text:
    STATE of Louisiana v. Robert TRAVIS and Henry L. Montrell.
    No. 58650.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Geraldine S. Veazey, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. McKinley DOYLE.
    No. 58674.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Barry F. Viosca, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: TATE, MARCUS and CALOGERO, JJ.,

text:
    STATE of Louisiana v. Charles B. W. PALMER.
    No. 59236.
    Supreme Court of Louisiana.
    Feb. 3, 1977.
   In re: Charles B. W. Palmer applying for writs of certiorari, prohibition and/or mandamus and stay order.

Writ refused. Considering the return of the Assistant Attorney General that he is exclusively conducting the Grand Jury Proceedings and that the recused assistant District Attorney was called solely as a witness and that the showing made to recuse the district judges is insufficient, the application does not warrant the interruption of the Grand Jury investigation.

TATE, MARCUS and CALOGERO, JJ.,

are of the opinion that the relator is entitled to a hearing upon his allegation that the appearance of the assistant district attorney before the grand jury was in violation of the stay order of January 19th.


author: PER CURIAM:

text:
    In the Interest of Charles JORDAN, Minor.
    No. 59237.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
    Herbert R. Alexander, Bogalusa, for defendant-appellant;
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow E. Erwin, Dist. Atty., John N. Gallaspy, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM:

This case involves an appeal from an adjudication of delinquency in the Twenty-second Judicial District Court sitting in its Juvenile Division. The appellate jurisdiction of this Court, however, does not extend to such matters. La.Const. art. 5, § 5(D) (1974). Under the provisions of article 5, section 10 of the Louisiana Constitution of 1974, except in cases involving criminal prosecutions of persons other than juveniles or as otherwise provided in the constitution, the courts of appeal have appellate jurisdiction of all matters appealed from juvenile courts.

When an appeal is taken to this Court in a matter over which we do not have appellate jurisdiction, we may transfer the appeal to the proper court. C.C.P. art. 2162. It is ordered, therefore, that this matter be transferred to the Court of Appeal for the First Circuit.


author: SANDERS, C. J., SUMMERS, J., MARCUS, J.,

text:
    STATE of Louisiana v. David Joseph SYLVESTER.
    No. 59038.
    Supreme Court of Louisiana.
    Feb. 9, 1977.
   In re: State of La. through District Attorney, Harry F. Connick, applying for writs of Certiorari, Mandamus and Prohibition.

Writ denied. There is no abuse of discretion in the trial judge’s ruling. However, the trial judge is directed to excise from page seven of the statement of Jessie L. Ford, the name of the third party referred to therein before disclosing the statements to the defendant.

SANDERS, C. J.,

is of the opinion that a writ should be granted.

SUMMERS, J.,

would grant the writ.

MARCUS, J.,

is of the opinion that the writ should be granted.


text:
    STATE of Louisiana, Appellee, v. Alfred THOMAS, Appellant.
    No. 58580.
    Supreme Court of Louisiana.
    Feb. 10, 1977.
    Sanders Cazedessus, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., David M. Miller, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

The defendant Thomas was convicted of armed robbery, La.R.S. 14:64, and sentenced to fifteen years at hard labor. We find no merit to the two assignments of error urged by him on his appeal:

(1) The trial court did not abuse its discretion in sustaining a state objection to a repetitious, somewhat confusing, and merely hypothetical question propounded by the defense in cross-examination of a state witness.

(2) We can find no error in the finding of the trial court that the defendant’s confession was freely and voluntarily made, based upon its reasonable evaluation of uncontra-dicted testimony as to the issue.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author:
SANDERS, C. J.,
      SUMMERS, J., MARCUS, J.,

text:
    RELIABLE CREDIT SERVICE, INC. v. Anthony C. BERNARD and Mrs. Rosemary L. Bernard.
    No. 59086.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Reliable Credit Service, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, 339 So.2d 952, Fourth Circuit, Parish of Orleans.

Writ denied. No error of law.

SANDERS, C. J.,

is of the opinion that a writ should be granted.

SUMMERS, J.,

is of the opinion a writ should be granted, being of the opinion the judgment and opinion of the Court of Appeal is in error.

MARCUS, J.,

is of the opinion that issue involved in this litigation is sufficiently important to warrant the grant of the writ.


author: DIXON, J.,

text:
    Joseph G. VIDRINE v. MISSOURI FARM ASSOCIATION.
    No. 59128.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re; Joseph G. Vidrine applying for certiorari, or writ of review, to the Court of Appeal, 339 So.2d 877, Third Circuit, Parish of Lafayette.

Writ denied. On the facts found by the courts below, the result is correct.

DIXON, J.,

is of the opinion the writ should be granted.


author: TATE, J., DIXON, J., CALOGERO, J., DENNIS, J.,

text:
    Succession of Martha Louise Hunter PIERSON (Pattie Hunter Pierson).
    No. 59117.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Diane Pierson Whaley, applying for Certiorari, or writ of review, to the Court of Appeal, 339 So.2d 1337, Third Circuit, Parish of Rapides.

Writ denied. The result is correct.

TATE, J.,

is of the opinion that the writ should be granted, since at this time he believes the trial court correctly decided the issues.

DIXON, J.,

is of the opinion the Court of Appeal judgment is in error and the writ should be granted.

CALOGERO, J.,

concurs in denial of this writ. The Judgment of the Court of Appeal is not final.

DENNIS, J.,

is of the opinion the writ should be granted to correct errors of law in the Court of Appeal judgment.


text:
    Succession of Martha Louise Hunter PIERSON (Pattie Hunter Pierson).
    No. 59129.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Louise Pierson Marshall, applying for Certiorari, or writ of review, to the Court of Appeal, 339 So.2d 1337, Third Circuit, Parish of Rapides.

Writ denied. The result is correct.

TATE, J.,

is of the opinion that the writ should be granted, since at this time he believes the trial court correctly decided the issues.

DIXON, J.,

is of the opinion the writ should be granted.

CALOGERO, J.,

concurs in denial of this writ. Judgment of the Court of Appeal is not final.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    Succession of Martha Louise Hunter PIERSON (Pattie Hunter Pierson).
    No. 59135.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: David Pierson applying for certio-rari, or writ of review, to the Court of Appeal, 339 So.2d 1337, Third Circuit, Parish of Rapides.

Writ denied. The result is correct.

TATE, J.,

is of the opinion that the writ should be granted, since at this time he believes the trial court correctly decided the issues.

DIXON, J.,

is of the opinion the writ should be granted.

CALOGERO, J.,

concurs in denial of the writ. Judgment of the Court of Appeal is not final.

DENNIS, J.,

is of the opinion the writ should be granted.


author: DENNIS, J., TATE, J., DIXON, J., CALOGERO, J.,

text:
    Succession of Martha Louise Hunter PIERSON (Pattie Hunter Pierson).
    No. 59163.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Anne Pierson Patton applying for certiorari, or writ of review, to the Court of Appeal, 389 So.2d 1337, Third Circuit, Parish of Rapides.

Writ denied. The result is correct.

DENNIS, J.,

is of the opinion the writ should be granted.

TATE, J.,

is of the opinion that the writ should be granted, since at this time he believes the trial court correctly decided the issues.

DIXON, J.,

is of the opinion the writ should be granted.

CALOGERO, J.,

concurs in denial of this writ. Judgment of the Court of Appeal is not final.


author: SANDERS, C. J.,

text:
    Murphy FONTENOT et al. v. Doline Corkin FONTENOT.
    No. 59131.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Murphy Fontenot, Norma Fonten-ot, Fournerat and the Estate of Dolan Fon-tenot, applying for Certiorari, or writ of review, to the Court of Appeal, 339 So.2d 897, Third Circuit, Parish of St. Landry.

Writ denied. No error of law.

SANDERS, C. J.,

though of the opinion that the result reached on the adoption question is probably correct, is of the opinion that a writ should be granted because of the conflict between circuits.


author: TATE, J.,

text:
    STATE of Louisiana v. Carl W. GUILLORY et al.
    No. 59161.
    Supreme Court of Louisiana.
    Feb. 11, 1977.
   In re: Carl W. Guillory, applying for Certiorari, or writ of review, to the Court of Appeal, 339 So.2d 970, Third Circuit, Parish of Rapides.

Not considered. Not timely filed.

TATE, J.,

concurs. The unofficial postmark shows the application was mailed on January 14th, but it was not received in this Court until January 18th. In the absence of an official post office postmark, a timely mailing on January 14th must be proved by corroborating post office evidence. See Rule 10, Sec. 4(b), 1974.


author: DIXON and DENNIS, JJ.,

text:
    Sylvester WATSON v. J. L. MORRISON et al. Acey L. ALLEN et al. v. Sylvester WATSON et al. J. L. MORRISON v. DEPT. OF HIGHWAYS of State of Louisiana et al.
    No. 59185.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: J. L. Morrison et al. applying for Certiorari, or writ of review to the Court of Appeal, 340 So.2d 588, First Circuit, Parish of Tangipahoa.

Writ denied. There is no error of law in the judgment complained of.

DIXON and DENNIS, JJ.,

are of the opinion the writ should be granted on the question of reduction of damages.


author: TATE, J., DIXON and CALOGERO, JJ.,

text:
    Robert FOSTER v. Jeff D. JACKSON, d/b/a Jackson Mortgage Service & Construction Co.
    No. 59140.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Robert Foster applying for certio-rari, or writ of review, to the Court of Appeal, 339 So.2d 865, Third Circuit, Parish of Iberia.

Writ denied. On the facts found by the court of appeal, there is no error of law.

TATE, J.,

dissents from denial. For the reasons stated by the dissenting opinions in the court of appeal he feels that the court of appeal majority exceeded the proper scope of appellate review by re-evaluating testimony reasonably found credible by the trial court.

DIXON and CALOGERO, JJ.,

are of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Norman R. SPEER.
    No. 59150.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Norman R. Speer, applying for writ of habeas corpus.

Writ denied. On the showing made there is no error of law in the trial court’s ruling.

DIXON, J.,

concurs in the denial; there is no constitutional infirmity in R.S. 14:106A(1).


author: TATE and DIXON, JJ., CALOGERO, J., DENNIS, J.,

text:
    Mrs. Verna M. Davis GANSLOSER v. KANSAS CITY SOUTHERN RAILWAY COMPANY et al.
    No. 59077.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Mrs. Verna M. Davis Gansloser, applying for Certiorari, or writ of review, to the Court of Appeal, 339 So.2d 498, Second Circuit, Parish of Caddo.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.

TATE and DIXON, JJ.,

dissent for the reasons assigned by the dissenting opinion in the court of appeal. The defendant railroad created an unreasonable risk of injury in running trains in populated areas which could not stop without a substantial and appreciable risk of causing injury to the others, such as the plaintiff, a neighboring home owner innocent of any fault whatsoever.

CALOGERO, J.,

is of the opinion the writ should be granted.

DENNIS, J.,

concurs in the denial of the writ. Although I do not disagree with the principles of law stated in the excellent dissenting opinion in the court of appeal, I think a proper application of them should lead to the same result as the majority reached below because the activities of the railroad did not create an unreasonable risk of the type of injury that occurred and the railroad was not under a duty to protect against the risk created by the unusual circumstances out of which the accident arose.


text:
    STATE of Louisiana v. Nick KARNO.
    No. 59133.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   PER CURIAM.

On February 7, 1974, defendant Nick Karno was indicted by the Orleans Parish Grand Jury with having committed second degree murder in violation of La.R.S. 14:30.1. Later that year the trial court granted the defendant an indefinite continuance due to his physical condition. On October 8, 1976, a new hearing was held on the matter and the trial judge initially ruled that defendant would have to stand trial. On December 23, 1976, however, that ruling was dismissed and defendant was again granted a continuance. The state has applied for writs of certiorari, mandamus and prohibition from that judgment.

Article 712 of the Louisiana Code of Criminal Procedure provides that “[a] motion for continuance, if timely filed, may be granted, in the discretion of the trial court, in any case if there is good ground therefor.” (emphasis added) This Court has consistently recognized that the granting or refusing of a motion for continuance rests in the sound discretion of the trial judge and that his ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Sosa, 328 So.2d 889 (La.1976); State v. Carruth, 311 So.2d 866 (La.1975); State v. Brewer, 301 So.2d 630 (La.1974); State v. Williams, 262 La. 317, 263 So.2d 306 (1972). Furthermore, this Court has recognized that whether or not the trial court has exercised its discretion unreasonably depends primarily on the facts and circumstances of the particular case. State v. Winston, 327 So.2d 380 (La.1976). These general principles apply with equal force when the grounds on which the continuance is sought is the physical condition of the accused. See State v. Brown, 322 So.2d 211 (La.1976); State v. Navarre, 289 So.2d 101 (La.1974); State v. Roberts, 278 So.2d 56 (La.1973); State v. Forsyth, 229 La. 690, 86 So.2d 536 (1956).

Other jurisdictions also recognize that the trial court has broad discretion in passing upon motions for continuance based on the physical condition of the accused, both in determining whether the defendant is in fact suffering from ill health or disability and in weighing the possible adverse consequences of his being brought to trial. See e.g. Bernstein v. Travia, 495 F.2d 1180 (2d Cir. 1974); United States v. Doran, 328 F.Supp. 1261 (S.D.N.Y.1971); Adams v. State, 47 Ala.App. 506, 257 So.2d 366 (1971), cert. denied 288 Ala. 731, 257 So.2d 368 (1972); People v. Martinez, 264 Cal.App.2d 906, 70 Cal.Rptr. 918 (1968); Compton v. State, 500 S.W.2d 131 (Tex.Cr.App.1973). However, it is well established that if an accused is in fact suffering from a physical condition such that standing trial would seriously endanger his health, or if his illness or disability substantially impairs effective participation in his defense, he is entitled to a continuance. See, e.g. United States v. Knohl, 379 F.2d 427 (2d Cir.), cert. denied 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967); United States v. Doran, supra; Eastland v. State, 223 Miss. 195, 78 So.2d 127 (1955).

While still recognizing the broad discretion which must be afforded to the trial judge in this area, we have concluded that there are some fundamental variables which should guide the exercise of that discretion. These include the following:

(1) Medical Reports and Judgments —The threshold questions are whether the accused is indeed suffering from the disability complained of and whether there is a high risk that forcing the defendant to stand trial would seriously endanger his health and/or prevent him from effectively participating in his defense. Where possible and deemed necessary, appointment of independent medical experts is suggested;

(2) Evidence of Defendant’s Activities During the Period of Illness —This factor involves consideration of the accused’s lifestyle and activities during the period in question. See, e.g. United States v. Bernstein, 417 F.2d 641 (2d Cir. 1969); United States v. Landsman, 366 F.Supp. 1027 (S.D.N.Y.1973); United States v. Doran, supra; Shetsky v. State, 290 P.2d 149 (Okl.Cr.1955). Appropriate weight might be given to personal observations by the trial judge and to the extent of the defendant’s participation in earlier pre-trial motions, hearings, etc.;

(3) Possible Availability of Measures to Minimize the Risk to Defendant’s Health in Subjecting Him to trial —A continuance may not be required when certain steps can be taken to effectively protect the accused during the course of the trial, including shortening the trial day, providing for recesses as necessary, and making available emergency medical aid. See, e.g. United States v. Knohl, supra; United States v. Landsman, supra; United States v. Sweig, 316 F.Supp. 1148 (S.D.N.Y.1970). The defendant, of course, has a corresponding responsibility to guard his own health during this period. See United States v. Landsman, supra. In weighing the possibility of minimizing medical risk, the courts should take into account the length of time the trial is expected to last. See, e.g. United States v. Knohl, supra; State v. Navarre, supra. A caveat is noted, however, in that the ability to minimize the risks involved does not per se indicate that the motion for a continuance should be denied. See United States v. Doran, supra;

(4) Whether the Accused Will be Better Able to Stand Trial at a Later Date —Postponement of trial is often the appropriate, obvious and fair decision for both the defendant and the public when the disability is temporary and/or curable. In cases where the accused’s condition is deteriorating, however, a determination that the accused is presently unable to stand trial may amount to a decision that he may never be tried. While this should never be a decisive factor, see Eastland v. State, supra, the degree of “acceptable” risk may vary depending upon whether the request for the continuance is merely for delay to allow for improving health or for an indefinite continuance based on the existence of a condition likely to become progressively worse. See United States v. Sweig, supra;

(5) The Degree of Injury to the Public Interest Deemed to Result from Delay or Total Preclusion of a Trial — It is an undeniable fact that some criminal cases are more “important” in relative terms than others and, therefore, some weighing of this variable may be appropriate. It should never, however, be determinative in and of itself and should be considered with caution. See United States v. Doran, supra ;

(6) The Effect of Defendant’s Physical Condition on the Exercise of His Constitutional Rights — The trial court should carefully consider whether the accused’s present physical condition is such that it may substantially impair his constitutional right to effective assistance of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); his right to be present in the courtroom at every stage of his trial, see Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); and his right to confront witnesses and testify on his own behalf, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); La.Const., Art. 1, § 16 (1974). See Eastland v. State, supra. If the defendant voluntarily has informed the court he will not testify during the trial, the court should take this into consideration also. Bernstein v. Travia, supra;

(7) The Presumption of Innocence —Article I, section 16 of the Louisiana Constitution of 1974 provides that “[e]very person charged with a crime is presumed innocent until proven guilty . . ..” Courts must be particularly mindful of this fundamental right when weighing the risk to defendant’s health or life in bringing his case to trial.

Since the trial court’s decision to grant a continuance in this case was made without benefit of the guidelines and principles set forth above, we deem it in the best interest of justice to remand the case to the trial court for a new hearing and ruling on the motion for a continuance in accordance with the views expressed herein. Accordingly, we do not review the merits at this time, recognizing that both the defendant and the State will have a right to seek review by application for supervisory writs at the conclusion of the new hearing.

For the reasons assigned the application is granted and the case is remanded to the trial court for a new hearing in accordance with the views expressed herein.


author: TATE, J., DIXON, J.,

text:
    STATE of Louisiana v. Alvin "Coffee" WASHINGTON.
    No. 58598.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Alvin “Coffee” Washington, applying for remedial writs.

We treat this matter as a writ application. See State v. Johnson, La., 342 So.2d 863. The application is denied. On the pleadings the ruling of the trial judge is correct.

TATE, J.,

concurs in denial. The record before us does not show that the defendant was actually surrendered. The issue is not before us under the present pleadings whether the defendant’s motion prior to expiration of the six months provided by La. 15:85 entitles the bonding company to have the forfeiture set aside upon the actual surrender of the defendant.

DIXON, J.,

concurs for reasons stated by TATE, J.


author: TATE and DIXON, JJ.,

text:
    STATE of Louisiana v. Alvin "Coffee" WASHINGTON.
    No. 58599.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Alvin “Coffee” Washington, applying for remedial writs.

We treat this matter as a writ application. See State v. Johnson, La., 342 So.2d 863. The application is denied. On the pleadings, the ruling of the trial judge is correct.

TATE and DIXON, JJ.,

concur for reasons stated in Docket No. 58,598, State v. Washington, La., 342 So.2d 223, this date.


author: DIXON, J., DENNIS, J.,

text:
    Paul R. BAIER et ux. v. WOMAN’S HOSPITAL FOUNDATION et al.
    No. 59143.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Paul R. Baier and Helgard Baier applying for certiorari, or writ of review, to the Court of Appeal, 340 So.2d 360, First Circuit, Parish of East Baton Rouge.

Writ refused. On the facts found by the court of appeal, the result is correct.

DIXON, J.,

is of the opinion the writ should be granted.

DENNIS, J.,

is of the opinion the writ should be granted.


author: TATE, J.: DIXON, J.,

text:
    Robert L. HENSLEY v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 59165.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Robert L. Hensley applying for certiorari, or writ of review, to the Court of Appeal, 340 So.2d 603, First Circuit, Parish of East Baton Rouge.

Writ denied. The court of appeal judgment is correct.

TATE, J.:

For the reasons set forth by Judge Lottinger’s concurring opinion in the court of appeal, I am of the opinion this writ should be granted to re-examine the principle decided in Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La.App. 4th Cir. 1970), relied upon by the court of appeal majority.

DIXON, J.,

is of the opinion the writ should be granted.


text:
    Anthony VOISIN et al. v. Whitney LUKE et al.
    No. 59168.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Whitney Luke applying for certio-rari, or writ of review, to the Court of Appeal, 341 So.2d 6, First Circuit, Parish of Terrebonne

Writ denied. The judgment of the court of appeal is correct.

SANDERS, C. J.,

is of the opinion that a writ should be granted to pass upon the common ancestor rule for the guidance of bench and bar.


author: DIXON, J., CALOGERO, J., DENNIS, J.,

text:
    STATE of Louisiana ex rel. John Edward RALPH v. Ross MAGGIO, Jr., Warden.
    No. 59211.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: John Edward Ralph applying for Writ of Habeas Corpus.

Writ denied. No merit in application.

DIXON, J.,

is of the opinion the writ should be granted. Art. I, Sec. 20, Const. 1974. Applicant has had no hearing. See also Hart v. Coiner, 4 Cir., 483 F.2d 136.

CALOGERO, J.,

the writ should be granted.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Raymond GATLIN.
    No. 59214.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Raymond Gatlin applying for supervisory and remedial writs.

Writ denied. The showing made does not warrant interference with the orderly proceedings in the trial court. Applicant has an adequate remedy by appeal in the event of conviction.

DIXON, J.,

concurs in the denial. Although defendant cannot constitutionally be deprived of his rights to subpoena of witnesses and records, his subpoena to the bank does not name a person, and is vague as to records sought. His subpoena to Florida appears overbroad and oppressive. Nevertheless, since there is danger of reversal of a conviction in the event of error in denying a subpoena, great care should be exercised.


text:
    Barry WOODS v. NICHOLS CONSTRUCTION CORP. et al. (two cases).
    No. 59178.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Barry Woods and Nichols Construction Corp. and Associated Indemnity Corporation, applying for Certiorari, or writ of review, to the Court of Appeal, 340 So.2d 609, First Circuit, Parish of Assumption.

Writ denied. The result is correct.

DIXON, J.,

concurs in the denial. While the “manifest error” rule is subject to abuse and can be said to conflict with the constitutional right to appellate review of facts in this case it seems the court of appeal employed the rule more as an invocation to terminate the opinion than as a rule of law to measure the depth of factual review.


author: SARTAIN, Judge.

text:
    Frances Cabrini Warino MAUFFRAY v. John Phillip MAUFFRAY, Jr.
    No. 11066.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 19, 1976.
    John P. Mauffray, Jr., Jena, in pro. per.
    Frances Cabrini Warino Mauffray, in pro. per.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This court issued, ex proprio motu, an order directing defendant, John Phillip Mauffray, Jr., to show cause why the appeal entered by him in this cause should not be dismissed for the reason that the same appeared to be untimely perfected.

The judgment giving rise to the appeal was signed by the Judge of The Family Court on May 28, 1976. It ordered and condemned- appellant to pay the sum of $300.00 per month for the maintenance and support of his two minor children. Appellant filed his motion for appeal on June 16, 1976. However, he did not file his bond until July 19, 1976.

C.C.P. Arts. 3942 and 3943 provide that an appeal from a judgment of the type herein rendered must be taken within thirty days from the applicable date contained in C.C.P. Art. 2087. Under these articles appellant had until June 8 (7 days) to seek an application for a new trial. The thirty days provided for in C.C.P. Art. 3942 commenced to run on June 9, 1976 and expired on July 8, 1976. The bond filed by appellant on July 19, 1976 was eleven days late.

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

APPEAL DISMISSED.


author: CLAIBORNE, Judge. PER CURIAM.

text:
    PARISH OF EAST BATON ROUGE v. The TRAVELERS INSURANCE COMPANY et al.
    No. 11011.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 30, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused April 6, 1977.

      Joseph F. Keogh, Parish Atty., and Frank J. Gremillion, Asst. Parish Atty., Baton Rouge, of counsel, for Parish of East Baton Rouge.
    Frank P. Simoneaux, Breazeale, Sachse & Wilson, Baton Rouge, of counsel, for The Travelers Ins. Co.
    John E. Seago, Baton Rouge, of counsel, for East Glen Oaks, Inc.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

This is a suit on a bond written by The Travelers Indemnity Company securing a contract between the Parish of East Baton Rouge and East Glen Oaks, Inc. (hereinafter called East) for certain street improvements. From a judgment dismissing the suit plaintiff appeals. We reverse.

In 1972, the Parish made basic plans for the improvement of Lanier Drive from Roberts Canal to Mickens Road. East was then developing a subdivision in that area and also desired that the Lanier Drive work be done. After some consideration of the matter, it was determined that the Parish would participate in the project to the extent of $35,000.00 which would be paid directly to the developer; in return, East was to complete that portion of Lanier Drive according to approved plans and was to also formally dedicate to the Parish an 8.085 acre right of way on Roberts Canal.

To expedite the release of the money, on February 19, 1973, Mr. Marshall A. Smith, the President of East, forwarded to Mr. Ray W. Burgess, Director of the City-Parish Department of Public Works, a copy of its acquisition of the property to be subdivided and a construction contract for the Lanier Drive work. That contract was entered into on February 16 and was between Smith’s corporation and the street contractors, Dale Development Corporation (hereinafter called Dale) and Magnolia Construction Company (hereinafter called Magnolia) jointly. A Travelers’ bond was issued by the Allen-Hickman-Jones Agency to Magnolia for the project. (The bond was either not executed or later considered cancelled because of voiding of the principal agreement.)

In the weeks that followed, it was determined by the developers that the Lanier Drive improvements should be part of a larger overall subdivision plan. Therefore, the contract of February 16 was rescinded by the mutual consent of the parties.

On April 23,1973, Mr. Burgess forwarded a memorandum to the Parish Attorney’s Office indicating that the cost of the Lanier Drive work had been properly estimated and that with the dedication of the acreage and the posting of a proper bond, the $35,-000.00 could be paid over to East. On that day, the bond at issue herein was purchased by Smith from the Allen-Hickman-Jones Agency and delivered to the Parish. The premium in the amount of $1,789.00 was paid. The bond contains the following provisions:

“THE CONDITIONS of this obligation are such that whereas, the above named principal, East Glen Oaks, Inc., did on the 23rd day of April, 1973, enter into a certain contract with the Mayor-President of the City of Baton Rouge, Parish of East Baton Rouge, Louisiana to build or construct streets, curb and gutters, drainage and sewerage facilities in East Glen Oaks Subdivision (Lanier Drive), Baton Rouge, Louisiana in accordance with the plans and specifications prepared by Aries Engineering and approved by the Department of Public Works of the Parish of East Baton Rouge;”

Thereafter, the $35,000.00 was released to East Glen Oaks, Inc. In September, 1973, that corporation defaulted on the Lanier Drive project and the Parish initiated a claim on the bond which was eventually denied by The Travelers. Litigation ensued and judgment was subsequently rendered in the District Court in favor of the Parish against East Glen Oaks, Inc. by confirmation of default prior to trial of the contested matters which resulted in judgment dismissing the suit as to The Travelers.

The plaintiff originally alleged that the bond secured a written subdivision agreement dated April 23, 1973. It amended to allege that it secured a written construction contract dated February 16, 1973. Later at the pre-trial conference plaintiff contended there was a written construction contract dated April 23, 1973. At trial no written contract of either kind between the Parish and East Glen Oaks was produced. (A written building contract between East and Dale and Magnolia dated February 16, 1973 was introduced.)

In its written reasons for judgment, the trial court concluded that The Travelers was not liable primarily because the principal contract did not exist as described on the face of the bond. Therefore, the accessory agreement concept basic to our law of suretyship was not satisfied.

All parties agree that there must be an underlying contract to support an obligation of suretyship. Civil Code Articles 3035, 3036 and 3039, which are applicable, do not provide that an agreement of surety-ship must be accessory to a written contract. In Trane Company v. Christina, 260 So.2d 62 (La.App., 4th Cir. 1972), it was recognized that an unwritten agreement can be the basis for a valid contract of suretyship. See also 39 Tulane Law Review 427. The present inquiry is, therefore, whether a binding contract of any nature, written or oral, was entered into between East and the Parish, and if so, whether it was described in the bond and contemplated thereby.

The record shows that an oral contract existed between those two parties. Parish Council Resolution 10289, which amended a resolution of April 12, 1972, authorized Burgess to enter into the agreement. As previously noted, the plaintiff’s offer was to pay $35,000.00 directly to East if it would dedicate certain property, do certain street work according to plans approved by the Parish, and post a proper bond. Smith, for his corporation, readily and expeditiously accepted the offer by complying with each of these requirements. On April 23,1973, he dedicated the property and posted the required bond; on the following day, he paid the bond premium. Prior to that date, he had submitted plans for the street work which were approved by the Parish. On April 24, the Parish issued its check to the corporation and thereafter the work was begun and partially completed. We conclude an oral contract was entered into on April 23, 1973, the date it must be deemed to have been accepted.

It is further contended the surety was not aware of the true nature of the principal obligation, and the bond was issued on the belief it was to secure a subdivision agreement. The testimony of the employees of the agency and the surety reveals this argument represents an afterthought. They related that in the day to day operation of the bonding business, The Travelers never received or relied upon the contract for which a bond was issued and as a general rule a close scrutiny of the underlying agreement was practically never performed by anyone. In the present case no effort was made to see or obtain a copy of the principal agreement, although defendant contends their bond contemplated a written subdivision agreement. A memorandum from The Travelers’ office to the agency shows that their only requirement for information as to East Glen Oaks, Inc. was a single financial statement of the corporation, in spite of the fact that they contended they usually required more assurances of financial responsibility when a subdivision bond was involved. A letter by Mr. Leon B. Dartois, Jr., a bond officer for The Travelers, to his home office, dated September 5, 1975, said in part:

“. . . Initially I authorized a performance bond for Magnolia Construction Company, Inc., with East Glen Oaks, Inc., as obligee. Naturally, we requested and received copies of the financing committ-ments for the project in question. However, in my absence someone from the Allen-Hickman-Jones agency contacted Rod Kuntel for a switch from the aforementioned performance bond to the captioned subdivision bond. Obviously, there is a vast difference in the content of and need for the ‘financing agreements’ for each bond.
“I did not immediately notice the change from a performance bond for Magnolia to a subdivision bond for East Glen Oaks, as each is in support of the same work with the same contract price. I accept full responsibility for this oversight. At the time all facts were brought to light, the job was approximately 50% complete, and Louis Selig _ . . indicated payments on his estimates were timely. Further, as indicated on the S-364, Louis has a minor personal interest in this venture, and East Glen Oaks is run by a number of prominent residents of Baton Rouge, La. Consequently, I did not deem it feasible to request escrow arrangements for the latter portion of the project. Presently, the project is substantially complete with all parties concerned being satisfied.
“Don, please rest assured we fully appreciate our exposure in this matter, and all future obligations will have the appropriate ‘financing commitments’. Trusting you will find the foregoing in order, we remain with best regards . .

Thus, even when the facts were known to the surety here, no action was taken on their part to repudiate or alter the agreement and, by their actions, they have ratified the contract of suretyship. Other letters by The Travelers introduced further evidence ratification. The judgment of the trial court will, therefore, be reversed and judgment rendered in favor of the plaintiff as prayed for. The Appellee will pay all costs for which it is liable under the law.

Reversed and rendered.

ON APPLICATION FOR REHEARING

PER CURIAM.

In application for rehearing The Travelers Insurance Company alleges numerous errors in our original decree. We find only one which merits discussion, namely, our finding of ratification.

As stated in our initial opinion, an oral agreement may constitute the basis for a valid contract of suretyship. We found that an oral agreement resulted from Burgess’ letter of April 23, 1973, coupled with the prior and subsequent agreements and actions of the representatives of the City of Baton Rouge and the agents of East Glen Oaks, Inc. We likewise found that Travelers bond made reference to the agreement of April 23, 1973. We stand on oun finding that the bond issued by Travelers is valid in that it was issued incident to a contract of which Travelers was aware. Whether the contract was written or verbal is a matter of no moment.

For these reasons we delete, as dicta, all reference in our original decree to the doctrine of ratification.

Application denied.


author: CLAIBORNE, Judge.

text:
    Jasper K. WRIGHT, Jr., Testamentary Executor of the Succession of Jasper K. Wright v. DEPARTMENT OF HIGHWAYS of the State of Louisiana.
    No. 11014.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 30, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.
    Robert B. Butler, III, Houma, for plaintiff and appellant.
    Charles A. O’Brien, III, Baton Rouge, for defendant and appellee.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   CLAIBORNE, Judge.

This is a possessory action involving the use of airspace over a street previously dedicated for public use. At issue is the right of the Department of Highways to place a bridge over Concord Street which is located in Houma, Louisiana.

Prior to his death, Jasper K. Wright dedicated Concord Street, and related utility rights, to the public, reserving to himself the ownership of the street. In addition to that interest, his succession presently owns other property contiguous to the street. The Department of Highways is constructing a bridge and approaches over the inter-coastal canal which is a short distance from the plaintiff’s property and part of the project requires a span over the street in question. The defendant has expropriated all necessary tracts in that vicinity but took no such action for the airspace immediately above Concord Street.

The plaintiff brought this action to enjoin that part of the project. The theory of his case is that, although the street itself has been dedicated to the public, this dedication included nothing more than the rights necessary for customary passage and that the right of aerial crossing is an entirely different burden upon the land which was not a part of the servitude granted.

The defense contends, however, that the servitude which the public enjoys on Concord Street is one of unrestricted passage and, as such, embraces the right to use and regulate the airspace above it to the extent contemplated here.

Without written reasons for judgment, the Trial Judge dismissed the plaintiff’s case. We reverse.

The facts pertinent to this controversy have been stipulated by counsel. The formal dedication of Concord Street contains these provisions:

DEDICATION
“A servitude of passage is here created in favor of the public over the above designated roadway having a width of fifty (50') feet. This servitude shall be limited to the public to use and maintain same as a street or road for the purpose of public passage including the right to lay water and gas mains and maintain drainage structures and to provide electric and telephone service for the purpose of serving the occupants of the lands abutting said street. The owner reserves and maintains fee ownership of the roadway or street herein designated, including all of the minerals thereunder.”

The plaintiff has abandoned on appeal certain contentions that it made in the District Court as to alleged trespasses by the defendant. Therefore, the only issue for decision here is whether the crossing of Concord Street by an overhead bridge is a different servitude from that originally dedicated by the grantor.

The plaintiff relies on Louisiana Power & Light Company v. Dileo, 79 So.2d 150 (La.App., 1st Cir. 1955) in which it was held that a power company could not install lines and poles on an existing highway department servitude except by obtaining the consent of the landowners or by expropriation because of the different nature of the two uses by two different parties. See also Koch v. Louisiana Power & Light Company, 298 So.2d 124 (La.App., 1st Cir. 1974). Here the owner of the servitude proposes to make a more extensive use of it. The question is whether the intended use is contemplated within the original servitude grant or on the contrary purports to increase the burden on the servient estate.

Appellee cites City of Baton Rouge v. State National Life Insurance Co., 271 So.2d 571 (La.App., 1st Cir. 1973) in which suit was to enjoin defendant from maintaining a canopy which projected into the airspace over Florida Street in Baton Rouge in contravention of a city ordinance. It actually extended a few inches over the travelled portion of the street. The lower court required removal only of that part over the travelled portion of the street and permitted the canopy to remain over the sidewalk. The City apparently conceded the correctness of the decision since it did not appeal. The decision was based on the right of the public to unobstructed use of the servitude. This case also holds that the City has the authority to regulate all the airspace above the street pursuant to the power granted to it as holder of the servitude.

There appears to be some confusion between the exercise of public servitude rights and the power to regulate under the police power.

The distinction is perhaps clearer in considering the power of the state to expropriate. In 29A C.J.S. Eminent Domain, § 6, p. 178 we find:

“Eminent domain takes property because it is useful to the public, while the police power regulates the use of, or impairs rights in, property to prevent detriment to public interest; . .

Cases affirming the rights of the state to regulate under its police powers cannot be invoked to assert title or ownership of property rights.

In City of New Orleans v. Kaufman, 138 La. 897, 70 So. 874 (1916) the Supreme Court did say, as pointed out by Defendant:

The public right to the use of streets goes to the full width of the street and extends indefinitely upward and downward.

The holding of the case, however, is an affirmation of regulatory police powers, viz.:

“A city may prohibit the construction and maintenance of awnings in the streets, under a charter like that of the City of New Orleans, conferring full and plenary powers of municipal self-government.”

In Nessen v. City of New Orleans, 134 La. 455, 64 So. 286 (1914), the cited source of the statement in Kaufman, the quotation is qualified, as follows:

The public right goes to the full width of the street and extends indefinitely upward and downward so far at least as to prohibit encroachment upon said limits by any person by any means by which the enjoyment of said public right is or may be in any manner hindered or obstructed or made inconvenient or dangerous. (Emphasis added.)

This language accords with the principles of servitudes as provided by the Civil Code, and affirms the rights of the public to full unhindered and unobstructed use of its servitude, but it does not raise the servitude to something akin to absolute and full ownership of the property.

Thus whereas City of Baton Rouge v. State National Life Insurance Co., supra, affirms the right of the city to regulate the airspace above a street by requiring the removal of an awning which interferes, obstructs or hinders the use of the street or makes it more inconvenient or dangerous, it does not necessarily follow that the City may further burden the servient estate by claiming rights to all airspace above the street. To say that the public’s rights extend indefinitely upward does not mean infinitely upward.

In the case at bar, the existing servitude is a servitude of passage for the public to use and maintain as a street or road. The roadway is designated, named and shown on a map. There is nothing in the dedication from which it can be inferred that anything but a surface level street or road was contemplated. Such surface use extends indefinitely upward to the extent that its enjoyment by the public will be unhindered and unobstructed. Articles 753 and 780 of the Civil Code provide as follows:

“Art. 753. Servitudes which tend to affect the free use of property, in case of doubt as to their extent or the manner of using them, are always interpreted in favor of the owner of the property to be affected.” (Emphasis added.)
“Art. 780. If the title by which a passage is granted does not designate its breadth, nor the manner in which it is to be used, whether on foot, or horseback, or with carriages, the use which the person to whom the servitude is granted previously made of it will serve to interpret the title.
If there was no such use made of it before, the probable intention of the parties must be considered, and the purpose for which the passage is granted.
If these circumstances can afford no light, it must be decided in favor of the land which owes the servitude, and a foot passage must be conceded eight feet wide, where it is straight, and ten feet wide where it turns.” (Emphasis added.)

From the foregoing articles we must infer that where the state intends to make use of a servitude of passage to an extent or in a manner not without doubt contemplated by the grantor, it cannot do so without acquiring an additional servitude to allow the intended uses.

For the foregoing reasons, the judgment will be reversed, and there is judgment for the plaintiff enjoining the defendant from the disturbance of plaintiff’s possession, such injunction to remain in effect until such time as the defendant institutes expropriation proceedings for acquisition of the additional servitude necessary for the proposed uses. Appellee will pay all costs for which it is liable under the law.

REVERSED AND RENDERED.


author: WATSON, Judge.

text:
    SERVICE ELECTRIC SUPPLY COMPANY, INC., Plaintiff-Appellee, v. Jesse H. HEARD, Jr., et al., Defendants-Appellants.
    No. 5773.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 3, 1977.
    Bruscato & Loomis by Anthony J. Brus-cato, and Trudy L. Avants, Monroe, for defendants-appellants.
    Ford & Nugent by William M. Ford, Alexandria, for plaintiff-appellee.

      Before DOMENGEAUX, WATSON and FORET, JJ.
   WATSON, Judge.

Plaintiff, Service Electric Supply Company, Inc., received a trial court judgment for $867.07 against defendants: Pipes Heating & Air Conditioning, Inc; Chateau Royale, a partnership; and the individual partners, Jesse H. Heard, Jr., Thomas M. Rogers, Jr. and William A. Craig. The judgment also recognizes and maintains Service’s materi-alman’s lien against the premises of the Chateau Royale Apartments in Rapides Parish, Louisiana. Service supplied materials to the electrical sub-contractor, Pipes Heating & Air Conditioning, Inc., for construction of the apartments. Service’s suit against Jesse H. Heard Construction Company, Inc., the prime contractor, was dismissed, and the reconventional demand of Heard against Service was also dismissed. Defendants, Chateau Royale and its individual partners, have appealed, contending that the trial court erred in casting them for the debt owed by Pipes to Service and also erred in recognizing Service’s lien on the property. Defendant, Jesse H. Heard Construction Company, Inc., has also appealed, contending that the trial court erred in dismissing its reconventional demand against Service for $2,317.38, alleged to be a credit balance on payments made by check to Service and Pipes jointly. We affirm.

FACTS

Jesse H. Heard Construction Company, Inc. is a Louisiana corporation which contracted with the Chateau Royale partnership in May of 1974 for construction of apartments on the corner of Lisa and Oran Streets in the City of Alexandria. The contract was not recorded, and no bond was supplied by Heard. Heard sub-contracted all of the electrical and air conditioning work on the project to Pipes Heating & Air Conditioning, Inc. Pipes was bonded by Summit Insurance Company which is in receivership. The Pipes contract and Summit bond were not recorded. The construction took place between May, 1974 and June or July of 1975. No affidavit of substantial completion had been filed in the records of Rapides Parish at the time of trial. Service supplied materials to Pipes for the construction. Heard’s dealings were only with Pipes, but checks were written for materials to Pipes and Service jointly. The last materials were charged to the Pipes account with Service on January 24, 1975. This left a balance due from Pipes to Service of $867.07 which was not paid. A lien was timely recorded for this amount. Pipes had no jobs in the Central Louisiana area other than the Chateau Royale Apartments. Hardy J. LaCour, president of Service, identified various invoices for materials and testified that they were used in the construction of the Chateau Royale Apartments. All of the materials were picked up at Service by employees of Pipes and LaCour personally identified various materials in the finished apartments as coming from his company. Alex Hayward, vice-president of Heard, said that Pipes subsequently defaulted on the job.

Jessie LaBorde, secretary-treasurer of Service, endorsed a Heard check, dated September 13, 1974, in the amount of $3,184.45 on behalf of Service. The check was made payable to Pipes and Service jointly. At the time the check was brought into the Service office, Pipes did not owe Service any money so LaBorde endorsed the check and returned it to Pipes’ employee. LaCour testified that none of the money represented by the check was retained by Service. Subsequent to the issuance of this check, Service sold materials to Pipes for the Chateau Royale construction, invoiced as follows:

12/18/74 $ 90.48

12/20/74 42.10

1/10/75 203.22

1/15/75 6.88

1/15/75 115.05

1/15/75 5.95

1/17/75 146.90

1/22/75 215.61

1/24/75 40.88

TOTAL: $867.07

Thus, Service’s lien covers materials sold after issuance of the Heard check to Pipes and Service jointly.

ISSUES

Appellants contend that, if Service’s employee had not endorsed the check: (1) Service would have recovered its money without a lien on the property and judgment against Chateau Royale and its partners; and (2) Heard could have recovered the credit balance represented by the difference between the check and the $867.07 owed by Pipes or $2,317.38.

The first issue is whether Heard is entitled to recover $2,317.38 from Service.

The second issue is whether Service’s endorsement of the check precludes recovery of the amounts of its materialman’s lien from Chateau Royale and the individual partners.

CONCLUSION

As to the first issue, there is no question that Heard cannot recover from Service the money Heard paid to Pipes simply because a check was made out jointly to Pipes and Service. Heard may have owed this amount to Pipes. Service did not receive the money. There is nothing in the record which would allow Heard to collect this amount from Pipes, much less Service, since no evidence was presented that Pipes owed Heard anything at the conclusion of the contract. The only evidence on this point is Hayward’s statement that Pipes defaulted. As the trial court stated:

“In order to determine if the general contractor sustained any loss it would be necessary to go into the entire contract between Pipes and Heard, which was not done.” (TR. 50)

As to the second issue, it is undisputed that Service has a valid, timely recorded, privilege. LSA-R.S. 9:4801. The owners are personally liable under the provisions of LSA-R.S. 9:4812 for their failure to record the construction contract between Chateau Royale and Heard. LSA-R.S. 9-4812 states in pertinent part that:

it sjs * *
Any person furnishing service or material or performing any labor on the said building or other work to or for a contractor or sub-contractor, when a contract, oral or written has been entered into, but no contract has been timely recorded, shall have a personal cause of action against the owner for the amount of his claim for a period of one year from the aforesaid recordation of his claim, * * * 11

While lien statutes are stricti juris, it is well established in this case that Service supplied materials which were incorporated into the construction of the Chateau Royale Apartments and that Service has a balance due of $867.07. The contention that Service’s endorsement of the Heard check bars it from recovering subsequent charges is not tenable. Service received no consideration for the endorsement and it could not constitute a “giving in payment” by Heard to Service because no amount was due from Heard to Service at the time. LSA-C.C. art. 2655. Service’s dealings were only with Pipes and Service had no obligation to hold Heard’s check in anticipation of possible future charges by Pipes. Appellants’ contentions are without merit.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs of this appeal are assessed to defendants-appellants, Chateau Royale, Jesse H. Heard, Jr., Thomas M. Rogers, Jr., William A. Craig and plaintiff-in-reconvention-ap-pellant, Jesse H. Heard Construction Company, Inc.

AFFIRMED.


author: MORIAL, Judge.

text:
    Adele SIMMONS, Individually and on behalf of her son, Raymond Phillip Ponder, Jr., Deceased v. William BROOKS and Allstate Insurance Companies.
    No. 7540.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Ronald K. Gurley, Robert J. David, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, E. Ross Buckley, Jr., John J. Hainkel, Jr., New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

This is an appeal from a judgment of the district court maintaining without reasons an exception of no right or cause of action and dismissing plaintiff-mother’s suit against defendants William Brooks and Allstate Insurance Companies, for the wrongful death of her son, Raymond P. Ponder, Jr. We reverse and remand.

The decedent, Raymond P. Ponder, Jr. was married to Nelva Rice. From this union a son, Dennis Russel Ponder was born in 1955. The parties were divorced on August 20, 1956. Nelva Rice then married James Hayes in Michigan where they presently reside. Dennis Russel Ponder was legally adopted by Hayes on August 16, 1967 with the consent of decedent.

The sole issue of this appeal is whether the plaintiff-mother of decedent or his child, who had been adopted, has the right of action granted under LSA-R.C.C. 2315 for the wrongful death of decedent.

LSA-R.C.C. Article 2315 is a special statute which grants a right to specified survivors or beneficiaries in the order of exclusionary preference to bring an action for damages for the wrongful death of certain persons.

LSA-R.C.C. Article 2315 cannot be isolated from other sections of the Revised Civil Code in interpreting its meaning. In King v. Gancienne, La., 316 So.2d 366 (1975), the Supreme Court interpreted Article 2315 in conjunction with LSA-R.C.C. Articles 117 and 118 in determining that a putative wife was a surviving spouse within the purview of the wrongful death article. Therefore, we consider the effect of LSA-R.C.C. Article 214, which deals with the rights of an adopted child, on the provisions of LSA-R.C.C. Article 2315.

The pertinent parts of the LSA-R.C.C. Article 2315 in relation to this case are paragraph three which provides in part:

“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving * *

and paragraph four which provides:

“As used in this article, the word ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ include a child, brother, sister, father, and mother, by adoption, respectively.”

Under the usual circumstances, a surviving child precludes a parent of the decedent from recovering damages. However, this rule must be read in view of the legal effects of adoption. LSA-R.C.C. Article 214 provides in pertinent part:

“ * * * the blood parent or parents and all other blood relatives of the adopted person are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person, including the right of inheritance from the adopted person and his lawful descendants; and the adopted person and his lawful descendants are relieved of all of their legal duties and divested of all their legal rights with regard to the blood parent or parents and other blood relatives, except the right of inheritance from them.” (emphasis supplied)

The question then becomes whether or not a right of action to recover for wrongful death is a right of inheritance within the meaning of LSA-R.C.C. Article 214.

The jurisprudence is clear that LSA-R.C.C. Article 2315 is not part of the law of successions and thus, neither the survival action nor the wrongful death action are rights which are transmitted from the tort victim to his heirs as an inheritance. King v. Cancienne, La., 316 So.2d 366 (1975); Moore v. Kinney, 315 So.2d 340 (La.App. 3 Cir. 2975); Collins v. Becnel, 297 So.2d 506 (La.App. 4 Cir. 1974). The beneficiaries listed in LSA-R.C.C. Article 2315 do not include all possible heirs of the deceased as provided in the articles of the Revised Civil Code on the law of successions. See LSA-R.C.C. Articles 902-933.

The right to recover for a wrongful death is not an inheritance right. That right of action in tort is a legal right which is divested from the child at the time of his adoption in accord with LSA-R.C.C. Article 214. See Bertrand v. State Farm, 333 So.2d 322 (La.App. 3 Cir. 1976). Accordingly, at the time of his adoption by Hayes decedent’s biological son, Dennis Russel Ponder, lost the right of action given under LSA-R. C.C. Article 2315 with regard to his natural father.

The judgment of the district court maintaining the exception of no right or cause of action is reversed and the case is remanded for further proceedings not inconsistent with the views herein expressed.

REVERSED AND REMANDED.


author: GULOTTA, Judge. REDMANN, Judge,

text:
    Mrs. Josephine S. SPEIRER v. Kenneth N. McINTOSH.
    No. 7641.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.

      Richard K. Simoneaux, New Orleans, for plaintiff-appellee.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, Charles A. Boggs, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   GULOTTA, Judge.

This suit arises from a landlord-tenant dispute. Defendant-lessee appeals from a judgment in favor of plaintiff-lessor for damages to the premises above and beyond normal wear and tear. Lessor has not answered the appeal.

Before reaching the merits, we are confronted initially with the question whether a timely appeal bond has been filed. Plaintiff contends that the $1,000.00 “Bond for Appeal” filed by defendant is in fact no bond at all. No surety is named or mentioned in the text of the document; only the principal-defendant is bound by its language. The instrument is signed by defendant’s counsel for Kenneth N. McIntosh, Jr. It also bears the signatures of two witnesses and of a third party, M. J. Hart-son, III. Attached to the instrument, however, is a “Power of Attorney” in which Employers Commercial Union Insurance Company appoints M. J. Hartson, Jr., John E. Lawson and Maurice Hartson, III, as attorneys-in-fact empowered “to make, execute, seal and deliver for and on its behalf as surety any and all bonds or undertakings . .” The document further provides that “. . . the execution of such bonds or undertakings in pursuance of these presents, shall be binding upon said Company .. . .”

Although the “bond” does not indicate that Hartson signed as surety, the instrument bears the signatures of both the principal and Hartson. Moreover, the attached Power of Attorney discloses Hartson’s status as an agent of Employers Commercial, empowered to sign bonds as surety. When the two documents are read together, it is apparent that Employers Commercial binds itself as surety to the defendant’s principal obligation.

Accordingly, we hold that the document furnished is in fact an appeal bond, and defendant’s appeal will not be dismissed. If any defects exist, those may be cured in the trial court. See LSA-C.C.P. arts. 2088, 5123, 5124 and 5125. See also Super Construction Co., Inc. v. New Orleans Levee Board, 286 So.2d 134 (La.App. 4th Cir. 1973), writ refused, 288 So.2d 643 (La.1974); Phillips v. West, 139 So.2d 274 (La.App. 1st Cir. 1962); Green v. Jefferson Truck Service, Inc., 274 So.2d 396 (La.App. 4th Cir. 1973).

MERITS

The parties entered into a commercial property lease beginning on September 1, 1968, and ending on August 31, 1970. This lease provided, in pertinent part:

“The within leased premises and appurtenances . . . and all other fixtures, are accepted by the Lessee in their present condition . . . . The Lessee agrees to keep them in the same order as received, during the term of this lease . and at the termination or cancellation of this lease to return the premises broom clean and free from trash, and in like good order as received . . ., the usual decay, wear and tear excepted.”

The contract also provided for stipulated damages for late return of the premises at the termination of the lease and for 10% attorney’s fee on any claim by the lessor against the lessee arising from the lease.

Plaintiff-lessor brought suit against defendant-lessee for certain damages to the premises and for lessee’s failure to vacate the building at the termination of the lease. The trial judge awarded judgment in favor of the plaintiff against the defendant as follows:

1. $165.00, stipulated damages pursuant to the lease provisions for defendant’s four-day overstay in the building beyond the termination date;
2. $5.00, money expended by plaintiff to remove an airconditioning water tower allegedly left behind by defendant;
3. $10.50, expense of removing connections to the water tower;
4. $61.00, cost of replacing a broken toilet;
5. $130.00, cost of replacing a water heater;
6. $30.00, expense of repairing a lavatory;
7. $160.67, cost of replacing a broken glass.

In addition, 10% attorney’s fees were awarded pursuant to the terms of the lease. Judgment was rendered in favor of plaintiff in the sum of $616.18. Judgment was. also rendered in favor of defendant in the sum of $50.00 on his reconventional demand for water damage. Defendant does not dispute that portion of the judgment pertaining to the four-day overstay and the broken toilet. Plaintiff does not contest the judgment in favor of defendant on his reconven-tional demand.

Defendant contends on appeal that the damage claimed by lessor occurred prior to the commencement of his lease. According to the terms of that lease, he argues, the lessee is responsible only for damage occurring during his tenancy.

The record supports defendant’s contention on two items in the award, i. e., costs for removal of the air-conditioning connections and water tower totalling $15.50. The air-conditioning unit tower and piping were installed by a former tenant who leased the premises for several years beginning in 1950. Though the lease provides that any additions made by the lessee remain the property of the lessor and that the lessor “at his option, may require the building to be replaced in its original condition”, the contract clearly refers only to additions made during the term of the lease and the phrase “original condition” means the condition of the premises at the commencement of defendant’s lease. The air-conditioning system was not installed during defendant’s tenancy. Accordingly, any award in favor of the lessor must be reduced by $15.50.

The lessor, however, is entitled to the award for damages occasioned by the replacement of the toilet, the lavatory, the water heater and the cracked glass. These damages are not the result of “usual decay, wear and tear”. Under the lease terms, the premises and its fixtures “are accepted by the Lessee in their present condition”. The lessee did not complain of these damaged fixtures at the commencement of the lease and a presumption, therefore, is created that he received them in good order. See LSA-C.C. arts. 2719 and 2720. Once the lessor has established proof of damage to the fixtures, the lessee has the burden of showing that the damages occurred prior to the commencement of his lease or that they occurred without his fault during his tenancy. Ferguson v. Smill, 183 So. 600 (La.App.Orl.1938). The lessee has failed to meet this burden. Plaintiff is entitled to recover $381.67 for the costs of replacement of the toilet, water heater and broken glass and repair of the lavatory. In addition, the lessor is entitled to recover 10% attorney’s fees.

Accordingly, the judgment in favor of plaintiff is amended and recast as follows:

1. $165.00 rental
2. $381.67 cost of repairs
3. $54.67 attorney’s fees
Total award in favor of plaintiff, $601.34.

This amount is reduced by the sum of $50.00 awarded to the lessee in reconvention. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

REDMANN, J., dissents in part.

REDMANN, Judge,

dissenting in part.

C.C. 2720 does “presume” (subject to rebuttal; see Planiol, Civil Law Treatise, II, § 1705) that the lessee received the thing leased in good order. But, C.C. 2721 immediately adds, “[t]he lessee is only liable for the injuries and losses sustained through his own fault.” Moreover, the general rule is that the lessor must “maintain the thing in a condition such as to serve for the use for which it is hired,” C.C. 2692, and make “all the repairs which may accidentally become necessary; except those which the tenant is bound to make . . .,” C.C. 2693 (whose controlling French text does not contain the word “accidentally”).

The tenant is bound to make repairs specified by C.C. 2716, including “[f]or replacing window glass, when broken accidentally” (except by “hail storm or by any other inevitable accident”), but not including repairs to the plumbing.

Accordingly, although the presumption under C.C. 2720 is that the premises were in good condition at the beginning of the lease, that presumption does not by itself decide our case.

We may conclude that it is more probable than not, in the absence of evidence of the cause, that broken window glass is the result of ordinary rather than “inevitable [by force majeure]” accident, thus holding the tenant liable. But we may not conclude, in the absence of evidence, that deteriorated plumbing was caused by the lessee.

The judgment should therefore be reversed insofar as it awarded the costs of repair to lavatory and replacement of water heater.

      . LSA-C.C. art. 2719 reads as follows:
      Art. 2719. Return of things leased under inventory
      “Art. 2719. If an inventory has been made of the premises in which the situation, at the time of the lease, has been stated, it shall be the duty of the lessee to deliver back everything in the same state in which it was when taken possession of by him, making, however, the necessary allowance for wear and tear and for unavoidable accidents.”
      LSA-C.C. art. 2720 reads as follows:
      Art. 2720. Return: of things leased without inventory
      “Art. 2720. If no inventory has been made, the lessee is presumed to have received the thing in good order, and he must return it in the same state, with the exceptions contained in the preceding article.”

      . Because the dissent is addressed to the affirmed part of the judgment, this matter has not been referred to a five-judge panel for rear-gument. See Art. 5, § 8(B) of the Louisiana Constitution of 1974.


author: STOULIG, Judge.

text:
    Robert GALES v. GREAT ATLANTIC & PACIFIC TEA COMPANY.
    No. 7706.

    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused March 31, 1977.

      Badeaux, Discon, Cumberland & Barbier, J. Michael Cumberland, New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Plaintiff, Robert Gales, obtained a judgment awarding him maximum workmen’s compensation benefits on a finding that a dormant rheumatoid arthritis condition was activated during the course and scope of his employment as a meat boner and trimmer with defendant, the Great Atlantic & Pacific Tea Company (A & P), that left him totally and permanently disabled from performing work of the same or of a similar character. Defendant has appealed.

The record reflects that Gales, now 33, has been performing manual labor of various types since he was 14 years old. On September 13, 1971, he was employed by A & P as a trainee to cut meat. In November 1973 when he discontinued working, he was then a boner and trimmer While performing his job he was subjected to severe temperature changes as many as 150 times daily. His duties took him from the warm and dry loading dock to the “bone room” with its “air conditioned” temperature, then into the cooler, which felt like a refrigerator, and then into the freezer.

In the fall of 1972 he first began experiencing occasional pain in his joints. By October 1973 the pain intensified to such an extent that the following month he was no longer able to report for work.

Internist Dr. Wally R. Jenkins diagnosed his condition as rheumatoid arthritis when he first examined plaintiff in December 1973. He found tenderness and swelling in various joints which produced severe pain. By December 1974, even after having been given gold injections regularly for a year, it was Dr. Jenkins’ opinion plaintiff was incapable of performing manual labor. In May 1974 plaintiff did attempt to return to his job, but after three days his pain intensified to a point where he could no longer continue.

Dr. Jenkins was the only medical expert called. From his testimony it is apparent that little is known of the cause of rheumatoid arthritis. However he said it was probable that the plaintiff’s dormant condition was activated and aggravated by his moving constantly between warm and cold temperature extremes. Although Dr. Jenkins testified that flare-ups of rheumatoid arthritis might subside within a few weeks as a general rule, he was equally positive plaintiff’s condition did not subside within the average period and it continued to leave him disabled.

Defendant relies heavily on this average recovery testimony in seeking reversal, but there is nothing in the record to indicate this was the case with plaintiff. In fact it proves just the opposite. Medical science has little light to shed on this disease and defendant cannot require plaintiff to explain what is still not understood by the experts. Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969).

The law. applicable to this case was clearly and succinctly set forth in written reasons for judgment, part of which we incorporate into our opinion and adopt as our rationale. We quote:

“The law in this area is set out in the case of Lum v. Employers Mutual Liability Insurance Company of Wisconsin, 216 So.2d 889 (La.App. 2nd Cir. 1968), writ refused, [253 La. 642], 219 So.2d 175:
‘The principle is well established in the jurisprudence of this State that employers take employees as they find them. A worker who is abnormally susceptible to disability from an accident is protected by the provisions of the compensation statute even though the accident would have caused little or no harm to a healthy worker. Nor is it important that the diseased or weakened condition might alone eventually have produced disability. Thus, an employee’s disability is compensable when precipitated by an industrial accident, even though a preexisting, dormant physical condition or predisposition has contributed thereto. * * *
‘This ease comes within the rule that an employee disabled by accident is not to be denied compensation merely because he was already afflicted with a disease which, in its ordinary course of progress, might have caused the disability eventually without any accident and where the accident merely superin-duced the disability.’ (Citations omitted and emphasis added.)

“It is undisputed that arthritis is not one of the occupational diseases enumerated in Louisiana Revised Statute 23:1031(1) [23:1031.1].

“Recovery therefore must be based on the finding of an ‘accident’ that occurred within the course and scope of the plaintiff’s employment and that said accident was causally connected to the resulting disability.

“This Court has no doubt as to the causal connection of Mr. Gales’ disability to his work. The question, however, is whether there has been an ‘accident’ within the meaning of the Workmen’s Compensation Act.

“Louisiana Revised Statute 23:1021(1) provides:

‘ “Accident” means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.’

“The term ‘accident’ is given a liberal interpretation under the workmen’s compensation law. Gotte v. Cities Service Oil Company, 298 So.2d 920 (La.App. 3rd Cir. 1974), writ refused October 28, 1974. While no specified impact type accident appears to have been suffered by Mr. Gales, his body most certainly received great trauma each and every time it was exposed to the extreme in temperature to which he was subject in his employment. The performance of the usual and customary duties of his employment contributes to his physical breakdown.

“In Gotte v. Cities Service Oil Company, supra, the Court held that when a body receives the shock of severely varying temperatures, it is traumatized and an ‘accident’ within the Workmen’s Compensation Act has occurred.

“In Gorbach v. Prager, Inc., 300 So.2d 618 (La.App. 4th Cir. 1974), reversed on other grounds, 310 So.2d 604 [La.], the Court stated:

‘ * * * [W]e firmly believe that this workman was injured by great physical effort or strain on a number of occasions, causing the ruptured disc to block completely his nerve sac, preventing him from working. The intent of the Compensation Act must surely be to cover an injury resulting from several traumas as well as one.’ (Emphasis added.)
“This Court is of the opinion that Mr. Gales has sustained an ‘accident’ as the word is defined in the Workmen’s Compensation Act which worsened his pre-ex-isting arthritic condition causing it to become symptomatic resulting in his total disability.
“Plaintiff, Mr. Gales, for the foregoing reasons, is therefore entitled to judgment against defendant, Great Atlantic and Pacific Tea Company.”

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.


author: LEMMON, Judge.

text:
    Raymond LEWIS et al. v. FIREMAN’S FUND INSURANCE CO. et al.
    No. 7765.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      George W. Reese and Gilbert Bernstein, New Orleans, for plaintiffS-appellants.
    Dillon & Williams, Gerard M. Dillon, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

Plaintiffs have appealed from a judgment, rendered after a trial on the merits, which dismissed their wrongful death action against the Department of Recreation of Jefferson Parish, the Drainage & Sewerage Department of Jefferson Parish and the Parish’s insurer.

The suit was based on the drowning of plaintiff’s seven-year-old daughter, Gwen, in a drainage canal which formed the western boundary of the Marrero Action Playground. Across the canal from the playground was the subdivision where plaintiffs lived, and the subdivision residents had access to the playground by several footbridges built by the Parish across the canal.

On the day of the accident a heavy rain had occurred, and the 18-foot wide canal had overflowed its east bank, so that the canal waters extended as far as 60 feet onto the playground. After the rain stopped, Gwen and her 13-year old brother went outside of the house to play. They and several other neighborhood children eventually made their way to the playground and splashed in the shallow (12 to 18 inches deep) overflow waters. Gwen drowned when she inadvertently stepped off the canal bank into the deeper water.

Considerable testimony established that this flooding occurred after every heavy rain and that when such conditions existed, one could not readily identify the location of the unfenced and unmarked canal bank covered by the overflow waters. The following photograph shows the condition of the drowning scene shortly after the tragedy:

The trial court found that the canal, with its bank obscured, constituted a trap or latent hazard, as was found in Sears v. City of Springhill, 303 So.2d 602 (La.App. 2nd Cir. 1974). However, the suit was dismissed on the basis that the evidence did not show the Parish of Jefferson was either the owner or the operator of the playground.

We agree that the well-known condition which frequently existed on the playground constituted a latent hazard and that the operator of the playground had a duty to those lawfully on the premises to remedy the hazard or to provide adequate warning of its existence. We disagree, however, that the Parish was not a proper party upon whom liability should be imposed for the clearly proved breach of this duty.

The Marrero Action Committee (M.A.C.), formed in 1967 to provide recreation for area residents, had obtained the owner’s permission to use the property as a playground and had on February 1, 1968 entered into a three-year, rent-free lease of the property for that purpose. Under the terms of the lease contract M.A.C. provided liability insurance. At M.A.C.’s request the Parish cleared the land, erected certain playground equipment, and thereafter maintained and cleaned the grounds.

When the lease expired in 1971, M.A.C. moved most of its activities to another playground, cancelling the electric service and leaving a fire-damaged concession stand un-repaired. However, M.A.C. continued to conduct an afternoon baseball program for smaller boys at the Marrero Action Playground.

The time that the Parish became more involved in the operation of the playground is not clearly shown in the record, but at some time after 1968 the Parish created Playground District 12 which encompassed the general area of the Marrero Action Playground. In June, 1972 the Parish contracted with M.A.C. for the purpose of supplying recreational equipment and activities to the residents in a designated area of Playground District 12. Under the contract the Parish agreed to turn over to M.A.C. one-fifth of the net proceeds of an ad valo-rem tax imposed in the district, and M.A.C. agreed to conduct recreational programs on Marrero Action Playground in conjunction with the policies of the Jefferson Parish Recreation Department.

Although the Recreation Department operated playgrounds and recreation programs in every other district in the parish, the Parish used booster clubs as contractors (under contracts identical to M.A.C.’s) in the remaining areas of District 12 and in District 13. Marrero Action Playground was the only one not owned by the Parish, but was specifically listed in the Parish’s master liability insurance policy which named every covered playground.

In our opinion the record adequately establishes that the Marrero Action Playground was one of those playgrounds utilized by the Parish in operating a parish-wide recreation program with public funds. The fact that the Parish delegated the publicly funded operation of this particular playground did not relieve the Parish of its duty to protect those using the public playground from latent hazards on the premises. Under the circumstances of this case we conclude that the Parish breached its duty and is liable for plaintiffs’ damages.

In urging contributory negligence, defendants contend that one of Gwen’s brothers testified he told her “to get away from the canal”. However, the gist of the testimony was that when he arrived Gwen and about ten other children were playing in the water and he “figured the canal had to be out that way”, but that he heard Kevin yell and didn’t see her slip into the canal and “(w)hen I got over there, she was far out there”. A woman seated on a nearby porch could not see Gwen but heard a little boy say “don’t go over there” and “give me your hand” and then “Oh, Lord have mercy”.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.1973). We conclude that defendants, who have the burden of proving contributory negligence, have failed to prove that Gwen’s conduct was substandard for a reasonable seven-year old child under similar circumstances or that any adequate warning was given in time to prevent the casualty.

The funeral expenses were $676.10. Gwen was plaintiffs’ only daughter and had lived with her parents and brothers all of her life. We set an award of $20,000.00 to each parent as compensation for the loss of love and affection.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered against defendants and in favor of Raymond Lewis in the amount of $20,676.10 and in favor of Alma Lewis in the amount of $20,000.00, together with legal interest from the date of judicial demand until paid and all costs in both courts.

REVERSED AND RENDERED.

      . At the time of the accident in 1973 M.A.C. was apparently composed of or controlled by different persons than those who were the original organizers, and the record is not precisely clear as to what was done by M.A.C. in 1973 under its original program and what was done as contractor for the Parish. (For example, there were Recreation Department baseball leagues conducted on the playground at the time.) However, the Parish Finance Director testified as to the Parish’s involvement in 1973, and our recitation of facts on that point is based primarily on this testimony.

      . The Parish also paid the premiums (at least in 1973) on the liability insurance policy which M.A.C. had originally obtained under its lease contract with the land owner.


text:
    Anthony G. ALATERAS v. Floyd J. K. HEPTING and American Radio Association AFL-CIO.
    No. 7780.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused March 25, 1977.
    E. Howard McCaleb, III, New Orleans, for plaintiff-appellant.

      Dodd, Barker, Boudreaux, Lamy & Gardner, C. Paul Barker, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Plaintiff, Anthony G. Alateras, instituted this suit for $750,000 damages and lost wages allegedly resulting from an unfair and discriminatory labor practice by defendant, Floyd J. K. Hepting, a New Orleans based official of defendant, the American Radio Association AFL-CIO, in refusing to place plaintiff’s name on a “standby” list for employment aboard ship as a radio officer.

Defendants filed a declinatory exception to the court’s jurisdiction, asserting that a complaint stemming from an alleged unfair labor practice is within the exclusive jurisdiction of the National Labor Relations Board under 29 U.S.C. § 151 et seq. By stipulation the exception was referred to the merits but was never passed upon by the trial court. After a trial on the merits, plaintiff’s suit was dismissed. He has appealed.

Although defendant has neither appealed nor answered the appeal, we notice sua sponte our lack of jurisdiction because it is inappropriate for any court to adjudicate merits if the subject matter may not properly be brought before it.

Alateras alleges Hepting, a union representative, refused to place plaintiff’s name on a stand-by list for future employment as the union rules require. The gravamen of his complaint is that defendant violated 29 U.S.C. § 158(b)(2), which states:

“It shall be an unfair labor practice for a labor organization or its agents—
(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership * * * >>

29 U.S.C. § 160 provides for administrative and judicial review of any complaint based on an álleged violation of § 158 before the National Labor Relations Board. As this section has been interpreted by the United States Supreme Court, the Board’s jurisdiction in the unfair labor practice area is exclusive.

The concept of federal preemption in labor relations has its genesis in the interstate commerce and federal supremacy clauses of the United States Constitution. (Art. I, § 8 and Art. VI.) In Amalgamated Ass’n of St., E. R. & M. C. Emp. v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), the Supreme Court discussed the need for uniformity in adjudicating labor disputes and the areas where federal preemption would be necessary to achieve this result. After relating the trial and error approaches taken by the federal judiciary to delineate between federal and state jurisdiction in labor matters, the court cited with approval this first workable formulation that emerged in San Diego Building Trades Council, Etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959), viz:

“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes.
“At times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections. But courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of this Court’s authority cannot remain within a State’s power and state jurisdiction too must yield to the exclusive primary competence of the Board. See, e. g., Garner v. Teamsters, etc. Union, 346 U.S. 485, especially at pages 489-491, 74 S.Ct. 161, at pages 165-166, 98 L.Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546.”

In Local 100 of United Ass’n of Jour. & App. v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963) — factually analogous to this case — the Court followed Garmon and held the state court did not have jurisdiction.

In Local No. 207, Int. Ass’n of Bridge, Etc. v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963), the Supreme Court held that state jurisdiction was preempted even where the object of the suit was damages allegedly incurred as the result of an unfair labor practice.

In the instant case plaintiff first filed a complaint with the National Labor Relations Board based on the same incident upon which he premises this suit. This action was filed while the charges were pending before the administrative review agency. Ultimately his Board complaint was dismissed as meritless and appealed unsuccessfully through several administrative levels. In this case Alateras’ complaint was investigated and the National Labor Relations Board found the evidence insufficient to warrant further proceedings. But even if no complaint had been filed with the Board, under the jurisprudence summarized the state court has no jurisdiction to entertain this suit and the declinatory exception should have been maintained.

For the reasons assigned, the judgment appealed from is annulled and it is now ordered that this suit be dismissed for lack of jurisdiction. Appellant is to pay all costs.

JUDGMENT ANNULLED; EXCEPTION MAINTAINED.

      . H. N. Borden, as a member of a plumbers’ union, complained a union official arbitrarily withheld a referral he needed before he could be hired on a bank construction job.


author: SCHOTT, Judge.

text:
    Dorothy LABOSTRIE v. Abe WHITAKER et al.
    No. 7790.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Writ Refused April 6, 1977.

      Stephen C. Kogos, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, James F. Holmes, New Orleans, for defendants-appellees the Whitakers and Continental Ins. Co.
    Philip K. Jones, Norman L. Sisson, Marshall W. Wroten, Baton Rouge, Jesse S. Guillot, New Orleans, for defendant-appel-lee Dept, of Highways.
    Before BOUTALL, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of, her suit for damages arising out of an automobile accident which occurred on August 27, 1972, at about 7:15 AM, at the intersection of U. S. Highway 61 and Louisiana Highway 22 in Sorrento, Louisiana.

The two highways intersected at right angles with Highway 61 running generally north-south. Highway 61 consisted of two lanes on each side of a neutral ground with a third turning cut into the neutral ground at the intersection. It was controlled by an electric semaphore system. The weather was clear and dry.

Plaintiff was a passenger in an automobile driven by Daniel Carruthers. As they proceeded north on Highway 61 their automobile struck the automobile operated by defendant, Victoria Whitaker, and owned by Abe Whitaker, and insured for liability by the Continental Insurance Company. Mrs. Whitaker was proceeding east on Highway 22, having crossed over the southbound lanes of Highway 61 and the neutral ground, and was struck as she crossed the northbound lanes of Highway 61.

As Carruthers approached Highway 22, traveling about 60 miles per hour, the light facing him should have been red but was out because of a malfunction at the time.

As Mrs. Whitaker approached Highway 61 the light facing her on Highway 22 was red and she came to a stop behind a large tank truck. When the light turned to green the truck moved forward and made a right turn to the south along Highway 61. She looked both ways and saw nothing coming from either direction. Her view of the Carruthers automobile, approaching from the south on the other side of the neutral ground, was obstructed by the tank truck. She then began crossing the intersection with the green light and continued until the collision occurred. She was rendered unconscious in the collision and did not recall ever seeing Carruthers’ automobile.

Plaintiff’s suit was against the Whitakers and their insurer on the theory that she was guilty of some negligence contributing to the cause of the accident, and against the Louisiana Department of Highways because of the malfunctioning light. The trial court in oral reasons for judgment at the conclusion of the trial found that the sole cause of the accident was the negligence of Carruth-ers, thereby exonerating the other defendants.

As to the Whitakers and their insurer, she did have a right to assume, as she proceeded across the intersection with the green light, that others would stop in obedience to the red light. Only where a motorist entering the intersection with a favorable signal could have avoided the accident by the slightest degree of observation and care will the motorist be found negligent. The favored motorist discharges her duty when she maintains a general observation of the controlled intersection. Modica v. Manchester Insurance & Indemnity Co., 284 So.2d 791 (La.App. 4th Cir.1973), Correge v. Webb, 284 So.2d 355 (La.App. 4th Cir.1973), writ refused La., 286 So.2d 664.

We have examined this record according to the standards enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973), and find that the testimony of Mrs. Whitaker that she looked both ways before she began crossing the intersection with the green light together with the presence of the tank truck was sufficient to furnish a reasonable factual basis for the trial court’s finding that she was not negligent.

As to the liability of the Highway Department, a mere showing that this light malfunctioned and that such a malfunctioning light contributed to the accident is not sufficient to make the Department liable. It must also be shown that the Department had either actual or constructive notice that the signal was malfunctioning and negligently failed to remedy the hazardous situation. Mistich v. Matthaei, 277 So.2d 239 (La.App. 4th Cir.1973). There is no convincing evidence of such in this record.

The judgment appealed from is affirmed at plaintiff’s cost.

AFFIRMED.