author: BEER, Judge. STOULIG, Judge,

text:
    Cynthia Thomas GANT v. FLINT-GOODRIDGE HOSPITAL OF DILLARD UNIVERSITY and Argonaut-Southwest Ins. Co.
    No. 8881.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 14, 1978.

      James J. Morrison, Jr., New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Vance E. Ellefson, New Orleans, for defendants-appellees.
    Before STOULIG, BEER and GAUDIN, JJ.
   BEER, Judge.

Cynthia Gant was raped by an unknown assailant on May 15,1972, at approximately 10:30 p. m. in the ground level laundry room of Smith Hall Nurses’ Residence, which is affiliated with Flint-Goodridge Hospital. Until March of 1972, Mrs. Gant and her husband lived with her parents at their home. Then, before leasing an apartment in the Smith Hall Nurses’ Residence building, she spoke with Mr. Mumfort, Flint-Goodridge Hospital’s administrator, who, she states, stressed the safety features of that apartment complex, which included uniformed guard service. She and her mother visited the building prior to the Gants’ leasing of an apartment in the building, and both noticed that a uniformed guard was on duty at that time.

Additional security measures observed by Mrs. Gant were: a locked doorway into the lobby of the building restricted to tenants and authorized personnel by the issuance of individual keys; a parking area to which one could gain admittance only by inserting a special card designed to open the gate mechanism; and a visitor screening system. Furthermore, Smith Hall was completely enclosed by the exterior walls of the building and a seven foot high fence.

The testimony of Elbert Ranson, a security officer for Flint-Goodridge, and of Oliver Thompson, whose duties included hospital security, disclosed that two of the security guards employed by the hospital-apartment complex had been terminated in March, two months before the assault, and had not, as of the date of the assault, been replaced. This reduction in force decreased the security patrol coverage that had previously been in effect for the hospital and the adjacent apartment facility.

Although C.C. art. 2703 absolves the lessor from liability for torts against the lessee committed by third persons who claim no right to the leased premises, Reynolds v. Egan, 123 La. 294, 48 So. 940 (1909), Bright v. Bell, 113 La. 1078, 37 So. 976 (1905), Gulf Coal Co. v. Bingaman, 6 La.App. 107 (Orl.1927), Mrs. Gant here contends that the lessor assumed an obligation to provide a continuing high standard of security guard coverage as a particular condition of the lease and that subsequent failure so to maintain was a proximate cause of the attack. She claims that the security guard service which was implicit in the lease negotiations included the continued service Of security guards who would have, ordinarily, been on patrol in the apartment building complex in such number or intensity of coverage as to have prevented the attack.

Mrs. Gant argues that she and her husband moved into Smith Hall primarily because the lessor’s agent stressed its safe living conditions. Having created an aura of safety by the maintaining of various security services, including the security guard patrol, Mrs. Gant contends that the management failed to administer the property in accordance with' the standard of safety it had promised to its tenants which proximately caused the tortuous conduct resulting in grave damage to her.

According to the record, the apartment’s security service was, at the time of the assault, operating on an “emergency” basis due to a shortage of manpower. The chief security officer testified that one guard was assigned to cover both the hospital and the residence hall and had been relieved of a previously existent obligation to punch the time clocks located at various checkpoints (apparently installed to assure guards would make their appointed rounds) in order that his time could be more fully utilized on patrol.

Even though the record indicates that the security guard services rendered in behalf of the occupants of the Smith Hall apartment complex had diminished from the standpoint of the number of security guards employed on a fulltime basis, we agree with the trial judge’s apparent conclusion that this fact does not constitute a basis upon which to impose liability for the unfortunate attack upon Mrs. Gant. We feel obliged to further observe that this most traumatic event might have occurred even with the security services being operated at full strength instead of being somewhat reduced. The record does not tell us how the rapist gained access to the area where the attack occurred.

At any rate, the ultimate resolution of this litigation rests upon factual determinations with respect to implied obligations of security maintenance and proximate cause, and we cannot say that the trial court manifestly erred in making such factual determinations as to form a Canter v. Koehring protected basis of its dismissal of Mrs. Gant’s claim. The judgment is affirmed.

AFFIRMED

STOULIG, J., dissents.

STOULIG, Judge,

dissenting.

I respectfully dissent.

Plaintiff, Cynthia Gant, has appealed a judgment dismissing her damage suit against her lessor and its liability insurer for a rape she alleged was perpetrated against her because her landlord breached its duty to post a security guard in the apartment complex when the incident occurred. Defendants are Flint-Goodridge Hospital of Dillard University and Argonaut-Southwest Insurance Company.

There is no dispute that plaintiff was raped by an unknown assailant on May 15, 1972 at approximately 10:30 p. m. in the ground level laundry room of Smith Hall Nurses’ Residence, a security-oriented apartment complex owned by Flint-Good-ridge. Plaintiff’s assailant escaped by vaulting a 7-foot cyclone fence at the rear of the patio area.

The issue of actionable negligence requires affirmative answers to these questions to support plaintiff’s position: (1) Did the lessor have a duty to furnish a security guard at the time the rape occurred? (2) Is there a causal relationship between the absence of a security guard and the accomplishment of the assault?

Conceding a lessor ordinarily does not guarantee his tenant crime-free occupancy by the simple act of renting his property, plaintiff contends the renter here contractually assumed responsibility to provide tenant security. Smith Hall, located in a high crime neighborhood in the City of New Orleans, was designed and operated with secure, safe living as one of its salient attractions. Owned and operated by Flint-Goodridge Hospital, Smith Hall was offered on a preference basis to hospital employees and plaintiff, as an employee, was eligible.

Until March 1972, plaintiff lived with her parents at their home. Now she and her husband, expecting their baby, moved into their own apartment. Before leasing at Smith Hall, plaintiff testified she spoke with a Mr. Mumfort, the hospital administrator, who stressed the safety of the apartment complex and promised a uniformed guard was on duty at all times. Plaintiff and her mother viewed the apartment building and both noted there was an armed guard on duty on that initial visit prior to signing the lease.

Additional security measures noted by plaintiff were a locked lobby door to which only tenants and authorized personnel were given keys; a parking area to which one could gain admittance only by inserting a special card designed to open the gate mechanism; and a visitor screening system. Smith Hall was totally enclosed either by the exterior walls of the building or a high fence.

Plaintiff’s testimony that a security guard was promised is believable because the defense’s indirect admissions corroborate this. Elbert Ranson, chief security officer for Flint-Goodridge, testified in deposition that there had been continuous guard surveillance at Smith Hall between 3 p. m. and 8 a. m. the following morning but that the two guards who manned these shifts had quit and had never been replaced. Oliver Thompson, who was responsible for security at the hospital on the night of the rape, discussed the lack of guard personnel that day as an “emergency.” What is interesting is that the emergency apparently was not due to illness or some event that occurred that day, rather, Thompson disclosed that two security guards who were terminated in March 1972 — two months before the assault — were never replaced.

Our law does not impose the obligation on a lessor to furnish crime-free premises to his lessee. In fact C.C. art. 2703 absolves the lessor from liability for torts against the lessee committed by third persons who claim no right to the leased premises. Reynolds v. Egan, 123 La. 294, 48 So. 940 (1909); Bright v. Bell, 113 La. 1078, 37 So. 976 (1905); Gulf Coal Co. v. Bingaman, 6 La.App. 107 (Orl.1927). The validity of plaintiff’s legal position then hinges on whether the lessor contractually assumed the obligation to furnish a security guard as a condition of the lease.

We are not favored with written reasons for judgment and are not aware whether this suit was dismissed because the trial court found as a fact there was no lease obligation to supply a guard or because he concluded that the absence of a guard was not a proximate cause of the rape. If we assume the dismissal rests on the first premise, we are placed in the position of reversing a factual conclusion.

In this case we feel it would be warranted. Plaintiff’s testimony is clear and unequivocal that a security guard was promised. Defense witnesses admit a security guard was normally scheduled to patrol the building from mid-afternoon through the following morning. The rape occurred during the hours when a guard was scheduled to have been on duty. We therefore find as a fact that Flint-Goodridge breached one of the obligations of its lease agreement in failing to have a security guard on the premises on May 15, 1972 at 10:30 p. m. when plaintiff was raped.

The breach of duty exists in this case only because the lessor assumed this responsibility when its agent entered into the lease agreement; therefore, we must first determine whether there is any basis in law for a negligence action founded on the “Of Offenses and Quasi Offenses” section of the Civil Code.

C.C. art. 2315 provides in part:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

C.C. art. 2316 expands the preceding concept thus:

“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

Our analysis of tort liability is based on the premise that plaintiff and her husband were living at Smith Hall because the lessor’s agent stressed its safe living conditions. The fact that plaintiff felt secure enough to walk to the laundry area of the complex (located in a high crime neighborhood) at 10:30 p. m. attests to her reliance on the security promised by the lessor.

Having created an aura of safe-living in its building, we next consider whether the management administered the property in accordance with the standard of safety it promised its tenants. Or stated another way, was the manager or administrator guilty of a negligent or imprudent act?

According to the defense witnesses, the security service was two men short when plaintiff and her husband moved in on April 1, 1972, and no one explained why they were not replaced. More than six weeks later when plaintiff was raped, the security service available to patrol both the hospital and the apartment residence was considered to be on an “emergency” basis due to a shortage of manpower. The situation was so critical according to the chief security officer that one guard was assigned to both the hospital and the residence hall. The guard was relieved of the obligation of punching the time clocks located at various checkpoints at Smith Hall (apparently installed to assure guards would make their appointed rounds) so that his time could be better utilized to patrol. I think the failure of Flint-Goodridge to replace the two vacancies on its armed guard staff for approximately two months was highly imprudent in view of the fact that they solicited tenants by promising security guards and other safe-living devices. Under 2316, the contractual breach is also a tort for which the lessor may be held accountable.

Finally I address the question of causation. I cannot imagine what concrete factual evidence could be produced either to prove or disprove absence of the guard was a proximate cause of the rape. Ranson testified guards are hired to deter crime and this is the best evidence plaintiff could produce to support her position. The dereliction of duty is defendant’s and I would not bar plaintiff’s recovery because causation in her case is of necessity a speculative issue. I believe Ranson’s testimony that guards function as a deterrent is sufficient to establish a causal connexity between the rape and the breach of duty.

      . No written reasons were given for the dismissal of plaintiff’s claim.

      . 283 So.2d 716 (La.1973).

      . Mumfort, the hospital administrator, was not presented as a witness to rebut plaintiffs statements nor was any reason advanced for defendant’s failure to do so.


source: Caselaw Access Project

author: GAUDIN, Judge. BEER, Judge,

license: Public Domain

text:
    Donald Lee THOMAS v. PEPSI COLA GENERAL BOTTLERS, INC.
    No. 8969.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 14, 1978.

      Charbonnet & Charbonnet, Robert P. Charbonnet and Wayne E. Garrett, for plaintiff-appellee.
    McGlinchey, Stafford, Mintz & Hoffman, J. Michael Johnson, for defendant-appellant.
    Before STOULIG, BEER and GAUDIN, JJ.
   GAUDIN, Judge.

Donald Lee Thomas instituted this proceeding under the Louisiana Workmen’s Compensation Act, seeking total and permanent disability benefits from his employer, Pepsi Cola General Bottlers, Inc.

Following trial, Mr. Thomas was awarded disability benefits for an additional 150 weeks; also, his employer was ordered to pay “all medical bills” during the disability period.

From this judgment, both parties appealed.

Mr. Thomas contends: (1) that he should receive total and permanent benefits; and (2) that Pepsi Cola should have been required to pay legal interest on the past due and unpaid compensation.

The employer, on the other hand, feels that the trial judge erred in: (1) finding that the injury was work-related; (2) finding that Mr. Thomas was entitled to benefits after November 17, 1977; (3) finding that there was any disability at the time of trial; and (4) awarding medical expenses during the 150 weeks of disability.

Mr. Thomas, then 30 years of age, was employed as a laborer and his primary job was loading cases of soft drinks onto trucks. He was hurt, he said, on September 5, 1975, and he sought medical treatment five days later.

He testified:

“This big truck, I raised the door up and it came back down and I caught it. That is when my back first started hurting.”

There were no witnesses to this accident, and Mr. Thomas’ foreman said that the incident was not reported to him.

Mr. Thomas, however, did tell a fellow worker that he had hurt his back, and the medical evidence clearly indicates that Mr. Thomas had sustained a severe low back strain on or about September 5, 1975.

From these circumstances, the trial judge concluded that Mr. Thomas had in fact been injured within the scope of his employment, and we will not disturb this finding.

Mr. Thomas was treated for his low back problems through November 10, 1975, at which time he was told by Dr. Randall Williams, the treating orthopedist, to return to work. Pepsi Cola then terminated compensation benefits, having paid $716.45 plus $801.99 in medical expenses.

Dr. Williams, the only physician to testify at the trial, although various medical reports were stipulated into evidence, first saw Mr. Thomas on October 13, 1975, he noticed a “pelvic dipping”, i. e., the pelvis was tilted, and there was muscle spasm. Also, there was narrowing of the disc space between the 5th vertebra and the sacrum.

On October 27, 1975, Dr. Williams felt that Mr. Thomas required physical therapy, and Dr. Willard Holmes was recommended.

By November 10, Mr. Thomas had a full range of motion and he was able to completely reverse the lordosis. Dr. Williams advised his patient to return to work.

However, Mr. Thomas did not resume his employment. He returned to Dr. Williams on February 4, 1976, complaining of recurring low back pain. Dr. Williams found spasm and advised Mr. Thomas to resume physical therapy.

Dr. Williams saw Mr. Thomas on six occasions in 1976, and finally on February 27, 1977. On the last visit, Mr. Thomas still complained of pain, but the orthopedic and neurosurgical examinations were “completely negative” except for the previously mentioned disc narrowing. Dr. Williams said that Mr. Thomas cannot do heavy lifting.

It is possible, Dr. Williams stated, that the disc problem is related to the sued-on accident, but it could be the result of a past injury. Actually, Mr. Thomas had been involved in two prior accidents, including one in which his back “locked”.

Dr. Williams further said that it is possible that the problems related to the September 5,1975 injury could have completely subsided and could have been resolved by November 10, 1975.

Dr. J. Carlos Pisarello, a neurosurgeon, examined Mr. Thomas in March, June and September of 1976.

Dr. Pisarello felt that Mr. Thomas may have a prolapsed intervertebral disc, and he suggested myelography, which was never done.

Dr. J. Kenneth Saer, an orthopedist, saw Mr. Thomas on February 8, 1977.

From his report:

“Patient has subjective symptoms of low back pain which are suggestive of degenerative disc disease in the lumbar area. There are no objective findings to definitely substantiate any specific diagnosis. There are no signs of interbertebral disc herniation or extrusion.
It is my impression that this patient may or may not have some low back discomfort. From a practical point of view I do not think that any specific treatment is advisable other than the usual postural instructions. I think this patient is capable of working if he is desirous of doing so.”

Also in the record are reports prepared by Dr. Morris Fisher, the initial treating physician, and several physical therapy reports.

From this maze of inconclusive medical evidence, the trial judge made his determinations. Mr. Thomas argues that the trial judge should have found total and permanent disability, while the employer feels that the trial judge should have found no disability beyond November 10, 1975. We acknowledge that indeed there is medical evidence to at least partially justify both opinions.

However, the trial court awarded disability for an additional 150 weeks; and, while such a judgment cannot perhaps be justified by exact mathematical or statutory standards, we must note that medical science in general and the testimony of the various physicians in the instant case are no more precise.

The trier of fact is given considerable discretion and we cannot find manifest error in the 150-week disability award.

We do find fault with two minor portions of the judgment. Interest on the past due payments should have been included in the decree. See Ray v. Superior Iron Works and Supply Co., Inc., La.App., 284 So.2d 140, and Straughter v. Cresco, Inc., La.App., 262 So.2d 126.

Also, the trial judge erred in awarding “all medical bills”. Only those medical expenses related to the September 5, 1975 accident should be paid by the employer during the 150-week disability period.

Accordingly, we affirm the judgment appealed from with regard to the term of disability; and we amend said judgment to include (1) legal interest on all compensation payments from the due date, until paid, and (2) the requirement that medical expenses to be paid by the employer must be connected to the accident of September 5, 1975.

BEER, Judge,

dissenting.

I find that plaintiff failed to sustain the burden of proof necessary to establish any disability from November 21, 1975 onward which is related to the alleged injury (itself, very questionable) of September 5, 1975.

Since I do not reach the issues of:

1) legal interest on unpaid compensation, or
2) extent of the employer’s medical services liability,

my dissent does not include — nor is it intended to in any way affect — those aspects of the majority opinion.


author:
STOULIG, Judge.
      BEER, Judge,

text:
    Salvadore BIONDOLILLO, Sr. v. GEOSOURCE, INC., et al.
    No. 8971.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 14, 1978.

      Laborde & Brooks, John H. Brooks, New Orleans, for plaintiff-appellee.
    Drury, Lozes & Curry, Robert H. Wood, Jr., New Orleans, for defendants-appellants.
    Before STOULIG, BEER, and GAUDIN, JJ.
   STOULIG, Judge.

Salvadore Biondolillo, Sr., a shipfitter, sustained an injury to his left foot in an industrial accident on December 16, 1975 that is compensable under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. (LHWCA) or under the Louisiana Workmen’s Compensation Act (LWCA). (R.S. 23:1021 et seq.) Defendant Commercial Union Insurance Company, insurer of Hunt Shipyards, a division of Geosource, Inc., tendered, and plaintiff accepted, weekly payments of $79.60 for 305/r weeks after the injury, the benefit due under the LHWCA.

On July 20, 1976, Biondolillo returned to work assigned to light duties and continued in this capacity until he was fired on November 9, 1976. Shortly thereafter, plaintiff accepted and negotiated a draft tendered by the employer’s insurer for $1,631.80, representing a lump sum settlement amount under LHWCA. On December 16, 1975, plaintiff filed suit seeking Louisiana lifetime workmen’s compensation benefits for an alleged total and permanent disability stemming from the same incident for which he was paid federal compensation benefits.

From a judgment awarding plaintiff compensation benefits of $85 per week from December 16, 1975 through date of judgment (March 3,1977), subject to a credit for all benefits previously paid, the defendants have appealed.

The issues before us are (1) whether plaintiff did elect to receive benefits under LHWCA that would preclude his also pursuing a LWCA compensation remedy in state court; and if we conclude no binding election was made, (2) whether plaintiff in fact did sustain an injury that would support an award of compensation for disability-

For plaintiff to have made an election to accept federal benefits that would exclude his later pursuing the state remedy, it is necessary that his choice be an informed decision based on weighing the alternatives available to him. An election is a choice between alternatives. If plaintiff has not been made aware of his options, in accepting benefits from one he has not by implication affirmed a decision to reject the remedy under the other.

In this case the drafts presented to Bion-dolillo weekly and the one tendered as a lump sum settlement did not indicate the payments were for federal benefits. The choice of payment here was made by the insurer rather than the workman. The record indicates a claims adjuster may have discussed with plaintiff that his benefits were being computed under the federal act and that plaintiff also inquired at the Department of Labor (accompanied by his attorney’s law clerk) as to how to submit a claim, but no claim was ever filed.

Federal compensation, if elected, is the exclusive remedy (33 U.S.C.A. § 905); however, the courts will not permit an insurer to elect the form of benefits to be distributed and establish that a valid election has taken place by the simple act of an uninformed claimant negotiating a draft. See Peter v. Arrien, 463 F.2d 252 (3d Cir. 1972); Holland v. Harrison Bros. Dry Dock and Repair Yard, Inc., 306 F.2d 369 (5th Cir. 1962); Gulf Oil Corporation v. O’Keeffe, 242 F.Supp. 881 (E.D.S.C.1965).

In Calbeck v. Travelers Insurance Co., 370 U.S. 114, 131, 82 S.Ct. 1196, 1205, 1206, 8 L.Ed.2d 368 (1962), the Supreme Court stated:

“We turn finally to a question raised only in Donovan v. Avondale Shipyards. The employer contends that the employee accepted benefits under the Louisiana State Compensation Act and that this constitutes an election of remedies which bars prosecution of his claim under the Longshoremen’s Act. Compensation payments may be made under the Louisiana Compensation Act without a prior administrative proceeding. Before the federal claim was filed Avondale made payments to the employee for some two years and three months at the maximum rate provided by the Louisiana statute. The employee accepted the checks which bore a notation on their face that they were payments of compensation under the state act. In addition Avondale advanced a substantial sum to the employee to be credited against future compensation payments. Avondale also paid medical expenses for the employee’s account in excess of the maximum liability imposed by the Louisiana statute. In the compensation order entered by Deputy Commissioner Donovan under the Longshoremen’s Act the full amount of all payments made by the employer was credited against the award, and no impermissible double recovery is possible. We hold that the acceptance of the payments does not constitute an election of the remedy under state law precluding recovery under the Longshoremen’s Act. Nothing in the statute requires a contrary result. And we agree that the circumstances do not support a finding of a binding election to look solely to the state law for recovery. * * * ”

Here, the initial choice of remedies was made by the insurer. Plaintiff’s actions subsequent to this choice do not, in our view, indicate a binding election because there is nothing before us to indicate that Biondolillo was aware of the alternatives at any time prior to his seeking that counsel which resulted in the filing of the state workmen’s compensation suit.

It is stipulated that plaintiff sustained a compensable injury while working with a bilge pump on a barge. Only the duration of disability is at issue.

Dr. Earl J. Rozas, his treating orthopedist, saw plaintiff the day of the accident at West Jefferson Hospital and diagnosed “ * * * a comminuted fracture of the shaft of the first metatarsal heads, and there was also a fracture of the shaft of the fifth metatarsal.” Plaintiff was hospitalized and before his discharge when the swelling in his foot had subsided á short leg cast was applied, which he wore until January 12, 1976, and then a surgical boot (this is a high topped shoe used specifically for swelling) was substituted. During the following months plaintiff’s treatment continued (he broke several appointments) and by April 30, Dr. Rozas found he was walking well and there was no swelling of the foot. On May 3, 1976 he suggested plaintiff return to the job for light duty. Dr. Rozas at that time ordered “space shoes” to conform to the plaintiff’s feet, and on July 19, 1976 the shoes were fitted and Rozas discharged him to return to his regular duties. Dr. Rozas concluded plaintiff reached “maximum cure” with a 10% impairment and the shoes would enable him to resume full duties; however, he admitted he did not know the job duties. The orthopedist predicted that in the future plaintiff would have a problem climbing, jumping or running because the injured foot could not take the extra stress.

Dr. Kenneth Adatto, an expert orthopedist, examined plaintiff in January 1977, found objective evidence of injury to the foot and stated he had a 25% disability which at that time prevented him from assuming his former duties as a shipfitter. Among the duties of a shipfitter that plaintiff could no longer perform were walking on pipes, climbing metal ladders and climbing scaffolding, which Dr. Rozas also opined plaintiff could not perform.

Plaintiff was discharged from his job on November 9, 1976. Defendants suggest, without proving by competent evidence, that plaintiff was fired for goldbricking and/or drinking, while plaintiff contends the reason was he could not keep up with the work because he was in pain. He explained he initially returned to work because he could not live on $79 per week. The trial judge, in well-articulated verbal reasons for judgment, stated he found the plaintiff’s complaint of pain truthful in that it was in accord with the medical evidence.

In its judgment the trial court found the plaintiff to be totally disabled and awarded compensation for as “long as the disability shall continue.” The medical evidence does not support that plaintiff is totally unable to perform work of any character but rather that he was disabled at the time of trial from performing certain duties of a shipfitter — his customary occupation.

In order to conform to the evidence and the benefits prescribed in R.S. 23:1221 for partial disability, we amend the judgment of the trial court to read:

IT IS ORDERED AND DECREED that there be judgment in favor of the plaintiff, Salvadore Biondolillo, Sr., and against the defendants, Geosource, Inc., and Commercial Union Insurance Company, for workmen’s compensation benefits at the rate of $85 per week from December 16, 1975 for a period not to exceed 400 weeks during plaintiff’s disability as a shipfitter, subject to a credit for all benefits heretofore paid pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act and to all other credits authorized under R.S. 23:1221(3) of the Louisiana Workmen’s Compensation Act. Defendants shall pay legal interest on all past-due compensation benefits from the date of judicial demand, together with the expert fees of Doctors Kenneth Adatto and Earl Rozas, as determined by the trial court, and for all costs. In all other respects the judgment is affirmed.

AMENDED AND AS AMENDED AFFIRMED.

BEER, Judge,

dissenting.

The record discloses that:

1. Biondolillo was treated, from the time of his injury until the time of his final discharge, by Dr. Earl J. Rozas.
2. By April 30, 1976, Biondolillo was “walking well” and was experiencing no swelling of the injured foot. He returned to light duty, without any subsequent complaints to Dr. Rozas, on May 3, 1976.
3. By July 19, 1976, Biondolillo was released for full work duty by Dr. Ro-zas and did, in fact, return to full duty, again without any subsequent complaints to Dr. Rozas.
4. By August 16, 1976, he was discharged by Dr. Rozas who observed the following:
a. There was good function of the foot.
b. There was good range of motion.
c. X-rays showed “his foot was completely healed.”
d. There was no swelling.
e. Biondolillo made no specific complaints about his foot.
f. He had reached maximum cure.
g. He could resume his regular occupation on a regular basis and carry out his work without any difficulty.
h. Reference to the manuals of the American Academy of Orthopedic Surgeons and the Disability Manual by the American Medical Association resulted in the calculation of permanent impairment of left foot of 10%.

Inherent in Dr. Rozas’ testimony is the fact that the small percentage of impairment was not in any way disabling and was effectively dealt with by the providing of a certain type and design of work shoe which Biondolillo apparently used without any problem (insofar as any independent testimony is concerned) from the time that they were obtained for him, onward.

Biondolillo was, several months later, fired for reasons not in any way related to his injury, his alleged disability, or his work performance.

Months after that — just one month prior to the trial of this case in the district court — he was seen on one visit by Dr. Kenneth Adatto on January 24, 1977. In the course of that single examination, Dr. Adatto found well healed fractures of the third and fifth metatarsals. However, he also concluded that the left foot appeared to be cooler than the right foot and showed swelling and some “discoloration.” From this, he determined that Biondolillo “was having what we call sympathetic dystrophy and it is also known as pseudo-atrophy or causalgia.” He goes on to observe: “Nobody really knows the entire etiology of the disease but it’s a dysfunction of what we call the autonomic nervous system.”

This single visit to Dr. Adatto must, I believe, be put into proper perspective:

More than thirteen months after the accident and more than five months after being discharged by his treating physician and returning to full time employment at the same job from which he was — several months later — fired for unrelated reasons, Biondolillo obtains — just one month prior to trial — a single medical report (discussed above) from Dr. Adatto, who acknowledged that he would offer no treatment to Bion-dolillo because it is “beyond my realm.” Further acknowledging that about 80% of the people who exhibit the symptomatology which he describes as existent in the course of his examination of Biondolillo “get under control with medication,” he says only that he would be glad to refer Biondolillo “to some vascular surgeon for diagnosis and treatment.” But, however much I search the record, I find no indication that this was ever done; or that there was even any additional examination, much less treatment, by any physician in whose “realm” the alleged condition would fall. Dr. Rozas, the treating physician, was never even consulted.

Thus, a chronological and factual analysis of this record compels a conclusion that Biondolillo returned to light work in May without any subsequent complaint to his treating physician, to full time work in July without any complaint to his treating physician and continued in that full time work without any complaint to his treating physician, or to anyone else, until he was fired for totally unrelated reasons in November. He filed this workmen’s compensation suit — about two weeks after he was fired— in December of 1976 and made one visit to Dr. Adatto in January of 1977, just before the trial of the case in February of 1977.

I conclude that the trial judge was manifestly in error in his finding that Biondolillo was permanently and totally disabled.

In my view, the record supports a finding that Biondolillo is entitled to state workmen’s compensation payments of $85 per week for 35 and 3/rths weeks. Technically, I concur in the majority’s reduction of the trial court’s judgment so as to permit the majority opinion to be handed down in technical compliance with La.Const. Article 5, Sec. 8(B). I, nevertheless, respectfully dissent from that part of the majority’s opinion which awards compensation for any period greater than 35 and 3Aths weeks.

      . We need not consider the original prayer for statutory penalties and attorney fees because counsel by stipulation limited the scope of this appeal to the issues discussed.


author: BEER, Judge.

text:
    S. J. CHARIA, d/b/a S. J. Charia & Company and Hartford Fire Insurance Co. v. Russell L. STANLEY, Oscar Foland, Jewel Aigner Wainwright, Maurice Arnod Granet, Maria K. Granet, Henry L. Granet, Nicole S. Friedlander and Mau Mar, Inc. and Carrollton Lumber & Wrecking Co., Inc., its agents, et al.
    No. 9001.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.

      Hammett, Leak, Hammett, Hulse & Nelson, John I. Hulse, IV, and Bienvenu, Foster, Ryan & O’Bannon, Leonard A. Young, Darryl J. Foster, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, A. J. Justrabo, New Orleans, for defendant-appellee.
    Before GULOTTA, BEER and GAR-SAUD, JJ.
   BEER, Judge.

On October 13, 1970, a fire at the Silver Dollar Hotel caused extensive damage to that property, as well as smoke and water damage to the adjoining premises of S. J. Charia & Company (hereafter, “Charia”), whose insurer, Hartford Fire Insurance Company (hereafter, “Hartford”), paid $29,-420.68. Since Charia allegedly suffered additional (uninsured) losses amounting to $9,357.88, both Charia and Hartford (as sub-rogee) sued Mrs. Jewel Wainwright, the lessee and manager of the Silver Dollar, desk clerk Russell Stanley (who was never served), and Mau Mar, Inc., the corporate owner of the building, as well as Mau Mar’s directors and officers.

Commissioner Holahan recommended a finding that the fire was caused by the negligence of Stanley and Mrs. Wainwright, and further recommended that Mau Mar, Inc. be found liable by application of La.Civ.Code art. 667.

District Judge Fedoroff agreed with the Commissioner on the issue of negligence, but determined that the owner was not liable, citing Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (La.1971). Accordingly, judgment was rendered in favor of Hartford and Charia against Wainwright, but the claims against Mau Mar, Inc., et al., were dismissed.

Appellants Hartford and Charia here contend that the trial court erred in failing to follow the recommendations of the Commissioner; in failing to find liability on the part of the adjoining land owner for damage caused by his use and ownership of the property; and in failing to award Charia damages for alleged loss of income which was stipulated to be in the amount of $1,900.00, as well as for certain costs of shipment of items destroyed in the fire.

There is scant evidence to support the allegation that fire retardant treatment of mattresses used at the Silver Dollar did not comply with the provisions of La.R.S. 40:1610, Fire inspector John Lindner gave no reasons for his opinion that the mattresses were not treated in compliance with the statute. The trial court did not err in implicitly concluding that plaintiffs had not made a case under this theory. Even if such proof had been sufficient, application of the statute would not, in our view, mandate a finding of liability on the part of the owner of the building under the circumstances here existent.

■ Concerning the failure to apply La.Civ.Code art. 667, appellants contend that the frequent previous occurrence of mattress fires at the Silver Dollar constituted,then and there, an inherent danger in the owner’s use of property. Over objection of defense counsel, the trial court admitted evidence of previous mattress fires which appellants here contend constituted notification to Mau Mar, Inc. of the obvious hazard to neighboring property. However, the record supports the conclusion that only one fire code violation notice was ever issued to the owner. It required only the removal of a sleeping room located in the staircase area. This was done. All other notifications (however many there were) went to Mr. Wainwright, who ran the hotel until his death in 1967. After that, they were sent to his wife, Mrs. Wainwright.

On the basis of the evidence in this record, we must concur in the trial judge’s finding that no negligence has been proven on the part of the owner of the building.

Application of Article 667 does not, however, require negligence on the part of the owner in order for liability to exist in certain instances.

In Hero Lands v. Texaco, 310 So.2d 93, 97 (La.1975), the Supreme Court discussed the applicability of Article 667 as follows:

“The article expresses, as this Court has often stated, a doctrine of strict liability which does not depend upon deliction. Craig v. Montelepre Realty Co., supra; Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); Devoke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816 (1947).
It does not follow, however, that Article 667 is the only basis upon which neighbors may seek redress for damages caused by proprietors in the vicinity. Article 2315 may also serve as a basis for recovery under appropriate circumstances. But when this authority is relied upon, fault must be proven. Article 2315 contemplates responsibility founded on fault, namely, negligence or intentional misconduct, including abuse of rights. The notion of fault in this context is conduct which violates the standard of reasonableness in the community, an act that a careful and prudent person would not undertake. By contrast, recovery under Article 667 may be granted despite the reasonableness and prudence of the proprietor’s conduct, when the work he erects on his estate causes damage to his neighbor. Lombard v. Sewerage & Water Board, 284 So.2d 905 (La.1973). (Emphasis ours.)”

The paragraph which describes the applicability of Article 667 makes it clear that Article 667 recovery is dependent on grounds distinct from negligence, namely, the performance of some act which is inherently dangerous to a neighbor despite the manner (negligent or nonnegligent) in which it is carried out. Thus, when the damage to neighboring property is shown to result from the negligent omission or commission of an act, absent proof that that act, conducted properly, is inherently dangerous to the neighbor, application of Article 667 as an additional basis for recovery is not warranted.

The jurisprudence supports this conclusion. In many cases applying Article 667, the damage-producing activity has been one which, conducted in a normal and careful manner, nevertheless resulted in damage, thereby earning such activity the appellation “ultrahazardous activity.” See, e. g., Hero Lands v. Texaco, supra; Lombard v. Sewerage & Water Board, 284 So.2d 905 (La.1973); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); Burke v. Besthoff Realty Co., 196 So.2d 293 (La.App. 4th Cir. 1967); Daigle v. Continental Oil Company, 277 F.Supp. 875 (W.D.La.1967).

Unlike the cases cited above, the instant case does not present a situation involving damage from an ultrahazardous activity. Although the trial judge agreed with the Commissioner’s finding that Wainwright and Stanley’s Article 2315 negligence was the direct proximate cause of the fire, any finding of Article 667 liability on the part of Mau Mar, Inc., et al., required an additional finding to the effect that the operation of a so-called third-rate hotel with some previous history of mattress fires constituted, on that basis, an ultrahazardous activity causative — on its own — of the damage. We are of the view that the trial judge’s rejection of this critical contention is supported by the record and is not manifestly erroneous.

The apparent bankruptcy of Mrs. Wainwright, coupled with the rejection of appellants’ claim against Mau Mar, Inc., et al., essentially moots the damage award. However, Charia is, on the face of the record, clearly entitled to the stipulated amount of $1,900.00 covering lost income, and the judgment must be amended to that extent. Accordingly, the judgment of the Civil District Court for the Parish of Orleans is amended to increase the award in favor of Charia and against Wainwright by $1,900.00. As amended, the judgment'is, in all other respects, affirmed.

AMENDED AND AFFIRMED.


author: GARSAUD, Judge.

text:
    Lewis A. GIRAUD, Mrs. Elvira Louise Wiener Giraud, Mrs. Corinne Rotge Panquerne, Gerald L. Schroeder, Decatur Realty Corporation and Thomas L. Giraud v. CITY OF NEW ORLEANS and the Hon. Henry Simmons, Director of the Department of Finance of the City of New Orleans as Tax Collector of the City of New Orleans. DECATUR REALTY CORPORATION v. CITY OF NEW ORLEANS.
    Nos. 9064, 9065.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearings Denied June 13, 1978.

      Thomas L. Giraud and Charles A. Verder-ame, New Orleans, for plaintiffs-appellants Lewis L. Giraud, et al.
    Sidney M. Bach, New Orleans, for plaintiff-appellant Decatur Realty corp.
    Philip S. Brooks, City Atty., Jackson P. McNeely, and Lee R. Miller, Jr., Asst. City Attys., for defendants-appellants the City of New Orleans and Henry Simmons.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert L. Danner, Jr., Asst. Atty. Gen., for defendant-appellant the Louisiana Tax Commission.
    Before GULOTTA, BEER and GAR-SAUD, JJ.
   GARSAUD, Judge.

These consolidated cases were brought by owners of real property in the Second and Third Municipal Districts of the city of New Orleans. The property owners contested certain procedures followed by the Orleans Parish Board of Review and the Louisiana Tax Commission in increasing assessments on vacant land in those districts for the 1976 tax year. In case No. 76-15514 (Court of Appeal No. 9064), all plaintiffs petitioned for a writ of mandamus ordering that the City of New Orleans, through its appropriate directors, accept payment of 1976 real property taxes on the basis of the official tax assessment rolls as submitted to the Louisiana Tax Commission by the assessors in the Second and Third Municipal Districts, which figures were less than the assessments finally promulgated by the Commission. The trial court denied this writ, and plaintiffs then sought to overturn the denial by petitioning this Court for a writ which was refused in case No. 8249.

Thereafter, plaintiffs filed a supplemental and amending petition in the district court. In this supplemental and amending petition, plaintiffs sought a declaratory judgment and other equitable relief decreeing that the taxes were illegally assessed and illegally collected. Plaintiffs Decatur Realty Corporation and Henry Berming-ham, who had paid the taxes assessed and then filed a protest, filed a petition for recovery of taxes under R.S. 47:2110, in this suit as well as in the consolidated case for Decatur Realty, case No. 76-16467 (Court of Appeal No. 9065).

The trial court dismissed the suit of all plaintiffs who had not paid their taxes and brought protest under R.S. 47:2110. As plaintiffs Decatur Realty Corporation and Henry Bermingham had paid their taxes under protest, the trial court ordered that the sum of the difference of the amount of taxes paid under protest and the amount of taxes payable to the City of New Orleans based upon the valuation as originally fixed by the assessors be reimbursed to plaintiffs. The- trial court further ordered

“that the City of New Orleans refund to other taxpayers in the same category as Decatur Realty Corporation, who paid their taxes under protest and gave notice of their intention to file suit, upon satisfying the City of New Orleans that the provisions of R.S. 47:2110 have been met.”

The plaintiffs who had brought the action for declaratory judgment and whose suit was dismissed have appealed the decision of the trial court. The City of New Orleans and the Louisiana Tax Commission have appealed that part of the decision rendered in favor of those plaintiffs who paid their taxes under protest.

With regard to the question of whether the declaratory judgment is an appropriate vehicle for bringing this claim, we agree with the trial court that the remedy provided by R.S. 47:2110 is the exclusive method for attacking the action of the taxing authorities here. R.S. 47:2110 states in part as follows:

“A. No court of this state shall issue any process whatsoever to restrain the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution. Any person resisting the payment of any amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax and shall give the officer notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If suit is filed within such time for the recovery of the tax, such amount so segregated shall be further held pending the outcome of the suit. If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the rate of two per centum per annum for the period from the date such funds' were received by the officer to the date of such refund.
“B. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof. In any such suit, service of process upon the officer designated by law for the collection of the tax shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.”

The language is mandatory and unambiguous, and simply does not permit a court to issue any process whatsoever to restrain the collection of an ad valorem tax. Plaintiffs-appellants cite the case of Colorado National Bank of Denver v. Bedford, 310 U.S. 41, 60 S.Ct. 800, 84 L.Ed. 1067 (1940) for the proposition that a suit for a declaratory judgment may be used to determine the constitutionality and application of a tax statute. We do not believe that case is applicable, as in that instance there was no allegation that the state legislature provided any specific relief for recovery of taxes, as there was in this case. Further, the Colorado National Bank suit was not brought by a taxpayer, but instead by the taxing authority itself, whose only method of pursuing a legal claim in its role was through the Declaratory Judgments Act of the state of Colorado. Rather, the suit before us is governed by the case of Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943), where Act 330 of 1938 (the source of the present R.S. 47:2110) was considered vis-a-vis a claim that relief could be granted in federal court under the federal Declaratory Judgments Act. In that case, the United States Supreme Court held that, as Louisiana provided a remedy for contesting and challenging a tax, an action for declaratory judgment was inappropriate. As the Court stated,

“With due regard for these considerations, it is the court’s duty to withhold such relief [declaratory judgment] when, as in the present case, it appears that the state legislature has provided that on payment of any challenged tax to the appropriate state officer, the taxpayer may maintain a suit to recover it back.” Great Lakes Dredge & Dock Co. v. Huffman, supra, at 300, 301, 63 S.Ct. at 1074.

See also, Ford Motor Credit Company v. Louisiana Tax Commission, 321 F.Supp. 1365 (E.D.La.1971).

Accordingly, we affirm the trial court’s decision insofar as it dismissed the suit of those plaintiffs who had sued exclusively under the provisions of Article 1871 of the Louisiana Code of Civil Procedure providing for declaratory judgments.

This brings us to the merits of the actions of various taxing authorities of the state and the city in this matter. As stated in plaintiffs-appellants’ brief, the basic issue is whether the Orleans Parish Board of Review and the Louisiana Tax Commission complied with all laws relative to the procedure to be followed to change the official tax rolls of the assessors for the tax year 1976. The entire matter stems from certain actions of the Board of Review taken in conjunction with the preparation by the assessors of the assessed values of properties in late 1975 for purposes of the 1976 tax year. Apparently the respective assessors had agreed upon a certain valuation for vacant lands in the Second and Third Municipal Districts, which values were the same as had been on the books for 1975. The Board of Review for the Parish of Orleans, in a continuing attempt to increase and to equalize assessments of vacant lands throughout the city, sought to and did have vacant lots in the Second and Third Municipal Districts appraised by two professional appraisers. Ultimately, this resulted in increases in amounts to 20% of the “fair market value” of the property appraised.

The Board of Review contacted all owners of such property by letter, advising them that the Board of Review would recommend these assessment increases to the Louisiana Tax Commission. Included with these letters was a notice which read:

“You are hereby notified pursuant to the provisions of LSA-R.S. 47:1995 to personally appear before the Board of Review in the City Council Chambers, City Hall, New Orleans, on the nineteenth (19) day of September, 1975, at 10:00 A.M., to show cause why your assessment should not be increased. The purpose of your presence will be to appear before the Orleans Parish Board of Review which will review the assessment of your property and may either recommend an increase or decrease to your present assessment. Failure to appear on your part may be construed as your acceptance of the Staff’s recommended assessment change.” Decatur Realty Corporation, Exhibit #2.

A special notice was run on the Times-Picayune newspaper. The notice read as follows:

“Public hearings will be held on all real estate assessment changes that have been made in the seven Municipal Districts for the Parish of Orleans while the real estate and personal property assessment rolls for the year 1976 were open for public inspection and correction in the offices of the seven Assessors for the Parish of Orleans.
“Affected property owners will be notified by certified mail to appear at a specific time and date for their hearings before the Board on the dates between September 19 and October 7, 1975.
“Those persons who have filed applications for abatement with the Assessors while the 1976 assessment rolls were open for public inspection and correction will be heard, and the Board of Reviewers will consider such other business which may come before the Board.”

It should be noted that the public notice does not refer specifically to any changes made by the Board in the assessments of vacant land. Nonetheless, these plaintiff-owners appeared before the Board to register their complaints on the proposed increases on vacant lands. Subsequent thereto, a meeting was held between the Louisiana Tax Commission, some members of the Board of Review, and the two assessors in question, in which the valuation of these vacant lands was discussed. The outcome of the meeting was that the assessors requested a letter be sent to them ordering that they change their rolls to come up to the figures recommended by the Board of Review to the Tax Commission. Apparently a letter was requested by the assessors because they were reluctant to make these changes on their own, as apparently they opposed the changes. On October 23, 1975, such a letter was sent by the Tax Commission to the two assessors in question. However, when the assessment rolls were finally and officially certified by the assessors to the Tax Commission by letter of January 29, 1976, the assessors stated, in part:

“On the assessment books for the Second [Third] District the official assessments of my office are entered in black pencil. The appraisal figures recommended by the Orleans Parish Board of Review are shown, for information purposes only, with red pencil notations.
“The fact that the appraisal figures recommended by the Orleans Parish Board of Review are shown in red pencil for information purposes only is in no way to be construed that I have adopted these figures for assessment purposes. I repeat and emphasize that the official assessments of my office are entered in black pencil.
“I am also forwarding to you two sets of Recapitulation Sheets for the Second [Third] Municipal District. The official Recapitulation Sheets of my office reflect the official assessment figures on property in the Second [Third] Municipal District. The other set of Recapitulation Sheets contain the appraisal figures of the Orleans Parish Board of Reviewers and are forwarded to you for information purposes only as I have not adopted the appraisal figures of the Orleans Parish Board of Reviewers.”

By letter of February 27, 1976, the Tax Commission against instructed the assessors to change the assessments. The letter stated, in part:

“We have reviewed your 1976 Real Estate assessments, the ones in black figures, and, as this Commission has used the appraisal figures recommended by the Orleans Parish Board of Review in arriving at the assessed value of land in the other districts, as well as a portion of your district, we have signed a resolution instructing you to make the necessary changes to conform with the recommendation made by the Review Board.”

Assessor Hickey testified that after receiving the letter, “We just sent them down to the City with black and red. Too much erasing.” Tax bills were then sent out by the City reflecting the assessments ordered by the Tax Commission.

On all these facts, the trial court found “that the City of New Orleans was without right to do that which it did,” and that “the Louisiana Tax Commission failed to follow the procedural law in causing the particular vacant property to be assessed differently from that which the assessors had fixed as the assessed property value.” The trial court, quoting from its decision in the initial suit for injunctive relief, stated:

“To uphold the procedure which has been followed in the instant case by the Board of Review and by the Louisiana Tax Commission would be a complete usurpation of the powers and duties of the assessors and in effect would make their offices totally ineffective and useless.”

The plaintiffs make two basic arguments in alleging the illegality of the actions of the Tax Commission and the Board of Review. The first, under Article VII § 23 of the 1974 Louisiana Constitution, contends that as the Tax Commission and the Board of Review did not act in concert, the action of increasing the assessment and levying the tax thereon was unconstitutional. In the alternative, the second argument is that the Board of Review (assuming that its very existence during the period January 1, 1975 — January 1, 1978 is constitutional) and the Tax Commission have not followed the various statutory provisions applying to assessments and taxation which govern their actions.

Regarding the first argument, Article VII § 23 provides in part:

“Prior to the end of the third year after the effective date of this constitution, the assessors and the Louisiana Tax Commission or its successor shall complete determination of the fair market value or use value of all property subject to taxation within each parish for use in implementing this Article.”

The initial argument is that the actions of which plaintiffs complain were actions taken under this constitutional provision; that the assessors and the Tax Commission are mandated to act together to revalue property and, as they did not act together, but rather the Tax Commission ordered the assessors to adopt a certain valuation to which the assessors never agreed, this constitutional mandate was violated.

It is our view that this constitutional provision is inapplicable, as the Tax Commission, the Board of Review and the assessors agreed in testimony in both cases that this revaluation was not the “determination of the fair market value or the use value of all property subject to taxation” for which Article VII § 23 provides, but rather was simply a continuing revaluation of vacant lands for equalization purposes, part of a program begun in 1972. On this point, Dr. Claude Mauberret, Assessor for the Second Municipal District, testified as follows:

“Q. Now, have you received any notice from the legislature or the Tax Commission or any other authority up until this date to have a meeting to determine the fair market value or use value of all property subject to taxation within the Parish of Orleans? Has anyone yet attempted to implement or enforce Article VII, Section 23?
“A. No, sir.
“Q. It is your testimony that you are waiting for the legislature to give you direction before you do this?
“A. That’s right, sir.”
Transcript, Case No. 602-253 (Court of Appeal No. 7615), p. 74.

Further, C. Gordon Johnson, Chairman of the Louisiana Tax Commission, in response to a similar line of questioning, testified as follows:

“Q. I don’t want to gild the lily as the Judge suggests, but I want to be certain that is your testimony that the Louisiana Tax Commission, to date, has done nothing to implement the provision of Article VII, Section 23 of the new constitution?
“A. Only having committees getting information to present to the legislature.
“Q. And the legislature is going to find the funds and find [define] fair market value and set out the guidelines to carry out this function?
“A. That’s right.
“Q. And it’s your testimony that once this is done, the legislature appropriates the money and sets out the guidelines, you will not do anything, you will let it up to the assessors?
“A. We will supervise and hear protests. It is my understanding of the instructions that the appeals will be made directly to the Tax Commission of all protests.
“Q. If that is what your plans are to do, then why are you doing what you are doing now since you will have to redo it within a couple of years?
“A. We are continuing something we started in ’72.”
Transcript, Case No. 602-253 (Court of Appeal No. 7615), pp. 115, 116.

Thus, it is clear that this action on the part of the Tax Commission is wholly unrelated to the purpose envisioned in Article VII § 23, and the section is simply not applicable.

Before considering the question of whether the Tax Commission and the Board of Review acted within the scope of the statutory provisions governing their respective responsibilities, it must be determined whether the Board of Review continued to exist after the effective date of the new constitution. The plaintiffs argue,

“Since all laws in conflict with this new Constitution ceased on its effective date, all laws granting to the Orleans Parish Board of Review powers to recommend property values to the Louisiana Tax Commission also ceased on December 31, 1974.” Brief on Behalf of Plaintiffs-Appellees and Plaintiff-Appellants, p. 5.

It is our view that the Board of Review continued to exist through December 31, 1977. Under Article XIV § 18 of the 1974 Constitution, the following is provided:

“(A) Retention. Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation.”

The plaintiffs apparently contend that Article VII § 18 of the Louisiana Constitution of 1974, providing for ad valorem taxes, assessments, valuation and review, is in conflict with the provisions of the Revised Statutes dealing with the Board of Review. There is no doubt that these provisions are in conflict. However, § 18 is not effective until January 1, 1978, and with respect thereto Article XIV § 13 of the 1974 Constitution states:

“Section 13. Section 18 and Section 20 of Article VII shall become effective January 1 of the year following the end of three years after the effective date of this constitution. Until that date, the provisions of the Constitution of 1921 governing matters covered by those Sections shall continue to apply, notwithstanding any contrary expiration date stated in any provision thereof concerning the veterans’ homestead exemption.”

Accordingly, at the time relevant to this case, the Board of Review functioned under the 1921 Constitution, with the powers and authority granted to it by R.S. 47:1931 and 47:1996. This conclusion is bolstered by the fact that the Louisiana legislature enacted Act 1773 in its regular session of 1975, amending and re-enacting R.S. 47:1931 relative to the membership of the Board of Review in Orleans Parish.

The final question to be resolved, therefore, is whether the Board of Review and the Tax Commission, as the trial court judge said, “followed the procedural law” in revaluing these vacant lands. In reaching his conclusion that these parties failed to follow statutory mandates, the trial judge relied heavily on R.S. 47:1909, which sets forth the powers and authorities of assessors in Orleans Parish. The pertinent language there states:

“The assessors elected in the Parish of Orleans . . . shall constitute a board of assessors for the parish and each assessor shall independently exercise his functions in the assessing and listing of the property in and for his respective district within the parish.”

Although we agree that the assessors are independent in their assessments of the value of property within their parish, it is clear that at the time of this case, their assessments were subject to review by the Board of Review. R.S. 47:1931 is very specific. This section states, “Assessments throughout the state shall be subject to review by boards of reviewers . . . .” (Emphasis added.) There is no question, then, whether the decision of the assessors is a final one. It obviously is subject to review. However, we must now address the question of whether this review and subsequent change by the Tax Commission were properly effected.

The plaintiffs’ assertions that the Board of Review and the Tax Commission acted improperly are based primarily on R.S. 47:1995, 47:1996 and 47:1990. The essence of §§ 1995 and 1996 is that after a certain specified time period, the assessors, under 47:1995, and the Board of Review, under 47:1996, shall certify the assessment rolls (to the Board of Review, where the assessors are certifying, and to the Louisiana Tax Commission, where the Board of Review is certifying). R.S. 47:1996 concludes by requiring that the Tax Commission complete its work by October 15th of each year.

The plaintiffs’ first contention is that neither of these certifications were accomplished within the prescribed time period. From the record, it appears that the reason for failure of the initial certification (by the assessors to the Board of Review, which could have permitted the Board of Review subsequently to certify the rolls to the Tax Commission) was the assessors’ disagreement with the proposed revaluation to 20% of fair market value of vacant lands in the Second and Third Municipal Districts. No other explanation for the assessors’ failure to certify timely is given. In fact, in the first lawsuit, the record of which has been stipulated into the record in this case, the assessors intervened in opposition to the action of the Tax Commission and the Board of Review. From the testimony of both assessors, it is clear that they have never agreed to the change. As a result of this position, then, the assessors simply chose not to certify their rolls at the prescribed time. Consequently, we do not believe that the actions of the Board of Review in failing to certify timely can be ascribed to any fault of the Board, and assessments which were ultimately ordered by the Tax Commission cannot be rendered invalid because of the failure of the assessors themselves, who were attacking that very action, to do their duty timely. Further, the failure to certify the assessment rolls within the provided time period has not prejudiced any taxpayer or denied any rights which would require a conclusion that the assessments in the Second and Third Municipal Districts on their property for 1976 were null and void.

The purpose of the certifications actually is addressed to the internal relationships between the assessors, Boards of Review and Tax Commission; it serves to set in motion some other ministerial act. These sections of the Revised Statutes are not designed essentially as protections for the taxpayers against the taxing sovereign. While the failure to comply with them is not condoned, we can find no fundamental prejudice to the rights of these taxpayers, nor was any shown as a result of this failure. The same analysis is true relative to the failure of the Tax Commission to complete its work by the 15th of October.

The plaintiffs further argue, under 47:1995, that an improper public notice was given to the taxpayers regarding the assessment rolls. The specific language reads:

“The board, for a period of ten consecutive days from the time that the assessment rolls are certified and delivered to it by the assessor, shall conduct public hearings for all persons desiring to be heard on the assessments of real and personal property. Notice of such public hearings shall be given by the board of assessors by publication as provided herein for notice of exposure of the rolls for inspection.”

Plaintiffs’ contention here is that the notice which was published by the Board of Review in the daily newspaper referred to a hearing for assessment changes that had been made by the assessors, and that at the hearing the Board of Review also considered the changes which they were recommending on the vacant lands and to which the assessors did not agree. We do not believe this position has any merit. The notice itself said, “The Board of Reviewers will consider such other business which may come before the Board,” and in conjunction therewith, the Board sent to each taxpayer a specific notice (to which counsel stipulated at trial) to show cause at that very meeting why the assessments on vacant lands owned by them in these two municipal districts should not be increased. Accordingly, the notice requirement of R.S. 47:1995 was met, and there is no viable complaint with respect thereto. We should note also that even though the above-quoted law says that the hearings can be held only after the assessment rolls are certified, which they were not, plaintiffs nonetheless made an appearance to register their complaints. They apparently did so without regard to the fact that the assessment rolls were not certified, but now complain of the lack of certification in this lawsuit.

Finally, plaintiffs argue that the notice required by R.S. 47:1990 was not provided. That section states, in part:

“Whenever the tax commission shall make any change or correction in an assessment, it shall at the same time forward to the auditor a copy of the instructions furnished to the assessor or tax collector. A copy of these written instructions shall be forwarded by the tax commission to the taxpayer by registered mail, and such written instructions, together with the return receipt of the taxpayer therefor, shall be sufficient notice of such change.”

Plaintiffs argue that the changes in the assessments are illegal and void in that such notice by registered mail of the changes was not sent to individual taxpayers.

In resolving this contention, the language of the entire section must be considered. R.S. 47:1990 states:

“The tax commission may change or correct any and all assessments of property for the purpose of taxation, in order to make the assessments conform to the true and correct valuation, not to exceed its actual cash value. Such change or correction may be made by the tax commission at any time before the taxes levied have actually been paid.
“In order to correct or change any such assessment, it shall only be necessary for the tax commission to issue written instructions to the assessor to make the change upon the assessment roll, and in the event the assessment roll has been delivered to the tax collector, then to direct the tax collector to make such change upon the tax roll in his possession and to collect taxes according to such change. Whenever the tax commission shall make any change or correction in an assessment, it shall at the same time forward to the auditor a copy of the instructions furnished to the assessor or tax collector. A copy of these written instructions shall be forwarded by the tax commission to the taxpayer by registered mail, and such written instructions, together with the return receipt of the taxpayer therefor, shall be sufficient notice of such change.
“The written instructions issued as above provided by the tax commission to the tax collector shall authorize him to collect all taxes according to such change and shall be his authority to make the necessary deduction of increase on his tax roll and in his settlement for taxes with the auditor.”

It is clear from a reading of that section that the Tax Commission has absolute authority to change and/or to correct all assessments made by the assessors, and that in order for such a change to be made, it shall be necessary only for the Tax Commission to issue written instructions to the assessor when, as in this case, the assessment rolls have not yet been delivered to the tax collector. Such written instructions were in fact given to the assessors here, not on one but on two occasions. That action changed the assessments.

The notice requirement to the taxpayer is clearly a protection and insures that taxpayers will be accorded procedural due process before their tax assessment is increased. Its purpose is to put the taxpayer on notice that his rights may be adversely affected, which would then allow him to proceed in accordance with the remedies provided by law. The record in this case is abundantly clear that, although the letter of this provision may not have been met, the spirit was. These taxpayers were aware from the very beginning of these proceedings, at least from August 1975, that the Board of Review intended to recommend to the Tax Commission a 20% increase in the fair market value of these properties, and that the Tax Commission had gone on record as saying that they were going to accept these recommendations.

Evidence of plaintiffs’ awareness is the fact that they have been opposing these recommendations from the very beginning, all the way through to a meeting in early 1976, at which the plaintiffs were represented by their attorneys, and at which the Tax Commission, the Board of Review and the assessors finally discussed the evaluations in question. A notice here under the technical language of the statute would have been superfluous and a useless gesture as far as plaintiffs were concerned.

For the foregoing reasons, the trial court’s action in dismissing plaintiffs’ suit for declaratory judgment is sustained, and the trial court’s decision granting relief to those plaintiffs who paid under protest is reversed and the suit of those plaintiffs is hereby dismissed at their cost.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . This matter was originally considered on appeal of an injunction granted by the district court. On appeal, this court reversed. La.App., 336 So.2d 1037, writ denied, La., 339 So.2d 353. All parties stipulated that the record from the first case would be made part of the record in the case presently before us.

      . Due to the result we reach in this case, there is no reason to address the question of whether these plaintiffs could bring a class action.


text:
    John COBBS and Georgia Cobbs v. Henry J. VEITH, Jr., Elbert B. Fendley, William Harvey McMillain, and U. S. Fidelity and Guaranty Co., and E. B. Fendley Painting Co., Inc.
    No. 9077.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.

      Dufour, Levy, Marx, Lucas & Osborne, Michael Osborne, New Orleans, for plaintiff-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, H. F. Foster, III, and Zeringer & Zeringer, Harold J. Zeringer, Jr., New Orleans, for defendant-appellees.
    Before GULOTTA, BEER and GAR-SAUD, JJ.
   BEER, Judge.

Mr. and Mrs. Cobbs seek damages against the owner and the alleged tenant of premises where a fire allegedly started and spread to their leased dwelling, contending that the fire was caused by the negligent maintaining of an obvious fire hazard. The owner of the property where the fire originated also sued the alleged tenant, and the cases were consolidated for hearing before the commissioner, whose report, approved by the trial judge, dismissed all claims and precipitated this appeal.

The commissioner initially addressed the issue of control of the premises where the fire started and found that the lease of the premises terminated at the end of January, 1972. There is ample evidence of record to support this determination which obviously depended upon an evaluation of the credibility of the lessor, Veith, as opposed to the lessee, Fendley. That determination will not be disturbed. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

However, the question of control of the premises is, essentially, mooted by the fact that causation cannot be presumed and has not been proven. See: Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972); Morales v. Houston Fire and Casualty Co., Inc., 342 So.2d 1248 (La.App. 4th Cir. 1977), writ refused, 345 So.2d 49; Barber v. Books, Etc., Inc., 316 So.2d 154 (La.App. 4th Cir. 1975); Milano v. American Rent-All, Inc., 310 So.2d 146 (La.App. 4th Cir. 1975), writ refused, 313 So.2d 599.

The origin and cause of the fire here involved remain in serious doubt. Fire Inspector Glenn, who arrived about two hours after the fire had begun, testified as follows:

At TR. 24:

“A. This is the heaviest point of burn from all indication this is determined where the fire was, the hottest and longest most severe burn, this building was totally destroyed, or to the ground when I first arrived.”

At TR. 24-25:

“Q. Did you make a determination as to the source of the fire at 1300, 1302 and 1306 Camp Street?
A. Well, sir, from all indications it spread from the original fire from one building to another, radiation, conduction of heat and current.
Q. When you talk about spreading from the original location you were referring to 1130 Thalia Street?
A. Yes, sir.
Q. Did you make an investigation to determine whether there were any highly combustible substances at 1130 Thalia Street?
A. No, sir, I did not.
Q. Did you make any determination with regard to the fire at 1130 Thalia Street at the source of ignition of the fire, that is, the spark or flames that caused the fire?
A. No, sir, I didn’t.”

At TR. 26:

BY MR. STIREWALT:

“Q. Mr. Glenn, did you state you were unable to determine where the fire actually started?
A. Well, what I thought I said that the building where the fire started in my opinion was destroyed, as an opinion point of location, no, sir, I don’t know.”

Noting this testimony, the commissioner concluded:

“ . . ., the record is void of any testimony as to the cause of the fire or of any negligence on behalf of the defendant Veith. We are left with the bare facts that a fire occurred on February 17,1973, and probably began in the Thalia Street property. I do not feel that the mere fact that the property was left unattended for thirteen months, or that maybe some trash was in the property at the time of the fire, or that maybe vandals and vagrants were using the property is sufficient circumstantial evidence from which we can draw an inference of negligence on behalf of Mr. Veith in causing the fire. Therefore, the record is lacking in evidence that the fire was caused by the negligence of Mr. Veith.”

Appellant urges that this case is indistinguishable from Mistretta v. Fiorella, 269 So.2d 589 (La.App. 4th Cir. 1972). There, however, a violation of the applicable ordinance was factually determined to be the cause of the fire. Here, the evidence sheds no light on the point of origin of the fire and does not lead to a similar inference of causation-in-fact. Mistretta is distinguishable on its facts.

In Boudreaux, supra, the court was able to factually determine that the fire had started in the ductwork above the restaurant’s stoves and grills. The ductwork had not been cleaned for an extended period. Where the origin of the fire could be pinned down to that extent, it was reasonable to conclude that unextinguished pilot lights caused the fire to start in the ductwork. Similarly, in Fireman’s Fund Ins. Co. v. United States F. & G. Co., 276 So.2d 754 (La.App. 3rd Cir. 1973), the origin of the fire was narrowed down to two possibilities: 1) a lighted cigarette, or 2) spontaneous combustion. In light of evidence that two of defendant’s employees smoked regularly on the premises, a reasonable factual determination as to the cause of the fire was properly made.

On this record, possible causes of the fire are too numerous to properly conclude that defendant’s alleged negligence was, more probably than not, the cause in fact. The judgment is affirmed, at appellants’ cost.

AFFIRMED.


text:
    Howard ROMERO v. Philip D. SUNSERI.
    No. 9106.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.

      Seidel & Bailey, Fred K. Bailey, Lafayette, for plaintiff-appellee.
    Jackson P. McNeely, New Orleans, for defendant-appellant.
    Before GULOTTA, BEER, and GAR-SAUD, JJ.
   GARSAUD, Judge.

Plaintiff filed suit on a promissory note in Civil District Court for the Parish of Orleans on June 17, 1965. Within the proper time limitation, a default judgment was taken against defendant and confirmed on February 15, 1967. On December 15, 1976 plaintiff filed suit to revive the judgment. On May 27, 1977 the district court granted judgment in plaintiffs favor reviving the judgment of February 15, 1967. The defendant appeals from the action to revive the original judgment. He contends that the original judgment was an absolute nullity, and that therefore it cannot be revived.

A review of the record in the original proceedings shows that plaintiff, by allegations of his petition, sued on a note “payable to Tidewater Finance Company of DeRidder, Louisiana and by it endorsed to Capitol Securities and Services, Inc. of Lafayette, Louisiana and by it endorsed to Luther Brewer, president of both corporations, and by him personally endorsed to Petitioner.” In addition to setting forth the amount and terms of the note, the petition alleged that petitioner had mislaid the note, had made a diligent search for the same, and had advertised for the lost note in the Times-Picayune and the New Orleans States-Item newspapers without success.

Defendant was personally served on June 25, 1965. A preliminary default was not taken until January 20, 1967. No evidence or written notes of evidence appear in the record, but the parties agree that upon confirmation of default, a note was filed. However, this note was different from that described in the petition, in that it was payable to Tidewater Finance, Inc., 201 North Washington Avenue, DeRidder, Louisiana, and the only endorsements were as follows:

“Pay to the order of Howard Romero Tidewater Finance, Inc.
by: /s/ Luther A. Brewer, Pres.
/s/ Luther A. Brewer”

Thus, the name of the payee differed slightly from that originally alleged, and Capitol Securities and Services, Inc. of Lafayette, which was alleged by the petition to have been an endorser, had not endorsed the note. There were no differences between the petition and the note as to the amount due, interest rate, date on which payment was due, or other particulars.

Judgment by default was then confirmed in favor of plaintiff Howard Romero against defendant Philip D. Sunseri in the amount of $5,800.00 with 8% interest annually from May 1, 1961 until paid, plus an attorney’s fee of 20% of the principal, interest and all costs.

The defendant acknowledges that in a suit for revival of judgment, no defense short of absolute nullity of the original judgment can be raised. He attempts to annul this judgment under Article 2002 of the Code of Civil Procedure, which deals with annulment for vices of form. The defendant argues that the following language is applicable:

“A final judgment shall be annulled if it is rendered:
******
(2) Against a defendant who has not heen served with process as required by law, and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;

The defendant argues that, as a result of the enlargement of the pleadings in the confirmation of default hearing, there was not a valid judgment by default, nor was defendant served with process as required by law. Appellant argues that in introducing a note at variance with the pleadings, a substantial question of fact concerning the identity of the note was for the first time raised, thus enlarging the petition. This should have been raised properly, argues the appellant, by an amended and supplemental petition stating that the note had been found and enumerating the differences between the note and the allegations of the petition. Service, then, of an amended and supplemental petition is required to be made on the defendant under Article 1312 of the Code of Civil Procedure. He concludes thus that in the failure of the plaintiff to file and to serve upon him an amended petition representing that the note had been found and other allegedly material differences between the note and the pleadings, there was such an improper service as to render the judgment of February 1967 an absolute nullity.

With regard to the appellant’s argument that there was not a valid default judgment, Article 1703 of the Code of Civil Procedure states that “[a] judgment by default shall not be different in kind from or exceed in amount that demanded in the petition.” Initially it is clear that the amount of the default judgment did not exceed the face amount demanded in the petition, nor the amount of interest or attorney’s fees. The question, then, is whether the judgment by default was different in kind from that demanded in the petition. We do not believe that it was. The minor change in the name of the payee is of no consequence. The change from Tidewater Finance Company of DeRidder, Louisiana to Tidewater Finance, Inc. is of no material significance, particularly since the note goes on to say, after the language quoted supra, “Tidewater Finance, Inc., 201 North Washington Avenue, DeRidder, Louisiana.” We are of the opinion that the defendant knew or should have known that these names represented the same payee. Further, the fact that the actual note did not have Capitol Securities and Services, Inc. of Lafayette, Louisiana as an endorser is of no real consequence, as defendant Philip Sunseri was the maker of the note and primary obligor, so that a subsequent endorser’s name being erroneously listed in the petition does not affect any material right between the plaintiff Howard Romero as holder and the primary obligor on the note, Philip Sunseri. As the judgment was not different in kind from that prayed for in the petition, it was a valid judgment by default. Hence, there was no need to serve the defendant with an amended or supplemental petition setting forth the changes in the note which were introduced at the default judgment and the original personal service constituted the service “as required by law.” C.C.P. Art. 2002.

Insofar as his argument concerning alterations is concerned, these were matters which clearly should have been raised as a defense, and which cannot be raised in a nullity proceeding. As the pleadings do not indicate any reason for defendant’s failure or inability to present these affirmative defenses, particularly in view of the fact that defendant had been personally served in the original suit, he may not plead them in a nullity action. Steel v. Ruiz, 202 So.2d 376 (La.App. 4th Cir. 1967), and cases cited therein.

For the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.

      . Appellant also complains that there were apparent alterations of dates on the note where a “6” had been superimposed over a printed “5.” He further contends that use in the note of the phrase “For Value Received on or before June 5, 1962 [or 1952] the undersigned in solido promise to pay . . ..” creates an inconsistency in the terms of the note. As discussed further herein, these are defenses which would properly have been raised at a trial on the merits. However, they are not properly presented in an action for revival of judgment. Here, our concern is with the validity or nullity of the judgment alone.