text:
    Carrie Mae JENKINS et al. v. BOGALUSA COMMUNITY MEDICAL CENTER et al.
    No. 11019.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Garland R. Rolling, Metairie, for plaintiffs.
    Dale E. Branch, of Seal, Lee, Branch & Brown, Bogalusa, for defendants.
    Before LANDRY, C. J., and COLE and CLAIBORNE, JJ.
   COLE, Judge.

This is an appeal by the surviving spouse and children of Joseph L. Cammatte from a judgment rejecting their claim under La. C.C. art. 2315 for damages resulting from an injury sustained by the deceased, which they allege caused or contributed to his death. Defendants in the suit are the Bo-galusa Community Medical Center and its insurer, St. Paul Fire and Marine Insurance Company. We affirm.

After careful review, we agree that the facts are substantially as found by the trial judge. Mr. Joseph Cammatte was admitted as a patient in Bogalusa Community Medical Center on September 11, 1970, for the treatment of a severe gouty arthritic condition with which he had been afflicted for many years. Although he had been admonished several times not to get out of bed without ringing for assistance, on the early morning of September 16, 1970, at approximately 12:30 A.M., Mr. Cammatte got out of. his bed without ringing for assistance and went to the bathroom which was located across the hall from his room. As he was returning to the room, he fell in the hall and fractured his hip. The hospital staff on duty at the time of the accident immediately responded to his need for assistance and placed him back in bed. His physician was contacted. The next day Mr. Cammatte was transferred to Touro Infirmary in New Orleans where he underwent surgery for his hip. Mr. Cammatte died on October 5, 1970, during the recuperative stage following the surgery. The cause of death was an apparent pulmonary embolism.

At the time of the accident Mr. Cam-matte was seventy-two years old. His gouty arthritis had severely crippled and enlarged both his hands and his feet. However, his family testified that he was able to continue his work as a self-employed carpenter and contractor until the time of his death. They further testified that he was able to walk successfully without any artificial aids.

Mr. Cammatte was provided with standard hospital equipment in keeping with his physician’s requirements. Bed rails were in use and were totally unrelated to the accident. The hospital further provided. Mr. Cammatte with all routine services in accordance with the standard of care commensurate with that prevailing in hospitals in this state and in communities of similar size and circumstances.

Appellants contend that the hospital breached a duty of care it owed to the decedent in failing to prevent the accident. Appellants base this contention on the case of Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974). In Hunt, the patient in question was recovering from surgery and was “confused and heavily sedated” at the time of the accident. The hospital was held liable for its failure to provide full instead of partial bed rails to the patient in order to prevent the patient from falling out of bed. The Supreme Court in the Hunt case reversed the Court of Appeal and reinstated the decision of the trial judge which held the hospital liable. This same trial judge distinguished Hunt in the instant case in holding that the hospital was not liable.

In this case it is clear that the only drug that could have had any effect upon the decedent at the time of the accident was Demerol which had been administered approximately two and one-quarter hours pri- or to the accident. Dr. John Ball, an internist who had treated the decedent since 1968, testified that Mr. Cammatte had been receiving the drug Dolophine (also known as Methadone) over a period of several years for pain and had developed a tolerance to it, negating any side effects. He further testified that a tolerance to Dolo-phine results in a cross-tolerance to Demerol. A review of the hospital records also indicates that Mr. Cammatte had been receiving Demerol intermittently for almost twenty years. We agree with the trial court’s premise, based upon the testimony of both Dr. Ball and Dr. Eugene Caillouet, that Mr. Cammatte had a tolerance to the drug Demerol and, therefore, its administration did not affect Mr. Cammatte’s ability to function. As a result of the tolerance, he was aware of his surroundings, able to understand instructions to stay in bed and seek assistance in getting up, and capable of acting on such instructions. It is further shown by Dr. Ball’s testimony and by the hospital records that since the last shot of Demerol had been administered to the decedent over two hours before the accident, the side effects from the drug, if any, would be wearing off at the time of the accident. In the reasons for judgment afforded us by the trial court, it is stated:

“ * * * [T]he Court finds as a fact that Mr. Cammatte was in full possession of his faculties and knew what he was doing when he got up that night without ringing for assistance.”

This finding is amply supported by the evidence in the case and, as a conclusion reached by the trier of fact, we accord it the great weight to which it is entitled.

In enunciating the standard of care hospitals owe to their patients, the Court in the Hunt case said:

“A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.” (303 So.2d at 747)

The record substantiates that the hospital exercised the requisite care that Mr. Cammatte’s condition necessitated. To protect him from his physical incapacities the hospital provided bed rails on the bed, and instructed him several times not to attempt to get up without seeking assist-anee which- was readily available at all times. Further, it is firmly established that Mr. Cammatte had no mental incapacities which would affect his awareness or his ability to understand and act upon the instructions given him. A hospital is not an insurer of a patient’s safety. The duty owed by hospitals to patients is not designed to protect a patient against risks which patients who are aware of their surroundings and who are mentally capable should reasonably anticipate. See e. g., Killgore v. Argonaut-Southwest Insurance Company, 216 So.2d 108 (La.App. 2nd Cir. 1968); DeBlanc v. Southern Baptist Hospital, 207 So.2d 868 (La.App. 4th Cir. 1968); Noble v. Insurance Company of North America, 248 So.2d 12 (La.App. 1st Cir. 1971).

The accident in question resulted from Mr. Cammatte’s knowing failure to follow the instructions given him by the hospital staff and not from any breach of the hospital’s duty to exercise due care to protect him. Even if we were to hold that the hospital breached its duty to the decedent, we would still be faced with the inescapable conclusion, based upon the considered and repeated refusal by Mr. Cam-matte to follow logical instructions, that he was contributorily negligent. This is clearly established by the critical finding of the trial court which we have hereinabove quoted.

For the foregoing reasons, we affirm the judgment of the trial court. The costs of this appeal are assessed to the appellants.

AFFIRMED.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Richard E. HUGHES v. EAGLE TRUCKING CO. et al.
    No. 11020.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      Donald G. Cave, Baton Rouge, for plaintiff-appellant Richard E. Hughes.
    John B. Noland, Baton Rouge, for defendant-appellee Eagle Trucking Co. and Continental Ins. Co.
    Paul Marks, Jr., Baton Rouge, for defendant-appellee Getty Oil Co.
    Frank M. Coates, Jr., Baton Rouge, for defendant-appellee Fred Wilson Drilling Co., Inc. and Highlands Underwriters Ins. Co.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant), appeals from judgment granting a motion for summary judgment in favor of defendant, Getty Oil Company (Getty), dismissing Appellant’s claims against Getty for personal injuries resulting from an accident which occurred while a truck was unloading pipe at one of Getty’s oil wells. The trial court did not assign reasons for its judgment. It appears, however, that based on the issues raised in the trial court, the motion was granted on the finding that the pleadings and depositions show that the persons engaged in unloading the pipe at the time of the accident were not agents or employees of Getty, neither were they “borrowed servants” of Getty as alleged by Appellant. We reverse.

Getty concedes that the well in question was being drilled by Fred Wilson Drilling Company, (Wilson), an independent drilling contractor over whose employees Getty neither exercised nor possessed control. Getty acknowledges a contract with Wilson pursuant to which Getty was obligated to purchase all materials, equipment and supplies necessary to drill the well, including the pipe which was being unloaded and which Getty admittedly purchased. Getty denies, however, that either Eagle Trucking Company, (Eagle), which owned the float or flatbed trailer on which the pipe was transported, or Eagle’s agent, Willis Catrett, who was driving the delivery rig, were Getty’s agents or employees, borrowed or otherwise.

Wilson, Eagle and Catrett, as well as Eagle’s and Wilson’s insurers, are also made defendants herein. Appellant, who accompanied Catrett as a guest passenger, was seriously injured when three lengths of heavy pipe fell from the truck during the unloading process and pinned Appellant beneath.

Appellant’s petition alleges Eagle and Wilson were negligent in failing to properly supervise the unloading process; failing to provide adequate employees to assist in the unloading; failing to provide proper and adequate equipment for unloading; and that Wilson was negligent in failing to provide a safe place for the truck to unload. Getty’s negligence is alleged to be the same as that of Eagle and Wilson, to which is added the allegation that Getty failed to supervise its contractors, their employees and Eagle’s driver, Catrett. In effect, Appellant contends Catrett and Wilson’s employees present on the rig at the time of delivery, were Getty’s borrowed servants for whose actions Getty is responsible.

Getty responded by alleging that none of its employees were negligent in any manner connected with the accident and that in fact none of its employees were near the truck during the unloading process. In addition, Getty third partied Wilson and invoked the provisions of a contract with Wilson which are quoted in Getty’s answer and third party demand. These provisions recite that Wilson shall be an independent contractor in the performance of the work and shall not be acting as Getty’s agent; that Wilson shall direct and control the work, Getty being interested in results only; and that Getty may designate a representative who shall at all times have access to the premises for the purpose of observing tests and inspecting the work performed under the contract. Additionally, Getty pled a contract clause obligating Wilson to hold Getty harmless from all claims for damage to persons or property arising out of, or in connection with, or resulting from Wilson’s operations and to defend such actions and pay any judgments in any such actions.

Depositions of record disclose that on the day in question, Catrett’s truck arrived at the well site between 3:00 and 5:00 A.M. After stopping his rig in the vicinity of the drilling platform, Catrett requested Appellant to go talk with one of the workmen on the drilling platform and find out where the pipe was to be unloaded. Appellant made inquiry of either Thibodaux or Davis (the depositions do not clearly establish which one). He was instructed to load the pipe on two pipe racks which were near Catrett’s parked truck. Catrett, who had never before delivered pipe to an oil rig, positioned his truck between the racks and got out of the tractor. Appellant remained seated in the tractor cab. On instruction from Davis, Ogea and Darbonne and perhaps one other Wilson employee assisted Catrett in unloading the pipe.

Catrett’s deposition shows that heavy boards were set in place to form a ramp of sorts from the float bed to the pipe rack on the left or driver’s side of the loaded truck. Catrett was informed that the way to unload was to roll the joints of pipe down the “ramp” onto the rack. Catrett removed the pins on the left side of the float and also removed the binder chains. He then proceeded to remove the chocks under the bottom layer on the left, commencing with the chock nearest the cab and working toward the rear. After removing the last chock on the left side, he commenced prying with a bar to unload a single length of pipe. Instead of a single length, several joints of pipe rolled down the “ramp” on left and three joints simultaneously rolled off the float and onto the ground on the right side. Appellant, who did not participate in the unloading and who had gotten out of the cab for a breath of air, was pinned beneath the three joints of pipe which fell off the truck on the passenger side.

Depositions of record establish conclusively that Baudoin was asleep at the time of Catrett’s arrival with the pipe. It is also shown that Baudoin was wakened by Davis who himself was aroused by a member of the drilling crew and informed of the pipe’s arrival. It is further shown that when the accident occurred, Baudoin was getting dressed to go out where the pipe was to be unloaded. The depositions show positively Baudoin was nowhere near the truck when the accident occurred, and that he gave no orders or directions whatsoever as to where or how the pipe was to be unloaded.

Davis’ deposition establishes that the pipe was ordered by Getty as well owner, which concern was responsible for furnishing all material and equipment needed for the drilling process. Davis was aware some pipe was expected to arrive on the job but he did not know where from or who was to do the hauling. He noted that it is customary in the oil industry for the delivering truck driver to unload pipe at a well site. He also noted that drilling crew members instruct the truck driver as to where the pipe is to be unloaded, but not how the unloading shall be done. He also noted that members of the drilling crew assume no responsibility for unloading, but do sometimes gratuitously assist the driver by helping in the removal of pins, chocks and binder chains. He meticulously noted, however, that responsibility for unloading is solely that of the delivering driver, over whom the drilling crew neither exercise nor possess any control whatsoever. Davis further deposed that Baudoin never gave him any instructions or orders as to how to unload pipe or how to do anything else. He also deposed that, as Getty’s well site representative, Baudoin was interested in results only. He also stated that pursuant to the drilling contract between Wilson and Getty, the well site was built by Getty, who also prepared the location and furnished all material and equipment, but that Getty exercised no control over the manner in which the drilling process was conducted.

Depositions by the remaining crew members confirm Davis’ averments as concerns the issue of Getty’s alleged control over the actions of Wilson’s crew. These depositions do show, however, that one member of the crew suggested to Catrett that a ramp be constructed from the float bed to the pipe rack when Catrett indicated he had no prior experience in such matters. These same depositions also show that one or two crew members assisted in the removal of pins and perhaps also assisted in removing chocks and binder chains.

Summary judgment process, which deprives a litigant of trial on the merits is not a substitute for trial. Magie v. Patio Motel, Inc., 301 So.2d 381 (La.App. 4th Cir. 1974).

Summary judgment may not lie in any instance where a genuine issue of material fact remains unresolved. Carney v. Hartford Accident and Indemnity Co., 250 So.2d 776 (La.App. 1st Cir. 1970).

In disposing of a motion for summary judgment, it is not the function of the court to determine the merits of issues raised, but merely to ascertain whether there is a genuine issue of material fact. Acadia-Vermilion Rice Irrigating Co. v. Broussard, 185 So.2d 908 (La.App. 4th Cir. 1966). the complete absence of a genuine issue of material fact. Warden v. Southwest Louisiana Hospital Association, 300 So.2d 590 (La.App. 3rd Cir. 1974).

All doubt must be resolved against the granting of a motion for summary judgment and in favor of trial on the merits to decide disputed material facts. Hobbs v. Fireman’s Fund American Insurance Companies, 293 So.2d 608 (La.App. 3rd Cir. 1974).

Where a genuine issue of material fact exists, summary judgment does not lie even though the trial court entertains grave doubt concerning respondent’s ability to establish disputed facts. Butler v. Travelers Insurance Co., 233 So.2d 271 (La.App. 1st Cir. 1970).

Appellant contends Getty is liable for the actions of Catrett and Eagle’s employees because these parties were Getty’s agents and servants, actual or borrowed. The depositions do not show the precise nature of the relationship between Getty and Eagle. From the pleadings and depositions we cannot say that there is no dispute as to the material facts concerning the relationship of Getty to Eagle’s employees. Getty bears the burden of proof in this respect and has failed to discharge this onus.

The judgment is reversed and this matter remanded to the trial court for further proceedings consistent with the views herein expressed, Getty to pay all costs of this appeal.

Reversed and remanded.

The party moving for summary judgment bears the burden of establishing


author: PER CURIAM.

text:
    ORLEANS MATERIALS AND EQUIPMENT CO., INC. v. N. J. GUIDRY AND SONS TOWING CO.
    No. 11098.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Nathan T. Gisclair, Jr., New Orleans, for plaintiff and appellee.
    A. Morgan Brian, Jr., New Orleans, for defendant and appellant.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   PER CURIAM.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been fixed for continuance.

On authority of Rule VII, Section 5(b), this Court, Ex Proprio Motu, considers said appeal as abandoned; therefore,

IT IS ORDERED, ADJUDGED AND DECREED that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Robert O’Neille LAVIGNE, applying for Adoption of Paula Ann Cooper v. Prentice COOPER.
    No. 11101.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Gordon W. Matheny, Hammond, for Robert O’Neille Lavigne, plaintiff-appellee.

      Allen B. Pierson, Jr., Ponchatoula, for Prentice Cooper, defendant-appellant.
    Before LANDRY, C. J., and COLE and CLAIBORNE, JJ.
   PER CURIAM.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been fixed for continuance.

On authority of Rule VII, Section 5(b), this Court Ex Proprio Motu, considers said appeal as abandoned; therefore,

IT IS ORDERED, ADJUDGED AND DECREED that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    ESTATE of Mrs. May TAYLOR v. Melba L. HARVEY, Sr., et al.
    No. 11139.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Robert M. Day, Baton Rouge, for plaintiff and appellant.
    Richard H. Kilbourne, Clinton, for defendant and appellee.
    Leon A. Pieou, Jr., St. Francisville, for third party defendant-appellee.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

An ex proprio motu order was issued herein by the court directing Appellant, Estate of Mrs. May Taylor, to show cause why this appeal should not be dismissed for failure to timely post the appeal bond.

The trial court signed judgment herein on Monday, May 3, 1976, on which same date notice of judgment was mailed to all counsel of record. Appellant did not move for a new trial. On August 9, 1976, Appellant filed a motion for devolutive appeal, which motion was signed by the trial judge on August 12,1976. The appeal bond, fixed in the sum of $500.00, was posted September 2, 1976.

The delay for taking a devolutive appeal is governed by LA-C.C.P. Article 2087, which recites that such an appeal must be taken within 90 days of expiration of the delay for applying for a new trial when no timely application for new trial is made, or within 90 days of denial of a timely application for new trial.

The delay for applying for a new trial is 7 days, exclusive of legal holidays. LA-C. C.P. Article 1974. This delay commences the day after judgment is signed when no notice of judgment is required; when notice of judgment is required, the delay beings the day after the Clerk of Court has mailed the notice. LA-C.C.P. Article 1913.

In this instance notice of judgment was mailed May 3, 1976, which commenced the delay for applying for a new trial on Tuesday, May 4, 1976. The delay for applying for new trial expired therefore, on Wednesday, May 12, 1976. Consequently, the 90 day devolutive appeal period commenced Thursday, May 13, 1976, and expired Wednesday, August 11, 1976.

Appellant’s motion for devolutive appeal was timely filed August 9, 1976, but was untimely signed on August 12, 1976, because the delay period expired the previous day. Additionally, the required bond was not filed until September '2,1976, which was untimely.

The delay for taking and perfecting an appeal by timely posting of bond is a jurisdictional issue. David v. Department of Public Safety, 261 So.2d 347 (La.App. 1st Cir. 1972).

Appellate courts do not acquire jurisdiction of an appeal which is not timely perfected. David, above. See also Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976).

Appellant attempts to justify the tardy filing of bond on the ground notice was required from the Clerk of the trial court advising as to the amount of the appeal bond when set by the trial court. No authority is cited for this contention and our own research fails to disclose precedent so holding. We hold that, as a matter of law, no such notice is required. It is the duty of appellant to keep advised and informed as to matters of this nature. We note that it appears, in this instance, that the motion for appeal was mailed to the Clerk of the trial court. In any event, it was incumbent upon Appellant to keep informed as to the amount of, and timely post the required bond.

Appellant relies upon Alexander v. Succession of Alexander, 227 So.2d 263 (La. App. 3rd Cir. 1969), and Jackson v. Hannie, 225 So.2d 385 (La.App. 3rd Cir. 1969), both of which cases we find inapposite. Alexander, above, involved the alleged untimely payment of costs of preparing the transcript on appeal and the filing fee due the appellate court. Jackson, above, concerned the filing of bond held untimely for a sus-pensive appeal but timely for a devolutive appeal.

The failure to timely file the required appeal bond is fatal to the appeal. Something Irish Co. v. Rack, above.

The appeal is dismissed at Appellant’s cost.


author: SARTAIN, Judge.

text:
    Reuben M. PUSEY, Plaintiff-Appellant, v. Paul M. DAVISON et al., Defendants-Appellees.
    No. 11010.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      David E. Cooley, Slidell, and Lawrence W. Moon, Jr. and John R. Wellman, New Orleans, for plaintiff-appellant.
    Breard Snellings and James Ryan, III, New Orleans, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is an action for damages arising out of an alleged collision between a pickup truck owned and operated by Reuben M. Pusey and a trailer-tank truck owned by Paul M. Davison and James E. Davison, d/b/a Davison Transport Company and Davison Transport Company, Inc., and driven by Billy Joe Tucker. Plaintiff appeals from a judgment rejecting his demands. We affirm.

We adopt with approval the trial judge’s summation of the testimony as contained in his written reasons for judgment:

“Plaintiff Pusey testifies that he was driving his Chevrolet pick-up truck at approximately 5:40 in the morning in a westerly direction on US Highway 190 in the vicinity of Southeast Louisiana Hospital, near Mandeville, Louisiana. He says he was traveling in his correct lane of traffic when an on coming tank truck swerved or maneuvered over into his lane and sideswiped his truck.
The plaintiff contends that after his truck was struck, he spent about four minutes at the accident scene with a coworker, Mr. Callahan, who had been traveling behind Mr. Pusey. The plaintiff then turned his truck around and went after the other vehicle and he stopped the defendant’s vehicle near the Billups Station in Lacombe.
Officer Francois Abadie, of the Louisiana State Police, testified that he was called and went to the Billups Station and he found that the plaintiff’s pick-up truck was damaged on the left side by the driver’s door near where it is hinged and that there was slight damage near the tandem wheel of the left side of the tractor rig. He said he did find fresh scrapings on Mr. Pusey’s truck and that he found the mud flap and guard near the left tandem wheel of the tractor to be bent and that he found that it had paint on it comparable to the paint on the plaintiff’s pick-up truck. He determined that Billy Joe Tucker was the driver of the tractor trailer truck owned by the defendant Davison and that Tucker told the officer that he did not think he had hit Pusey but that Pusey had said that the truck had sideswiped him and that he had turned around and chased him.
“Mr. Tucker, the Driver of the defendant truck, testified that he was hauling liquid asphalt in the trailer and he does not recall anything about Mr. Pusey until he flagged him down in Lacombe. He acknowledged that the paint was similar and that it could have matched. He stated that he does not recall any impact and that there is no damage to his truck other than the paint on that fender. He acknowledged that the Pusey truck was damaged at the left door. Mr. Tucker denied being asleep. Mr. Pusey, of course, has testified that there was an accident, that he saw the truck coming and that it turned sharply to the left and that he attempted to get off the road and avoid the collision but that the truck sideswiped him.
Mr. Thomas Callahan also testified. He was a fellow employee of the plaintiff, employed at Pre-Stress Concrete in Mandeville and he testified that he also was going to work on the morning in question and that he was approximately 150 feet behind Pusey. He said he noticed the truck swerve over across the center line, and that he saw Pusey attempt to get out of the way, and that he saw sparks of fire which indicated that there was metal hitting metal.
Callahan then testified that when he came up to Mr. Pusey he thought that Mr. Pusey was dead, but he found that he was just dazed or in shock. Pusey then asks, ‘Who hit me?’, and Callahan said he could simply identify it as a large black tank truck. Pusey testified there were other trucks in between him and defendant’s vehicle while on the way towards Lacombe.
All of the evidence indicates that an accident did take place. Neither Mr. Pusey, nor Mr. Callahan could give a positive identification that the defendant’s vehicle was in fact the vehicle that struck the plaintiff’s truck.
Plaintiff testified that he was struck twice by the defendant’s vehicle, once by the truck’s front wheel and once by the back wheel. The only damage- that Trooper Abadie found was by the back wheel of defendant’s truck. The paint scrapings found on defendant’s truck were never tested to see if it did in fact come from plaintiff’s vehicle. The Court finds that the plaintiff was involved in an accident on the morning of May 27, 1970, but that the plaintiff has not proved by a preponderance of the evidence that it was in fact the defendants’ vehicle that struck him. For these reasons the Court will dismiss the plaintiff’s case at his cost.”

Plaintiff concedes that he bears the burden of proving that it was defendants’ truck that collided with his. However, he contends that the trial judge erred in failing to give greater weight than he did to the testimony of Trooper Abadie who expressed the opinion that defendants’ truck had indeed struck plaintiff’s vehicle.

In rebuttal to this assertion, defendants submit that the decision of the district judge is correct when other factors are considered, viz: Plaintiff claims that he was struck twice, first by the left front wheel of the truck, and second by its left rear wheel; whereas, there was no damage to the left front of the tank-truck. Further, notwithstanding the above noted conclusion of Trooper Abadie, this officer did not issue a traffic citation to Tucker for he felt that the circumstances did not warrant his doing so. Even though this officer thought that the paint scrapings on the truck were comparable with the paint on plaintiff’s vehicle, he could not recall the color of the latter. In addition, Trooper Abadie was quite positive that he had asked plaintiff if there were any witnesses to the accident and that plaintiff had replied in the negative. Yet, Callahan appeared as a witness on behalf of plaintiff as the latter’s eyewitness.

Defendants also argue that the size (55 feet in length) and weight (74,000 lbs.) of the tank truck, traveling at a speed of 55 m.p.h., negates the very thought of it having struck plaintiff’s vehicle without having “knocked” the latter off the highway, inflicting far more damage than was done.

The trial judge did not expressly state that these factors were the basis for his decision. Nonetheless, they are supported by the record and do form a reasonable basis for the rejection of plaintiff’s claim. We do not find manifest error in the conclusion reached by the trier of fact"and therefore affirm the decision appealed.

AFFIRMED.


author: COVINGTON, Judge:

text:
    Martha Maxine LAY v. ALLIED CHEMICAL CORPORATION and the Travelers Insurance Company.
    No. 11024.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Robert L. Kleinpeter, Baton Rouge, of counsel for plaintiff-appellee.
    Don L. Broussard, Lafayette, of counsel for defendant-appellants.

      Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

This is an action for workmen’s compensation death benefits filed by the surviving widow, Martha Maxine Lay, of a deceased employee, William E. Lay, against his employer, Allied Chemical Corporation, and its insurer, The Travelers Insurance Company, alleging that her husband, while performing his work as a senior operating engineer in the employer’s chemical plant, suffered a fatal heart attack after having worked for about four hours. The petitioner also seeks funeral expenses, statutory penalties and attorney’s fees.

The trial court awarded judgment in favor of the plaintiff-appellee and against the defendant-appellants, awarding her $65.00 per week for 500 weeks beginning March 22, 1974, plus 7% per annum interest on each past due payment from its due date until paid, together with $1,000.00 for funeral expenses and all costs. It further awarded her a judgment against the insurer for penalties in the amount of 12% on all past due compensation from March 22,1974, and $2,500.00 attorney’s fees.

On appeal the appellants contend that the trial court erred in finding a causal relationship between the heart attack and the decedent’s job, and that it also erred in awarding penalties and attorney’s fees.

The facts giving rise to this claim are as follows: William E. Lay, who was 43 years old, had for 18 years been employed by Allied Chemical Corporation, which was engaged in the business of developing and processing chemicals in the Baton Rouge area. The employee’s position of employment was senior engineer, and he was working as a relief operator at the time of his death. As a senior operator, the employee usually worked straight days; however, on the day of his death he was working a 12-hour day because he was covering for another employee on an earlier shift.

On March 22, 1974, William E. Lay arrived at the chemical plant about 3:00 a. m. His job on this particular day was to take a condensate header, which needed minor repairs, out of service, as a part of the usual periodic procedure in this type of operation. This routine operation, as far as the employee was concerned, consisted mainly of turning off certain valves on different levels of the operating room. In performing this operation it was necessary to open and close valves and to climb up and down stairs.

What Mr. Lay did on the date he died is best described by Harold G. Bates, who was present at the time and now performs the same duties that Mr. Lay performed, as follows:

“Q Did you know Mr. William E. Lay?
A Yes, sir.
Q How long had you known Mr. Lay?
A Since I came to work at the plant in ’57.
Q What was his job title as of March 22, 1974?
A Senior operating engineer relief.
Q And that’s the position you have now?
A Yes, sir.
Q Now, as senior operating engineer relief, what are the duties of the individual that fills that job?
A He normally works straight days and he relieves one day a week on five jobs, five units.
Q Does that require climbing and so forth up and down units?
A Yes, sir.
Q Now, when you have a turnaround, does that require extra work on the part of the operator? I think they were turning off a condensor head or something that day.
A Yes, sir.
Q And does it require that you go up and down stairs between the different floors?
A Yes, sir.
Q Now, were you present on — or had you seen Mr. Lay on the day of his heart attack?
A Yes, sir, early that morning.
And do you know if he was on the unit performing his duties? &>
A Yes, sir, he was outside.
Now, you say outside. He was not in the control room, is that right? «©
A I saw him briefly before he went outside.
Now, did he have any complaints before he went out? <©
No, sir. (>
Did you seen him anytime later, Mr. Bates? £)
I saw him when he came back in. l>
And was he complaining at that time? <©
A Not verbally. He acted like he was in pain when he came through the door.
What time did you come to work that morning? <©
A Approximately six-thirty. Between six-thirty and seven.
Q And was Mr. Lay on the job when you got there? <©
A Yes, sir. !>
Q Now, from your observations of Mr. Lay and working with him as a fellow employee, was he a hard, conscientious worker?
A Very dedicated individual. <tj
Q When he was on the job, did he tend to the job he had to do? O’
A Yes, sir. <¡
Q And when you are performing these turnarounds such as he was doing on this day, does that require extra effort on your part as a relief operator? O
A Yes, sir. ¡>
Q In other words, it’s not like a usual day. It requires more from you, is that right? JO
A Well, a usual day, on days anyway, you have quite a bit of turnaround material going down, units going down, and parts going up. This is usually the time for the unit to be worked on so this was nothing abnormal.
But it did require the turning of valves and the going up and down stairs, did it not? o
Yes, sir. <
Was there quite a bit of walking, going up and down? or
Some days, yes, sir. <
Q Mr. Bates, in connection with these valves, would some of them be on the second deck and some of them on what you call the floor deck?
A Yes, sir.
Q Would some of them require reaching and some require stooping?
A (The witness did not respond.)
Q In other words, were they at different levels?
A Only required stooping. Most of them would be at waist level.
Q And it did require physical exertion to open and close these valves and to walk up and down steps, didn’t it?
A Yes, sir.”

After working for about four hours, around 7:30 a. m. the employee came into the office of his immediate supervisor, complaining of severe chest pains. First aid was administered and the employee was taken to the hospital, where he died at 8:50 a. m. Dr. J. B. Peltier, a physician specializing in emergency medicine who was on duty at the time, stated the immediate cause of death was acute myocardial infarction, a heart attack. The employee had no medical history of a heart condition.

The primary issue before this Court is whether the employee sustained a “com-pensable accident” within the meaning of the Workmen’s Compensation Law, so as to entitle the widow to recover benefits as a result of her husband’s fatal heart attack. We must give a liberal interpretation, in favor of the employee, to the terms “accident” and “injury” in LSA-R.S. 23:1021(1) and (7); Geist v. Martin Decker Corporation, 313 So.2d 1 (La.App. 1 Cir. 1975).

It is pointed out in the case of Weber v. McLean Trucking Company, 265 So.2d 628, 634 (La.App. 3 Cir. 1972), that benefits are due under the Louisiana Workmen’s Compensation Law in cases “involving heart conditions resulting in disability or death, whether or not the condition is preexisting, when caused, precipitated, or accelerated by even the usual and customary activities, exertions and other factors directly connected with the employment.” Also, see Vicknair v. Avondale Shipyards, Inc., 220 So.2d 580, 582 (La.App. 4 Cir. 1969), writ den. 254 La. 285, 223 So.2d 409.

In Weber the employee was a heavy truck driver who had a heart condition which had first manifested itself some years earlier. Immediately prior to his death, the employee had driven a heavy tractor-trailer unit all day in hot weather over one of the most difficult routes in the South. Upon arriving at home, the employee complained of chest pains and extreme fatigue. After resting briefly, the employee died suddenly from a heart attack while present at the loading of some cattle for a rodeo. The court found the cause of death to have been work-related even though death occurred off the job; that is to say, the court found causal connexity between the decedent’s work and his subsequent fatal heart attack.

In heart condition cases, such as this, the claimant need only prove the injury or death is causally connected with the work effort of the employee in performing his customary duties. The employee need not prove that he suffered a traumatic injury by external violence in order to be considered an industrial casualty. See Brown v. Kaiser Aluminum & Chemical Corporation, 250 So.2d 99, 101 (La.App. 4 Cir. 1971), writ den. 259 La. 807, 253 So.2d 66.

In Brown the court observed:
“It is sufficient to constitute a compensa-ble accident involving heart diseases within the meaning of the Workmen’s Compensation Statutes when the work effort and the exertion of the employee in discharging his customary duties causes the diseased organ to collapse or its function to become so impaired as to result in disability or death.”

The applicable rule was succinctly stated in Leleux v. Lumbermen’s Mutual Insurance Company, 318 So.2d 15, 17 (La. 1975), as follows:

“It is necessary only that the death or disability be precipitated by the usual actions, exertions, and conditions of the employment.”

The evidence convinces us that prior to the date of his death, the employee enjoyed good health and actively engaged in strenuous physical labor. The evidence also is convincing that the employee suffered a heart attack on the job, the onset of which was sudden, after having been engaged in activities involving exertive efforts on his part, such as climbing stairs and turning valves.

Therefore, the contention of the appellants that the fatal heart attack in the instant case did not come within the meanings of “injury” and “accident” as required by the Workmen’s Compensation Law is without merit. The case of Clement v. Faucheux Chevrolet Company, 285 So.2d 276 (La.App. 4 Cir. 1973), relied upon by the appellants, is inapposite. In that case the evidence failed to establish the cause of death, while in the instant case the evidence shows unquestionably that the work activities engaged in by the employee caused his fatal heart attack. In the Clement case, the employee, a sales manager, died while driving his automobile from his office to an attorney’s office to have an automobile title notarized. The cause of death was admittedly “never determined.”

In the instant case the employee was apparently feeling well, performing his usual duties, climbing stairs and turning valves in the course and scope of his employment, when he suddenly and unexpectedly suffered a fatal heart attack. These facts clearly place this case within the jurisprudential meaning of “accidental injury.” See Ferguson v. HDE, Inc., 270 So.2d 867, 869 (La.1972). Further, the causal relation may be inferred when there is proof of an accident during the course of employment and a subsequent disability or death with no intervening cause; Leleux v. Lumbermen’s Mutual Insurance Company, supra.

Having concluded that there is liability on the part of the employer and insurer, we must now determine whether the insurer is liable for penalties, interest and attorney’s fees for failure to pay compensation benefits.

We have examined the record and find that the evidence amply supports the trial court’s award of those items. Mr. Donald Deshotels, the workmen’s compensation supervisor who handled this particular claim, had information that revealed to him that the employer had suffered a heart attack on the job and that the heart attack came on the employee suddenly. Mr. Desh-otels testified that the only thing he had to go on initially was the emergency room report. About one year after suit was filed, he requested additional medical information. Mr. Deshotels also testified that he did not even consider the legal authorities, i. e., the recent law dealing with heart cases, which the claimant’s counsel had sent to him, because, as Mr. Deshotels explained it, “we didn’t research the matter because it’s not necessary that you know the law because the law changes every day.” While we do not expect insurance claims adjusters to be lawyers, we do expect them to know the applicable law in the cases they are assigned for handling. It is their obligation to keep abreast of the law as it affects their cases. It is their duty to seek legal opinions from the insurer’s counsel in order to understand the applicable law involved. An adjuster can not just out-of-hand reject a claim. To do so is the “arbitrary, capricious or without probable cause” contemplated by the penalty provisions of the law, and requires the courts to assess penalties, interest and attorney’s fees against the insurer.

We find that there was no basis for refusal to pay this claim; consequently, the insurer, The Travelers Insurance Company, must suffer the statutory penalty for its arbitrary refusal to pay. Eaton v. General Accident Group, 292 So.2d 773 (La.App. 4 Cir. 1974); Hills v. Travelers Insurance Co., 250 So.2d 551 (La.App. 1 Cir. 1971).

The instant case is unlike Van Dyke v. Colfax Creosoting Company, 295 So.2d 589, 592 (La.App. 3 Cir. 1974), writ den. 300 So.2d 182 (La.) cited by appellants, where there was “a legitimate belief” on the part of the insurer that the employee’s disability was unrelated to his employment. In that case there was a reasonable question of causation.

For the reasons assigned, the judgment appealed from is affirmed at appellants’ costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Ronald O. MacKENDREE v. COMMERCIAL NATIONAL BANK.
    No. 11032.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      A. Clayton James, Jr., Franklinton, for plaintiff-appellee.
    Jack A. Blossman, Covington, for defendant-appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit to recover a deposit made by plaintiff with the defendant bank. The Trial Court rendered judgment in favor of plaintiff and the defendant has taken this suspensive appeal.

The record reflects that prior to May, 1973, William E. Connelly was engaged in the residential construction business in the Parish of St. Tammany. In connection with this business, Mr. Connelly had a business arrangement with defendant who provided him with construction funds through interim financing arrangements. Defendant took mortgages on two lots in Covington Country Club Subdivision and furnished Connelly with building funds.

Sometime later, Connelly began to incur financial difficulties, and the bank refused to advance further funds and instituted foreclosure proceedings on the two lots in Country Club Subdivision.

Plaintiff, who is the son-in-law of Mr. Connelly and who resides in Florida, contacted Mr. Pierre Livaudais, an attorney in Covington, with reference to his father-in-law’s difficulty. After several conversations with Mr. MacKendree, Mr. Livaudais contacted the president of the defendant bank, Mr. Richard Blossman, and ultimately $8,000.00, which has become the subject of this law suit, was deposited with the bank.

At the time of the deposit, a receipt was addressed to Mr. Livaudais and signed by Mr. Blossman, as president of the bank, which provides as follows:

“We hereby acknowledge receipt of your deposit in the amount of $8,000.00 — such deposit in the form of a check signed by Mr. Ronald O. MacKendree. These funds have been placed in an escrow account with the understanding that they are to be distributed for use in completing the William Connelly houses (2 houses). This Bank is pleased to assure you that these funds will be applied only for the completion of these houses and will be used for labor and supplies to effect same.
“This Bank is also committing that there will be no legal action taken in the nature of a foreclosure of these 2 houses before August 31, 1973. We feel that this will give Mr. Connelly sufficient time to complete the houses and to have generated 2 sales to pay the notes in full. Should the houses not be sold at that time (8-31-73) we do reserve the right to a foreclosure.”

The deposit was made in the form of a check made out by Mr. MacKendree and payable to the order of Pierre Livaudais who endorsed the check in blank and deposited it in the bank. The date of the deposit as well as the receipt was May 15, 1973. The account was opened and titled “Connelly and MacKendree Escrow Account.” Though a signature card was filled out and titled “Connelly and MacKendree Escrow” the words “Escrow Agent” placed thereon, there is no written authorization found in the record for the authorized signature on the card to be Dan Berlin, an employee of the bank.

As it became apparent that Connelly would be unable to complete the two residences for the amount of the $8,000.00 deposit, on August 9,1973, Livaudais by letter requested return of the deposit, which was subsequently refused by the bank.

Of course Mr. Blossman and Mr. Livau-dais differ with regard to the facts surrounding the deposit. Mr. Livaudais claimed that it was his understanding and instructions from Mr. MacKendree to deposit the funds in the bank for use in completing a house for which a purchase agreement has already been executed in a sum sufficient to pay off all parties financially interested. The use of the funds was first of all contingent on an arrangement being worked out with creditors so that the $8,000.00 would complete the house and leave it free and clear for sale in accordance with the terms of the purchase agreement. Mr. Livaudais testified that it was his understanding that if Mr. Connelly did not finish the houses and Connelly did not sell the houses and pay off the bank, then the bank would return the deposit.

Mr. Blossman on the other hand, contends that the $8,000.00 was an outright payment from Mr. MacKendree to the bank on behalf of Connelly, the consideration being the bank’s forbearance from foreclosure until August 31, 1973. It is his position that when the deposit was made, the bank became the owner of the funds. If this position was correct, there would be absolutely no reason why the funds were placed in an escrow account.

In its written reasons for judgment, the Trial Court said:

“Based on the physical evidence at hand, and the entire circumstances surrounding the deposit of the $8,000.00 it is the court’s opinion that the money was an escrow deposit to be used by, or on behalf of, Connelly to complete the houses and perfect sales of the same prior to August 31,1973. The money was placed with the bank to show them there were available funds to complete the houses, the bank could supervise the distribution of the funds, and in return it gave them an incentive to forebear foreclosure for a limited period of time.
“It appears clear from the law that money deposited in escrow essentially constitutes a trust fund and can be used only for the purposes of the trust, c. f. Merchants and Farmers Bank and Trust Co. v. Hammond Motors Co., Inc., 113 So. 763. The purpose here was to pay for the completion of the houses prior to August 31, 1973. The record is void of any evidence to show that the monies deposited were in any way used to complete the houses between the date of the deposit and August 31, 1973, or that the bank made any such use of its own funds for which the deposit might possibly be used to reimburse the bank. Not being so used it is the duty of the depository or escrow agent to return the escrow funds to the owner.”

As one of his specifications of error, defendant claims that the Trial Court erred in allowing or calling for an additional witness, namely Pierre Livaudais, whose testimony was taken by deposition and entered into the record, after the case had been submitted for judgment rather than finding for the defendant. The record discloses, however, that Mr. Livaudais was subpoenaed by defendant, and though he did not appear at the trial, plaintiff expected him there. Throughout the taking of testimony, the absence of Mr. Livaudais was referred to by the Trial Judge. Following the completion of defendant’s case, counsel for plaintiff advised the court that he had some rebuttal testimony but would move that they hold the case open for Mr. Livaudais’s testimony. A discussion was had between the court and the two attorneys and the court agreed to hold the case open for the deposition of Mr. Livaudais. The Trial Judge was confronted with a situation of a witness being subpoenaed by the defendant, and the plaintiff expecting the witness to appear. We find no error on the part of the Trial Judge in holding the case open for the taking of the deposition of Mr. Livau-dais, and considering that the case was not submitted for judgment until the deposition of Livaudais was filed in the record, we find no merit in appellant’s argument.

Appellant further contends that irrespective of the testimony of Mr. Livau-dais, the Trial Judge erred in granting judgment in favor of plaintiff. After a complete review of the entire record in this matter, we are of the opinion that the conclusions reached by the Trial Judge after a complete review of the facts are just as reasonable as the conclusions to be reached by the defendant, and thus find no error on the part of the Trial Judge.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All cost of this appeal are to be paid by defendant-appellant.

AFFIRMED.


text:
    Ralph FALL v. Gerald DIDIER et al.
    No. 11034.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    James J. Zito, Baton Rouge, of counsel, for Ralph Fall.
    Peter T. Dazzio, Baton Rouge, of counsel, for Gerald Didier, and others.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

Plaintiff, Ralph Fall, brought this action for damages for personal injuries and property damage resulting from an automobile accident which occurred in Baton Rouge, Louisiana, on June 15,1974, at about 9:00 a. m. Plaintiff’s automobile collided with a Volkswagen automobile owned by Gerald Didier and driven by Duane Didier.

The Didiers and their insurer, Reliance Insurance Company, were named defendants. Alternatively, the plaintiff sued his own insurer, The Travelers Insurance Company, for collision damages.

After trial the district court found that the plaintiff was guilty of negligence which was a proximate cause of the accident and thus barred his recovery.' The plaintiff has appealed this judgment. We affirm.

The accident in question occurred at approximately 9:00 a. m., on June 15,1974, on I — 10 within the city limits of Baton Rouge. Plaintiff was proceeding in an easterly direction on I — 10 at a speed of 70-75 miles per hour when he suddenly came upon the Didier vehicle proceeding in the same lane of traffic in the same direction at 50-55 miles per hour. Only a few minutes earlier, the Didier vehicle had changed from the center lane to the left lane of traffic. The plaintiff ran into the rear of the slower moving Didier automobile. Following the collision both vehicles continued down the highway for a considerable distance. Although the cars sustained substantial damage, neither driver suffered any serious injury-

In his testimony the plaintiff admitted to driving 70 to 75 miles per hour. Witnesses who had observed the vehicles just prior to the accident testified to the high rate of speed of his car. The plaintiff also admitted to having worked all night, and that he was returning to his home in Avoyelles Parish without having slept. He also admitted to having consumed two or three beers.

Defendant Didier, driver of the Volkswagen, admitted to driving 50-55 miles per hour and to having changed traffic lanes shortly before the accident. He also admitted telling the plaintiff that he was at fault.

Considering the evidence produced at the trial, the trial judge remarked in his oral reasons for judgment:

“Taking all the factors into consideration, the fact that he (the plaintiff) admits following another vehicle at a high rate of speed, by his own admission going seventy to seventy-five miles an hour, after being up all night long, after consuming, by his own admission, three beers and had bought a six pack, after admitting that he didn’t see that vehicle, after admitting that as he topped the hill the vehicle (Didier) was there, when, in fact, the collision took place a little further on down the road, and I think all these factors certainly contributed to the accident. Had he been driving at the speed limit, had he had a good night’s sleep, had he not consumed a minimum of three beers, I doubt very seriously if this accident would have occurred.”

The finding by the trial court that the plaintiff was operating his vehicle at an excessive rate of speed, after having been awake all night and after having consumed several beers is a finding of fact which we can overrule only upon a showing of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). In Canter the Supreme Court pointed out that it is not the function of the appellate court to substitute its own evaluations of fact where there is support for the trial court’s finding in the record.

In this case the record does not disclose any manifest error. In response to a question concerning his rate of speed, the plaintiff testified that he imagined he was going “seventy, maybe seventy-five. I really don’t know.” H. E. Ruppert, who was driving a vehicle which moments before had been passed by the Fall vehicle, testified that he would estimate it was traveling “in excess of seventy-five miles an hour.” Mr. Ruppert also estimated the distances the two vehicles traveled after the collision. His testimony on this point was:

“Well, the Volkswagen didn’t go very far because it lost a tire which I picked up out of the highway and threw to the side. The other one bounced — After it came out of the dust, I saw it bounce off the concrete median on down the way and out of the dust probably the length of a football field.”

Two other witnesses corroborated this testimony to the effect that the Pall vehicle was traveling at a high rate of speed just prior to the collision.

The speed limit at the point of the interstate highway where the accident occurred was 55 miles per hour. The trial court determined that Fall was traveling 70-75 miles per hour just prior to the mishap and found that under the circumstances this excessive speed was a proximate cause of the accident. The evidence supports this finding. We agree that Fall’s high rate of speed was excessive under the circumstances and a proximate cause of the accident. Cason v. Formby, 317 So.2d 654 (La.App. 2 Cir. 1975), writ den., 318 So.2d 40 (La.1975); Fidelity & Cas. Co. of N. Y. v. Aetna Life & Cas. Co., 244 So.2d 255 (La.App. 3 Cir. 1971).

The appellant cites as authority for reversal of the trial court’s judgment a line of Louisiana jurisprudence holding that the “exceeding of a fixed speed limit does not constitute contributory negligence where it has no causal connection with the accident in question.” Tallo v. Johnson, 255 So.2d 446, 449 (La.App. 1 Cir. 1971), writ ref., 260 La. 704, 257 So.2d 157 (1972); Thayer v. State Farm Mutual Automobile Insurance Co., 229 So.2d 767 (La.App. 3 Cir. 1969), writ ref., 255 La. 233, 230 So.2d 89; American Road Insurance Company v. Irby, 203 So.2d 427 (La.App. 2 Cir. 1967); Ledet v. Fireman’s Fund Insurance Company, 199 So.2d 7 (La.App. 4 Cir. 1967), writ den., 251 La. 25, 202 So.2d 648.

In the Tallo case the speeding driver was sued by the left-turning driver. The court held that the plaintiff had failed to carry the burden of proof that the left-turn maneuver could have been executed in safety.

In the Thayer case the speeding driver sued the driver who had failed to yield the right-of-way at an intersection. The court concluded that the accident would have occurred even though the plaintiff had been driving at the legal rate of speed.

In the Irby case the speeding driver sued the left-turning driver who had failed to stop before entering a right-of-way street. The court concluded that the accident would not have been avoided even had the plaintiff been driving at the legal rate of speed.

In the Ledet case the speeding driver sued the driver failing to yield the right-of-way at an. intersection. The defendant pulled from a side street onto a four-lane highway directly into the plaintiff’s path. The defendant, who was also making a left turn, failed to stop before entering the major highway. The plaintiff was driving at a rate of speed within the legal limit. The court found, as a matter of fact, that there was no convincing proof to show excessive speed on the part of the plaintiff, and “there was no evidence produced to show that the alleged excessive speed of Ledet was a proximate cause of this accident.”

We find cited cases inapposite. They are factually distinguishable from the instant case. Each case must stand on its own facts, as we all know, and this Court finds the evidence supports the holding of the trial court in the instant case that the excessive speed of the Fall vehicle was a proximate cause of the collision and the damages resulting therefrom.

For the reasons assigned, the judgment of the district court is affirmed. Appellant is assessed with all costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    J. Al AMISS, Sheriff and Tax Collector for the Parish of East Baton Rouge v. STATE of Louisiana et al.
    No. 11037.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      Sheldon D. Beychok, Baton Rouge, of counsel, for plaintiff J. A1 Amiss, Sheriff and Tax Collector for the Parish of EBR appellant.
    Joseph F. Keogh, Baton Rouge, of counsel, for defendant City of Baton Rouge and Parish of EBR appellee.
    John F. Ward, Jr., Baton Rouge, of counsel, for defendant EBR Parish School Bd. appellee.

      Stephen J. Caire, New Orleans, of counsel, for defendant State of La. appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is an appeal by the Sheriff and Tax Collector for the Parish of East Baton Rouge from a judgment of the district court which decreed that the defendants, State of Louisiana, Parish of East Baton Rouge, East Baton Rouge Parish School Board, Baton Rouge Recreation and Parks Commission, Louisiana Forestry Commission and certain designated public bodies were the owners of the revenue sharing funds in the stipulated proportions during the time that such funds were in the physical possession of the plaintiff-appellant, and that the defendants-appellees were entitled to their pro-rata share of the interest earned by the investment of such funds by the plaintiff-appellant. The judgment cast the plaintiff and the State of Louisiana, equally, for all costs to the extent provided by law.

Basically, the contention of the appellant is that under LSA-R.S. 39:1271 and LSA-R.S. 6:748 he is authorized to invest the revenue sharing funds and retain for his office any interest during the time between receipt and disbursement of the funds.

LSA-R.S. 39:1271 provides as follows: “Any municipality, parish, school board, police jury, or other political subdivision of the state, may invest in United States bonds, treasury notes, or certificates, and time certificates of deposit of state banks organized under the laws of Louisiana and national banks having their principal office in the state of Louisiana, such monies in any general or special fund of the respective subdivision as might constitute a surplus, or the expenditure of which is deemed inadvisable by the subdivision at the time.
“The interest earned on bonds, notes or certificates, or time certificates of deposit, so purchased shall be credited by the respective subdivision to the fund from which the bonds, notes or certificates, or time certificates of deposit, were acquired, or it may be applied to the payment of the principal and interest of the outstanding bonded indebtedness of the respective subdivision.
“Any law of the state of Louisiana which may appear to restrict, limit or condition the herein granted authority is hereby declared to be inapplicable to this section.”

LSA-R.S. 6:748, subsection A, provides in pertinent part:

“. . . (P)ublic officials hereby are specifically authorized and empowered to invest funds held by them, without any order of any court, in savings accounts or shares of associations, and such investments shall be deemed and held to be legal investments for such funds. . . ”

R.S. 39:1271 is inapplicable. The sheriff is not one of the enumerated entities, nor is he a “political subdivision.” R.S. 6:748 is also inapplicable. It merely allows investments in savings accounts of Homesteads and Savings and Loan Associations. In this case, the investment was in U. S. Treasury Notes.

Even if these statutes were applicable, neither individually nor together do they suggest that the public official, by whatever title, has the right to retain any earned interest on invested funds for his own office. These statutes are designed to encourage the putting to work of idle public funds. We point out that LSA-R.S. 39:1271 clearly states that the interest earned on such funds shall be credited to the fund. This can only mean that any earned interest belongs to the owner of the funds, not to the public official who handles or distributes funds. LSA-R.S. 6:748 has no effect upon the earning of interest and is not intended to disrupt the normal rights of accession. There is nothing in the cited statutes to indicate that the fiduciary making the investment of public funds thereby becomes the owner of earned interest thereon.

The appellant also contends that there was no principal-agent relationship in the instant case, because there was no acceptance of the mandate by the Sheriff, LSA-C.C. art. 2988. This is not an issue in this case. There can be no question that the Sheriff was acting in a fiduciary capacity when he received the revenue sharing funds. We see no need of reviewing elementary legal principles governing fiduciaries, agency or mandate in a case like this where we must answer only the question of ownership of the earned interest on these revenue sharing funds. We can answer this question easily by looking at the general rules of ownership. The ownership of a thing carries with it the right to all that the thing produces, LSA-C.C. art. 498. By right of accession, the civil fruits yielded by a thing belong to the owner of the thing, LSA-C.C. art. 499. By definition, “civil fruits” includes the “interest of money”, LSA-C.C. art. 545.

We conclude that the instant interest, which was earned from the investment of these revenue sharing funds, is the lawful property of the defendants-appellees. The Sheriff, as tax collector, was designated as the proper' public official to distribute revenue sharing funds. As distributor of these funds, the Sheriff is a fiduciary. He was, therefore, a fiduciary of the earned interest in the instant case. See State v. Hagerty, 251 La. 477, 205 So.2d 369, 376 (1967).

The Revenue Sharing Fund was created by Section 10B of Article X of the Louisiana Constitution of 1921, which was added by Acts 1972, Ex.Sess., No. 18, adopted November 7, 1972 (now Art. 7, Sec. 26 of the 1974 Constitution), and which provided:

“There is hereby established and created a special fund in the State Treasury to be known as the Revenue Sharing Fund. The Fund shall be composed of monies which shall be transferred to it annually out of the state general fund by the state treasurer in the amount of Eighty Million and no/100 ($80,000,000.00) Dollars. This provision shall be self-operative. The legislature may allocate additional sums to the Revenue Sharing Fund and shall provide for distribution of the monies in the Fund to those local governing bodies, municipalities, police juries, boards, commissions, districts and other agencies as may be designated by it.”

Act No. 153 of the Regular Session of the Louisiana Legislature for 1973 provided for the allocation and distribution of the Fund.

Section 4 of Act No. 153 provides: “Except as provided in Section 5 (which pertains to Ouachita Parish), the state treasurer shall distribute the funds herein allocated to the tax collectors of the respective parishes and to the city of New Orleans.”
Section 7 of said Act provides in part: “All remaining funds shall be allocated and distributed as follows:
“A. Subject to the provisions of Subsection B of this section and except as provided by Section 5 hereinabove, the tax collector of each parish and the city of New Orleans shall allocate and distribute, within thirty days after receipt thereof, to the tax recipient bodies within his jurisdiction an amount not less than the amount which would have been required to reimburse tax recipient bodies for taxes lost as a result of homestead exemptions for the preceding calendar year

Section 12 of the Act requires each tax collector to make an accounting to the state treasurer.

For his services as distributor of the funds, the tax collector is allowed to deduct “a percentage of all revenue sharing funds distributed by the provisions hereof as a sheriff’s commission.” See Section 6 of Act No. 153 of 1973. This commission is his payment for serving as distributor of the funds. He has no claim to any earned interest.

Accordingly, the judgment of the district court is affirmed. Costs of this appeal are assessed against the appellant to the extent allowed by law.

AFFIRMED.


text:
    ALL STATE CORPORATION, Plaintiff-Appellee, v. Juanita JACKSON, Defendant-Appellant.
    No. 11048.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Ralph W. Brewer, Baton Rouge, for plaintiff (defendant in reconvention) All State Corporation appellee.
    Byron Magbee, Dennis R. Whalen, Baton Rouge, for defendant (plaintiff in reconvention) Juanita Jackson appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This action was instituted via ordinaria as a foreclosure suit on a mortgage note securing a house and lot purchased by Juanita Jackson (appellant) from All State Corporation (appellee). The note evidencing the obligation was dated June 26, 1973, in the original sum of $10,000.00, payable to the order of “Myself”, executed and endorsed in blank by appellant, payable in monthly installments, including interest and principal, in the amount of $84.92.

Appellant filed an answer admitting execution of the note, mortgage and non-payment; but, she also filed a reconventional demand pleading redhibition justifying rescission of the sale, vitiation of the note and mortgage, damages for mental anguish, hardship, and for attorney fees. Coupled with her reconventional demand was a request for jury trial.

The jury found for the plaintiff and rejected appellant’s demands for rescission of the sale, damages and attorney’s fees. Thereupon, appellant perfected this devolu-tive appeal. We affirm.

The house was constructed for All State Corporation under a contract with J. A. Johns. Johns subcontracted most of the work to Earl P. Broussard, d/b/a Erskin Enterprises, Inc. It consisted of three bedrooms, a living room-dining room, kitchen, bath, and hall. The cost of construction was $6,450.00. The house and lot were sold to appellant on June 26, 1973, for $10,-000.00. She occupied the home immediately-

Appellant’s complaints are as follows: She states that when the water was turned on, the hot water heater in the attic was improperly connected and flooded the bathroom, staining the walls. There was no hardware on the cabinets in the kitchen. When she attempted to hang drapes, she discovered that one set of windows were uneven. There were no curtain blocks behind the sheetrock walls, hence her curtains were always falling down as the rods pulled from the wall. There were no doorknobs on her daughter’s bedroom door and the doorknobs on the exterior doors to the home did not work properly. Several of the door jambs have pulled apart. The door to her daughter’s room is warped. The wall in the hall has continued to “sink.” The pilot light for the wall heater, located in the hall, continues to burn at an excessive rate, causing the house to remain extremely hot throughout the warmer months. It can not be turned off because of escaping gas. Further, it has scorched the clothes in her son’s bedroom closet, located to the rear of the heater, rendering the closet useless. In addition, one door in the hall was hung so that it opened against the heater and is now seared. The wall around' the tub is now rotted out and the caulking is “gone.” The lavatory in the bathroom is pulled from the wall. There is an electrical outlet near the floor of the linen closet in the bathroom next to the tub, creating a dangerous situation because of its proximity to water. Pipes for the washing machine were not fastened to the wall in the kitchen and shake every time the machine goes into the spin cycle. The kitchen sink commenced to leak shortly after occupancy and now the cabinet and floor beneath it are rotted and decayed. A section of formica on the kitchen counter has “popped up” as well as numerous floor tiles. There is a light outlet in the hall but it contains no switch. All of the paint throughout the interior of the house has “rubbed off” and the walls are practically bare. With respect to the exterior: The doors are decayed and will not lock. Paint has peeled from the trim. Fascia boards have fallen. There is no caulking around the windows and they, together with the doors, constantly leak.

Appellant denies that any of the above defects was the result of excessive wear and tear or abuse by herself or her three children. She acknowledged that she deliberately stopped making the monthly payments and has continued to live in the house for some eighteen months.

Appellant’s expert, William H. Lebo, a licensed building contractor, went through the house room by room and estimated that to correct the faults identified by appellant would cost $1,187.27. His estimate was dated July 15, 1974, approximately thirteen months following occupancy. Pertinent to the issue here is this witness’ admission that a considerable portion of the defects complained of by appellant could have occurred as a result of wear and tear or physical abuse; to wit: The lavatory in the bathroom, caulking around the tub, the door facing around the bathroom door and the interior painting. He was not asked to check on and had no knowledge of the curtain blocks. He did not recall any complaint about the front door. The heater was not on when he made his examination. Some of the windows needed renailing and repainting. But he acknowledged that this was not unusual in a new home. Many items were very minor in nature, costing only a few dollars to repair. He did corroborate appellant’s complaint about the hall light switch, the exterior trim painting, a “crooked window” sill, exterior painting, a bowed wall stud in the hall, loose nails in some of the windowsills, “loose” formica countertop and kitchen floor tiles. Significantly, however, he did ne+ .borate appellant’s testimony relative to the interior painting, except to say that one bedroom needed repainting. He didn’t notice anything unusual about the painting in the rest of the house.

Appellant called the two contractors. Both stated that standard materials were used in the construction of the house. Both conceded that the absence of a light switch in the hall was a justifiable complaint, that the intended switch was inadvertently covered when the sheetrock was installed. Both agreed that the exterior trim paint should have lasted longer and attributed this condition to an inferior grade of lumber, probably the fault of the lumber supplier. Johns stated that many of appellant’s complaints could have been repaired by him on the spot if he had had a hammer and some nails when he inspected the house just prior to the trial. He attributed most of these complaints to physical abuse and excessive wear and tear.

Mr. Broussard testified that every complaint brought to his attention was remedied. The first complaint was that of the hot water heater. It was corrected and the bathroom repainted. He stated that the hardware on the kitchen cabinets must have been stolen prior to occupancy. When he went to the home to replace them with another set, appellant had already done so. She was reimbursed the cost thereof.

Mrs. Brock, appellee’s office manager, testified that on two and possibly three occasions, soon after occupancy, appellant called her. The first occasion concerned the hot water heater. The second occasion pertained to the cabinet hardware. The third complaint concerned the front door. On each of these occasions she called Mr. Broussard and, having heard nothing further from appellant, assumed that appropriate repairs had been made and that appellant was satisfied. She denied receiving repeated calls from appellant concerning the numerous defects noted above.

While we have listed most, if not all of the complaints enumerated by appellant, we have not endeavored to particularize appel-lee’s response to the same extent. They were gone into in detail before the jury. Obviously, the litigants are poles apart as the conflicts in their respective testimonies indicate.

C.C. Art. 2520 defines redhibition as the “avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

In the instant case, no single defect noted above or even those admitted by appellee would have justified a rescission of the sale. However, all or a substantial portion of the complaints noted by appellant would have warranted a rescission if the evidence establishing the same had been sufficient. For it can not be seriously argued that appellant would have purchased such a home. Thus, the issue here presented is one of fact based in large part on the credibility of the witnesses. The jury undoubtedly considered that appellant’s complaints were either exaggerated, not proved, the result of wear and tear, or a combination of the three.

It is apparent to us from a reading of the record that the concessions made by and the indecision of appellant’s expert (Lebo) was a major factor in appellant’s losing cause. He had not visited the home in over a year prior to the trial.

Viewing the testimony as a whole, we are not inclined to hold that the jury committed manifest error in its conclusion. Canter v. Koehring Company, La., 283 So.2d 716 (1973); Ashley v. Nissan Motor Corp. in U.S.A. et al, 321 So.2d 868 (1st La.App., 1975); writs refused, 323 So.2d 478 (La. 1975).

When appellant sought a jury trial she posted bond for costs in the amount of $850.00 with Western Surety Company as surety. Following judgment in the district court, appellee caused the house in question to be seized and sold to satisfy the judgment. Prom the proceeds of the sale the sum of $604.52 was paid to the Clerk of Court to satisfy costs accrued as of that date. Appellee filed a rule seeking to have Western pay over to it the amount of the bond. The trial judge recalled and vacated the rule and held that the obligation on these costs had been satisfied and Western was not required to submit its entire bond. In doing so, the trial judge stated: “Thus, any judgment against Western would result in payment again of an obligation already paid out of defendant’s property.” We agree. Appellee’s answer to the appeal seeking a reversal on this issue is rejected.

Accordingly, for the above reasons, the judgment of this district court is affirmed at appellant’s costs.

AFFIRMED.


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    Robert N. SUTTON v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE.
    No. 11049.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      Philip R. Johnson, Ronald P. Herman, Metairie, for appellant Robert N. Sutton.
    O. E. Jack Roberts, Howard P. Elliott, Jr., Baton Rouge, for appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

Appellant, Robert N. Sutton, a trooper serving with permanent status in the Louisiana State Police, brings this action to set aside a ruling of the Louisiana Civil Service Commission on a motion for summary disposition, the basis of that motion being that the appellant’s appeal to the Commission was untimely. The Commission dismissed the appeal because of Sutton’s failure to file a written notice of appeal within thirty days after he received written notice of his removal. We affirm the Commission’s ruling.

The record shows that a letter addressed to appellant, dated January 16, 1976, informed him that his employment with the Louisiana State Police was being terminated as of midnight on that same date. As the basis for this removal, the letter of dismissal stated that the appellant had participated in the smoking of marijuana at a Christmas party. The letter gave the specifics of the incident and informed him that his conduct under the circumstances was intolerable and violative of departmental rules and regulations. The letter of dismissal was hand-delivered to Sutton, who admittedly received it on the same date that it was written.

He appealed this dismissal to the State Civil Service Commission by letter of appeal prepared by his counsel. The letter was dated February 13, 1976, postmarked February 17, 1976, and it was received in the office of the Department of Civil Service in Baton Rouge on February 18, 1976.

Subsequent to the appeal, a motion for summary disposition was filed by the employing agency. On June 1,1976, a hearing was held with the issue limited to the motion, after which the motion for summary disposition was sustained and the appeal dismissed. •

The Commission based its action of dismissing the appeal on Civil Service rule 13.12(a)(1) which reads:

“13.12 Delay for Making Appeal.
“(a) No appeal shall be effective unless a written notice complying with the requirements of Rule 13.11 is received in the office of the Director in the Department of State Civil Service at Baton Rouge, Louisiana.
“1. Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based when written notice before or after the action is required by these Rules . . . ”

Rule 13.11 requires that, inter alia, an application for an appeal to the Commission be in writing and state the complaint, the date of the dismissal, the basis of the application, and the relief sought. This application must be filed within thirty days after written notice of dismissal is given to the employee. Civil Service Rules, Rule 13.12. It has been decided by the Supreme Court that if an appeal is applied for more than thirty days after the employee has been given the notice of dismissal, the Commission will dismiss the appeal. Purdy v. Department of Revenue of the State, 238 La. 673, 116 So.2d 290 (1959); Chadwick v. Department of Revenue of the State, 238 La. 661, 116 So.2d 286 (1959).

La.Const. of 1921, Art. XIV, Section 15(1) (now La.Const. of 1974, Art. 10, Sec. 10) authorized the State Civil Service Commission to adopt and enforce rules for the orderly administration of the Civil Service Act which protects the tenure of classified employees. It was under this constitutional authority that the Commission adopted Rule 13.12. The Commission is a quasi-judicial body. When the Commission’s rules are reasonable, and do not violate basic constitutional rights, they must be recognized and enforced by the courts. See Heinberg v. Department of Employment Security, 256 So.2d 747 (La.App. 1 Cir. 1971), writ ref. 260 La. 1135, 258 So.2d 381 (1972).

As the basis for appeal, appellant states that the letter of termination is ambiguous and vague, that the method of termination is arbitrary, capricious, and without probable cause, and that rule 13.12(a)(1) is unconstitutional as violative of due process and equal protection.

We have carefully read the letter of dismissal. It is expressed in writing and gives “detailed reasons” for the dismissal, as the State Constitution (formerly Art. XIV, Sec. 15(N)(1), now La.Const. of 1974, Art. 10, Sec. 8) and the Civil Service Rules, Rule 12.3, require. The letter of dismissal contains “a clear, fair statement of the conduct of the employee, including pertinent times, dates, and places.” Hays v. Louisiana Wild Life & Fisheries Commission, 243 La. 278, 143 So.2d 71 (1962); Sockrider, Dismissal of Louisiana State Civil Service Employees (Comment), 23 La.L.Rev. 121, 125 (1962).

Appellant, while not disputing the authority of the Civil Service Commission to make rules having the force of law, argues that Rule 13.12(a)(1) is unconstitutional because it violates his right to due process. Essential to due process are “notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.” Mongogna v. O’Dwyer, 204 La. 1030, 16 So.2d 829, 833 (1943). A fair reading of the Civil Service Rules clearly indicates that review is available before dismissal becomes effective. See Smith v. Department of Public Safety, 254 So.2d 515 (La.App. 4 Cir. 1971).

Similarly, the thirty-day limitation is a reasonable exercise of the Commission’s constitutional power to fix “the time within which appeals must be taken.”

We see no basis to hold unconstitutional the reasonable rule made by the commission under its authority to do so under the State Constitution. In Johnson v. State Parks and Recreation Commission, 198 So.2d 180 (La.App. 1 Cir. 1967), this Court affirmed the application of this rule in an instance where a deficient notice of appeal had been filed within the thirty-day period, rejecting the contention that a notice filed subsequent to the expiration of the specified period should be regarded as an amendment retroactive to a timely but defective appeal.

In this connection it is pertinent to note that in the case of Young v. Charity Hospital of Louisiana at New Orleans, 226 La. 708, 77 So.2d 13 (1954), the Supreme Court said, at page 14:

“Under the Civil Service Act we cannot declare a procedural rule, having the effect of law, void, because it conflicts with our opinion of policy, expedience or justice. If the rule is passed within the general scope of a Legislature or the Commissioners conferred powers, the Court cannot pronounce it void because not supplemented with additional safeguards as in a court of law, or direct action merely because in our judgment it is contrary to the principles of natural justice.”

Moreover, the appellant does not claim that he received no notice of dismissal, that no appellate procedure was available to him, or that the time limit was unclear. The appellant received the requisite notice and he had ample opportunity to avail himself of the same procedure provided for all members of the classified civil service.

Thus, the charge of denial of due process is patently without merit. Under the Commission’s rules, the appellant was clearly entitled to a hearing to challenge his dismissal. He was given due notice of his dismissal and the specific reasons therefor and could have appealed. If he had done so timely, he would have been entitled to an opportunity to produce whatever proof he had available which might be favorable to his cause. Having failed to exercise his right to appeal timely, the appellant has no basis for complaint now.

Next, the appellant contends that because the Civil Service Rule as to computation of time does not conform to other administrative and judicial rules, the rule is arbitrary. The appellant urges that it is, in effect, arbitrary and unconstitutional for the rule to count legal holidays if the last day of the appeal period falls on a legal holiday. There is no merit in this contention. Rule 13.12(a)(1) allows a 30-calendar-day delay in which to give notice of appeal. Rule 13.12(b) states that: “Legal holidays and days on which the office of the Department of State Civil Service is closed shall not serve to extend the delay period specified in Sub-section (a) hereof.” Appellant does not contend, and the record does not show, that other members of the state civil service have been allowed an additional delay period due to legal holidays. The rule affects all persons in the same class and under similar circumstances alike; therefore, there is no denial of equal protection under the Fourteenth Amendment. Parish of Jefferson v. Sharlo Corp., 283 So.2d 246, 247 (La.1973); see 16 Am.Jur.2d “Constitutional Law,” sec. 502, page 878.

We find Rules 13.12(a)(1) and 13.12(b) constitutional as being a reasonable exercise of the constitutional and statutory powers granted to the State Civil Service Commission, and they are not violative of the constitutional guarantees of due process or equal protection.

We find that the appeal was not timely filed with the Commission. Therefore, the Commission’s ruling dismissing the appellant’s appeal is affirmed at appellant’s costs.

AFFIRMED.


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    Edna Mae Gilfore, wife of Julian GILFORE, Plaintiff and Appellant, v. Rudolph FONSECA and the United States Fidelity and Guaranty Co., Defendants and Appellees. Rudolph FONSECA and the United States Fidelity and Guaranty Co., Plaintiffs and Appellees, v. Julian GILFORE, Defendant and Appellant.
    Nos. 11238 and 11239.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      James C. Azcona, New Orleans, for plaintiff and appellant in 11238 and for defendant and appellant in 11239.
    John J. Hainkel, Jr., New Orleans, Larry P. Boudreaux, Thibodaux, for defendants and appellees in 11238 and for plaintiffs and appellees in 11239.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This Court, ex proprio motu, issued an order directing the plaintiff-appellant, Edna Mae Gilfore, wife of Julian Gilfore, to show cause why the appeal entered by appellant should not be dismissed, because the appeal appeared to have been untimely perfected.

The judgment of the trial court was signed on September 10,1974, and notice of judgment was mailed to counsel the same date. Therefore, the delays for filing a motion for a new trial began to run on the next day, September 11, 1974, and expired on the seventh day thereafter, exclusive of legal holidays, or on September 19, 1974; LSA-C.C.P. art. 1974. The appellant did not apply for a new trial, but filed a motion for a devolutive appeal on December 2, 1974. On December 26, 1974, appellant posted a cash bond in the amount of $250.00.

The ninety-day delay in which an appeal may be taken and the security therefor furnished began to run on the 20th day of September, 1974, and expired on December 19,1974. Thus the bond was filed seven days late and was not filed timely.

The law is clear that not only must the appeal order be taken within the appropriate ninety-day delay, but security must be furnished within the same period of time. Appellate courts do not acquire jurisdiction of appeals which have not been perfected by the filing of appeal bonds within the prescribed time and it is the duty of the court to dismiss such untimely appeals ex proprio motu Dezendorf v. Allstate Insurance Co., 247 So.2d 201 (La.App. 1 Cir. 1971); see also Reeves v. Reeves, 315 So.2d 162 (La.App. 1 Cir. 1975).

Appellant contends that since the reasons for judgment were rendered on September 18, 1974, that the delay for applying for a new trial did not commence until the following day, September 19,1974. Using this date as a starting point, appellant concludes that the December 26, 1974 posting of the cash bond was timely. There is no merit in appellant’s contention. The date of rendering written reasons for judgment is meaningless for purposes of fixing the time for appeals. The crucial time is the date of the signing of the judgment. All pertinent time periods affecting appeals are tied to the date the judgment is signed. See LSA-C.C.P. arts. 1974 and 2087.

For these reasons, appellant’s appeal is dismissed at appellant’s costs.

APPEAL DISMISSED.