ill (A) distinguishes between ordinances of the town and “lawful directives” of the mayor and aldermen and of the chief of police. While a policeman certainly can be ordered by the chief of police who has routine supervisory power, the mayor or the aldermen cannot interpose themselves between the chief and the policemen as to law enforcement responsibility so as to restrict the supervisory power of the chief of police. This section of the ordinance is valid under this construction subject to our holding on other sub-parts of Section I IT.

Sec. III(B) is an exercise of the authority granted by R.S. 33 :404 and may be imposed on the chief as well as the policemen.

Sec. TTI(C) restricts the supervisory powers of the chief of police in that policemen may be instructed by the chief to maintain radio silence under several conceivable circumstances necessary to good law enforcement. It would not be an unreasonable restriction however, for the town to provide by ordinance that the chief of police shall adopt and implement procedures whereby the whereabouts of each policeman would be known at all times by either the chief of police or, in his absence, the superior duty officer.

Sec. Ill (D) is another example of “other duties” which may be imposed on the chief of police or policemen under R.S. 33 :423 and 401, subd. A(30).

Sec. Ill(E) is a reiteration of the requirements of Art. 228, La.C.Cr.P., which may be imposed on the chief of police and the policemen.

Sec. III(F), (G)(1), (2), (3) and (6) seek to require policemen to perform certain duties for specific periods of time. These requirements restrict the inherent supervisory powers of the chief of police. It would not be a restriction however, for the town to require by ordinance the chief of police to adopt and implement procedures which would provide for periodical parking meter checks, radar speed checks, red light checks and driver’s license checks.

Sec. I1T(G)(4) is a valid exercise of the authority granted the mayor and aldermen by R.S. 33:402(4) “to establish, regulate, and support night watch and police and define the duties thereof . . . ”

Sec. 111(G)(5) is a valid exercise of the authority granted by R.S. 33-.401(A) relating to control of municipal property. See discussion of Sec. 1(H) of the ordinance.

Sec. Ill, sub-parts (H) and (I) do not revoke or restrict the inherent supervisory powers of the chief of police.

Sec. IV (A) does not restrict or revoke the inherent supervisory powers of the chief of police.

Sec. IV(B) is nothing more than a declaration to the effect that the chief of police, as a public officer, is subject to such laws as R.S. 14:134, for the intentional non-performance of his lawful duties.

Appellee answered the appeal and seeks damages from appellants for a frivolous appeal. It is perhaps superfluous to state that this contention is without merit.

For the reasons expressed, the judgment of the lower court enjoining the enforcement of the ordinance in question is reversed. Under the authority of La.C.C.P. Art. 2164, we declare ultra vires and invalid those subsections of the ordinance, namely Sections I(J), III(C), III(F), 111(G)(1), (2), (3) and (6), only insofar as they are construed to restrict the inherent supervisory powers and the general responsibility for law enforcement granted the elected chief of police of the Town of Logansport, as expressed herein.

Costs of this appeal are assessed against appellant, Town of Logansport, to the extent that a municipality may be required to pay costs.

APPENDIX

EXHIBIT “A”

ORDINANCE NO. 275

AN ORDINANCE PRESCRIBING ADDITIONAL DUTIES OF CHIEF OF POLICE, ASSISTANT CHIEF OF POLICE, AND. POLICEMEN OF THE TOWN OF LOGANSPORT, LOUISIANA

BE IT ORDAINED by the Mayor and Board of Aldermen of the Town of Logans-port, Louisiana, as follows, to-wit:

SECTION I. Additional Duties of Chief of Police and Marshal.

A. The Chief of Police shall also be the Marshal of the Town of Logansport, Louisiana.

B. In addition to the powers, duties, and responsibilities imposed upon the Chief of Police and Marshal of the Town of Logansport, Louisiana, by the laws and statutes of this State, the Chief of Police and Marshal shall also perform the duties enumerated in this Ordinance.

C. The Marshal and Chief of Police of the Town of Logansport, Louisiana, shall keep and maintain a Jail Record Book. He shall be responsible for keeping the Jail Record Book current; insuring that the said Jail Record Book contains a record of each occasion on which a person is confined in or discharged from the Town Jail.

D. The Marshal and Chief of Police of the Town of Logansport, Louisiana, shall himself submit a Daily Report for each daily shift or period worked by him to the Town Clerk on a form supplied by the Mayor and Board of Aldermen of the Town. The Marshal and Chief of Police of the said Town shall also insure that each member of the Lo-gansport Police Department submit a Daily Report for each shift or period worked by each member of the Police Department. The said Daily Report shall be filed with the Town Clerk at the end of each shift or period worked by the Policemen of the Town or the Chief of Police and Marshal.

E. The Marsha] and Chief of Police shall, whenever he makes any arrest, request the Mayor or in his absence, the Mayor Pro-Tempore of the Town of Logansport, Louisiana, to fix the amount of the appearance bond prior to releasing any arrested person. The Marshal and Chief of Police shall also obtain the approval of any and all appearance bonds, other than cash bonds, by the Mayor or Mayor Pro-Tempore, prior to the release of any person arrested by the Marshal and Chief of Police. The Marshal and Chief of Police shall insure that the same procedure on appearance bonds is followed and adhered to by the Policemen of the Town of Logansport, Louisiana.

F. The Marshal and Chief of Police of the Town of Logansport, Louisiana, shall have no authority to hire Policemen for the Town of Logans-port, Louisiana. He shall, however, make recommendations on the hiring of Policemen to the Mayor and Board of Aldermen of the said Town upon their request.

G. Whenever a Policeman is fired or suspended from his employment by the Town of Logansport, Louisiana, the Marshal and Chief of Police shall be responsible for the return of all property of the said Town by the fired or suspended Policeman.

H. The Marshal and Chief of Police shall be responsible for the custody of all items of property seized in connection with an arrest made by him or by the Policemen of the said Town. He shall report to the Town Clerk all items of property so seized by the Policemen of the said Town and so seized by him and shall insure that all items of property are reported to the Town Clerk. The Marshal and Chief of Police shall insure that such items of property are promptly delivered to the Court of proper jurisdiction when requested to do so.

I. The Marshal and Chief of Police shall be responsible for the operation of the Town Jail and to assure that prisoners therein are properly fed and cared for.

J. When the Marshal and Chief of Police is working a police duty shift, he shall perform all the duties required of a Policeman for the Town of Logansport, Louisiana, by this Ordinance, by all other Ordinances, and by all applicable State laws in addition to his duties as Marshal and Chief of Police.

K. The Marshal and Chief of Police shall attend all regular meetings of the Mayor and Board of Aldermen of the Town of Logansport, Louisiana. He shall also attend Special Meetings of the said Mayor and Board of Aldermen when requested to do so by the Mayor of the said Town.

L. Subject to the restrictions and limitations set forth below, the Chief of Police and Marshal of the Town of Logansport, Louisiana, shall have control and supervision over the property and equipment of the Police Department.

(1). The Chief of Police, nor any member of the Police Department shall dispose of or convert to private use any property or equipment of the said Department.

(2). All alterations, repairs, maintenance, and purchases of the Police Department equipment and property, shall be made only after an approved purchase or work order has been secured from the Town Clerk.

(3). All property and equipment of the Police Department shall be used for law enforcement. The use of any Police Department property or equipment for such purposes shall neither cease nor be discontinued without the approval of the Mayor and Board of Aldermen.

(4). The Marshal and Chief of Police shall be responsible for maintaining the property and equipment of the Police Department in a good state of repair.

SECTION II. Additional Duties of Assistant Chief of Police.

A. The Assistant Chief of Police shall assist the Marshal and Chief of Police of the Town of Logansport, Louisiana, in the performance of the duties of the Marshal and Chief of Police required herein and required by all other Ordinances of the said Town, and by all applicable State laws.

B. In the absence of or incapacity of the Marshal and Chief of Police, the Assistant Chief of Police shall perform all the duties of the Marshal and Chief of Police required by this Ordinance, by all other Ordinances of the Town, and by applicable State laws.

C. When the Assistant Chief of Police is working a police duty shift, he shall perform the duties required of a Policeman by this Ordinance, by all other Ordinances of the Town, and by applicable State laws in addition to performing the duties required of him as Assistant Chief of Police.

SECTION III. Additional Duties of policemen of Town of Logansport, Louisiana.

A. In addition to the duties required of Policemen by and for the Town of Logansport, Louisiana, by applicable State laws, and by other Ordinances of the said Town, Policemen shall obey and perform all lawful directives and orders of the Mayor, Board of Aldermen, and of the Marshal and Chief of Police of the Town of Logansport, Louisiana.

B. Policemen of the Town :r Logans-port, Louisiana, shall prepare and file a Daily Report on a form supplied by the Mayor and Board of Aldermen of the said Town of each shift or period worked by them.

C. Policemen on duty shall report their location by radio or telephone at anytime they leave the police car.

D. Policemen shall report to the Town Clerk all damaged or missing street signs, stop signs, and yield signs observed by them or reported to them during their duty shifts. Policemen shall also report to the Town Clerk any and all dangerous conditions on the streets of the Town of Logans-port, Louisiana, observed by them or reported to them during their duty shifts and shall likewise report any and all damages to the streets of the Town of Logansport, Louisiana, observed by them or reported to them during their duty shifts.

E. Policemen shall make all current and proper entries in the Jail Record Book during their duty shifts.

F. Two (2) Policemen shall work together during all duty shifts, Friday, Saturday, and Sunday nights.

G. The following duties shall also be performed by the Policemen of the Town of Logansport, Louisiana, unless they are unable to do so due to an emergency, to-wit:

1.Check for parking meter violations once each hour of their duty shifts when their duty shifts coincide with the hours of parking meter use and enforcement.

2. Perform systematic radar checks every Friday, Saturday, and Sunday for a minimum of two (2) hours each day on all highways located within the corporate limits of the Town of Lo-gansport, Louisiana.

3. Work all red lights one (1) hour in the morning and one (1) hour in the afternoon.

4. Check doors of all merchants and businesses within the corporate limits of the said Town once every night to see if they are locked, etc.

5. Policemen are charged with the responsibilities and duties set forth in Section I., Sub-section H., of this Ordinance in regard to items of property seized in connection with all arrests made during their duty shifts.

6. Check motorists for current drivers licenses on highways within the corporate limits of the Town of Lo-gansport, Louisiana, a minimum of two (2) hours per week.

H. Policemen shall not loiter about the Police Station or at the Town Hall at any time and shall not allow other persons to loiter about the Police Station.

I. Without limitation on the foregoing duties and responsibilities the Policemen of the Town of Logansport, Louisiana, shall enforce all Ordinances of the said Town and all applicable State laws.

SECTION IV. Enforcement of Ordinance.

A. Any Policeman or Assistant Chief of Police who fails to comply with this Ordinance may be fired to suspended from duty.

B. Non-compliance with this Ordinance by the Marshal and Chief of Police may result in legal action against him under any applicable State law or statutes.

SECTION V. Severability of Provisions, Clauses, and Sentences, of Ordinance and Repeal of Conflicting Ordinances.

A. All the provisions, clauses, and sentences of this Ordinance are severa-ble and should any provision, clause or sentence be declared void all other provisions, clauses, and sentences of this. Ordinance shall remain in full force and effect.

B. All Ordinances or portions thereof in conflict with this Ordinance are hereby repealed.

SECTION VI. Vote on Ordinance.

The vote on this Ordinance was as follows:

      . The 1970 Census shows the population of Logansport as 1,330.

      . State ex rel. Gentry v. Mayor, Etc. of Village of Dodson, 123 La. 903, 49 So. 635 (1909); Chapman v. Bordelon, 242 La. 637, 138 So.2d 1 (1962); and Lentini v. City of Kenner, 252 La. 413, 211 So.2d 311 (1968).

      . See generally, published opinions of Attorney General of Louisiana, and annotations under West’s L.S.A., R.S. 33:321 et seq. Two of such opinions were introduced as evidence into this case: Opinion No. 74-1162 of August 12, 1974, to the Chief of Police of Sterlington, and Opinion No. 75-072, of January 23, 1975, to the Chief of Police of Logansport.

      .See Act 119, relative to duties of the mayor; Act 121, relative to the creation and alteration of wards; Act 122 relative to vacancies in municipal offices, and Act 123 extending the powers of mayors and aldermen.

      . For instance, Act 123 of 1970 (R.S. 33 :402 [9]) authorizes the mayor and alderman to appoint a fire marshal “who may be” the chief of police.


author: CULPEPPER, Judge.

text:
    C. B. MABOU, Plaintiff-Appellee, v. THOMAS JEFFERSON INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5268.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 14, 1975.
    Bolen, Halcomb & Bolton, by Gregory S. Erwin, Alexandria, for defendants-appellants.
    Gist, Methvin & Trimble by John W. Munsterman, Alexandria, for defendant-appellee.
    Ralph W. Kennedy, Jr., Alexandria, for plaintiff-appellee.
    Before CULPEPPER, MILLER and DOMENGEAUX, JJ.
   ON MOTION TO DISMISS APPEAL

CULPEPPER, Judge.

The defendant-appellant, Thomas Jefferson Insurance Company, moves to dismiss the appeal of the defendant-appellant, Reliable Finance Company, on the grounds that the appeal was not timely perfected in that the order of appeal and appeal bond were not timely filed, and that the costs due to the trial clerk and the fee due the clerk of this court have not been paid. The plaintiff-appellee, C. B. Mabou, has also filed a motion to dismiss the appeal of the defendant-appellant Reliable Finance Company, on the same grounds.

The pertinent facts, briefly stated, are as follows: The plaintiff-appellee, C. B. Ma-bou, originally filed suit against Thomas Jefferson Insurance Company, who in turn filed a third-party demand against Reliable Finance Company. The plaintiff-appellee then filed an amended petition naming Reliable Finance Company as a party defendant. On the completion of the trial of this case the trial court rendered a judgment in favor of the plaintiff against Thomas Jefferson Insurance Company and Reliable Finance Company. The defendant, Thomas Jefferson Insurance Company was also given a judgment against Reliable Finance Company on their third-party demand against Reliable Finance Company. A Formal Judgment was signed on May 14, 1975.

On May 20, 1975, the defendant-appellant Thomas Jefferson Insurance Company obtained an order for a suspensive appeal, the return date of which was fixed for August 28, 1975. The appeal bond was filed on May 20, 1975, and on July 14, 1975, submitted, after inquiring of the Clerk the amount thereof, the cost of lodging the appeal with this court.

The defendant-appellant, Reliable Finance Company, did not file its motion for an appeal and its appeal bond until October 7, 1975. A history of the reason for this late filing is as follows. On May 27, 1975, counsel for Reliable Finance Company sent a motion for a suspensive appeal and a suspensive appeal bond to the Pineville City Court by means of a messenger, a Mr. John Ashley, an employee of the defendant, Reliable Finance Company. Evidently his instructions were to have the Judge sign the order for appeal and then to file the motion for appeal with the attached bond. On arriving at the City Court’s Clerk’s office Mr. Ashley was informed that Judge Lee was not in, but that he could be reached at his private office. Mr. Ashley then proceeded to Judge Lee’s private office and upon arriving there was informed by an employee in the law firm of Holt, Wagner and Lee, that Judge Lee was not in, but that he, Mr. Ashley, could leave the Motion with her and she would have Judge Lee sign it. Mr. Ashley then left both the Motion and bond with this secretary.

On May 28, 1975, counsel for the defendant-appellant Reliable Finance Company received a letter from Judge Lee which read in pertinent part as follows:

“I have signed the motion for appeal in the captioned matter, which is returnable to the Court of Appeal, Third Circuit on the 21st day of July, 1975, the bond to be in the amount of $2,049.69.
“I have made arrangements with M & S Court Reports to transcribe the testimony, but it must be fully understood that your client and Mr. Erwin’s client are to pay all costs of the transcription. The appeal will not be lodged until all costs are paid.”

Counsel admits that he assumed from this letter that Judge Lee had not only signed the order of appeal, but that he had had the motion for appeal and the appeal bond properly filed, and that it was not until some time early in October that he discovered that the motion for appeal and bond were still at Judge Lee’s private office.

Counsel for the defendant-appellant Reliable Finance Company admits that he has never tendered to the Clerk of the City Court at any time the costs of preparing the transcript and the fee due the Clerk of this court for filing the record.

Again, before proceeding further, it is necessary to regress further into the history of this litigation. Shortly before the return date, the Clerk of the City Court, Mrs. Bettye DeKeyzer, informed the parties that the transcribing machines were not working properly, and that she would not be able to complete the transcript of testimony, and therefore, she would not be forwarding the appeal to this court.

The appellant-relator then sought to obtain a Writ of Mandamus from the trial court ordering the Clerk of the City Court of Pineville to transmit what record there was in this case to this court, but the trial judge refused on the ground that he had offered the appellant a new trial, which he had apparently refused, and the return date having passed he now considered the matter complete.

Thomas Jefferson Insurance Company then sought writs to this court, which this court granted, and thereafter issued the following order:

"WRIT GRANTED. The Clerk of the City Court of Pineville is hereby ordered to transmit to this court what record exists in this case to this court immediately. The court was divested of jurisdiction under LSA-C.C.P. art. 2088, and was without authority to issue any orders thereafter.”

After writs were granted, but before the record in this case was lodged with this court, counsel for Thomas Jefferson Insurance Company and Reliable Finance Company entered into a joint stipulation whereby they agreed that in lieu of remanding the case for the taking of further testimony, or a stipulation of facts among counsel, that the written reasons assigned by Judge Lee and filed into the record would constitute the facts of this case. On October 14, 1975, the record was lodged with this court. We note here that no filing fee in relation to the defendant-appellant Reliable Finance Company was or has been since forwarded to this court.

After the record was lodged with this court the defendant-appellant Thomas Jefferson Insurance Company and the plaintiff-appellee, C. B. Mabou, timely filed motions to dismiss the appeal of the defendant-appellant Reliable Finance Company.

We need not pass on the question of whether or not Reliable Finance Company was misled into believing that its motion for appeal and appeal bond were timely filed, as we believe that the mover’s second contention that Reliable Finance Company appeal must be dismissed because they failed to timely tender the costs of preparing the record of appeal and the filing fee due to the Clerk of this Court, has unquestionable merit.

La.Code of Civil Procedure, Art. 2126 provides as follows:

“The appellant shall pay to the clerk of the trial court, not later than three days prior to the return day or extended return day, all costs of preparing the record on appeal, and the filing fee required by the appellate court to lodge the appeal.”

Counsel for Reliable Finance Company argues that he did not tender cost because he did not know whether or not the transcript appeal would be forwarded to this court because the clerk had informed him that portions of the testimony had not been transcribed due to mechanical failure. We cannot accept this argument. Counsel was aware of the return date and it was his duty to timely tender these fees. Besides, Judge Lee’s decision not to have the Clerk forward the record was not made until after the time these costs and fees became due.

Neither can we accept counsel’s argument that he never tendered these fees because he was never “advised by the Clerk of the Pineville City Court that a transcript was or had been prepared or what the costs of preparing the transcript would be.” Our law does not require billing for appellate costs and fees by the clerk, but to the contrary, it requires timely tender by the appellant of these costs and fees to the Clerk. It is incumbent upon the appellant to keep informed of the return date or extended return dates and the amount he must pay as costs of appeal. Louisiana Power and Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970); Succession of Dehart, 272 So.2d 781 (La.App. 3 Cir. 1973).

For the reasons assigned the appeal of the defendant-appellant Reliable Finance Company is hereby dismissed at their cost.

Appeal dismissed.


author: BOUTALL, Judge.

text:
    SPRINGLAKE HOMEOWNERS ASSOCIATION, INC. v. Charles J. PECOT. SPRINGLAKE HOMEOWNERS ASSOCIATION, INC. v. Yvette Pecot, wife of and Ronald J. MILAZZO.
    Nos. 7295, 7296.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Guste, Barnett & Colomb, Dennis C. Strayhan, New Orleans, for plaintiff-appellant.
    Monroe & Lemann, Herman C. Hoff-mann, Jr., New Orleans, for Yvette Pecot, wife of/and Ronald J. Milazzo, defendants-appellees.
    Before SAMUEL, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

On the Motion to Dismiss.

Appellant, Spring Lake Homeowners Association, Inc., has filed an appeal from an adverse judgment of the Civil District Court “dismissing the injunction prayed for herein at their cost. All other demands are hereby dismissed.” The appel-lees have filed a Motion to Dismiss, based upon the ground that the judgment appealed from was rendered in connection with the hearing for a preliminary injunction, and the appeal is not timely, because not within the period of IS days from the date thereof as provided by LSA-CCP Article 3612. Appellant’s position is that the appeal was timely taken as a devolutive appeal from a judgment on the merits and call attention to the wording which, they contend, dismisses the merits of the suit.

We agree that the judgment is ambiguous, and could lead to an interpretation that it dismissed all demands in the law suit. Under this interpretation, we would dismiss the appeal insofar as it concerned itself with the preliminary injunction matters, but grant the appeal insofar as it related to dismissal of the merits. Pier 1 Imports, Inc. v. Pitcher, 264 So.2d 674 (La.App. 1st Cir. 1972). However the record in this case shows only that the matter tried before the court was a rule nisi for a preliminary injunction, and there was no stipulation between the parties that such a hearing would also be considered as a hearing on a permanent injunction. We have considered a somewhat similarly worded judgment in the case of Fox v. Louisiana State Racing Commission, 223 So.2d 707 (La.App. 4th Cir. 1969), and concluded that the injunction only applied to matters heard on the preliminary injunction. We are led to a similar result herein for the following reasons.

A judgment denying a writ of preliminary injunction does not conclude the proceedings. The action remains pending in the trial court until the proceedings are dismissed by stipulation of the parties or by judgment of the court after full trial on the merits of the permanent injunction. Baton Rouge Cigarette Service v. Bloomensteil, 88 So.2d 742 (La.App. 1st Cir. 1956); see generally Kar Products Inc. v. Robison, 303 So.2d 261 (La.App. 2d Cir. 1974); Jefferson Parish v. Universal Fleeting Company, 234 So.2d 88 (La.App. 4th Cir. 1970); Cloud v. Dyess, 172 So.2d 528 (La.App. 3rd Cir. 1965). Indeed, a trial court which denies a preliminary injunction is without power to order dismissal of the action therewith. Olsen v. City of Baton Rouge, 247 So.2d 889 (La.App. 1st Cir. 1971); Pizzitola v. Pace, 161 So. 2d 441 (La.App. 4th Cir. 1964); Discon v. Saray, Inc., 255 So.2d 489, 492 (La.App. 1st Cir. 1971).

The validity of the judgment of the trial court should be presumed, and it should not be given an interpretation which would make it invalid. Hence an interpretation which concludes that the “injunction” and the “demands” refer to the permanent injunction and the demands on the merits would cause the invalidity of the judgment. Since the only matter before the court was the preliminary injunction, we conclude that those words only apply to the preliminary injunction and, so concluding, the appeal herein should be dismissed. Fox v. Louisiana State Racing Commission, supra. Morris v. Translates Petroleum, Inc., 258 La. 311, 246 So.2d 183 (1971).

Accordingly, the Motion to Dismiss is maintained, the appeal is dismissed and this matter is remanded to the trial court for such further proceedings as may be appropriate on the merits of the case. Costs to await a final determination of the merits.

Motion sustained; appeal dismissed.


author: REDMANN, Judge.

text:
    The NORTHWEST INSURANCE CO. et al. v. PULMOSAN SAFETY EQUIPMENT CORP. et al.
    No. 7090.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rudolph R. Schoemann, Carl S. Reis, New Orleans, for the Northwest Ins. Co. and others.
    Robert B. Nolan (Adams & Reese), New Orleans, for Gay, Inc.
    Jerry L. Saporito (Bernard, Micholet & Cassisa), Metairie, for Head & Engquist Equipment, Inc.
    W. J. Larzelere, Jr. (Lemle, Kelleher, Kohlmeyer & Matthews), New Orleans, for Tiger Equipment & Supply Co., Inc.
    Christopher Tompkins, Phelps, Dunbar, Marks, Claverie & Sims (Ronald A. Johnson), New Orleans, for Sandair Corp.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   REDMANN, Judge.

An employer and its workmen’s compensation insurer, having in and after 1971 paid compensation because of a sandblaster employee’s having contracted silicosis, by this 1974 suit demanded reimbursement from the manufacturers and vendors of silicosis-prevention equipment. The suit against the vendors was dismissed as prescribed and plaintiffs appeal.

We affirm. Insofar as supportable on a theory of workmen’s compensation indemnity, La.R.S. 23:1101, the demand is tort-subrogation and there is no right to quasi-contractual indemnity against third party tortfeasors; Marquette Casualty Co. v. Brown, 1958, 235 La. 245, 103 So.2d 269. Insofar as supportable on a theory of breach of contract, because the contract is one of sale the prescription for breach of warranty is one year from the sale, C.C. art. 2534, or from the buyer’s discovery of the defect, if the vendor knew or is chargeable with knowledge of the defect, C.C. 2546 (which is not here alleged).

Plaintiffs argue that prescription should not begin to run against them before 1974 because (as alleged by an amended petition) they “did not know what the cause or the aggravation of the . . . silicosis was until” 1974. We reject this argument as patently contradictory of plaintiffs’ basic facts. Plaintiffs’ demand is based on the actual or implied warranty “that the hoods and/or helmets would protect the wearer from the effects of the sand particles.” Yet plaintiffs knew in 1971 that their employee did contract silicosis. Therefore plaintiffs knew in 1971 that the hoods or helmets were defective in that they did not protect the wearer as allegedly warranted. Plaintiffs may have gained additional information in 1974 as to the nature of the defect which caused the equipment’s failure, but their knowledge in 1971 of the fact of failure gave them knowledge that the alleged warranty had been breached. Thus even if defendants were charged with knowledge of the defects, C.C. 2546’s one year from plaintiffs’ discovery of the defect has passed.

Affirmed.

      . But see concurrence of Barham, J., in writ refusal in Peltier v. Seabird, Industries, Inc., La.1975, 309 So.2d 343, suggesting that professional vendors should be charged with knowledge of defects.


author: MORIAL, Judge.

text:
    Alfred LOPEZ, Sr., Individually and as the Administrator of the Estate of his minor son, Michael William Lopez v. Horace BURAS, Individually and as the Administrator of the Estate of his minor son, Derek Buras, and Government Employees Insurance Company.
    No. 7081.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.

      Perez, Fernandez, Seemann & Egan, Melvyn J. Perez, William H. Egan, Chal-mette, for plaintiff-appellee.
    Hammett, Leake, Hammett, Hayne & Hulse, Craig R. Nelson, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   MORIAL, Judge.

This is a suit by Alfred Lopez, individually and as administrator of the estate of his minor son, Michael Lopez, against defendant, Horace Buras, individually and as administrator of the estate of his minor son, Derek Buras, and his insurer, Government Employees Insurance Company.

On May 13, 1973 Michael Lopez, then nine years of age, was at the home of his uncle, Horace Buras. While standing in the front yard of this residence, a gasoline powered lawnmower being operated by Derek Buras, defendant’s ten year old son, rolled over Michael’s right foot. As a result of this accident, Michael suffered traumatic amputation of the second toe, partial amputation of the third toe, and a severe laceration of the great toe.

The trial court rendered judgment for plaintiff in the amount of $3,500.00 for pain and suffering and $7,500.00 for the “permanent loss of toe.” Special damages of $2,243.98 were also awarded less a credit of $1,205.70 for medical expenses previously paid. Defendants appeal. We affirm.

Defendants contend the trial court erred in: 1) failing to maintain his exceptions of no cause and no right of action predicated upon Derek Buras not having been named a defendant; 2) holding Horace Buras and/or Derek Buras to be the sole and proximate cause of the accident; 3) failing to find Michael Lopez guilty of contributory negligence; and 4) awarding excessive damages for the “permanent loss of toe.”

Plaintiff asserts the judgment of the trial court is correct but asks that the damage award be increased. Plaintiff did not appeal nor answer the defendants’ appeal. Accordingly, this issue will not be considered. LSA-C.C.P Art. 2133.

Plaintiff instituted suit solely against Horace Buras and his insurer without the minor, Derek being named as a defendant. Defendant now contends that because Derek was not a party to the lawsuit, any issue of negligence on his part should not have been considered by the trial judge. This contention is totally specious. There is no serious dispute that an unemancipated minor has no procedural capacity to be sued and the father, as administrator of his minor child’s estate, is the proper defendant in an action to enforce a minor’s obligation. LSA-C.C.P. Art. 732. Once the obligation of a minor has been established, the father is vicariously responsible for the damages. LSA-R. C.C. Art. 2318. Clearly, plaintiff in this case filed suit in compliance with the law. The trial judge did not err in overruling defendant’s exceptions and permitting testimony concerning Derek’s negligence.

Although the trial judge gave no “reasons for judgment,” his judgment holding Horace Buras liable was necessarily based upon a finding of negligence on the part of Horace and/or Derek Buras. Phillips v. D’Amico, 21 So.2d 748 (La.App.Orl.1945). This finding is not manifestly erroneous for the issue of fault is clearly settled by the record. The testimony is uncontradicted that Michael was standing on the front part of the lawn facing toward the street when his foot was injured by the lawnmower being pulled by Derek. He testified that although he heard the lawnmower for about five minutes before the accident, he never saw it because he was facing the street. Derek, on the other hand, said he knew Michael was standing in the front yard but admitted, “I never knew he was right there.” This set of events unquestionably indicates that Derek’s failure to prudently operate the lawnmower and maintain a proper lookout was the proximate cause of this unfortunate incident. Correspondingly, Michael’s action or inaction under these circumstances cannot constitute contributory negligence because it is clear he was never aware of the fact that he was in a position of danger.

We now turn to quantum. Michael lost D/2 toes in this accident. He was confined in the hospital for nine days and after his release, was in a wheelchair for two to three months. Dr. Kenneth L. Veca, an orthopedic surgeon, performed an operation on April 4, 1974 to relieve the hy-peresthesia in the area of the injury. Dr. Veca testified that Michael will inevitably need two future operations: 1) to numb the inside of the great toe to permit the wearing of a “spacer” to prevent the drifting of the great toe into the area formerly occupied by the amputated second toe; and 2) to eliminate the effect of a bunion type growth when he reaches his growth potential. He cautioned that although the child may remain active, he must always be exceptionally careful of his foot because of the lack of sensation in that area. Michael’s mother testified that for about six weeks after the accident she had to help him to the bathroom and assist him in taking baths. She also gave him pain pills every four-six hours for eight weeks and still applies a salve to his big toe. She stated that while Michael can now still participate in baseball and basketball, she has seen him trip while running which he did not do before the accident. Michael testified that he can run and walk without a limp but his foot still hurts him a little sometimes at night.

An award of $7,500.00 for the permanent loss sustained is not an abuse of the “much discretion” vested in the trial judge. LSA-R.C.C. 1934(3).

Accordingly, the judgment of the trial court is affirmed. Defendant is to pay all costs.

Affirmed.


text:
    Drake L. NORBERG, Sr., for himself and on behalf of his minor son, Drake L. Norberg, Jr. v. SEARS, ROEBUCK & COMPANY, and Otis Elevator Company.
    No. 7077.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Robert H. Wood, Jr., of Drury, Lozes & Curry, New Orleans, for Otis Elevator Co., defendant-appellant.
    J. Paul Demarest, of Favret, Favret & Demarest, New Orleans, for Sears, Roebuck & Co., defendant-appellant.
    Gus A. Fritchie, Jr., of Fritchie & Cooley, Slidell, for Drake L. Norberg, Sr., and Drake L. Norberg, Jr., plaintiff-appellee.
    Before STOULIG, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Suit was instituted by Drake Norberg, Sr. for himself and his minor son, Drake Norberg, Jr., for damages due to personal injuries received by the son. The accident occurred when the son placed his hand into a moving part of an escalator at defendant Sears, Roebuck and Company’s store. The other defendant in this suit is Otis Elevator Company, the manufacturer of the escalator. The trial court rendered judgment against both defendants in solido in favor of Drake Norberg, Sr. for $800.00 and in favor of Drake Norberg, Sr. on behalf of his minor son for $2,500.00. From this judgment defendants have perfected this appeal. We reverse.

The facts of this case are not disputed. The young Norberg child (4 years old at the time of the accident) was shopping with his mother and aunt at the Sears store in the Gentilly section of New Orleans. The two ladies were on the second floor of the store looking at drapes when young Drake wandered off. He testified that he was attracted by another young boy playing by the escalator. He also began to play with the escalator and somehow managed to get his hand caught in the handrail guard. Something inside the mechanism scraped off the skin on the middle finger of Drake’s hand. Store personnel nearby ran to the boy’s assistance and quickly pulled his hand from the machine.

The photographs and testimony presented show that the boy was playing with the “up” escalator at the store. The hard rubber handrail operates as a large oval belt circulating between floors. It makes a semicircle at the top and returns into the balustrade just above the floor level for the return trip to the lower floor. On the second floor at the point where the handrail reenters the balustrade there is a handrail guard. The distance between the guard and the turning handrail is approximately J4 inch. The guard is made of a soft rubber material and its function is to act as a wiper, keeping objects stuck to the handrail from entering the mechanism. Young Drake inserted his hand into this small opening, thus incurring his injuries. Considering its location and physical condition, it is very improbable that anyone could accidentally get his hand caught in the opening through any normal or foreseeable use of the escalator.

The issue before us is not quantum, but liability relative to the degree of duty or care imposed upon the store owner and manufacturer of the escalator towards customers of the store. Plaintiff relies upon the applicability of the rationale expressed in a recent Supreme Court case, Holland v. Buckley, 305 So.2d 113 (1974), which imposes a presumption of fault in the nature of strict liability. Plaintiff contends that a similar form of strict liability should be applied to the facts in this case. Defendants assert, and the record fully bears them out, that no negligence or breach of duty was proven by plaintiff and strict liability cannot be applied to these facts.

The case of Holland v. Buckley, supra, deals with the liability of the owner of an animal for damages caused by the animal as provided in RCC Article 2321. The Supreme Court in construing RCC article 2321 held that that article presumed fault on the part of the animal’s owner; fault “. . . .in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316.”

Plaintiff’s argument is an attempt to extend the reasoning of Holland to the present set of facts. The Supreme Court made it clear that its construction of RCC article 2321 was an exception to the basic rule that a plaintiff must prove negligence in order to recover. This suit is brought under the provisions of RCC articles 2315 and 2316 where fault is the central issue. An examination of the record convinces us that no fault has been shown in this case and we cannot impose liability. Cannon v. Holmes, 274 So.2d 799 (La.App. 4th Cir. 1973).

For the above reasons the judgment of the trial court is reversed and judgment is hereby entered in favor of defendants, dismissing plaintiff’s suit. Plaintiff is to bear all costs.

Reversed and rendered.


author: STOULIG, Judge.

text:
    Donald Edward PHILLPOTT v. Cony Pena, wife of Donald Edward PHILLPOTT.
    No. 7074.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Philip R. Riegel, Jr., Sydney J. Par-longue, New Orleans, for plaintiff-appellant.
    Band, Hopkins & Martin, Clyde P. Martin, Jr., New Orleans, for defendant-appel-lee.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Appellant, Donald Edward Phillpott, obtained a judgment of divorce against his wife, Cony Pena Phillpott, based on their having voluntarily lived separate and apart for two years. Appellee was awarded $75 per week alimony and $100 per week child support, the amounts she requested in her reconventional demand. Prior to this trial, she was receiving $125 per week, $50 alimony pendente lite and $75 support for their two children. It is from that portion of the judgment awarding alimony and child support that the husband has appealed.

In the trial court appellant unsuccessfully contended his wife must prove her freedom from fault as required by C.C. art. 160 before she was entitled to alimony. Because Mrs. Phillpott had obtained a judgment of separation on a finding of her husband’s fault, the trial court properly refused to hear evidence on the issue of her fault. While this matter was pending on appeal, the Supreme Court held in Frederic v. Frederic that a wife who proves her husband’s fault in a suit for separation is, by implication, herself free from fault and she need not relitigate the issue of fault in a subsequent suit for permanent alimony.

Thus appellant limits his appeal to these questions :

1. Is his wife lacking sufficient “means for her support” within the meaning of C.C. art. 160 when she owns real estate valued in excess of $28,000?
2. Alternatively, if the wife is entitled to alimony, did the trial court award a combined child support and alimony judgment beyond the husband’s ability to pay?
3. Did the evidence establish a change in circumstances sufficient to justify an increase from $125 to $175 ?

It is not disputed Mrs. Phillpott owns as separate property the home where she lives with her children. It was purchased for $28,000 by Mrs. Phillpott’s father prior to her marriage to appellant and is not encumbered by a mortgage. There is no evidence as to its present market value. Mrs. Phillpott testified she was unable to qualify for a mortgage loan to repair her home because of the high monthly payments involved.

Appellant cites several Supreme Court decisions holding that a wife must deplete her assets before she can be deemed to have insufficient means for her support and to be eligible for permanent alimony.

The cases are distinguishable. Frederic v. Frederic, 302 So.2d 903 (La.1974), held a wife with a net community interest of $94,450 was not entitled to the pension for her maintenance provided by C.C. art. 160 and there was no question of child support. Smith v. Smith held that a wife having $20,000, derived from a partition of the community, must first deplete her assets before she could claim permanent alimony. In the Smith case $125 monthly had been awarded for one child but this aspect of the judgment was not at issue. Stabler v. Stabler, a case where the divorced wife had no dependents, held she must use $20,000 in assets before she is entitled to claim alimony.

What makes this case distinguishable from those relied upon by appellant is that Mrs. Phillpott is using her separate property to shelter herself and her children. Were we to require her to sell the house —now badly in need of repair — and apply the cash proceeds to her maintenance, we would have to increase the child support to allow rent payments for the children. We reached this same result in Nicolle v. Nicolle.

The Smith and Frederic results were influenced by an equitable evaluation of the relative financial positions of husband and wife, and in both cases the Court concluded it would be inequitable for the wife to conserve her assets while the husband, to meet alimony payments, would be required to deplete his. That is not a consideration in this case. On a long-term basis, it would create greater economic havoc to require the wife to dispose of the family residence because then the child support judgment would have to be increased to permit payment of rent for the children. We therefore hold the wife, under these circumstances, need not sell the family residence before she is entitled to alimony.

We next consider the second issue —amount. In increasing appellant’s total weekly payment from $125 to $175 we conclude the judgment imposes an unreasonable financial burden on Mr. Phillpott. His net income is $230 per week and his living expenses are $161 per week. After paying the judgment he would be left with $55 weekly for his own support and maintenance. The total needs of the Phillpotts in maintaining separate households is approximately $350, which exceeds Mr. Phillpott’s income by $120 weekly. In reviewing the itemized expenses of both litigants we find them modestly stated and would not suggest what expense either litigant could eliminate. But it is mathematically impossible to satisfy the needs of both. We do think the award of child support and alimony were improvidently increased because it is obviously impossible for Mr. Phillpott to manage his own expenses with $55 per week. Under the previous judgment, he had only $105 weekly to maintain himself and — unlike his wife — he is required to pay monthly rent.

Appellee’s argument that we consider the gross and not the net income in awarding alimony is untenable in this case because Mr. Phillpott testified he was required to pay additional taxes to the federal and state governments each year because his withholdings were insufficient to cover his full tax liability. We accordingly amend the judgment to award Mrs. Phill-pott $50 per week alimony and $75 per week child support.

Since we have reinstated the amount of alimony and child support initially awarded in the separation proceedings, we need not consider appellant’s third assignment of error that there was not shown a sufficient change in circumstances to warrant the increase in alimony and child support.

For the reasons assigned, the judgment appealed from is amended to decrease the award of alimony to Mrs. Cony Pena Phillpott from $75 to $50 per week and to decrease the child support for the children Donna and Douglas Phillpott from $100 to $75 per week. In all other respects the judgment appealed from is affirmed. Ap-pellee is to pay the cost of this appeal.

Amended and affirmed.

      . L.R.S. 9:301.

      . 285 So.2d 570 (La.App. 4th Cir. 1973).

      . 302 So.2d 903 (La.1974).

      . “When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
      1. The wife obtains a divorce;
      2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
      3.The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.
      “This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.”

      . 217 La. 646, 47 So.2d 32 (1950).

      . 226 La. 70, 75 So.2d 12 (1954).

      . 308 So.2d 377 (La.App. 4th Cir. 1976).


text:
    Kathleen Wyllie, wife of/and A. Christian CABONI and Discovery School, Inc. v. CITY OF NEW ORLEANS.
    No. 7073.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Robert E. Winn and Chris A. Verret of Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for Kathleen Wyllie, wife of/and A. Christian Caboni and Discovery School, Inc., plaintiffs-appellants.
    Joseph E. Berrigan, Jr., Asst. City Atty., for The City of New Orleans, defendant-appellee.
    Before STOULIG, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

The plaintiffs, Kathleen and August Ca-boni and Discovery School, Inc., instituted this suit against the City of New Orleans after their application for a zoning variance was denied by the Board of Zoning Adjustments. The district court sustained the findings of the Board and plaintiffs have appealed. We affirm. The issue, presented for the first time on appeal, is whether the Board of Zoning Adjustments considered the wrong section of the Comprehensive Zoning Ordinance in denying plaintiffs’ application for a variance.

The salient facts are not in dispute. Mr. and Mrs. Caboni operate Discovery School, Inc. The school is situated on an average city-sized lot containing a three story building. The house and lot are in a residential neighborhood of New Orleans, zoned RD-2 (Two Family Residential). The school has 52 students ranging in age from 2 years, 8 months, to 9 years old. Mr. and Mrs. Carboni applied for a nonresidential use variance. In their application to the Department of Safety and Permits they asked that they be permitted to operate a school in an RD-2 zoning area and specifically that they be exempted from the following requirements for schools in RD-2 areas: Area size of two acres or one square, whichever is less; sufficient off street parking.

A full hearing was held at which plaintiffs presented their side of the case and adjoining landowners testified. The Board members visited the site and denied the variance for the following reasons: The variances would cause gross overdevelopment of the site; the lot area is not sufficient for the recreation of 52 children; the off street parking is inadequate, due in large measure to an already bad parking situation in the area.

We find the Board’s reasons for the denial of the variance to be sound. We cannot say that the Board has abused its discretion in any way or that it acted in an arbitrary or capricious manner. Paternostro v. Parish of Jefferson, 289 So.2d 327 (La.App. 4th Cir. 1973).

Plaintiffs’ contention is that the Board of Zoning Adjustments and the district court considered the wrong part of the applicable section of the Zoning Ordinance. The section in controversy is Article 5, § 6. Plaintiffs contend that only a portion of Sec. 6, namely the provisions of subsections "a.-e.” apply, since Discovery School, Inc. is a child care center in conjunction with a private elementary school.

Defendant meets this contention with two arguments; first, plaintiffs have never indicated that they considered Discovery School, Inc. to be a child care center of any kind until this appeal. Secondly, section 6 must be read and applied as a single set of regulations and not as two separate ones, as plaintiffs contend.

The record in this case shows conclusively that plaintiffs and defendant at all times considered Discovery School, Inc. to be a school and not any sort of child care center. The application for the variance states that plaintiffs wish to maintain an “existing school”. The Board of Adjustment, at the hearing, recognized the possibility that perhaps Discovery School, Inc. was a child care center and plaintiffs responded :

“Mr. Ferran: Would you think that in the strict definition of a school that what you’re doing applies or would it be more child care center ?
“Kathleen Caboni: We are definitely an academic institution and not a day care center.”

Plaintiffs filed a rebuttal to the decision of the Board in which they again reiterated that Discovery School, Inc. was not a child care center. When this case reached the district court plaintiffs amended their original petition to strike out an inadvertent reference to a day care center and replaced it with a reference to “. . . . a preschool, kindergarten and elementary school.

The evidence is overwhelming that the issue which was before the Board and the District Court was a zoning variance for a school and not a child care center in conjunction with a school. That issue was properly resolved and the variances requested were denied. Plaintiffs may not, in effect, change their application for a zoning variance to an application for variance based on a different use than the one applied for and considered by the Board. The scope of our review is limited to the correctness of the Board’s action on the application before it. If the plaintiffs desire to have a variance based of the use as they now claim it should be, then they must apply again for the variance to the Department of Safety and Permits.

We affirm the judgment appealed from and, for the above reasons, we do not reach the issue of the interpretation of the Zoning Ordinance section of which appellant complains. Appellant is to pay all the costs of this appeal.

Affirmed.

      . 6. “Public elementary schools or private elementary schools having the curriculum essentially the same as ordinarily given in public elementary schools, including kindergartens, provided they are located on a site having a minimum of two acres or one square, whichever is the lesser, and provided further that the following requirements shall he observed: Appropriate setbacks shall be provided for all public and private elementary school structures (exclusive of play equipment) of not less than 50 feet where the side yard line abuts a residential district and not less than 25 feet from all lot lines abutting streets, canals, or open public spaces, and provided further that:

        “For Child Care Centers in conjunction with a Public or Private Elementary School that:
      “a. There shall be a building or structure within which a minimum of 35 square feet per child of useable, available play or instruction space shall be provided.
      “b. There shall be minimum of 35 square feet per child of useable, available outdoor play or instruction area on the lot or property, provided that no portion of such play or instruction area shall be located within the required front yard of the lot or property.
      “c. Outdoor play or instruction area shall be enclosed by a fence no less than three feet in height.
      “d. Additionally, a landscaped hedge shall be provided along any rear or side property line adjoining any residentially zoned property not used for a similar purpose. Any such hedge shall be designed and planted as to be at least five feet in height and 80 per cent or more opaque when viewed horizontally.
      “e. There shall be provided a minimum of one off-street parking space, or one off-street parking space for each 350 square feet of indoor play or instruction space whichever is the greater.”