text:
    Martin S. WHITE v. Joseph GERACE, Administrator of the Louisiana Department of Employment Security, and Avondale Shipyards.
    No. 10197.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.

      New Orleans Legal Assistance Corp., Catherine L. LaFleur, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Stephen D. Ridley, New Orleans, for defendants-appellees.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

Appellant, Martin S. White, had been employed for approximately nine months as a rigger with Avondale Shipyards when he was discharged on May 27, 1977, allegedly as a result of unexcused absenteeism. He applied for and began to receive unemployment compensation (based upon an initial determination that he had been discharged for nondisqualifying reasons). The employer appealed this determination, and, on July 28, 1977, after a full hearing, the Appeals Referee reversed the initial determination. White appealed, and the Board of Review concluded that the recording of the initial hearing was inaudible and remanded for a rehearing, which took place before a different hearing officer on November 10, 1977. That officer also reversed the initial determination, and the Board of Review affirmed.

On November 28, 1977, White sought judicial review of the Board’s affirmance. After hearing, the Civil District Court for the Parish of Orleans affirmed the Board of Review. White appeals. We affirm.

The record supports a conclusion that White failed to call in or otherwise notify his employer of his absence on the 25th and 26th (and, very likely, on the 27th also) of May, 1977. Absence on consecutive working days without calling in or without permission is “Major Offense No. I” in Avondale’s employee guide, which White admitted having received and read.

Though White’s able counsel argues that the Avondale records which support the unexcused absences do not fall within the Business Records exception to the hearsay rule, the record before us supports the conclusion that such records were regularly kept in the course of business by the company timekeeper, who was also the designated person to be contacted in the event of absence from work.

In Lambert v. Heirs of Adams, 325 So.2d 331, 335 (La.App. 3rd Cir. 1975), the court, quoting from 21 La.L.Rev. 449 at 459-60 (1961), observed:

“The modern Louisiana cases can be summarized as follows. Records of industrial and commercial organizations, as well as medical reports and hospital records are admissible as proof of their assertions if: (1) persons concerned with recording the information are unavailable for testimony, or production of such persons would be a needless burden; (2) the first collected record available to or usable by the court is introduced; (3) the records are identified at the trial by one familiar with the bookkeeping procedure; and (4) the evidence seems reliable after considering such factors as (a) contempora-neousness of the entry with the occurrence or fact recorded, (b) first-hand knowledge of the entrant, (c) existence of a business or professional duty to record or report the facts in the regular course of business, (d) completeness and honest appearance of the books, (e) absence of fraud in making the entries or in destroying the supporting memoranda, and (f) perhaps, whether the books belong to a third party.”

We are of the view that the proceedings here at issue were conducted significantly within the evidentiary guidelines noted above.

White testified that he had called in on the days in question and sought to corroborate his further contention that he actually came to work on May 27th by producing a paycheck for 19 hours of pay for the period ending May 29, 1977. However, Avondale introduced the paycheck stub for that pay period to explain that the 19 hours of pay represented 2 days @ 8 hours @ regular pay for the 23rd and the 24th, and 2 additional hours of oyertime for those days @ time and a half.

The company’s attendance records further confirmed White’s history of absenteeism: 10 unexcused absences and 27 absences for alleged personal illness during nine months of employment. White did not attempt to refute this record.

Avondale considers — and states to its employees — that repeated absenteeism is a “major offense” and, thus, a clear basis for discharge.

The hearing officer found as a fact that White had a history of tardiness and absenteeism and, specifically, that he was absent and unexcused for at least two consecutive days prior to final discharge. We conclude that the record is sufficient to support that factual finding and that White was properly disqualified. See Persley v. Brown, 160 So.2d 437 (La.App. 2nd Cir. 1964), Goff v. Administrator of the Division of Employment Security of the Department of Labor, 157 So.2d 268 (La.App. 3rd Cir. 1963), and Green v. Brown, 136 So.2d 147 (La.App. 3rd Cir. 1961). The judgment is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    James MORAN, Jr. v. WILLARD E. ROBERTSON CORPORATION, International Auto Sales and Services, Inc., Volkswagen of America, Inc.
    No. 10208.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Cicero C. Sessions and J. David Forsyth, New Orleans, for Volkswagen of America, Inc., defendant-appellant.
    Cabibi & Cabibi, Charles E. Cabibi, New Orleans, for James Moran, Jr., plaintiff-ap-pellee.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is a suit for rescission of a sale and damages due to a redhibitory defect present in an automobile.

James Moran, Jr., appellee, purchased a Volkswagen Dasher automobile from Willard E. Robertson Corporation on May 13, 1974. Volkswagen of America, appellant, was the importer of the vehicle. Approximately 35 days after the purchase, appellee was driving the vehicle when it made a loud noise and broke down, apparently due to transmission failure. The car was towed to Robertson Corporation for repair. Shortly thereafter, the dealership owned by Robertson Corporation ceased operation and the car was moved to Durham Motors for repairs.

In September, approximately 3 months after the breakdown Durham notified ap-pellee that the car was repaired. When he went for it, however, he found that the car would not shift properly. Durham continued to attempt to repair the vehicle, but appellee refused delivery and demanded either a new vehicle or rescission of the sale. This suit was then filed naming several defendants, but the case proceeded to trial against Volkswagen of America only on the basis that the car contained a defect in manufacture. Judgment was rendered in favor of Moran and Volkswagen of America brings this appeal.

Appellant’s main contention is that the trial court erred in rescinding the sale since no defect was shown and no redhibitory claim was proved. Appellants base this contention on the testimony of Ken Wolfe, the Service Manager who supervised the repair of the vehicle. Wolfe testified that the filler plug in the transmission was missing, causing the fluid to run out and the transmission to be destroyed. He also stated that approximately two weeks prior to the manifestation of the problem, Robertson Corporation had performed a 1,000 mile maintenance and apparently had left the filler plug off. Wolfe stated that the absence of the plug could not have originated at manufacture in view of the distance traveled and the short distance that a car can be driven without the plug. Appellant argues that this testimony, plus the absence of contrary evidence by appellee as to the cause of the defect requires that the decision be reversed.

To annul a sale and recover the purchase price based on a redhibitory defect, the buyer must prove that the defect existed before the sale to him. If he proves, however, that the product is not reasonably fit for its intended use, it is sufficient that he prove that the object is thus defective, without being required to prove the exact or underlying cause of the malfunction. Rey v. Cuccia, 298 So.2d 840 (La.1974). If the defect appears soon after the thing is put into use, a reasonable inference arises that the defect existed at the time of the sale, in absence of other explanation or intervening cause shown. Rey, supra. The ultimate question of the existence of a redhibitory defect is a question of fact which should not be disturbed in the absence of manifest error, or abuse of the wide discretion afforded the trial judge. Clinkscales v. Superior Pontiac-GMC, Inc., 365 So.2d 895 (La.App. 4th Cir. 1978).

The trial judge found that the ap-pellees established facts sufficient to sustain the plea of redhibition. We do not find this decision to be “clearly wrong”. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The appellant’s contention is based solely on the credibility of Wolfe that the plug was missing after the 1,000 mile checkup. Appellee testified that he had no recollection of having returned the car for a 1,000 mile checkup. Appellant could not produce any repair orders or documents showing that the automobile had been served at 1,000 miles, saying the records were mislaid. However, it did produce a document showing that an inspection was made at 759 miles for the purpose of installing a license plate and examining the choke. This document is not proof of a 1,000 mile checkup involving the transmission, as appellant admits. Of itself, it tends to negate the filler plug theory of appellant. Its existence raises valid questions as to the failure of the appellants to produce documentary evidence of the 1,000 mile checkup. The trial court resolved this credibility question against appellants and we do not find this to be manifestly erroneous. Where there is a conflict in testimony, reasonable evaluations of credibility should not be disturbed even if the appellate court feels that its own evaluations are as reasonable. See Canter v. Koehring, 283 So.2d 716 (La.1973).

We do not find it necessary to decide the issue of the retroactive application of the Amendment to Article 2531 in this case. Even if the Article is applied to this fact situation, the testimony shows that ap-pellee gave an adequate opportunity to repair over a three month period, and the car was still not properly repaired. He was, in fact, without the use of his ear for this length of time. Article 2531, even if applicable, does not require more of a buyer. We also note jurisprudence holding that an opportunity to repair is unnecessary in red-hibitory actions against a manufacturer. See Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1st Cir. 1977). In this ease, Volkswagen of America as importer-distributor of the automobile occupies the position of manufacturer and is liable for the defective vehicle. See Media Production Consultants, Inc. v. Mercedes-Benz of North America Inc., 262 La. 80, 262 So.2d 377 (1972).

Appellant also contends that the trial court erred in awarding rescission of the sale and should have awarded a reduction in price rather than the full purchase price as damages. It also contends that the damages awarded were excessive in that the judgment awarded $383 for insurance, although there was no evidence presented at trial as to this amount.

The buyer is entitled to annul the sale and recover the purchase price upon proof of a redhibitory defect. Rey v. Cuccia, supra. The trial judge, however, may in his discretion award a reduction in price rather than rescind the sale in a suit based on redhibition. See Civil Code Article 2543 and Savoie v. Don Siebarth Pontiac, 345 So.2d 210 (La.App. 3rd Cir. 1977.) Such a decision would be based on a factual determination that the defect did not render the thing sold useless or totally unsuited to its purpose. See Davis v. Davis, 353 So.2d 1060 (La.App. 2d Cir. 1977). The trial judge here found that appellee was entitled to the return of the purchase price and, in view of the evidence, we agree.

The trial judge awarded appellee $6,460.51, apparently representing the purchase price, title, and tax, in the amount of $6,077.51 as shown by the bill of sale in evidence, plus $383 representing insurance for one year. There was, however, nothing offered at the trial to support this figure as the amount of insurance for one year. Further, since appellee refused delivery from Durham Motors approximately four months after the sale, he was required to mitigate his damages and should not be awarded insurance for an entire year.

It is therefore ordered that the judgment be amended to award damages in the amount of $6,077.51, together with legal interest from date of judicial demand, until paid, and all costs in both courts, and so amended, affirmed.

AMENDED AND AFFIRMED.

      . Article 2531, as amended reads in part:
      “Art. 2531. The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
      This amendment became law on July 31, 1974, more than two months after the vehicle was purchased, and more than one month after the vehicle was picked up for repair. Prior law did not require an opportunity to repair before institution of a redhibition suit. See Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973).


author: BEER, Judge. BOUTALL, Judge,

text:
    Houston L. WOOD, Jr., et al. v. Antoine ROVIRA and Alfred Thompson.
    No. 10210.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    William M. Campbell, W. Matthew Campbell, III, New Orleans, for plaintiffs-appellants.
    Pilie & Pilie, M. Arnaud Pilie, Derbes & Derbes, Jorda S. Derbes, New Orleans, for defendants-appellees.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

In January, 1974, appellants, heirs of Houston L. Wood, filed suit to quiet and confirm title to property described as lots 2, 3 and 4 of Section 14 in the Third District of New Orleans. The above described tract was, apparently, part of certain property acquired, more than one hundred years pri- or, by Antoine Rovira, who died in 1871. In 1882, the Rovira property was adjudicated to the state for non-payment of taxes, but the deed contained only a very general description. Then, in 1903, the state sold (using the same description) to one Alfred Thompson.

In 1916, the property (by then assessed in the name of “Heirs of A. Rovira and wife” and particularly described as lots 2, 3 and 4 of 'Sec. 14, etc.) was sold for unpaid 1913 taxes to the Third District Land Co., Ltd. In August of 1917, Third District transferred that property by quitclaim deed to Houston L. Wood (ancestor in title of plaintiffs-appellants here).

In January of 1974, under the provisions of LSA-R.S. 47:2228.1, the heirs of Houston L. Wood filed a confirmation suit. Their petition prayed for the appointment of a curator ad hoc, who, after appointment, sought unsuccessfully to determine the whereabouts of the Rovira heirs, record owners of the property at the time the property was sold for unpaid 1913 taxes.

However, in March, 1973 (prior to the filing of the confirmation suit in January, 1974), the heirs of Antoine Rovira had filed a class action suit against the heirs of Houston L. Wood, alleging that the redemption of the property on August 1, 1917, by Houston L. Wood from Third District Land Company was made in his capacity as a negotio-rum gestor for the benefit of all the coheirs, Wood then being the son-in-law of one of the Rovira descendants. While that matter was pending, the heirs of Wood sought and obtained a judgment in another division of the Civil District Court confirming the title of Houston L. Wood.

Subsequently, judgment was rendered in the class action suit in another division of the Civil District Court to the effect that the redemption by Houston L. Wood was for the benefit of the tax debtors, and that particular trial court judgment was affirmed by us in Dufour, supra.

In May, 1975, the heirs of Antoine Rovira sought to nullify that Civil District Court judgment which confirmed the tax deed of Houston L. Wood, alleging that the heirs of Antoine Rovira residing in Louisiana were never served and that the court lacked jurisdiction to proceed contradictorily with the curator. The Civil District Court judge before whom those proceedings were heard nullified the confirmation judgment, concluding (with oral reasons) that there had been less than a diligent effort made to locate the heirs of Antoine Rovira.

Wood’s heirs appeal.

The heirs of Antoine Rovira residing in Louisiana were not cited and served in the confirmation proceeding. Appellants contend that the appointment of the curator ad hoc was the appropriate procedure according to LSA-R.S. 47:2228.1(A and C) and C.C.P. arts. 5091 and 5251. They contend that the whereabouts of the heirs of Antoine Rovira were unknown as contemplated by R.S. 47:2228.1 and by C.C.P. art. 5251.

The record indicates that the heirs of Houston Wood were represented by the same attorney in the confirmation proceeding and in the collateral class action suit filed by the heirs of Antoine Rovira. At the hearing on the nullity action which is before us here, Woods’ attorney testified that- he did have knowledge that certain Louisiana residents were claiming to be the heirs of Antoine Rovira and, further, that at the time he petitioned the court for the appointment of a curator, he was aware of a judgment of possession in Succession of Laure Rose Klar, wife of Antonio Rovira, which recognized certain heirs as the children of Antonio or Antoine Rovira, apparently putting them in possession of certain undivided interests in the property in question.

In Garry v. Zor, Inc., 181 So.2d 828 (La. App. 4th Cir. 1966), a successful action in nullity was based on the contention that the curator ad hoc was without authority to represent heirs who were not, in fact, absentees, and in Succession of Scardino, 215 La. 472, 40 So.2d 923, 925, the ‘absentees’ did not meet the definition set forth in LSA-C.C.P. 5251 and the appointment of a curator ad hoc to represent them was, accordingly, unauthorized. Quaker Realty Company, Limited v. O’Rourke, 9 Orl.App. 237 (1912), stands for the proposition that a former owner cannot be said to be unknown when both his identity and residence could be readily established by the use of reasonable diligence or by resort to ordinary means of inquiry.

Thus, we believe that appellants’ reliance on Warner v. Garrett, 268 So.2d 92 (La.App. 1st Cir. 1972), is misplaced. There, the suit for nullity contained no allegation that the appointment of a curator was improper under C.C.P. art. 5091 and R.S. 47:2228.1. Here, appellees’ petition for nullity is based upon that very allegation. Furthermore, the curator has, here, acknowledged that he was aware of the class action suit, and, though he did not see fit to contact the Rovira heirs, he did, nevertheless, urge their attorney to intervene in the confirmation suit.

We believe that the record supports a factual finding that certain heirs of Antoine Rovira were known and accessible residents of Louisiana and were not absentees as contemplated by LSA-R.S. 47:2228.-1(A and C) .and C.C.P. arts. 5091 and 5251. Thus, the appointment of a curator ad hoc in the confirmation proceeding to represent them was inappropriate.

Since C.C.P. art. 2002 provides (in pertinent part) that:

“A final judgment shall be annulled if it is rendered:
(2) Against a defendant who has not been 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;

and, further, since C.C.P. art. 1201 provides (in pertinent part) that:

“Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without them all proceedings are absolutely null . . ,”

we conclude that no valid judgment could be rendered. Thus, the judgment annulling the confirmation judgment is correct. It is affirmed.

AFFIRMED.

BOUTALL, J., concurs.

BOUTALL, Judge,

concurring.

Because of our opinion in Dufour v. Wood, 346 So.2d 863 (La.App. 4th Cir. 1977), writ den. 349 So.2d 881 (La.1977), I concur.

      . See our opinion in Dufour v. Wood, 346 So.2d 863 (La.App. 4th Cir. 1977), writ den. 349 So.2d 881 (La.1977).


author: BEER, Judge.

text:
    A. COPELAND ENTERPRISES, INC., Jeannie Taormina, widow of Anthony Culotta, Delores Culotta, wife of Dr. Joseph Craven, and Gloria Culotta, wife of Dr. Robert M. Watson v. The CITY OF NEW ORLEANS.
    No. 10217.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Scariano & McCranie, Burgess E. McCra-nie, Jr., Metairie, for plaintiffs-appellants.
    Jacob Taranto, III, Deputy City Atty., New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

Appellants sought, by preliminary injunction, to enjoin enforcement of an interim zoning ordinance. After hearing, the claim for injunctive relief was rejected by the trial court. This appeal followed.

By motion introduced and passed on January 19, 1978, the City Council authorized the New Orleans City Planning Commission to hold a public hearing for the purpose of considering proposed amendments to the Comprehensive Zoning Ordinance of the City of New Orleans. The amendments dealt with limitations regarding fast food and drive-in restaurant operations in certain zoning categories but excepted Council-manic Districts B, C, D and E and, thus, was obviously intended to apply only in District A. Subsequent to the introduction and passage of the motion above described, the interim ordinance with which we are here concerned was introduced on March 9, 1978. It was, thereafter, adopted by the Council on March 16, 1978, and signed by the Mayor on March 23, 1978.

Meanwhile, on March 1, 1978, A. Copeland Enterprises sighed an agreement to purchase (from other appellants) property located at 740 Nashville Street (in Council-manic District A).

Thereafter, on April 3, 1978, Copeland applied for a permit to construct a fast food restaurant at the site (740 Nashville). The application was refused by reason of the interim ordinance which had, as of March 23rd, established a moratorium on the issuance of permits for fast food restaurants at certain locations in Couneilmanic District A.

Appellants contend that a zoning ordinance can only be amended by compliance with the procedural requirements of Article 15, §§ 2.5, 2.9 and 2.10 of the Comprehensive Zoning Ordinance for the City of New Orleans, which provides for three weeks notice and a public hearing. Appellants argue that an interim measure suspending operation of a zoning ordinance is not a measure provided by the enabling statute or by Article 15. Though not contesting that there was no notice or public hearing, the City’s position is that the enabling statutes do not prohibit an interim measure,, and that the mandatory procedures for amendment are not applicable to a temporary ordinance enacted only to preserve the effectiveness of the proposed (but yet un-passed) amendment.

Cases from other jurisdictions reflect the split of authority regarding the validity of interim zoning ordinances. Cases upholding the validity of such interim ordinances have reasoned that no notice was required before the passage of “urgency” ordinances of limited duration in furtherance of a comprehensive plan since the very purpose of such ordinances — to preserve the status quo— would be destroyed if notice and hearing were required. Metro Realty v. County of El Dorado, 222 Cal.App.2d 508, 35 Cal.Rptr. 480; CEEED v. California Coastal Zone Conservation Com., 43 Cal.App.3d 306, 118 Cal.Rptr. 315; see also Cappture Realty Corporation v. Board of Adjustment, 126 N.J.Super. 200, 313 A.2d 624; Campana v. Clark, 82 N.J.Super. 392, 197 A.2d 711 (1964); Almquist v. Marshan, Minn., 245 N.W.2d 819. Other courts have invalidated interim ordinances or have required strict compliance with the hearing and notice requirements of the enabling statutes. Lancaster Development, Ltd. v. River Forest, 84 Ill.App.2d 395, 228 N.E.2d 526; Krajenke Buick Sales v. Kopkowski, 322 Mich. 250, 33 N.W.2d 781; State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63; State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777; State ex rel. Gulf Refining Co. v. DeFrance, 89 Ohio App. 334, 101 N.E.2d 782; Morris v. Roseman, 162 Ohio St. 447, 123 N.E.2d 419; Kline v. Harrisburg, 362 Pa. 438, 68 A.2d 182.

Appellants argue that the interim ordinance bears no substantive relationship to the later amendment. The City maintains that the purpose of the moratorium was the promotion of the public health, safety and general welfare.

Authority to enact zoning regulations flows from the police power of the various governmental bodies. Since zoning is a legislative function, courts are restrained from substituting their views for those of the legislative body (or zoning authority) except when there is an abuse of discretion or an excessive use of power. Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659 (La.1974). The test of whether an ordinance is a valid exercise of police power of the city in the constitutional sense apparently depends on whether, under all existing circumstances, the regulation is reasonable and designed to accomplish a purpose properly falling within the scope of the City’s police power. Hi-Lo Oil Company v. City of Crowley, 274 So.2d 757 (La.App. 3rd Cir. 1973).

Since the ordinances of a duly elected legislative body such as the City Council of New Orleans are presumed valid, the attack on same must carry the burden of demonstrating that such ordinance is incompatible with the enabling legislation or the Constitution. Doubtful cases will be resolved in favor of upholding the zoning law. Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1st Cir. 1966).

The trial judge determined that the appellants had not carried the burden described above and also concluded that the interim measure was validly within the Council’s duty to exercise its jurisdiction over the community’s health, safety and general welfare.

While convinced that the events concerning 740 Nashville precipitated the hasty drafting, introduction, passing and signing into law of the interim ordinance, we cannot conclude, a fortiori, that the trial court erred in its determination that although the ordinance at issue was enacted as an interim measure, “. . . it is clearly consistent with, and in furtherance of both the spirit and letter of the more comprehensive text change that is presently in the Council-manic mill.”

In view of this finding, which is, we believe, supported by the record, we conclude that the result is correct, and the judgment is, accordingly, affirmed.

AFFIRMED.

      . LSA-R.S. 33:4721, et seq.


author:
STOULIG, Judge.
      REDMANN, Judge,

text:
    Leonard and Geraldine HEATHERLY v. Melvin H. ROSENBERG, Albert C. Cuevas and Farnsworth/Samuel, Ltd.
    No. 10227.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.

      Reynolds, Nelson, Theriot & Stahl, Donald E. Theriot, New Orleans, for plaintiffs-appellees.
    Morphy, Faulkner, Simpson & Dimaria, Steven K. Faulkner, Jr., Metairie, for Melvin H. Rosenberg and Albert C. Cuevas defendants-appellants.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Defendants, Melvin H. Rosenberg and Albert C. Cuevas, have appealed a summary judgment decreeing they forfeited a 14,80o deposit by failing to take title to real property they contracted to purchase.

On October 20, 1977, defendants signed an offer to buy property at 1026 St. Mary Street, New Orleans, for $48,000 conditioned on their being able to borrow $29,400 at 9½% per annum interest. When the agreement was signed, defendants deposited $2,000 cash and a promissory note for $2,800 payable to the broker, Farns-worth/Samuel, Ltd., and signed by defendant Rosenberg. Under this contract, executed on the “Standard Form Real Estate of New Orleans, Inc.”, the parties stipulated title was to pass before lender’s notary at any time after November 15 and not later than November 30,1977. On November 16, 1977, both defendants notified the sellers in writing that the contingent loan condition was removed which, in effect, converted the agreement to one for cash purchase.

November 30 came and went without either seller or buyer setting a formal act of sale; however, the depositions of plaintiffs and listing realtor Leah Thayer state it became apparent before November 30 that defendants would not go to an act of sale, if it were set. These depositions, together with a copy of a letter written by plaintiffs’ attorney Donald E. Theriot on November 28, 1977, were filed in connection with the motion for summary judgment by plaintiffs. The letter addressed to both defendants reads in part:

“This office represents Leonard Heath-erly in connection with his agreement with yourselves to sell the captioned property.
“By this letter, Mr. Heatherly formally notifies you that he stands ready to tender title to the captioned premises to you at any time on or before November 30, 1977. Your failure to arrange for and complete an act of transfer of the property on or before said date will be assumed by Mr. Heatherly to constitute a default on your agreement to purchase said captioned premises dated October 20, 1977. In such event, Mr. Heatherly has instructed this office to proceed to exercise all legal remedies available to him pursuant to the provisions of said agreement to purchase.
“I look forward to hearing from either or both of you as to the scheduling of the Act of Sale.”

On November 30, Donald Theriot received a handwritten note dated that same day signed by Herman Rosenberg stating he would lend Melvin H. Rosenberg $48,000 at the act of sale of the St. Mary property which stipulated:

“I will need an extension till [sic] after January 5, 1978 by my attorney to check titles.”

The extension sought was not granted. Rather the sellers claimed the deposit as damages and defendants now challenge their right to do so because it is argued plaintiffs failed to comply with the requirement that buyers must be tendered title before the sellers can claim the deposit as forfeited.

Theriot’s letter of November 28 to defendants was a formal tender of title which is one of the methods C.C. art. 1911(2) sets forth for a putting in default. At its writing it was apparent to sellers and broker that the defendants would not attend an act of sale. Neither buyer filed a countervailing affidavit to contradict this fact. In fact the request for an extension of time signed by Melvin H. Rosenberg and received by Theriot on November 30, plainly stated an extension was needed until January 5, 1978, apparently in order to obtain financing.

At this point in time it would have been wasted motion for the sellers to set an act of sale. The law does not require a seller to put a buyer in default by tendering title once the buyer has refused to perform. In Fox v. Doll, 221 La. 427, 59 So.2d 443, 445 (1952), the Supreme Court stated:

“ * * * There is no particular form required by Article 1913, R.C.C., for making the demand; it is sufficient that the notification contains demand of performance on the part of the debtor, and announce a readiness on that of the creditor, to do what the agreement requires of him. What that is, of course, depends on the circumstances of each case; the offer must be construed in relation to them. Wilbor v. M’Gillicuddy, 3 La. 382, 385. Moreover, it is not necessary to put one formally in default who refuses to perform or who acknowledges an inability to perform. * * * ”

Appellants cite Alley v. New Homes Promotion, Inc., 247 So.2d 218 (La.App. 4th Cir. 1971), as authority for the proposition that a deposit cannot be forfeited unless the seller first makes a formal tender of title. In that case the vendor simply wrote the vendee a letter stating final approval of the subdivision had been granted and that purchaser is expected to take title within 30 days of approval. No one set an act of sale or requested performance. In the instant case vendors demanded performance in writing and vendees responded with a request for an extension. The prerequisite of tender of title was met.

C.C.P. art. 966 permits summary judgment where there are no genuine issues of material facts and mover is entitled to judgment as a matter of law. Here the litigants concede the facts and rest their respective positions on the law they contend is applicable. We find no error in the trial court’s granting of summary judgment.

For the reasons assigned, the judgment appealed from is amended to reflect the promissory note is drawn for $2,800 and as amended is affirmed.

AMENDED AND AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

The printed contract form rejects the Louisiana Civil Code rules on putting in default and it is therefore error to apply them. The form provides instead that the deposit may be forfeited without formality beyond tender of title. One does not tender title by telephone to the buyer himself, much less by telephone to one’s own attorney instructing the attorney to write a letter. Nor can one’s attorney tender title in the absence of a written special power of attorney. One tenders title by causing to be prepared an instrument translative of title and offering to execute that instrument at a designated place and time (and one proves tender by proces verbal of the notary who was prepared to pass the act translative of title).

      . The judgment erroneously alluded to a promissory note given as a partial deposit as a $2,500 note. It is $2,800.

      . The letter notice of November 16, 1977 read as follows:
      “Financing is no longer a contingency with respect to the purchase of 1026 St. Mary Street.”

      . C.C. art. 1911(2) provides a debtor may be put in default:
      “By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses."


text:
    John W. FOLSOM v. Jane Broadus FOLSOM.
    No. 10242.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Lankford, Schneider & Lankford, John G. Lankford, New Orleans, for plaintiff-appellant.
    Tucker & Schonekas, Russell J. Schone-kas, New Orleans, for defendant-appellee.

      Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

This is a devolutive appeal from a custody award. On May 25, 1976, appellant, John Folsom, obtained a judgment of separation on the ground of abandonment, alleging that his wife, Jane, had moved to her home town in Virginia with all four children of the marriage. That judgment awarded custody pendente lite to Mrs. Folsom. Mrs. Folsom subsequently obtained a judgment of divorce in the circuit court of Southampton County, Virginia, which awarded her permanent custody of the four children: Lora Jane, John David, James and Steven.

In July of 1978, John Folsom brought two of the children, John David and Steven, to Louisiana, allegedly in accordance with his visitation rights although the testimony regarding this is conflicting.

At any rate, on July 19, 1978, Mr. Folsom filed a petition in the Civil District Court, Parish of Orleans, seeking, inter alia, custody of his three sons (the two then in Louisiana and James, who was still in Virginia), alleging unhealthy living conditions and obstruction of his visitation rights. Mrs. Folsom’s exceptions of jurisdiction rationae personae, rationae materiae, res adjudicata, no cause of action and plea of abatement were overruled, and she was enjoined from removing John and Steven from this jurisdiction pending a custody hearing. Mrs. Folsom came to Louisiana for the judicial proceedings which are the subject of this appeal but did not bring her son James, who remained in Virginia.

At the trial of this matter, Mr. Folsom unsuccessfully attempted to introduce evidence that his former wife had consistently obstructed his visitation rights as a method of bringing pressure to successfully negotiate a partition of the community property. The court sustained objections to this line of evidence, ruling that it was irrelevant to the issue of custody. After hearing, the trial judge awarded custody of John David Folsom to Mr. Folsom and ruled that custody of James and Steven should continue with their mother. The only appeal before us is by Mr. Folsom, who seeks reversal of that portion of the judgment denying him custody of James, age 9, and Steven, age 5.

In Rafferty v. Rafferty, 313 So.2d 356, 357 (La.App. 4th Cir. 1975), we noted that “. . . C.C.P. art. 10(5) states in plain words that the District Court has jurisdiction of a custody proceeding if the minor is in the state.” Accord, Jones v. Larkins, 347 So.2d 508 (La.App. 4th Cir. 1977).

In the case at bar, the children were residents of the State of Virginia pursuant to a permanent custody judgment of a Virginia court. James was not present within the jurisdiction of the Civil District Court of Louisiana, and that court lacked jurisdiction to decide the issue of his custody even though custody pendente lite had been previously determined by that court. See Odom v. Odom, 345 So.2d 1154 (La.1977).

The record supports the trial court’s apparent conclusion that Mr. Folsom failed to carry the burden of proving that the continuation of the existing custody arrangement was so deleterious to Steven as to justify removing him from the environment to which he is accustomed. State ex rel. Killman v. Gurley, 354 So.2d 755 (La. App. 4th Cir. 1978). Further, the record supports the trial court’s apparent conclusion that Mr. Folsom failed to prove that he could provide a better environment for the five year old.

Factual determinations by the trial judge in child custody matters are entitled to great weight, and his discretionary conclusions will not be disturbed in the absence of a clear showing of abuse thereof. Killman, supra.

For these reasons, the results reached by the trial court are correct, and, accordingly, the judgment is affirmed.

AFFIRMED.


author: SAMUEL, Judge.

text:
    Pauline Halder MOUTON v. Jonathan K. MOUTON.
    No. 10279.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Montgomery, Barnett, Brown & Read, Sylvia Landry Holder, New Orleans, for plaintiff-appellant.
    Leon C. Vial, III, Hahnville, for defendant-appellee.
    Before SAMUEL, BOUTALL and BEER, JJ.
   SAMUEL, Judge.

This is an appeal by the wife from a judgment denying her claim for alimony pendente lite for herself, and awarding her child support in the sum of $300 per month. The matter was heard in the trial court on two occasions by different trial judges. The rule for alimony was heard on July 27, 1978 and a motion for a new trial was heard on October 13, 1978.

The wife’s only income is $600 per month which she receives from a full-time job. She has custody of the two minor children of the marriage. At the time of trial the children were, respectively, 3 years and 6 months of age. She testified her necessary monthly expenses were:

Baby Sitter . $ 200.00
House Note . 120.00
Groceries and Cleaning . 250.00
Utilities . 130.00
Diapers and Formula. 100.00
Garbage Pickup. 5.00
Child’s Corrective Shoes . 30.00
Wife’s Clothing . 50.00
Miscellaneous. 100.00
Health Insurance and Doctor .... 75.00
Home Repair . 50.00
Car Upkeep . 120.00
Total . $1,210.00.

She further testified there are yearly expenses of home insurance, other clothing, and taxes of $100.

Mrs. Mouton’s testimony relative to expenses is confusing. She failed to explain what constitutes the monthly “Miscellaneous” item of $100, and it appears the monthly $50 “Home Repair” item most probably is not a recurring monthly expense. On the other hand, home insurance, other clothing and taxes most probably do exceed $100 per year. Otherwise, her expenses appear to be reasonable.

The record contains no evidence as to the expenses of the husband. Insofar as his “means” are concerned, his 1977 W-2 form, according to his testimony (the W-2 form was not introduced into evidence and the only evidence in the record relative to the husband’s income is his cross examination based on that form and his income tax returns), indicated gross earnings of $23,-978.24. He testified his 1977 net annual income was between $21,000 and $22,000, and that his 1978 income would be higher due to a March, 1978, 8.6% raise in salary. He also has $9,600 in a savings account, and owns stock valued at $123, a lot in Lumber-ton, Mississippi, and separate property consisting of a 15 acre farm in James, Louisiana.

In this court, appellant contends she is entitled to an award for alimony pendente lite and an increase in the award for child support.

Relative to appellant’s first contention, Civil Code Article 148 provides:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.” LSA-C.C. Art. 148.

The procedure for arriving at such an award in Louisiana is based upon a consideration of the needs of the wife, balanced by the ability of the husband to pay.

Where a separated wife is working and earning her own income, her husband must discharge his marital obligation to pay alimony pendente lite if such income is insufficient to maintain his wife in a style comparable to that which she enjoyed prior to the separation. While the wife is not required to obtain employment to support herself, if she chooses to earn her own living, or part of it, the alimony pendente lite which the husband otherwise would be required to pay is reduced to the extent of her earnings.

Our examination of the wife’s list of monthly and annual expenses for herself and the three children convinces us that the $600 she earns is sufficient for her own support. Accordingly, we agree with the trial court’s conclusion that an award of alimony is not called for here. However, despite the fact that both awards are within the sound discretion of the trial court, we do agree with appellant’s second contention, that the award for child support should be increased.

In the case of Lamothe v. Lamothe, La.App., 262 So.2d 87, this court said:

“It is now well settled that parents have the obligation of supporting and maintaining their children, and the amount awarded for this purpose must be commensurate with the needs of the child and the financial ability of the father to respond. LSA-C.C. arts. 227 and 231. This basic formula has been enlarged to provide that a child reared in an affluent standard of living must be maintained in the same circumstances if the father’s income so permits. In other words, the minor must be afforded the same degree and standard of maintenance the child would enjoy if in the father’s custody.”

Here, the husband’s income is sufficiently high for us to conclude the children were maintained in a reasonably affluent household. Based upon this consideration and the fact that his income is also sufficiently high as to afford our increase, we are of the opinion that the award of $300 for the support of both children is manifestly low and should be increased to the sum of $250 for each child, for a total award of child support in the sum of $500 per month, the amount requested by the wife.

For the reasons assigned, the judgment appealed from is amended so as to increase the award for child support to the sum of $500 per month. As thus amended, and in all other respects, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

      . The record does not disclose her occupation.

      . Shepard v. Shepard, La.App., 334 So.2d 745; Bernard v. Bernard, La.App., 300 So.2d 499; Small v. Small, La.App., 173 So.2d 854.

      . Ward v. Ward, La., 339 So.2d 839; Bilello v. Bilello, 240 La. 158, 121 So.2d 728; Abrams v. Rosenthal, 153 La. 459, 96 So. 32; Lachney v. Lachney, La.App., 291 So.2d 925.


author: LEMMON, Judge.

text:
    Thaia PICK v. METROPOLITAN LIFE INSURANCE COMPANY.
    No. 10280.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Montgomery, Barnett, Brown & Read, Harold B. Carter, Jr. and Thomas E. Loehn, New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, Eugene R. Preaus, New Orleans, for defendant-appellee.

      Before LEMMON, SCHOTT and GARRISON, JJ.
   LEMMON, Judge.

This is an action to recover the proceeds allegedly due under the accidental death benefit provision of two life insurance policies which insured the life of Louis Pick and named plaintiff, his widow, as beneficiary. The trial court dismissed plaintiff’s suit after a trial on the merits, and she appealed. The issue on appeal is whether she sustained her burden of proving her husband’s death was accidental.

I

Shortly before his death the insured was driving a three-month old Cadillac automobile on a clear, dry day on Tulane Avenue, near the intersection of Jefferson Davis Parkway, in New Orleans.

An eyewitness, who was driving east on Jefferson Davis, testified: He saw an apparently driverless Cadillac heading north across the southbound lanes of Tulane. (The Cadillac had apparently been in the northbound lane and crossed the narrow neutral ground of Tulane, where it struck and knocked down a small palm tree.) The Cadillac proceeded across the eastbound lanes of Jefferson Davis at a speed of about 10 to 15 miles per hour and, without swerving or slowing, struck the right front of the ear in front of him with a slight impact. He found Mr. Pick slumped on the front seat of the Cadillac, pale, convulsive and gasping for breath.

After the collision Mr. Pick was taken to the hospital, where attempts at resuscitation were unsuccessful.

The cost of repairing the Cadillac was $1,707.62, and the repairman found no defects in the braking and steering systems, except for a minor damage to the strut arm which he attributed to the collision. The other car sustained damage of about $200.00.

Dr. McGarry, the pathologist who performed the autopsy on plaintiff’s 55-year old husband, classified the death as “natural”, caused by a dissecting aneurysm (enlargement of blood vessel which ultimately ruptures) of the aorta (the main artery from the heart) with hemopericardium (blood in the sac surrounding the heart). He opined that the dissecting aneurysm was the type that occurs in a spontaneous hemorrhage in the aorta, and not the type that results from trauma, basing his conclusion primarily on the location of the aneurysm. He also found several fractured ribs, but described them as the type that frequently occur during resuscitation, rather than the type that occur in automobile collisions.

Dr. Rosenberg, a cardiovascular surgeon presented by defendants, stated that a dissecting aneurysm which ruptures into the pericardium (as occurred in this case) leads to sudden death, whereas when an aneurysm reruptures back into the aorta, the symptoms may go on for a period of time, even for weeks. He further observed that a traumatic aneurysm can be distinguished from a spontaneous one, since a dissecting aneurysm which is located in the beginning or ascending portion of the aorta (as this one was) occurs spontaneously with no known cause, while an aneurysm caused by trauma always occurs in the descending third of the aorta. On cross examination he admitted that external pressure to the chest could aggravate an existing tear in the aortic wall, but added that the force would have to be considerable, such as that associated with a high speed automobile collision.

Dr. Schenthal, an expert in cardiology who had been treating Mr. Pick for pulmonary disease, testified he found no indication of an aneurysm or of any heart disease in an examination on the day before Mr. Pick’s death. He further testified, however, that aneurysms in the ascending part of the Aorta occur spontaneously rather than traumatically and are typically accompanied by loss of consciousness, because of the cutting off of the blood supply to the brain. He further conceded that traumatic aneurysms are typically associated with shearing action, such as occurs in a high speed crash. Finally, he opined that this aneurysm occurred spontaneously while the patient was driving and before the collision.

Dr. Leon, a general surgeon who had previously treated Mr. Pick, examined the records and concluded that the aneurysm could “be either trauma or spontaneous”, noting the fact of the accident and the fracturing of ribs as evidence of the former and finding of arteriosclerosis in the autopsy report as an indication of the latter.

II

Pointing out that Mr. Pick had no previous symptoms of an aneurysm and died contemporaneously with an automobile accident, plaintiff argues that since it was medically impossible to determine with certainty whether the death was caused by the accident or by a spontaneous occurrence, the evidence preponderates in favor of a conclusion that the death was accidental.

It was plaintiff’s burden to prove, by a preponderance of the evidence, that the death fell within the coverage of the life insurance policies. This burden may be met with circumstantial evidence, but the evidence (direct or circumstantial) constitutes a preponderance only if the proof taken as a whole shows that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972); Hanover Ins. Co. v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir. 1974).

In the present case there was considerable competent evidence that this type of aneurysm is never caused by trauma and results in sudden death. Even the testimony of the witness most favorable to plaintiff (Dr. Leon) indicates it was at least equally probable that the aneurysm occurred spontaneously, without any relationship to the trauma of the collision. Furthermore, Mr. Pick’s sudden loss of control of his vehicle, without any apparent reason, raises the inference that loss of consciousness (which can be caused by a spontaneous dissecting) preceding the loss of control and, therefore, that the aneurysm which caused Mr. Pick’s death preceded the accident.

The fact that the case was difficult to prove does not lessen plaintiff’s burden of proof, and she has simply failed to discharge that burden.

The judgment is affirmed.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Helen Jane Gardner PACE, wife of Noble Hamilton Pace, Jr. v. Noble Hamilton PACE, Jr.
    No. 10323.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Ganucheau & Busshoff by Anita H. Gan-ucheau, New Orleans, for plaintiff/appellee.
    McGinity & McGinity, Richard J. McGinity, New Orleans, for defendant/appellant.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

The defendant-husband appeals from a judgment permitting the legal custody of two minor boys, ages ten and six, to remain with the mother and to reside with her in the state of Arkansas subsequent to the close of the school year, June 1979. The judgment further provides that the physical custody will remain with the father until termination of the school term; that visitation will be allowed to the father in Arkansas during future school terms; and, that the father shall have physical possession of the children in New Orleans during summer vacation, with the mother having visitation rights.

In this difficult custody dispute the trial judge was confronted with the awesome task of ascertaining which of two parents, both of whom had undergone psychiatric care with hospitalization, would be granted custody of the minor children. The trial judge concluded that the best interest of the children would be served by allowing custody to remain with the mother. We cannot say that his judgment constitutes an abuse of discretion.

The husband’s psychiatrist was of the opinion that it would be in the best interest of the children if the custody were allowed to remain with the father. Apparently, according to this doctor’s testimony (which is not too clear) because boys need male identification their interests would be better served by residing with Mr. Pace.

The mother’s psychiatrist, on the other hand, indicated that Mrs. Pacé’s psychiatric problem was temporary. He also stated that he did not know of any reason why the mother should not have custody of the minor children. This expert minimized the need of a father rather than a mother having custody of pre-adolescent boys.

The testimony of these psychiatrists considered, we agree with the trial judge’s evaluation, as set forth in his reasons for judgment, that the psychiatrists “indicate different opinions as to which parent should or should not have custody.” We reject the father’s contention that because the mother’s psychiatrist indicated that the children were receiving a “very good quality of care” with the father that this expert was of the opinion that it would be beneficial for the children to remain with him. An objective analysis of the overall testimony of the mother’s psychiatrist indicates that it was his opinion that the custody of the children should remain with the mother.

We also reject the father’s contention that because the children would reside in Arkansas with the mother, she should be deprived of the custody of the children. The mother testified that her reasons for moving to Arkansas were a better job opportunity, better living conditions, fewer school problems and close proximity of her parents, who lived in Arkansas. Simply because a parent intends to reside with the children outside the territorial jurisdiction of the trial court does not disqualify that parent from custody. The fact that children may reside outside the territorial jurisdiction is one circumstance, among the totality of circumstances, which courts consider in the exercise of their broad discretion in custody matters. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (La.1953); Pattison v. Pattison, 208 So.2d 395 (La.App. 4th Cir. 1968), writ denied, 252 La. 168, 210 So.2d 52 (La.1968). We cannot say under the circumstances in this case that the trial judge abused his discretion.

Finally, we find no merit to the father’s contention that the mother failed to carry the “double burden” of showing that the environment with the father was detrimental to the best interest of the children and that the mother can provide better and more advantageous living conditions.

We are not confronted here with the mother seeking a transfer of custody to her after custody had been granted to the father. The legal custody of the children was granted to the mother and the physical custody was permitted with the father by the mother because of her financial inability to care for the children at the time and because of her temporary psychiatric problems. Under these circumstances, we conclude the double burden rule is inapplicable.

Having found no abuse of the trial court’s discretion, we affirm.

AFFIRMED.

      . The defendant-father commenced psychiatric treatment in February of 1977 under the care of Dr. Robert Ancira, Psychiatrist, and was diagnosed as having a “reactive depression secondary to break up of his marriage and an underlying narcissistic personality type.” (A narcissistic personality was defined by the psychiatrist as one who needs an emotional crutch.) According to defendant he was hospitalized for approximately 6 weeks in December 1976 and January 1977 and again hospitalized for his psychiatric problems from February 1977 through April 1977. His psychiatric treatment continued until June 1978.
      Mrs. Pace commenced treatment in September 1977 under the care of Dr. Francis A. D’Anzi and was diagnosed as undergoing “a situational depression”. This doctor testified that there were various events in the wife’s life, such as a discordant marriage, living alone, and financial difficulties, which sent her into a state of depression and subsequent hospitalization, but that the “precipitating event” was that “she had broken up with her boyfriend.” She was hospitalized in September 1977 in Touro Hospital and thereafter in Coliseum House for a period of approximately two months. On one occasion Mrs. Pace was treated for a drug overdose which may or may not have been a suicidal attempt. Mrs. Pace remained under psychiatric care until June 1978.

      . Temporary custody was placed with the mother in April 1976 and this custody decree was carried over into the December 16, 1976 judgment of separation. In September 1977 because of Mrs. Pace’s hospitalization, the children were permitted to live with the father and that physical custody remained with him through October 13, 1978, the date of the custody hearing.

      . Decker v. Landry, 227 La. 603, 80 So.2d 91 (La.1955); Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (La.1969); Holmes v. Holmes, 203 So.2d 897 (La.App. 4th Cir. 1967).


text:
    Estelle NASH v. Lucille J. KNOBLOCK et al.
    No. 10415.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.
    Rehearing Denied July 12, 1979.

      Arthur L. Ballin, Frank C. Dudenhefer, New Orleans, for plaintiff-appellee.
    Leon C. Vial, III, Hahnville, for defendants-appellants.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

While using an electric meat cutting ma-' chine the plaintiff grocery employee, on November 27, 1975, amputated the “distal interphalangeal joint” of the middle finger of the left hand. Dr. David J. Vial, the treating physician, assessed a “five percent (5%) disability of the left hand.” Dr. R. C. Grunsten stated, in deposition, that plaintiff had sustained a forty-five percent (45%) disability of the finger or an eight to ten percent disability of the hand. Plaintiff returned to similar type work in a grocery on February 2, 1976.

The trial judge awarded workmen’s compensation benefits in the stipulated minimal weekly amount of $25.00 per week for 150 weeks, based on the scheduled loss of a hand.

Defendants complain in this appeal that the trial judge erred in predicating the award upon the “degree of impairment” of the hand. According to defendants, if plaintiff had lost the entire finger she would only have been entitled to compensation for a twenty week period under R.S. 23:1221(4)(c). Based on Dr. Grunsten’s testimony and the fact that the employee returned to the same or similar type of work a little more than two months after the accident, defendants argue that plaintiff’s loss is forty-five percent (45%) of $25.00 per week, for twenty weeks or a total of $225.00, subject to the credit of compensation benefits paid to plaintiff. See Babineaux v. Great American Insurance Company, 245 La. 718, 160 So.2d 591 (1964); Guardalabene v. Tenneco Oil Company, 246 So.2d 708 (La.App. 4th Cir., 1971).

We do not find Babineaux and Guardala-bene distinguishable from our case, as claimed by plaintiff. In our case, as well as the cited cases, the medical testimony related to the percentage of disability both to a finger and to a hand.

In Ellis v. Bemis Bro. Bag Company, 146 So.2d 667 (La.App. 4th Cir., 1962), writs denied (1963), cited by plaintiff, this court concluded that the scheduled benefits for loss of a hand was applicable where the employee suffered an open type comminut-ed fracture of the proximal phalanx of the right hand. The medical evidence in the Ellis case was that the employee had suffered a 10% disability of the hand which would diminish, in time, to 5%. We distinguish Ellis from our case. In the instant case, unlike Ellis, the injury was equated not only to a disability to the hand, but also to a proportionate disability of the finger. (Dr. Grunsten’s testimony.)

Furthermore, the trial judge in Ellis observed that the injury was caused from a crushing type blow across the back part of the right hand injuring the right index finger and knuckle joint resulting in an inability to properly close the hand. Clearly, in Ellis, the finger injury was equated to the loss of function of the hand. This is not so in our case. It stands to reason that any partial loss of a finger will result in some percentage of the loss of the hand. This fact, however, does not defeat the application of the scheduled benefits for the loss of a finger where there exists no significant loss of function of the hand.

Accordingly, we conclude the trial judge erred in awarding benefits for 150 weeks based upon the loss of the hand. R.S. 23-1221(4)(c) is applicable and plaintiff is entitled to compensation for a twenty week period.

The judgment of the trial court is amended to award plaintiff $25.00 per week for twenty weeks subject to an undisputed credit of $250.00 paid to plaintiff. As amended the judgment is affirmed.

AMENDED AND AFFIRMED.

      . An amputation of the first or outermost joint of the middle finger of the left hand.

      . R.S. 23:l221(4)(e) reads as follows:
      “For the loss of a hand, sixty-six and two-thirds percentum of wages during [150] weeks.”

      .R.S. 23:1221(4)(c) reads as follows:
      “For the loss of any other finger, or a big toe, sixty-six and two-thirds per centum of wages during twenty weeks.”


author: STOULIG, Judge.

text:
    STATE of Louisiana in the Interest of Kenneth Joseph JONES.
    No. 10224.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 1979.

      Steven R. Scheckman, Mark S. McTernan, New Orleans, for appellant.
    Harry F. Connick, Dist. Atty., Greg S. Abramson, Asst. Dist. Atty., New Orleans, for appellee.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Kenneth J. Jones, aged 15, was adjudged a juvenile delinquent for attempted theft of a bicycle by use of force and intimidation and was committed to the Louisiana Department of Corrections for an indefinite period. An appeal from this determination and commitment was filed on his behalf.

Appellant contends, inter alia, that Jones was deprived of his right to the assistance of counsel guaranteed by the Sixth Amendment of the United States Constitution and LSA-Const. Art. 1, § 13. Although the record reflects that Jones and his mother were both advised of his right to counsel at various stages of the proceeding, the record establishes that the waiver of this constitutional right was not made knowingly and intelligently.

The constitutional right to counsel extends to juveniles as well as adults. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The right to assistance by counsel is one of the fundamental requisites in defending against a criminal accusation; therefore certain safeguards have been established to protect the juvenile against an uninformed waiver of his right to counsel.

In State In Interest of Dino, 359 So.2d 586 (La.1978), the Louisiana Supreme Court considered what constituted a valid waiver of juvenile constitutional rights. That ease involved suppression of an inculpatory juvenile statement taken by police out of the presence of counsel, and while the focal point was the Fifth Amendment right against self-incrimination, the principles enunciated therein apply to a waiver of any constitutional right by the juvenile. In short the case holds the waiver must be knowledgable and intelligent.

Dino ruled the state has the burden of proving that the waiver by a juvenile of his constitutional rights was made knowingly and intelligently. That burden is discharged only if the state proves the juvenile consulted with an attorney or an adult who was interested in his welfare prior to making the waiver. Further if the adult consulted was not an attorney, it must be affirmatively shown that the adult understood the import of the constitutional rights waived by the juvenile.

Applying Dino we conclude young Jones, mild to moderately retarded according to a psychological report in the record, lacked capacity to intelligently waive his right to counsel. As to parental waiver on his behalf, there is no evidence to establish what if any advice and consideration went into the decision to waive counsel for this juvenile.

We further note the psychological report states Kenneth has a long history of impulsive and aggressive acting out; therefore, we conclude it is in the public interest to keep Kenneth confined in an appropriate institution until this case is .retried in the juvenile court.

For the reasons assigned, the finding of delinquency and commitment of Kenneth Jones is hereby vacated and this matter is remanded to the juvenile court for further proceedings which said court might deem appropriate but not inconsistent with the views herein expressed. The juvenile is to remain in custody at an appropriate facility to be designated by the juvenile court until this matter is finally determined.

VACATED AND REMANDED.

      . Kenneth Jones was 13'A years of age at the time he was psychologically evaluated. Under the Wechsler Intelligence Scale for children he achieved a verbal I.Q. of 62 with a mental age of 8 years, 4 months; a performance I.Q. at 54 with a mental age of 7 years and 3 months; and a Full Scale I.Q. of 54 and a mental age of 7 years, 3 months.

      . The psychological interview indicates the development of some serious maladaptive beha-vorial pattern and inadequacies in emotional development. He has currently developed a repertoire of inappropriate behaviors, which are basically aggressive and antisocial in nature. (Summary report.of evaluation of the University of New Orleans)


author: HALL, Judge.

text:
    Everett BELL and Mary Elizabeth Glover Bell, Plaintiffs-Appellees, v. BESTYET DISCOUNT FOODS # 2, Kansas City Fire & Marine Insurance Company and Pepsi Cola General Bottlers, Inc., In Solido, Defendants-Appellants-Appellees.
    No. 13857.
    Court of Appeal of Louisiana, Second Circuit.
    June 12, 1979.

      Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendants-appellants Scrivner, Inc. and- Kansas City Fire & Marine Ins. Co.
    C. William Gerhardt, Shreveport, for plaintiffs-appellees Everett Bell and Mary Elizabeth Glover Bell.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendants-appel-lees Florence G. Goldberg, Melvin Goldberg and Pepsi-Cola Bottling Co. of Shreveport.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Defendants, Scrivner, Inc. d/b/a Bestyet Discount Foods # 2 and Kansas City Fire & Marine Insurance Company, its insurer, appeal from a judgment ordering them to pay $1,884.61 plus interest and costs to plaintiffs, Everett and Mary Bell, for injuries Mary Bell received when empty soft drink bottles in a wire rack affixed to a Pepsi machine located in defendant’s store fell and struck her on the head. We affirm.

The issues presented by defendants’ appeal are: (1) whether plaintiffs proved the existence of a premise hazard by a preponderance of the evidence as required by Johnson v. Ins. Co. of North America, 360 So.2d 818 (La.1978); (2) whether the defendant storeowner was responsible for the condition of the vending machine and rack; and (3) whether the award was excessive.

Plaintiff, Mary Bell; her two grandchildren ages two and eight; a friend, Naomi Gay, and her daughter, age two, all went shopping on June 22, 1976. After plaintiff had run an errand at the neighboring T G & Y Store, she entered the Bestyet grocery store to meet Naomi Gay. She found her in the rear of the store near the aisle where the Pepsi machine was located. The children wanted some cookies located on the same aisle as the machine toward the front of the store. Plaintiff walked past the machine and rack and assisted the children in their selection. She left the children near the front of the aisle and walked back toward Naomi Gay at the rear of the store. There was no one else in the aisle. As she walked by the rack, her eight-year-old grandchild yelled “watch out Grandma!” Plaintiff looked up and two or three bottles hit her on the forehead. Naomi Gay heard the shout and some bottles breaking and turned in time to see at least one bottle strike plaintiff on the forehead. She rushed to plaintiff’s side and assisted her to a sitting position. Plaintiff and Naomi Gay then noticed the rack. It was hanging at an angle because one of the hooks had slipped off the top of the machine.

Several years prior to the accident Pepsi-Cola Bottling Company of Shreveport, placed a vending machine with a wire rack in defendant’s store. The rack had two hooks which fit over two flanges on top of the machine and was held in place on the front of the machine by its own weight and the weight of the empty bottles placed in it. Pepsi retained ownership of the machine and rack. Its routeman occasionally serviced it, filling the machine and emptying the rack as needed during his normal calls to defendant’s store. Pepsi did not pay rent for the space and benefited only from the sale of its product to defendant. Defendant bought the drinks sold from the machine and received all money from sales to customers. Usually, defendant’s employees serviced the machine, filling the machine and emptying the rack when needed, using the key left by Pepsi in defendant’s possession.

Plaintiff filed suit against appellants and also against Pepsi-Cola Bottling Company of Shreveport and Melvin and Florence Goldberg, partners in the Pepsi-Cola Bottling Company of Shreveport. After trial, the trial judge found that Pepsi-Cola Bottling Company of Shreveport was not negligent and dismissed the action against it and its two partners. The trial court found that “the bottles fell here without being jostled, without being hit by another grocery cart; that the lady was standing there, and the bottles fell.” It also found that plaintiff was injured on defendant’s premises and was not negligent herself and “the only possible conclusion based on the facts that we have ... is that the circumstance here was dangerous, that the bottles were stacked in a dangerous manner.” It imposed liability on the defendant storeowner and its insurer. The court awarded $1,134.61 in special damages for medical expenses and $750 for Mary Bell’s pain and suffering.

LIABILITY — PROOF OF PREMISE HAZARD

A storekeeper owes an affirmative duty to those jvho use his premises to exercise reasonable care to keep the premises in a safe condition. Kavlich v. Kramer, 315 So.2d 282 (La.1975). In Kavlich, a slip and fall case, the rule was clearly enunciated that when a plaintiff has established that a foreign substance is on the floor of a store and that it caused plaintiff to slip, fall and be injured, the burden then shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent. This rule was reaffirmed in Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976). Implicit in the Kavlich and Gonzales decisions is a recognition that in a self-service store a customer who is injured as a result of a premise hazard is usually in no position to establish who created the hazard or how long it has existed. Although Kavlich and Gonzales were slip and fall cases the same rule has been applied in falling merchandise cases. See Hyman v. National Super Markets, Inc., 353 So.2d 397 (La.App. 4th Cir. 1977).

Johnson v. Ins. Co. of North America, 360 So.2d 818 (La.1978) is the Supreme Court’s most recent statement on the duty of a storeowner to the public. In that case plaintiff was reaching for a can on an upper shelf when several large cans fell from a bottom shelf, injuring her. Plaintiff testified she did not touch the cans prior to their falling. After the accident she first noticed the cans on the shelf stacked in a disarrayed manner. The trial court awarded recovery and the Court of Appeal affirmed concluding that a rebuttable inference had been raised that the cans were not properly stacked when plaintiff proved she was injured by falling cans which she did not cause to fall. It held the defendant then bore the burden of exculpating itself from liability. A dissenting opinion in the Court of Appeal took the position that there was a reasonable inference plaintiff caused the accident based on plaintiff’s alleged statement to defendants to the effect that plaintiff had bumped the cans with her leg.

The Supreme Court granted writs because “it felt the Court of Appeal unjustifiably extended the principles pnunciated in Gonzales and Kavlich.” In reversing the Court of Appeal it reaffirmed the general rule that “when a customer in a self-service store proves injury resulting from a premise hazard, the burden shifts to the storeowner to exculpate himself from the presumption of fault thereby arising and to establish his own freedom from fault.” The court defined a premise hazard as “a condition of the premises or of the store operation that results in an unreasonable risk of harm to customers under the circumstances.” The court noted that in order for the burden of proof to shift to the defendant the plaintiff must prove by a preponderance of the evidence that a premise hazard caused his injury. The issue in this case was stated as whether such a premise hazard was preponderantly proved by the evidence. After reviewing the evidence the court found the evidence in that case did not preponderantly (i. e. more probably than not) show that the cans were stacked in a dangerous manner before the accident. The court concluded that plaintiff failed to carry her burden of proving a premise hazard and could not recover.

In the case before this court defendants strenuously argue that there is no evidence as to the condition of the rack or bottles in the rack before the accident, that Johnson applies, and that we must reverse the judgment of the district court because plaintiff failed to prove a premise hazard. We disagree. Johnson is distinguishable on its facts and the evidence. In Johnson the evidence taken as a whole did not reasonably establish the probability that the cans fell only as a result of improper stacking, either by defendant’s employees or customers. There was some evidence in the record suggesting that plaintiff may have caused the cans to fall. The record also contained evidence of the store’s inspection procedures and precautionary measures.

The evidence in the instant case shows plaintiff did not cause the bottles to fall. Immediately after the accident the rack was hanging crooked from the machine, suggesting it was not properly affixed to the top of the machine. There was no evidence of any inspection procedures concerning the bottles in the rack and the store employees had never inspected the hooks fastening it to the machine. The only reasonable inference from the evidence in this case, as found by the trial court, is that the bottles were improperly placed in the rack or the rack was improperly secured on the top of the machine, or both, constituting a premise hazard which caused the accident and plaintiff’s injuries.

In slip and fall cases, the plaintiff can usually establish a premise hazard by merely establishing the existence of foreign material on the floor. In falling merchandise cases, however, evidence establishing only that the merchandise fell is not sufficient to establish a premise hazard. In falling merchandise cases a plaintiff ordinarily will be required to rely on circumstantial evidence to prove the pre-existing hazard or dangerous condition, but where such evidence preponderates in favor of a finding of a premise hazard, then the burden shifts to the defendant to exculpate itself from fault by showing it exercised reasonable care through appropriate cleanup and inspection procedures or otherwise. In the case before this court plaintiff carried her burden of proving a premise hazard and defendant made no showing of an exercise of reasonable care. Plaintiff is entitled to recover from the defendant storeowner and its insurer.

SECOND ISSUE — RESPONSIBILITY FOR THE MACHINE AND RACK

Although owned by the Pepsi-Cola Bottling Company, the vending machine and rack were ordinarily serviced and maintained by the defendant storeowner as part of its store premises for the purpose of selling its merchandise to its customers. The machine and rack were within the care, custody and control of the defendant store-owner and the storeowner is responsible for plaintiff’s injuries resulting from the hazardous condition which existed in connection with the machine and rack.

THIRD ISSUE — AMOUNT OF DAMAGES

Defendants contend plaintiff is a “chronic complainer” and that most of her medical expenses incurred for examinations and tests were unwarranted. The trial court showed concern over whether some of the medical expenses were causally related to the accident. After careful consideration, however, it concluded they were. The evidence supports that conclusion. The award for expenses and pain and suffering is within the much discretion of the trial court.

The judgment of the district court is affirmed at the cost of defendants — appellants.

Affirmed.


author: BOLIN, Judge.

text:
    Margie DUNN, Individually and as Natural Tutrix of Robert McCoy, Plaintiff-Appellant, v. Willie BOLDEN et al., Defendants-Appellees.
    No. 13871.
    Court of Appeal of Louisiana, Second Circuit.
    June 12, 1979.

      Samuel Thomas, Tallulah, for plaintiff-appellant.
    Delta Legal Aid Services, Inc. by George Spencer, Lancaster, Baxter & Seale by John T. Seale, Tallulah, Hudson, Potts & Bernstein by Henry J. Miltenberger, Jr., Monroe, for defendants-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

Plaintiff sued to recover damages she and her minor son sustained due to an automobile-pedestrian accident which seriously injured the son. Finding no negligence on the part of the automobile driver, the trial court dismissed plaintiff’s demands. We affirm.

The accident occurred about dusk at the intersection of Pecan Street and Askew Street in Tallulah. The automobile was driven by a 17-year-old boy whose mother had purchased the car for him that day. There were four other passengers in the car, all younger children, two of whom were brothers of the injured child.

As the car approached the intersection the driver slowed almost to a complete stop, preparing to make a right turn. There was a group of children, including plaintiff’s 9-year-old son, walking along the road at this intersection. Since some of the children were in the path of the intended right turn, the driver changed his mind and began accelerating the car forward. Just as the car passed the group of children, plaintiff’s son grabbed the handle of the passenger side door and requested permission to enter the car. He then continued to run alongside the vehicle while several of the other children, both inside and outside of the car, urged him to release the handle. The driver was apparently unaware of the child clinging to the door handle and continued to accelerate until the car struck a hole, knocking the child into the moving vehicle and seriously injuring him.

Plaintiff sued the driver and his mother, the owner of the car. Cavalier Insurance Company, the driver’s insurer, and the insurance agent or broker through whom the driver’s insurance was obtained, were also made defendants. The insurance policy had been purchased earlier on the day of the accident and a dispute existed as to whether coverage began immediately upon payment to the agent or broker or whether it began upon acceptance of the application by Cavalier two days after the accident.

The trial court found the sole cause of the accident to be the negligence of the injured child. It found that due to the noise inside the car created by the car’s radio and the frivolity of the young passengers, the driver was unaware of the child’s actions. The court also found the child was fully aware his actions were dangerous and created a substantial risk of injury to himself. Finding no negligence on the part of defendant driver, the court dismissed plaintiff’s demands. This finding made it unnecessary to decide the insurance coverage issue.

Plaintiff appeals contending the trial court erred in its failure to find the defendant driver negligent, its finding that the child was “contributorily negligent” and its failure to apply the doctrine of last clear chance.

We agree with the trial court that the driver of the car was not negligent in failing to observe the child clinging to the door handle of the moving vehicle. The driver’s primary duty was to watch ahead to be certain the path of his moving vehicle was unobstructed. Fitch v. Evans, 364 So.2d 1309 (La.App. 2d Cir. 1978), and Par ker v. Continental Insurance Co., 341 So.2d 593 (La.App. 2d Cir. 1977). The driver performed this duty, changing his course of travel to avoid endangering the children in the intersection. Once he had safely passed the children he had no reason to expect one of the young pedestrians to act in such a reckless manner.

Plaintiff relies on the recent case of Baumgartner v. State Farm Mutual Automobile Ins. Co., 356 So.2d 400 (La.1978), as authority for her contention that contributory negligence cannot bar a pedestrian from recovery of damages sustained due to the negligence of a motorist. While this is an accurate statement of the law, it is also true that Baumgartner does not require a motorist who is free of negligence to pay damages to an injured pedestrian merely because an automobile-pedestrian collision occurred. Fitch v. Evans, supra. There ■must still be a finding of negligence on the part of the motorist before the pedestrian is entitled to recover.

While the trial judge used the phrase “contributory negligence” in his reasons for judgment, a careful study of his reasons reveals he found the defendant driver free of negligence. The judge, in discussing the injured child’s testimony, said “ . just the way he described the accident himself, and then to say what he understood about his conduct leads the court to believe that he was the sole cause of the accident . ” Under these circumstances the rule of Baumgartner is inapplicable.

We also find the trial court was correct in refusing to apply the doctrine of last clear chance. This doctrine is only applied to absolve a plaintiff of his contributory negligence in cases where a defendant is negligent. Parker v. Continental Insurance Co., supra.

Having found no negligence on the part of defendant driver, we find it unnecessary to address the issue of insurance coverage.

The judgment is affirmed at appellant’s cost.


text:
    Roy S. OHLHAUSEN, Plaintiff-Appellant, v. Gary N. BROWN, Defendant-Appellee.
    No. 13874.
    Court of Appeal of Louisiana, Second Circuit.
    June 12, 1979.
    James L. Fortson, Jr., Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Plaintiff appeals from a partial summary judgment dismissing his demands for damages for defendant’s alleged alienation of the affections of plaintiff’s wife. We affirm.

Plaintiff filed a petition seeking damages from defendant, asserting two separate causes of action — defamation and alienation of affections. Defendant filed a contradictory motion for a partial summary judgment, an alternative motion to strike, and an alternative motion for a judgment on the pleadings, all seeking to eliminate plaintiff’s demands based upon the alienation of affections cause of action. A hearing was ordered. Defendant then filed peremptory exceptions of no cause and no right of action as to both of plaintiff’s causes of action. This exception was sustained only as to the defamation action, with leave of plaintiff to amend his petition within ten days, which he did. The trial court also rendered judgment in favor of defendant on his motion for summary judgment, dismissing plaintiff’s demands for damages for alienation of affections. After plaintiff’s motion for a new trial was denied, he appealed from the partial summary judgment.

Plaintiff assigns two errors to the trial court’s judgment. The first is that the trial court erred in holding Louisiana has no recognized cause of action for alienation of affections, and the second is that the trial court erred in holding there was no cause of action for inducing a breach of contract.

The Supreme Court in Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927), squarely held that in Louisiana there is no cause of action for alienation of affections and that one party to a contract has no cause of action for damages against a person, not a party to the contract, who induces another party to breach the contract. See also Cust v. Item Co., 200 La. 515, 8 So.2d 361 (1942) and Delta Finance Company of Louisiana v. Graves, 180 So.2d 85 (La.App.2d Cir. 1965).

Plaintiff concedes that the well-established jurisprudence of this state is as stated above, but urges this court to reexamine the holding of Moulin v. Monteleone and subsequent cases. Plaintiff points out that the Supreme Court has not considered the inducement of breach of contract issue in many years and that the courts of several common law states have changed their position on this issue in recent years.

This court is not persuaded by plaintiff’s argument and is constrained to follow the settled jurisprudence of this state as clearly expressed by the Supreme Court and consistently adhered to by the Courts of Appeal.

We, therefore, affirm the judgment of the trial court, at appellant’s costs.

Affirmed.


author: MARVIN, Judge.

text:
    LOUISIANA BANK & TRUST COMPANY, Plaintiff-Appellee, v. Unopened Succession of Frank J. PERNICI and Peggy W. Pernici, d/b/a Rocky’s, Defendants-Appellants.
    No. 13875.
    Court of Appeal of Louisiana, Second Circuit.
    June 12, 1979.

      Bodenheimer, Jones, Klotz & Simmons by James P. Bodenheimer, Shreveport, for defendant-appellant, Peggy W. Pernici, d/b/a Rocky’s.
    Tucker, Martin, Holder, Jeter & Jackson by T. Haller Jackson, III, Shreveport, for plaintiff-appellee. .
    R. J. Miciotto, Bossier City, Curator ad Hoc for defendant-appellee, Unopened Succession of Frank J. Pernici.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

This appeal is from a summary judgment in favor of the bank against a widow, Mrs. Pernici, for the amount of overdrafts paid by the bank on a business checking account which was contractually established by Mr. and Mrs. Pernici about three months before his untimely death. The judgment also awarded attorney fees under LRS 9:2781. We reverse and remand.

The account was opened for a restaurant known as “Rocky’s” on June 2, 1978. Mr. Pernici died on August 29. The overdrafts ($2,471) resulted from about a dozen checks signed by Mr. Pernici between July 27 and August 25. Mrs. Pernici signed three checks totaling $460 on the account before July 8, when it was not overdrawn.

This suit was filed October 20,1978. Mrs. Pernici formally renounced her interest in the community estate on October 30. She moved for a summary judgment on the basis of that renunciation. The bank also moved for a summary judgment, and contends here that her renunciation is ineffective because she took an active concern in the affairs of the community by writing the checks on the account (CC 2412), because she allowed two judgments to be taken against her as surviving spouse (CC 2417), and because she failed to timely file an inventory of the community estate (CC 2413).

The account agreement and signature card signed by Mr. and Mrs. Pernici are contained in the record. Neither contains any promise by Mrs. Pernici to pay a sum certain in money to the bank. LRS 10:3-104(l)(b). Mr. and Mrs. Pernici were at best customers of the bank under LRS 10:4-104(1)(3) against whose account the bank was authorized to charge for overdrafts.

Unless a wife expressly obligates herself for the payment of community debts, she is not responsible for the obligations of the community. CC 2409; Consolidated Loans, Inc. v. Guercio, 200 So.2d 717 (La.App.lst Cir. 1966). Proof must be clear and convincing that she intended to bind herself personally. Isana Products, Inc. v. Lewing, 168 So.2d 903 (La.App.2d Cir. 1964). The code speaks of the wife’s privilege of being able to exonerate herself from the debts contracted during the marriage. CC 2410.

The wife has three alternatives upon the dissolution of the community. She may renounce her share, in which case the husband or his accepting heirs retain all assets and become liable for all community debts. She may accept her share, in which case she may demand an immediate partition and become personally obligated for one-half of the community debts. She may accept her share of the community with benefit of inventory, in which case her share of liability for community debts is limited to what can be paid out of her one-half share of community assets. See Note, Creditor’s Rights and the Community of Gains, 34 La.L.Rev. 874, 880 (1974).

The renunciation, of course, becomes available only when the community is dissolved. Acceptance may be tacit, but only acts following dissolution of the community can amount to a tacit acceptance. See 3 Planiol, Traite elementaire de droit civil, § 1223, § 1994 et seq. (La.State L. Inst, trans. 1959). Our interpretation of the term active concern in CC 2412 is that it refers to the wife’s activities in dealing with the effects of the community after dissolution. CC 2412 expressly provides that acts which are conservatory or administrative do not come within the denomination active concern. Compare the code articles regarding the renunciation of the wife with that of a beneficiary heir. See, e. g., CC 2413, 2414 and 997.

We hold then, that the wife's signing of three checks on a business bank account before her husband’s death does not bar her from renouncing the community after his death. Circumstances where liability has been imposed on the surviving wife for acts after dissolution, have been much greater. See Martin Davie & Co. v. Carville, 110 La. 862, 34 So. 807 (1903); Armato v. Ross, 177 So. 491 (Orl.La.App. 1937).

CCP 967 states in part:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein . . . ”

(Emphasis supplied)

The bank’s affidavit, signed by its cashier, in support of the summary judgment, is not sufficient to resolve the material issue of Mrs. Pernici’s active concern in the effects of the community after Mr. Per-nici’s death. CCP 966. It merely attests to the correctness of the overdrafted account and that Mrs. Pernici took active concern in the management of the community by signing the three checks to pay debts of the business.

The two suits in which judgments were allegedly taken against Mrs. Pernici are not contained in the record, although they are referred to in the brief of each opposing counsel by-name and docket number in the 1st Judicial District Court. We deduce the suits are proceedings by executory process. The bank argues there is no distinction between judgments taken by ordinary process and executory process.

Executory process in Louisiana is an action which seeks an order for the seizure and sale of property, the proceeds from which may be credited against any indebtedness owed by defendant which is secured by the property. It is an action in rem and no personal judgment is rendered against the debtor in executory process. See Hood Motor Company, Inc. v. Lawrence, 320 So.2d 111 (La.1975); Buckner v. Carmack, 272 So.2d 326 (La.1973); McMahon, The History of the Development of Executory Procedure in Louisiana, 32 Tul.L. Rev. 555, 570 (1958). We hold, then that an order for the seizure and sale of property under executory process is not a judgment within the contemplation of CC Art. 2417 which will cause a widow to lose the power of renouncing the community estate. See also Schreiber v. Beer’s Widow and Heirs, 150 La. 676, 91 So. 149 (1922), discussed infra.

Notwithstanding CC Art. 2413 and LRS 9:2821 (Act 4 of 1882), Schreiber squarely held that a widow does not have to file an inventory to preserve her right to renounce the community. See also Pelican Well Tool & Supply Co. v. Sebastian, 212 La. 217, 31 So.2d 745 (1947); Castleberry v. Ethridge, 81 So.2d 451 (La.App.2d Cir. 1955).

Schreiber also indirectly illuminates the prior issue of whether an order for executo-ry process is a judgment within the contemplation of CC Art. 2417. CC 2414 states that after expiration of the delays for renouncing, the surviving wife “. may be . forced to make her decision [in the same manner as a beneficiary heir], and judgment may be rendered against her as a partner, unless she renounces.” Applying the code articles applicable to acceptance or renunciation by a beneficiary heir, Schreiber, in sustaining an exception of no cause of action against an heir who has neither accepted nor renounced the succession, said the heir may be cited “. . . to compel him to declare whether he will accept or renounce . [b]ut an heir is not deemed liable personally for the debts of a succession merely because he has not formally renounced . . . ” 91 So. at p. 155.

Thus in a suit against a widow, who has neither accepted nor renounced the community of her late husband, it would appear that she, like the heir of the husband, must be compelled to declare her acceptance or renunciation before judgment against her, as surviving spouse, can be obtained. If the order for executory process is considered as a judgment under 2417, as the bank contends, the surviving wife may be cast in judgment before any service of process and without having any opportunity to renounce. This is so because the order for executory process is signed before notice is given the debtor where the CCP 2639 demand for payment has been waived.

In summary, we hold that a summary judgment should not have been granted. Since a remand is also ordered, Mrs. Pernici’s other assignment of error requires comment. She contends that the trial court summary judgment, in any event should not have been for the total amount of the overdrafts. If Mrs. Pernici is liable at all, she is liable only for one-half. The bank does not contend that she should be liable for the whole. Mrs. Pernici’s liability, if any, is to be determined by the account agreement and signature card and the applicable banking and community property laws. See National Bank of Bossier City v. Fornea, 272 So.2d 411 (La.App.2d Cir. 1973); Caddo Trust & Savings Bank v. Bush, 182 So. 397 (La.App.2d Cir. 1938).

Judgment below is reversed at appellee’s cost and the case is remanded for further proceedings in accordance with law.

      . CC 2412: “The wife who has taken an active concern in the effects of the community, can not renounce the same. Acts which are simply administrative or conservatory, do not come, in this article, under the denomination of active concern.”
      CC 2417: “The widow, above the age of majority, who has allowed a judgment to pass against her as a partner, by a court of general jurisdiction, shall lose the power of renouncing.”
      CC 2413: "The surviving wife, who wishes to preserve the power of renouncing the community of gains, must make an inventory within the delays and with the formalities prescribed for the beneficiary heir.” See also LRS 9:2821, CC Arts. 1034, 1035.

      . LRS 10:4 — 401(1) reads:
      “As against its customer, a bank may charge against his account any item which is otherwise properly payable from that account even though the charge creates an overdraft.”