author: CHIASSON, Judge.

text:
    Grace I. SMITH, Plaintiff-Appellant, v. William Bailey SMITH, Defendant-Appellee.
    No. 10866.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Robert L. Kleinpeter, Baton Rouge, of counsel for defendant William Bailey Smith, appellee.
    LeRoy H. Scott, Jr., Shreveport, of counsel for plaintiff, Grace Ingersoll Smith, appellant.
    Before BLANCHE, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the Family Court sustaining William Bailey Smith’s, appellee, declinatory exception to the service of process and recalling Grace Ingersoll Smith’s, appellant, rule to accrue alimony. On October 17, 1958, the Family Court of the Parish of East Baton Rouge ordered the appellee to pay the appellant $500.00 per month alimony. Following this judgment the appellee removed himself from Louisiana. In 1970 the appellant brought an action to accrue past alimony. The Family Court sustained a declinatory exception to jurisdiction over the person of the appellee and service of process without prejudice to the appellant’s claim. The appellant appealed this decision and in Smith v. Smith, La.App., 257 So.2d 446, this Court affirmed the Trial Court’s decision.

In 1972 the appellant again attempted to accrue past alimony. The appellee filed an exception to citation and jurisdiction which the Family Court sustained. This Court in Smith v. Smith, La.App., 289 So.2d 271 (1973), affirmed the ruling of the Family Court.

On December 23, 1975, the plaintiff brought this action to accrue alimony and to have an attorney at law appointed to represent the absent defendant. An exception to service of process and jurisdiction was filed by the appellee. The Family Court sustained the declinatory exception and recalled the appellant’s rule to accrue alimony.

The pertinent provisions of the pleading filed herein by appellee entitled “Exception to Service of Process and Jurisdiction” reads as follows:

“That an appeal was perfected from the judgment sustaining the exception and was lodged with the Court of Appeal, First Circuit, bearing docket No. 9,663 and the judgment of the lower Court was eventually sustained by judgment rendered by the Court of Appeal, First Circuit on December 17, 1973 with a rehearing being refused on February 11, 1974. See: Smith v. Smith, (La.App. 1 Cir. 1972), 257 So.2d 446. That applications for writs to the Louisiana Supreme Court were not made and consequently the decision referred to is final and became the law of the case as between these parties.
“Your exceptor now shows that the present proceedings are for the same purpose, that is, seeking to accumulate certain alleged arrearages in alimony payments, and as will appear from the petition filed herein, plaintiff alleges that the defendant is an absentee and that service should be made upon an attorney at law. “Your exceptor attaches hereto and makes a part hereof the entire record of all the previous proceedings in the above entitled and numbered cause and further shows that this Honorable Court is without personal jurisdiction over the defendant and this matter has been previously decided as hereinabove set forth and is now res judicata as between these parties. See: Rivette v. Moreau, (La.App. 3 Cir. 1975), 322 So.2d 790.
“WHEREFORE, your exceptor prays that this exception be maintained and that the petition of the plaintiff be dismissed with prejudice and at plaintiff’s cost, together with such additional relief as the law, equity and nature of the case may permit.”

An examination of the exception filed by the appellee establishes that it is not, as it is titled, an Exception to Service of Process and Jurisdiction, a declinatory exception under C.C.P. Art. 925, but rather it is an exception of res judicata, a peremptory exception under C.C.P. Art. 927. An exception is treated as what it actually is, not as what it is entitled. Jackson v. Dickens, La.App., 236 So.2d 81 (1st Cir., 1970).

Article 7 of the Code of Civil Procedure provides:

“Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
(1) Entry or removal of the name of an attorney as counsel of record;
(2) Extension of time within which to plead;
(3) Security for costs;
(4) Dissolution of an attachment issued on the ground of the nonresidence of the defendant; or
(5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant.
“This article does not apply to an incompetent defendant who attempts to appear personally, or to an absent or incompetent defendant who appears through the attorney at law appointed by the court to represent him.
“When a defendant files a declinatory exception which includes a prayer for the dismissal of the action on the ground that the court has no jurisdiction over him, the pleading of other objections therein, the filing of the dilatory exception therewith, or the filing of the peremptory exception or an answer therewith when required by law, does not constitute a general appearance.”

Code of Civil Procedure Article 928 provides in part that:

“The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision.”

There is no requirement that this exception be filed at the same time as the declinatory exception of lack of jurisdiction over the person. Therefore, the appellee has made a general appearance under the provisions of Article 7 of the Code of Civil Procedure because he has appeared through counsel seeking relief other than that designated in said article. The appellee has impliedly waived all objections to the jurisdiction of the Court.

For the above reasons, we reverse the ruling of the Family Court sustaining the appellee’s declinatory exception and remand the case to the Family Court of East Baton Rouge Parish for further proceedings. Cost of this appeal to be paid by the appellee.

REVERSED AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    A. J. PRINE, Plaintiff-Appellant, v. Leonard KINCHEN, Defendant-Appellee.
    No. 10943.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writs Refused March 25, 1977.
    J. Peyton Parker, Jr., Baton Rouge, for A. J. Prine, plaintiff-appellant.
    Joseph H. Simpson, Amite, for Estate of Leonard Hinchen, defendant-appellee.
    Timothy R. Higgins, Hammond, for James H. Morrison, third party defendant-appellee.
    James E. Kuhn, Calvin C. Fayard, Jr., Denham Springs, for First Nat. Bank of Denham Springs, intervenor-appellee.
    Karl W. Cavanaugh, Denham Springs, for Willie E. Wild, Jr., W. J. Whitehead and Willie Blystad, third party defendants-ap-pellees.

      Jesse P. LaGarde, Amite, for Boyce Machinery, intervenor-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This appeal has been brought by A. J. Prine from two judgments of the District Court. On January 16, 1976, judgment was rendered sustaining a peremptory exception of no cause of action filed by Mrs. Willie Blystad and dismissing Prine’s action against her, granting a summary judgment in favor of W. E. Wild, Jr. and dismissing Prine’s action against him and granting a summary judgment in favor of Wilfred James Whitehead and dismissing Prine’s action against him. On March 12, 1976 a summary judgment was rendered dismissing Prine’s action against the First National Bank of Denham Springs and granting judgment in favor of First National and against Prine, the Estate of Leonard Kin-chen and/or his heirs and James H. Morrison.

The events which led to the rendition of these judgments appear to have begun when Leonard Kinchen approached Prine with an offer to negotiate the purchase of a bulldozer by Prine and to sign as guarantor on a note enabling Prine to obtain a loan with which to buy the bulldozer. In return, Prine agreed to perform certain work for Kinchen with the bulldozer at a preferential rate.

As a result of this agreement, a bulldozer was obtained from Crown Zellerbach and Prine executed a promissory note and chattel mortgage in favor of the First National Bank of Denham Springs. The note was endorsed by Kinchen and James H. Morrison, a business associate of Kinchen.

A dispute later arose between Prine and Kinchen over the ownership of the bulldozer, the purchase price of the bulldozer and compensation alleged due Prine for work done for or on behalf of Kinchen. Prine filed suit against Kinchen. Kinchen died shortly thereafter and his heirs were substituted as party defendants. The heirs of Kinchen filed an answer to Prine’s petition and reconvened for damages. A third party action was filed by said heirs against Morrison alleging that Morrison, as Kin-chen’s partner, was liable for one-half of any judgment obtained by Prine.

The First National Bank of Denham Springs intervened alleging that Prine, Kin-chen and Morrison were indebted to the bank on the note and obtained an ex parte order requiring Prine to surrender the bulldozer to the Sheriff. Prine answered the intervention denying First National’s allegations and reconvened against First National, W. E. Wild, Jr. and Wilfred James Whitehead, officers of the bank, claiming a conspiracy to defraud him.

Willie Blystad and the insurer on her Notary Public’s bond were also named as defendants in Prine’s reconventional demand for an alleged fraudulent notarization of the note in question.

Peremptory exceptions of no cause of action, motions for summary judgment and motions to strike were filed by Wild and Whitehead. A peremptory exception of no cause of action was filed by Blystad. A motion for summary judgment on its petition was filed by First National. However, First National did not file any exceptions or motion for summary judgment to Prine’s reconventional demand.

The judgment of the District Court sustaining Blystad’s peremptory exception of no cause of action is affirmed. However, when the grounds of the objection pleaded may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within a delay allowed by the Court. CCP Art. 934.

Prine’s petition alleges that Blystad, a notary fraudulently notarized a document by swearing to a false statement. The petition does not contain however an allegation of specific damage suffered by him as a result of this act. Because the objection pleaded may be removed by amendment, the District Court erred in dismissing Prine’s action without setting a delay in which he could amend his petition.

The summary judgments granted by the District Court in favor of Wild, Whitehead and First National are reversed.

Article 966 of the Code of Civil Procedure provides in part:

“, . , The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

There are genuine issues as to material facts present in this case. There exists a substantial question as to whether Prine received any consideration for the note he signed. All that has been established is that Prine had temporary possession of the bulldozer he believed he was purchasing. The validity of the chattel mortgage on the bulldozer is also at issue. Prine admits signing the mortgage. However, there has been no determination of whether Prine had the authority to mortgage the bulldozer. The ownership of the dozer is at issue. Another issue which has been raised is whether there was fraudulent conduct on the part of First National and its employees. Prine has a right to a trial on the merits to determine if there was fraud. There has been no determination as to who filled in the blanks in the promissory note; a fact which must be determined in order to establish the legal rights of the parties to the instrument and the holder thereof. Summary judgment procedures are not a substitute for a trial on the merits or an exception of no cause of action.

In addition, it is noted that the District Court granted summary judgment dismissing Prine’s reconventional demand against First National without First National ever requesting this relief.

For the above and foregoing reasons, the judgment appealed from is affirmed insofar as it sustains the peremptory exception of no cause of action filed by Mrs. Willie Bly-stad. However, the case is remanded to allow the District Court to fix a delay in which A. J. Prine may amend his petition so as to state a cause of action, if any he can, against Mrs. Blystad. The judgment of the District Court granting summary judgment in favor of W. E, Wild, Jr., James Wilfred Whitehead and the First National Bank of Denham Springs and against A. J. Prine is reversed and the case is remanded for a trial on the merits. Costs of this appeal to be paid by appellees. Other cost to await final disposition of this case.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: ELLIS, Judge:

text:
    Jack J. LOWE v. St. TAMMANY PARISH SCHOOL BOARD et al.
    No. 11051.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.

      James R. Strain, Jr., Slidell, for plaintiff-appellant.
    James L. Donovan, New Orleans, for defendants-appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit for workman’s compensation benefits by Jack J. Lowe against the St. Tammany Parish School Board and Fireman’s Fund Insurance Company, its insurer. From a judgment dismissing the suit, plaintiff has appealed.

Plaintiff is employed as a biology teacher at Pearl River High School in St. Tammany Parish. On November 16, 1972, he injured his back while attempting to break up a fight among some of the students.

After his injury, plaintiff was treated by Dr. William Crooks, a general practitioner. Dr. Crooks treated him conservatively and in addition had orthopedic consultations with Dr. Luis F. Matta, and Dr. Edward A. Attix. After March 28,1973, Dr. Attix was plaintiff’s principal treating physician. Plaintiff was also seen by Dr. John D. Jackson, a neurologist, and Dr. Ronald W. Rac-ca, an orthopedic surgeon.

Plaintiff apparently suffered a low back sprain or strain, with possible disc involvement. He has been treated conservatively since the accident with medication for pain, muscle relaxants, and traction, and has been wearing a back brace. There is no doubt that plaintiff was injured and that he continues to suffer pain as a result thereof. It is plaintiff’s contention herein that he is working in pain of such a nature as to render him totally and permanently disabled.

Disabling pain, as defined in Glidden v. Alexandria Concrete Company, 242 La. 625, 137 So.2d 894 (1962), is:

“The pain must be substantial enough to be disabling in that it either prevents the worker from carrying out some of the functions of his job or, where the pain is not so intense as to hinder the worker’s fulfillment of his duties, it must be shown that performance of the work would be deleterious to his health.”

It is not disputed that plaintiff is carrying out all of the functions required of him as a biology teacher, and has been doing so for several years. In addition he receives compensation for acting as trainer of some of the athletic teams at Pearl River High School.

Dr. Attix has permitted plaintiff to work, and recommended that he continue to work at his employment. Dr. Attix did not think that plaintiff’s condition had deteriorated during the course of his treatment.

The trial judge, who heard plaintiff and the other lay witnesses testify relative to the manner in which he carried out his duties, and to his degree of pain, did not find plaintiff’s pain to be of such a nature as to render him totally and permanently disabled under the law. Our examination of the record, in the light of the law cited above, leads us to the same conclusion.

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

AFFIRMED


text:
    Aubrey DEVILLIER v. CITY OF PLAQUEMINE.
    No. 11055.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    F. Barry Marionneaux, Marionneaux & Marionneaux, Plaquemine, for plaintiff-ap-pellee.
    Joseph B. Dupont, Sr., of Dupont, Dupont & Dupont, Plaquemine, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Aubrey Devillier was fired from his position as patrolman in the City of Plaquemine by Emile J. LeBlanc, the Chief of Police, on September 16, 1974. He appealed his dismissal to the Fire and Police Civil Service Board of the City of Plaquemine, which reinstated him in his position as of October 17, 1974. The City then appealed that ruling to the 18th Judicial District Court for the Parish of Iberville. In that court, the matter was tried on the record made before the Civil Service Board, and judgment was rendered finding that the decision of the Board was made in good faith and for legal cause, and affirming the decision. From that judgment, the City of Plaquemine has appealed to this Court. Mr. Devillier has neither appealed nor answered the appeal, and the rulings of the Board and the trial court are final as to him.

Aubrey Devillier was first employed as a patrolman in Plaquemine on May 15, 1970. The testimony of a representative of the State Civil Service Commission is to the effect that he was first appointed as a provisional patrolman on May 15, 1970, and passed his Civil Service Examination for that position on September 16, 1970. On November 14, 1970, the Plaquemine Civil Service Board was advised of that fact, and told that Mr. Devillier was eligible for a probational appointment.

On July 6, 1972, the Commission received a personnel action form from Plaquemine, dated July 1, 1972, making Mr. Devillier a provisional patrolman as of September 22, 1970. It was assumed that this was an error, and that he had actually been made a probationary patrolman. There were no further entries in Mr. Devillier’s file until this matter arose. Although the file was offered in evidence, it does not appear in the record before this Court.

Mr. Devillier continued in his employment as a patrolman until March 28, 1974, when he resigned. Subsequently, in May, 1974, Mr. Devillier asked the Chief of Police for a job as patrolman. The Chief asked the Mayor of the City of Plaquemine if it was all right to hire him back, and the Mayor said yes. Mr. Devillier went back to work on May 20, 1974. No notice of his resignation on March 28, 1974, or of his re-employment on May 20, 1974, was furnished to the Plaquemine Civil Service Board.

Kathy Lynn Bezet, the Secretary of the Civil Service Board, testified that the records of the Board showed that, as of September 16, 1974, Mr. Devillier was a provisional employee. These records were not offered in evidence, and form no part of the record before us. The testimony in the case is that neither the Mayor and Board of Aldermen nor the Civil Service Board took any action whatsoever relative to Mr. Devil-lier’s resignation, re-employment, or dismissal. Apparently, Mr. Devillier did, at the point, appear before the Mayor and Board of Aldermen in an attempt to have his prior four years of service recognized in fixing his rate of pay, but was unsuccessful in doing so. The only other testimony bearing on Mr. Devillier’s status after May 20, 1974, is that of the Chief of Police who stated that he had no temporary employees.

Both before March 28, 1974, and after May 20, 1974, Mr. Devillier had, on various occasions, been ordered to serve as shift supervisor, and had done so. He testified that he had complained about doing this because his job description did not include supervisory duties. Because of a shortage of supervisory personnel, the duty of shift supervisor was given to the patrolmen when necessary.

On September 16, 1974, when ordered by the Chief of Police to act as shift supervisor, Mr. Devillier refused, for the reason that it was not part of his job as patrolman. The Chief fired him on the spot.

On September 19, 1974, the Chief advised the Civil Service Board by letter of his action and the reason for it. The record is devoid of any evidence that Mr. Devillier was furnished with a copy of the letter, or that he received any written notice of his discharge and the reason for it.

The major contention of the City of Plaquemine is that, at the time of his discharge, Mr. Devillier was a temporary or provisional employee, and therefore not entitled to an appeal to the Board of his dismissal.

Under the scheme set forth in R.S. 33:2531 et seq., the applicable Civil Service Law, an employee can fall into three different classifications: temporary or provisional; probational; and regular or permanent.

A temporary appointment may be made by an appointing authority when the Board is unable to certify anyone as eligible for appointment. Any person deemed qualified by the appointing authority may be appointed, for a period not to exceed three months. Such an appointment may be reviewed with the authorization of the Board for additional periods not to exceed a total of three additional months. R.S. 33:2556. These employees have no right of appeal to the Board if dismissed, and may be dismissed without cause. R.S. 33:2561.

Those who had been appointed to a position, after passing the requisite test, are required to complete a working test period of not less than six months or more than a one year. During the period of the working test, an employee is considered to be a probational employee. After serving three months, but less than six months of the working test period, an employee can be removed only with the prior approval of the Board, and may appear before the Board and present his case before he is removed. R.S. 33:2555.

Regular or permanent employees are those who have been appointed to a position and who have successfully completed the working test period. R.S. 33:2533(18). These employees have a right to appeal to the Board from any disciplinary action by the appointing authority. R.S. 33:2561.

R.S. 33:2550(D) provides, in part:

“Any regular employee who resigns from a position in the classified service may, with the prior approval of the board, be re-employed in a position of the class or in a position of any lower class for which he is qualified, provided the re-employment is made within four years of the date of his resignation, and provided no person whose name appears upon either the reinstatement, employment or re-employment list for a class to which any such person is re-employed is willing to accept an appointment therein.”

It is apparent that neither the appointing authority nor the Board have been adhering to the provisions of the law relative to employment of those in the classified service. The Chief of Police testified to the manner in which Mr. Devillier was hired, and this was confirmed by the Mayor. We think it clear that no temporary or provisional appointment was envisioned by them. In any event, the appointing authority did not follow the law relative to temporary appointments any more than it did for a probational or regular appointment. We think that the City can not take advantage^ of its own administrative shortcomings to deny to the employee the rights given him by the law. The Board itself found Mr. Devillier to have been a probational patrolman as of the date of his discharge, and we think, under the above circumstances, there is no error in their conclusion.

As a probational patrolman, with between three and six months service, Mr. Devillier could only be removed under the provisions of R.S. 33:2555, which provides, in part:

“The period of the working test shall commence immediately upon appointment and shall continue for a period of not less than six months nor more than one year. Any employee who has served at least three but less than six months of his working test for any given position may be removed therefrom only with the prior approval of the board, and only upon the grounds that (1) he is unable or unwilling to perform satisfactorily the duties of the position to which he has been appointed or (2) his habits and dependability do not merit his continuance therein. Any such employee may appear before the board and present his case before he is removed.”

It is clear from the above that Mr. Devil-lier could be dismissed only with the prior approval of the Board, and after a hearing if the employee desires one. The Board could have and should have refused to approve the dismissal on that ground alone. However, they considered the case on its merits and concluded that, although Mr. Devillier should have obeyed the order of his superior officer, the punishment of dismissal was too severe. They reasoned that a man should not be ordered to do a sergeant’s job without receiving a sergeant’s pay, and that, otherwise, he should not be ordered to perform duties not prescribed by his job description. They stated that Mr. Devillier should have obeyed the order and then lodged a formal complaint with the Board. Under R.S. 33:2561, the Board has the authority to modify the order of removal “by directing a suspension without pay for a given period.” It chose to exercise this authority by directing the reinstatement of Mr. Devillier as of a date one month after his discharge.

The City of Plaquemine asks that we reinstate the dismissal of Mr. Devillier. We cannot do so since, as noted above, the entire procedure of his removal was not in accordance with law. In any event, the scope of our review, as well as that of the district court, is to determine if the Board’s decision was made “in good faith and for cause.” R.S. 33:2561. The district judge held that it was, and, in the context of this appeal, we agree.

The final point urged is that the district court did not have jurisdiction of the appeal. Without going into a detailed discussion of the question, we will say that we think the point to have been settled adversely to the City’s contention in the case of Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971).

The judgment appealed from is therefore affirmed, with the City of Plaquemine to pay such costs as it may be liable for under the law.

AFFIRMED.


author: PONDER, Judge.

text:
    ALLSTATE INSURANCE COMPANY v. Anderson TOLIVER.
    No. 11058.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.
    ^0*111 Wilson, Baton Rouge, for plaintiffs-appellees.
    Walter C. Dumas, Baton Rouge, for defendant-appellant.

      Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a subrogation claim by plaintiff against defendant for $3,500.00 paid under the uninsured motorist provisions of its policy. The trial court granted the relief prayed for and defendant appealed.

The issues before this court are: whether the trial judge committed manifest error in finding appellant liable for the accident, and in awarding the amount it did. We affirm.

Prior to the accident, defendant was travelling south on Highland Road in Baton Rouge; Collie J. Mangano, plaintiff’s insured, was riding his motorcycle going north on Highland. Toliver made a left turn onto East Grant, crossing the northbound lane of Highland Road. In avoiding a collision, Mangano skidded, lost control of his motorcycle, and fell to the pavement. He suffered a fracture of the left clavicle and contusions about the head and neck.

LIABILITY

The disposition of this case depends primarily on factual determinations. It is well settled in our jurisprudence that the factual finding of the trial court should not be disturbed on appeal in the absence of manifest error.

Mr. Toliver was attempting a dangerous maneuver by turning left across a busy street. A left turning motorist has a strong duty to make sure that this maneuver can be made with safety. Bankston v. Bueche, 206 So.2d 532 (1st Cir. 1968).

The versions of Mangano and Toli-ver were hopelessly in conflict. Mangano said he was 20 to 40 feet from the Toliver vehicle when it turned left onto East Grant. Toliver testified, however, that Mangano was a full 80 yards down Highland Road when he began his turn. The trial court evidently believed Mangano. We cannot say he erred.

QUANTUM

Appellant argues that the award of $3,500.00 was excessive, considering the injuries suffered by Mangano. We believe the award was well within the discretion given to the trial judge under C.C. Article 1934(3).

The special damages were in excess of $500.00. This allows less than $3,000.00 in general damages for Mr. Mangano’s injuries. Considering the report of the doctor, which characterized his recovery as slow, and the fact that he had to wear a shoulder brace for several weeks and experienced severe pain, we feel the award is warranted. See Nain v. State Farm Mutual Automobile Insurance Co., 241 So.2d 792 (3rd Cir. 1970) in which an award of $4,500.00 for more severe injuries was upheld.

The judgment of the lower court is affirmed; appellant is cast with all costs.

AFFIRMED.


text:
    Felix CERNA, Jr. v. Norval J. RHODES et al.
    No. 11064.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.

      Thomas Guzzetta, Thibodaux, for plaintiff and appellant.
    Waitz, Weigand & Downer by Huntington B. Downer, Jr., Houma, for Norval J. Rhodes.
    Richard L. Bodet, New Orleans, for Ray Mangrum.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit for damages for wrongful arrest and malicious prosecution filed by Felix Cerna, Jr. against Norval J. Rhodes, District Attorney of the 32nd Judicial District, and State Trooper Ray Mangrum. After trial on the merits, judgment was rendered dismissing plaintiff’s suit as to both defendants, and he has appealed.

Mr. Cerna was arrested on the night of April 1, 1974, for driving while intoxicated. When he was being booked, a small pill box containing two capsules and one tablet was found among his possessions. The arresting officer, Detective Johnny Mann, testified that he asked plaintiff if he had a prescription for them, and that plaintiff responded by saying that he wanted to call his lawyer. Plaintiff, on the contrary, testified that he told Detective Mann that the medication had been prescribed by Dr. Robert R. Pierce of Houston, Texas, for an epileptic condition and that the prescription had been filled at the Quality Pharmacy in Thibo-daux, Louisiana.

Detective Mann then showed the contents of the pill box to State Trooper Ray Mang-rum, a narcotics officer, and advised Trooper Mangrum that plaintiff did not have a prescription. Trooper Mangrum identified the tablet to be “Mebaral”, a controlled dangerous substance, using the Physicians Desk Reference as his source of information. Based on that identification and the information given him by Detective Mann, Trooper Mangrum executed the affidavit charging plaintiff with illegal possession of Mebaral.

On April 2, 1974, plaintiff contacted Ronald L. Myers, an attorney at law, who obtained his release on bond. Mr. Myers subsequently wrote to Dr. Pierce relative to securing copies of the prescriptions he gave plaintiff. He also talked to District Attorney Rhodes, and told him that plaintiff had a valid prescription for the drug found in his possession. Mr. Myers recalled that Mr. Rhodes suggested he come back to discuss the matter after he had obtained a copy of the prescription. Before this happened, plaintiff had obtained another attorney, and Mr. Myers was out of the case.

Plaintiff’s second lawyer, Ralph D. Hill-man, testified that he was first consulted by plaintiff on April 9th or 10th, 1974. He stated that he wrote to the Houston doctor to confirm that he had issued the prescription, and received a letter from him. He also got a copy of the prescription from plaintiff, which he forwarded to Mr. Rhodes. He testified that he talked to Mr. Rhodes who pointed out that the Mebaral prescription which he had sent was dated April 4, 1974, three days after the arrest. Mr. Hillman then returned to the pharmacy and got a copy of the original prescription, dated November 12, 1973, which he showed to Mr. Rhodes, requesting that he dismiss the charges. He stated that Mr. Rhodes told him to bring the doctor to court and that he was not going to dismiss the charges. Mr. Hillman did not show Mr. Rhodes a medical report from Dr. Pierce, nor any evidence other than the prescription.

Mr. Rhodes had no recollection of the substance of his conversations with Mr. Myers and Mr. Hillman, although he could recall having spoken to both of them relative to Mr. Cerna.

Later, Mr. Cerna retained a third attorney, Thomas Guzzetta. On October 3, 1974, Mr. Guzzetta wrote the following letter to Mr. Rhodes:

“This letter is to confirm our telephone conversation of September 17, 1974, in which I advised you that I will represent the defendant in the above captioned proceeding. This letter is to further confirm to you my statement made to you in this conversation that Mr. Cerna holds a prescription for the mebaral found on his person on the day of his arrest, which prescription was issued on December 12, 1973. Although I offered in our telephone conversation to present you with a copy of this prescription, you stated that you would nevertheless continue with the prosecution of this matter.
“This letter is to advise you that unless this prosecution is dismissed within 10 days, Mr. Cerna has requested that suit be filed against you under federal legislation in the U. S. District Court seeking damages for wrongful and malicious prosecution.”
Mr. Rhodes replied as follows:
“The fact that Mr. Cerna had a prescription for mebaral issued December 12, 1973 is not indicative of anything to me, especially since he was arrested in April of 1974, some four months later. Further, the medication, if you assume it was legally dispensed, was not in the required container, that is, the container given to Mr. Cerna by the alleged physician on the alleged date.
“I suggest you seek redress in Federal Court because this charge will not be dismissed.”

Prior to trial, a motion to quash, based on the alleged unconstitutionality of R.S. 40:969(C) was filed on behalf of plaintiff. At the hearing held thereon, plaintiff’s attorney also attempted to argue that plaintiff had a prescription, but was precluded from doing so. Shortly after the argument, he filed a supplemental motion to quash, alleging the existence of the prescription, but did not attach a copy of it thereto. Apparently no hearing was ever held on the supplemental motion.

Eventually, the case was tried before a jury. According to the testimony in this case, the State proved a prima facie case against plaintiff. After introduction of the testimony of Dr. Pierce and introduction of the November 12, 1973, prescription, a motion for a directed verdict was granted, since plaintiff had proved to the satisfaction of the trial judge that he was legally in possession of the Mebaral. Thereafter, this suit was filed.

We are presented with two different causes of action. That against Trooper Mangrum is for false arrest, and that against Mr. Rhodes is for malicious prosecution.

In a suit for damages for false arrest, a plaintiff must prove that the arrest was made without color of legal authority. DeBouchel v. Koss Const. Co., 177 La. 841, 149 So. 496 (1933). An arrest for a felony committed out of the presence of the officer may be legally made if the officer has “reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer.” Article 213, Code of Criminal Procedure. In this case, there is evidence to the effect that Trooper Mangrum was given the Mebaral tablet by a fellow officer and told that it was in the possession of plaintiff without a prescription. We think this constitutes “reasonable cause” for him to believe that plaintiff had violated R.S. 40:969(C). The trial judge must have believed Detective Mann’s testimony that plaintiff would not say if he had a prescription, rather than plaintiff’s testimony to the contrary. We therefore find no manifest error in the conclusion of the trial judge as to the liability of Trooper Mangrum.

In a malicious prosecution suit, the detention must be malicious, but under the due forms of law. DeBouchel v. Koss Const. Co., supra. To maintain his suit, plaintiff must prove: (1) commencement or continuation of a proceeding against him; (2) its termination in his favor; (3) lack of probable cause for the proceeding; (4) malice on the part of the defendant; and (5) damage resulting therefrom. Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Meyers v. Edwards, 256 So.2d 337 (La.App. 1st Cir. 1971).

The issue presented by this appeal is, in plaintiff’s words, “the question of whether or not a prosecuting attorney is liable in damages for malicious prosecution, where he continues a criminal prosecution arbitrarily and capriciously, after being apprised of the existence of exculpatory evidence, which one could reasonably expect to result in an acquittal of the accused.”

We note that the only hard evidence ever presented to the District Attorney prior to the trial was a copy of the November 12, 1973, prescription, which was shown to him by Mr. Hillman.

Mr. Rhodes testified at the trial as follows:

“Mr. Guzzetta, I simply take the general position that anyone may legitimately, number one, anyone may legitimately secure a prescription for any type of drug. I can also assume arguendo that any person could have illegally obtained the same type of drug from other than a pharmacist. I know not as the District Attorney whether the pills that a possible defendant is found with are in fact those that are dispensed by a druggist at the request of a physician or are they illicitly attained, and my (sic), as I remember writing the letter to you, that was my reason for stating further because there was no proof to me at the time that it was in fact prescribed because it was not in the container, it did not have a date, I have no way, nor did the agent who made the case have no way, of knowing from where the drugs came.”

Plaintiff takes the position that it was the duty of the District Attorney, after learning of the prescription, to make an investigation of the legitimacy thereof, and to dismiss the prosecution if he finds that the accused possessed the drug under a valid prescription.

Article 61 of the Code of Criminal Procedure provides:

“Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.”

The District Attorney also has the authority to dismiss any criminal procedure pending before the court. Article 691, Code of Criminal Procedure.

Although the authority and discretion of the District Attorney is broad, we do not believe that he has the duty to investigate matters of defense which are brought to his attention. He certainly has the authority to do so, but to require it of him would be to place an intolerable burden on the office.

It is clear that there was probable cause for prosecution in this case. The testimony of the judge who tried the criminal case makes it clear that the State proved a pri-ma facie case against Mr. Cerna. Certainly, no malice has been shown.

We note also that other than verbal communication with the District Attorney, none of Mr. Cerna’s counsel ever furnished Mr. Rhodes with affidavits or depositions from the doctor and pharmacist involved, or made any attempt to confirm the validity of the prescription which Mr. Rhodes allegedly saw. We think the burden of doing this must rest with the defendant and not with the State.

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

AFFIRMED.


text:
    Ted V. MICHEL, Appellant, v. DEPARTMENT OF PUBLIC SAFETY, ALCOHOLIC BEVERAGE CONTROL BOARD, Appellee.
    No. 11065.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.

      Salvador Anzelmo, New Orleans, for appellant .Ted V. Michel.
    Foye L. Lowe, Jr., Baton Rouge, for ap-pellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a ruling of the Civil Service Commission upholding the action of the Alcoholic Beverage Control Commission in discharging Ted V. Michel, appellant, an ABC Officer II, with permanent status.

In a letter of removal, dated September 16, 1975, the reasons for termination of appellant’s services were stated to be that:

“1. You falsified your daily reports and attendance and payroll records for the days of June 25, June 27, July 8, July 9, July 10, and July 11, 1974, by claiming a total of eight (8) hours work for each of those days when in fact you did not perform a full eight hours of work on any of those days. Based on those falsified records, you were paid for hours of work which you did not perform.
“2. You falsified your expense accounts for the months of June and July, 1974, by making a claim for payment for miles allegedly traveled on June 25, June 27, July 8, July 9, July 10, and July 11, 1974, which in fact you did not travel. Further, in your expense account for June, 1974, you made claim for and received payment for the reimbursement of $3.75 allegedly used for the purchase of alcoholic beverages during investigations of the Town & Country Lounge, 2133 St. Charles Avenue and Play Girl Club, 1926 Magazine Street, New Orleans, Louisiana, on July 25, 1974, when in fact you did not visit those locations on that day.”

On October 13, 1975, the appellant filed a Petition of Appeal with the Civil Service Commission denying the allegations contained in the letter of termination and further stating that the reasons set forth in the letter were false, that his removal was without cause, that the reasons given were not the true reasons for his dismissal and that the written notice required by the constitution before removal action can be taken was insufficient to apprise the appellant of legal cause for his dismissal.

The Civil Service Commission after a hearing held on May 4, 1976, denied appellant’s appeal of his dismissal.

The appellant contends that in denying his appeal, the Civil Service Commission erred because:

1. The letter of dismissal was inherently defective as it did not provide the appellant with the specific detailed reasons for his termination as required by Rule 12(3);
2. The disciplinary action imposed on the appellant was improper because the appointing authority had previously acquiesced to the Court’s decision by reinstating the appellant and allowing him to perform the duties required of his office; and
3. The facts adduced at the Civil Service Hearing do not support the allegations contained in the September 16th, 1975 letter of dismissal.

Rule 12.3 of the Civil Service Commission provides:

“In every case of removal, demotion or reduction in pay for cause of a permanent employee the appointing authority or his authorized agent shall furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action. The appointing authority shall furnish the Director a copy of such statement within 15 calendar days of the date the employee is notified.”

The detailed reasons required by this rule plainly comprehend a fair and clear statement of the misconduct of the employee, including whenever pertinent, times, dates, places, amounts and names. Hays v. Louisiana Wild Life and Fisheries Commission, 243 La. 278, 143 So.2d 71 (1962); Parrino v. Louisiana State University Sch. of Med., 207 So.2d 800 (La.App., 1st Cir. 1968); Robbins v. New Orleans Public Library, 208 So.2d 25 (La.App., 4th Cir. 1968). The reason for this rule is that to prepare his defense, the charged employee must know with reasonable particularity the facts and circumstances he may be called upon to rebut in the event his employer makes out a prima facie case against him. Major v. Louisiana Department of Highways, La.App., 333 So.2d 316 (1st Cir. 1976).

The allegations contained in the letter of removal are sufficient to inform the appellant of the facts which give rise to the grounds for his dismissal. The testimony in the record and the exhibits offered into evidence indicate that the appellant had knowledge of the misconduct of which he was accused.

The appellant’s second specification of error apparently refers to an earlier attempt to dismiss the appellant for the same misconduct as that alleged in the September 16, 1975 letter of removal. Following the first attempt at dismissal the appellant was ordered reinstated because the ABC Commission failed to notify the appellant in writing of the reasons for his termination at the time of his termination, or prior thereto, as required by Rule 12.3.

The above issue was not raised before the Civil Service Commission and no evidence concerning this matter is contained in the record. Therefore, this question can not be considered by this Court.

Based on the testimony and exhibits introduced at the hearing, the Commission found that:

1. On June 25, 1974, appellant reported that he visited four different businesses in downtown New Orleans between 7:00 P.M. and 10:00 P.M. when in fact he never left his residence between 5:40 P.M. and 9:30 P.M.
2. On June 27, 1974, appellant reported working from 9:00 A.M. to 4:00 P.M., of which 2:45 hours was in his office, and the remainder was at various establishments in New Orleans vicinity; when in fact he spent only 1:06 hours in the office and was at home or on personal business from 10:36 A.M. to 7:00 P.M. except for 25 minutes that he was unaccounted for in his car.
3. On July 8, 1974, appellant reported working 8 hours of which 2:30 hours was in his office and 5:30 hours was checking various establishments in New Orleans. He, in fact, spent 1:03 hours in his office and 2:21 hours in his car for a maximum possible work schedule of 3:24 hours.
4. On July 9, 1974, there was insufficient information to prove any charges except that he was at home at 12:45 P.M. when he reported that he was at New Orleans Police Department checking on permits.
5. On July 10, 1974, appellant reported working 9:00 A.M. to 4:30 P.M. and driving 62 miles, of which 2:30 hours were in his office. He, in fact, spent 1:42 hours in the office and was unaccounted for in his car for 51 minutes between 8:45 A.M. and 8:00 P.M. for a maximum possible work time of 2:33 hours. The odometer registered an elapsed mileage of 23 miles rather than 62 miles. Completely disregarding the conflicting testimony about 9:00 to 10:00 P.M. on that date, this makes an erroneous report of 4:27 hours and 39 miles.
6. On July 11, 1974, appellant reported driving 57 miles when his odometer on his personal car only showed an elapsed mileage of 24 miles.
7. In no instance did the odometer readings reported coincide with the actual odometer readings on any car.
The appointing authority relied upon the reported hours of work and mileage reported for paying appellant. In at least the instances reported in the Commission’s findings of facts, the appellant falsified his reports and the letter of dismissal was substantiated.

The decisions of the Civil Service Commission are subject to review on appeal to this Court on any question of law or fact. Louisiana Constitution of 1974, Art. 10, § 12. This scope of review is essentially the same as that provided for appeals from the decisions of the District Courts. Louisiana Constitution of 1974, Art. 5, § 10(B). The principle of appellate review was set out by the Louisiana Supreme Court in Canter v. Koehring Company, La., 283 So.2d 716 (1973). In its opinion the Court stated:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

These same considerations are applicable in a review of a decision of the Civil Service Commission.

However, the usual rules of evidence need not apply in administrative hearings, R.S. 49:956, and thus hearsay may be admitted; nevertheless, the findings must be supported by competent evidence, and incompetent evidence admitted at the hearing will be disregarded by the Court in its judicial review. Hall v. Doyal, 191 So.2d 349 (La.App., 3rd Cir. 1966).

A review of the findings of the Civil Service Commission indicates that several of the findings are based on insufficient or incompetent evidence.

The Civil Service Commission’s finding that the appellant did not visit four different businesses in downtown New Orleans between 7:00 P.M. and 10:00 P.M. on June 25, 1974, is based on insufficient evidence. The evidence establishes that the appellant did not leave his apartment between 5:40 P.M. and 9:30 P.M. on that date and that his Monte Carlo was parked during this time near his apartment. There is no evidence however, that he was within his apartment at this time as the last contact of the surveillance team with the appellant was at 1:55 P.M., 15 minutes after the appellant left his office.

The finding that on July 8, 1974, the appellant worked only 2:21 hours in his car is also unproven. Contact with the appellant was lost at 1:54 P.M. It appears that the Commission concluded that the appellant returned home at 4:15 P.M. The only evidence supporting this conclusion is the testimony of Sam Anzalone, who headed the surveillance of the appellant, that he received a radio report from Anthony Russo, a member of the surveillance team, that the appellant had returned home. This is hearsay evidence and not competent. In-addition, Russo, who was watching the appellant’s apartment from 4:00 P.M. to 8:00 P.M., testified he did not see the appellant at all that day, in direct contradiction to Anzalone’s testimony.

There is no competent evidence establishing that the appellant was at his home at 12:45 P.M. on July 9, 1974. Agent Russo, who was watching the house, went off duty at noon. Agent Anzalone, the only other member of the surveillance team who testified, did not sight the appellant until 1:22 P.M. Therefore, there is only hearsay evidence as to the appellant’s whereabouts during this period.

There is conflict in the testimony as to the appellant’s whereabouts at other times mentioned in the findings. Because the Commission’s factual conclusions are based on a determination of the credibility of witnesses appearing before it, we can not say that these other findings by the Commission are manifestly erroneous.

These instances support the conclusions of the Civil Service Commission that the appellant falsified his reports and that the letter.of dismissal was substantiated.

For the above reasons, the decision of the Civil Service Commission is affirmed. Cost to be paid by appellant.

AFFIRMED.


text:
    Walter J. HARRISON et al. v. Augustine ALOMBRO et al.
    No. 11076.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 25, 1977.

      C. Ellis Henican, New Orleans, Donald L. Peltier, Thibodaux, for plaintiffs and appel-lees.
    James D. McGovern, Jr., Calvin H. McBride, New Orleans, and John D. Ponder, Metairie, John P. Dowling, George M. Ponder and William J. Lopez, New Orleans, for defendants and appellants.
    John P. Dowling, George M. Ponder, William J. Lopez, New Orleans.
    Before SARTAIN, ELLIS and PONDER, JJ.
   PONDER, Judge.

This is an action to remove clouds from title. Plaintiffs seek to have cancelled certain instruments recorded in the public records by defendants and to enjoin the defendants from asserting any interest that is based on these instruments in the property claimed by plaintiffs. The trial court recognized plaintiffs as owners of the land, declared that the recorded instruments did constitute clouds on the title, and decreed that these instruments were null and void. The court further enjoined the defendants from asserting any interest in the property based upon the above instruments and from filing any other instruments based upon or emanating from the offending instruments.

The issues are:

1. Propriety of action to remove cloud from title;
2. Prescription;
3. Sufficiency of proof;
4. Recognition of ownership;
5. Propriety of injunctive relief.

We amend and affirm.

ACTION TO REMOVE CLOUDS FROM TITLE

Defendants urge that Louisiana no longer recognizes an action to remove cloud from title. We believe Walmsley v. Pan American Petroleum Corporation, 244 La. 513, 153 So.2d 375 (1963), holding to the contrary, is still the law. The decision was criticized in Verrett v. Norwood, 311 So.2d 86 (La.App. 3rd Cir. 1975), writs denied 313 So.2d 842, but, in denying writs, the Supreme Court purposely avoided an opportunity to overrule Walmsley. We therefore believe that Louisiana continues to have an action to remove cloud from title.

Defendants next contend that, even if we hold that an action to remove cloud from title still exists, the plaintiffs have actually pleaded a possessory action. The nature of a suit is not determined by the caption placed upon it, but rather by the factual pleadings and the prayer. Northern Assurance Company v. Waguespack, 304 So.2d 865 (La.App. 4th Cir. 1975).

The requirements of an action to remove clouds from title are:

(1) Claim of ownership;
(2) Existence of clouds;
(3) Description of property;
(4) Prayer for cancellation of the clouds.

Plaintiffs allege that they are the owners of the property and defendants have recorded certain instruments that act as clouds on their title. The petition contains a description of the property. The prayer is that the instruments be declared null and void and be ordered erased. Plaintiffs evidently carefully brought themselves within the holding of the Walmsley case, supra. Appellants’ contention that the action is really a possessory one is without merit.

LIBERATIVE PRESCRIPTION

Defendants claim the trial court erred in overruling their exceptions of liberative prescription of one, three, five, ten and thirty years.

The exception of one year prescription is based upon the contention that the action filed was in reality a possessory action, and must therefore be filed within one year of the date of disturbance. Since we have determined that this is an action to remove clouds from title and not a possesso-ry action, this plea of prescription is without merit.

The exception of thirty years libera-tive prescription is based upon certain language in the act of sale by which Joseph Harrison, plaintiffs’ predecessor in title, obtained the property. Defendants claim that by this agreement Mr. Harrison assumed the obligation of dispossessing the defendants and their ancestors from the property; and that since he waited more than thirty years before filing suit, the action has prescribed.

It is obvious that the purpose of this paragraph was to relieve the seller of any obligation to remove trespassers or squatters from the property. This intention is made clear by the last clause of the paragraph which states that “this agreement shall in no way otherwise affect the warranty to said property.” At any rate, defendants do not show how they could avail themselves of this liberative prescription. Furthermore, as is shown elsewhere in this opinion, we affirm the trial court’s finding that the defendants did not maintain continuing possession. There is certainly evidence in the record supporting a conclusion that the Alombros left the property soon after the Harrisons acquired title. Thus eviction proceedings became unnecessary.

The plea of five year prescription is evidently based upon C.C. Art. 3542, but appellants do not show its applicability. Neither do they show how three and ten year prescription apply.

The lower court was correct in overruling defendants’ pleas of liberative prescription.

POSSESSION OF THE DEFENDANTS

The defendants attempted to prove that they had been in possession adverse to the world continuously for more than thirty years.

It is not seriously contested that members of the Alombro family had lived at “Pium-Pium,” their name for the location, and had fished and trapped the surrounding land until 1929. The extent of their possession is unclear, but it appears they trapped and fished a couple of miles in all directions.

Several defendants testified that members of the Alombro family continued to live and work on the land after the Harri-sons bought the property in 1929. Joseph Helmer, who was born at “Pium-Pium” but moved away sometime after marrying, testified that his uncle, Donato Alombro, and his brother, George Helmer, were still living there in 1945; but he said they had moved their families away because of a “mixup” in the land. Ernest Helmer testified that he lived at “Pium-Pium” until 1934, and left Donato and George Helmer living in the camp there.

Thomas Helmer testified that he was born at “Pium-Pium,” but left there in 1933. No one ever told him the land belonged to the Harrisons or ordered him off the land. Joseph Silver testified that his uncle Donato Alombro was living in one of the camps in 1939. William Pekinto testified that he trapped with his uncle, Donato Alombro, from 1928 to about 1940, around Bayou Snake, three to four miles from “Pium-Pium.”

Only two witnesses testified with some clarity as to the extent of the land trapped by the Alombros. As he testified, Peter Helmer marked the area on a map consisting of all of nine sections and parts of ten others in Ranges 23 and 24 East. Thomas Helmer testified that after 1933 he and his uncle Donato Alombro trapped a smaller area than had been trapped previously. Although the testimony is not entirely clear, the area he enumerated appears to be nine sections all in Range 23 East.

The evidence of the defendants in regard to possession on the date of filing of suit is somewhat vague, but, perhaps, can be summarized by saying that a number of the Alombro descendants cooperated in building a camp in 1962, which burned, however, in a few weeks; replacement was not made until 1964 and it lasted only until 1965, when it was destroyed by a hurricane. There is no evidence of any corporeal possession in 1963.

William and Walter Harrison both testified that their father bought the property in 1929. Both testified there were several people of Filipino origin on the property at that time. They told these people they could trap the lands for a rental of 35% of their take; but the furs they produced were scarce and of poor quality. The Harrisons asked them to leave and they did so. Walter Harrison said he returned to the land every trapping season thereafter until 1940 and never saw any Alombros or other Filipinos on the land. Shortly after the property was bought he supervised the erection of signs along the property lines as described in the deed, identifying the property as Harrison property; the signs were maintained continuously thereafter.

When William Harrison returned from the service in 1946, Polycarp and Albert Bychurch were occupying the two camps at “Ging-Ging,” or “Zing-Zing,” the same area the Alombros identified as “Pium-Pium.”

Bebe Guidry, who had been the manager of the Harrison lands since 1953, patrolled the land regularly and only once had seen people trapping who were not supposed to be on the land. He ordered them off the land and they did not return. Mrs. Albert Bychurch, whose husband trapped for the Harrisons for many years, beginning in either 1930 or 1931, said she, her husband and Polycarp Bychurch, her husband’s brother, lived in two camps on a small hill at a place she called “Ging-Ging.” She said they were the only ones who lived there, and she never saw any people who looked like Filipinos in the area.

Antoinette Bychurch Cheramie, daughter of Polycarp Bychurch, testified that her father and her uncle, Albert Bychurch, lived in two camps at “Ging-Ging” in the 1930’s. She stayed with her father until her marriage in 1934, and no one else lived in those two camps.

Jason LaFrance testified that he was in charge of running the lands after the Har-risons purchased them in 1929, and that he placed trappers on the lands and watched out for trespassers. He said there were two houses near a cemetery where he placed trappers for the Harrisons. These trappers were Albert and Polycarp Bychurch, a family called Martin and another man named LeBlanc, among others. He said he never saw any of the Alombro family during the time he ran the lands. Louis Acosta remembered meeting several people named Alombro shortly after he went to work for the Harrisons in 1929. He said the Alomb-ros left the houses they were living in before the end of the 1929-30 season because of the poor furs they were trapping. He also said Notilio Hebert moved into one of the houses thereafter, and the Alombros did not return.

The trial judge did not give us the benefit of reasons for judgment, but it is clear he believed the plaintiffs’ testimony. The reasonable inference to be drawn from the judgment is that the judge did not believe the defendants had shown continuous possession of the property. There is more than adequate evidence to support this finding and it should not be disturbed. See Billiot v. Bourg, La., 338 So.2d 1148 (1976).

BURDEN OF PROOF

The plaintiff’s burden of proof in a petitory action or an action to remove cloud from title depends upon whether the defendants are in possession of the property on the date of filing suit. See LSA-C.C.P. Article 3653, Pure Oil Company v. Skinner, La., 294 So.2d 797 (1974), and Verrett v. Norwood, supra. Since the defendants were not in possession when suit was filed, the Harrisons need prove only better title than the Alombros. We believe this was proved.

A certified copy of an act of sale from Leonard A. Andrus and Frank W. Grant to Joseph de Fuentes Harrison, plaintiffs’ father, purporting to convey the entire 22,437.92 acres in question to Mr. Harrison, was introduced. Certified copies of judgments of possession in the successions of Joseph de Fuentes Harrison and his wife, Marie Alma Levis Harrison, were also filed into evidence. This uncontroverted evidence is prima facie proof that plaintiffs are the owners of the property. Since defendants only proof of ownership was the rejected plea of thirty years adverse possession, we believe plaintiffs have proved sufficient title to meet the requirements for an action to remove cloud from title.

ADMISSION OF EVIDENCE OF TITLE

Defendants claim the trial judge erred in allowing evidence and exhibits, to show title and otherwise, to be introduced into the record when they had not been pled in the petition. It is defendants’ contention that once plaintiffs filed into the record their title as set forth in the petition, and introduced the instruments purporting to be the clouds, all other evidence as to title was beyond the scope of the pleadings.

Title is one of the requirements for this type of action even though it is not the central issue. Evidence of title is therefore relevant. Furthermore, defendants had pled adverse possession in excess of thirty years, and plaintiffs could not file replicato-ry pleadings. Verrett v. Norwood, supra. We believe therefore evidence as to title was relevant and properly admitted.

RECOGNITION OF OWNERSHIP

Appellants complain, too, that the lower court improperly recognized plaintiffs as record owners of all the property, inclusive of that claimed by the defendants. We have mentioned at other points in this opinion that ownership is one of the requirements in an action to remove cloud from title. While we believe this to be no more than a finding by the court that plaintiffs had sufficient title to grant this relief, we feel constrained to agree with appellants. Nowhere in the pleadings do plaintiffs pray to be recognized as record owners. We therefore amend the judgment to delete any reference to plaintiffs as record owners of the property.

INJUNCTIVE RELIEF

Finally, appellants assert that the trial court erred in granting injunctive relief in this action. To our knowledge, there is no jurisprudence as to whether injunctive relief is allowed in an action to remove cloud from title. However, we believe that injunction is an additional method of relief consistent with an order to remove a cloud.

Without a specific prohibition, we believe injunctive relief should be available in this type of case, assuming the applicant meets the standards set forth in Article 3601.

We are unable to say that the trial court was in error in enjoining the defendants from asserting any interest in the property based upon the recorded instruments.

The judgment of the trial court is therefore amended to delete all reference to plaintiffs as record owners; in all other respects it is affirmed. Defendants-appellants are cast with all costs.

AMENDED AND AFFIRMED.

      . C.C.P. Art. 3658. Same; requisites
      “To maintain the possessory action the possessor must allege and prove that:
      (1) He had possession of the immovable property or real right at the time the disturbance occurred;
      (2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
      (3) The disturbance was one in fact or in law, as defined in Article 3659, and
      (4) The possessory action was instituted within a year of the disturbance.”

      . The pertinent language in this act of sale stated:
      “It is further understood and agreed that the purchaser shall and does hereby assume the responsibility of obtaining possession of said property, and that said purchaser shall and hereby assumes the obligation of instituting and prosecuting to final conclusion at his own expense, all legal proceedings that may be necessary to dispossess any trappers, squatters or trespassers who may be presently on the property . this agreement shall in no way otherwise affect the warranty to said property.”

      . LSA-C.C. Article 3548:
      “All actions for immovable property, or for an entire estate, as a succession, are prescribed by thirty years.”

      . C.C. Art. 3542:
      “The following actions are prescribed by five years:
      That for the nullity or rescission of contracts, testaments or other acts.
      That for the reduction of excessive donations.
      That for the rescission of partitions and guarantee of the portions.
      This prescription only commences against minors after their majority.”

      .Defendants very carefully stated in their answers, that they had no intent to put the title at issue and so convert the action into a petitory one; but title is at issue in an action to remove cloud from title even though incidentally. See Walmsley, supra.

      . An injunction was prayed for in Daigle v. Pan American Production Company, 236 La. 578, 108 So.2d 516 (1958), but the issue had become moot by the time of hearing.

      . LSA-C.C.P. Article 3601 states in part:
      “An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in any other cases specifically provided by law.”


text:
    Leonard J. GREENE, Plaintiff-Appellant, v. CATALYTIC, INC., and Elbert Fletcher, Defendants-Appellees.
    No. 11078.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused April 6, 1977.
    James D. Thomas, II, Baton Rouge, for plaintiff-appellant.
    Edward W. Gray, Baton Rouge, for defendants-appellees.
    George F. Riess, New Orleans, for inter-venor-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of Catalytic, Inc. and Elbert Fletcher, defendants-appellees, and against Leonard J. Greene, plaintiff-appellant, dismissing appellant’s suit with prejudice.

On January 27, 1972, while walking through a maintenance shop operated by Catalytic, Inc., the appellant tripped over an airhose lying on the floor. The airhose, which was in intermittent use by Elbert Fletcher, ran from a wall of the maintenance shop along the floor and up to a vice on a work bench. The hose had been laid in the vice by Fletcher where it would be easy to reach when he needed it.

At the time of the accident, the appellant was taking an occasionally used short cut through the maintenance shop. The short cut was not a regular aisle or passageway, but merely a space between two pieces of equipment. The appellant testified that he knew that there were frequently airhoses and welding leads on the floor of the shop and that when he entered the shop he had seen the specific hose over which he tripped.

After a trial on the merits the District Court found that:

(1) The conduct of Fletcher was that an ordinarily prudent man under the circumstances; of

(2) The airhose on the floor was not a “trap”; and

(3) There was no independent negligence on the part of Catalytic, Inc.

The appellant contends that:

“1. The court erred when it failed to find defendants, Elbert Fletcher and Catalytic, Inc., guilty of negligence which was the sole and proximate cause of Leonard J. Greene’s injuries.
“2. The court erred when it failed to find defendants, Elbert Fletcher and Catalytic, Inc., guilty of fault which was the cause of Mr. Greene’s injuries.
“3. The court erred in failing to award Mr. Greene the sum of $600,000.00 for pain and suffering and loss of wages, past and future.”

This Court can not say that the conduct of Elbert Fletcher was not that of a reasonably prudent man or that there was any breach of duty on his part. The appellant’s contention that a “taut” airhose obstructed a “passageway” is without merit. The airhose merely lay in the vice and the space across which it ran was not a regular “passageway”.

The appellant also argues that Catalytic, Inc. was negligent because it failed to provide adequate safety supervision. There has been no showing by the appellant that the failure of Catalytic to employ a separate safety officer of its own [Ciba-Geigy who owns the shop employed a safety officer] was a cause in fact of the injury or that such failure constituted negligence.

The appellant’s argument that there is strict liability, liability without fault, on the part of the appellees is without merit.

“(6) When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.
“The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.” (Emphasis supplied). Loescher v. Parr, La., 324 So.2d 441 (1975).

The conduct of Fletcher can not be said to create an unreasonable risk of harm. While some risk may be created by an air-hose on a shop floor, it is not an unreasonable risk and so there is no strict liability in this instance.

For the above reasons, the judgment of the District Court is affirmed. Cost to be paid by the appellant.

AFFIRMED.


text:
    Ivory BOATNER v. McCRORY CORPORATION et al.
    No. 11080.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writs Refused March 31, 1977.

      J. Arthur Smith, III, Baton Rouge, of counsel for plaintiff Ivory Boatner, appellant.
    Wm. A. Norfolk, Baton Rouge, of counsel for defendants McCrory Corp., et al., appel-lees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a personal injury action filed by Ivory Boatner against McCrory Corporation, Rapid American Corporation, Shepard M. Latter, d/b/a Commerce Building and Aetna Life and Casualty Company for personal injuries sustained in a “slip and fall” accident. The trial court held the defendants liable and awarded the plaintiff $5,000.00 in general damages. Plaintiff has appealed on the issue of quantum, and defendants have answered the appeal, urging us to reverse on the issue of liability or alternatively to reduce the award.

The issues before this Court are:

1. Were the defendants guilty of negligence?

2. Was the plaintiff guilty of contributory negligence?

3. Were the damages awarded inadequate or excessive enough to constitute an abuse of discretion?

4. Was the lower court correct in assessing the cost of certain depositions as court costs?

We amend and affirm.

Mrs. Boatner was shopping at McCrory’s Department Store in Baton Rouge about 3:30 p. m. on Saturday, November 29, 1969. As she left the store she slipped and fell in some paint which had been spilled somewhere outside the entrance to the store. She testified that she felt little pain immediately after the accident, but began to have pains in her back that night.

Dr. Louis James diagnosed her condition as strains and contusions in the lumbo-sa-cral area, as well as strained muscles in the shoulder, neck and thorax area. After plaintiff was released by Dr. James in February, 1970, she returned to her employment as a domestic worker. She continued to work at her regular jobs until November, 1972, when she quit work altogether, citing increased back pain as the reason.

The trial court found that the paint was spilled on the terrazo apron of McCrory’s and that the paint had been there long enough for store employees to discover and clean it up. Plaintiff said she slipped in the paint after taking two steps from the door. A witness testified she saw the paint spilled on the terrazo of the vestibule about 1:15. She saw the spot inspected by two store employees who had done nothing about the spot when she left about 2:30 p. m. Two employees of the store asserted they knew nothing of the paint prior to being informed by Mrs. Boatner of her fall. They placed the spill on the sidewalk. Even though we might have decided otherwise, we find sufficient support for the court’s finding to constrain us to accept it. Canter v. Koehring, La., 283 So.2d 716 (1973).

The court also found that the plaintiff was not contributorily negligent. Her having a purse in one arm and a small package in the other and her failure to see and avoid the paint spill, especially as near to the door as the court found it, cannot be held to be negligence under the circumstances.

The question of damages is the major issue. Plaintiff claims that $5,000.00 in general damages is grossly inadequate for her injuries, and that she should be awarded compensation for loss of wages, both past and future.

Several doctors examined Mrs. Boatner, and the diagnosis of each as to the extent of her injuries was different. Dr. Louis James’ opinion has already been given. He found her totally disabled to January 81, and partially disabled to February 14, 1970.

Dr. Marshall K. Book, an orthopedic resident at Earl K. Long Charity Hospital, treated Mrs. Boatner during two six month intervals, the first around July, 1973, and the second about November, 1975. He testified that in his opinion the fall precipitated and aggravated a pre-existing arthritic condition. He believed that her condition has improved and would continue to improve so long as she limited her activities.

Dr. Jack P. Loupe, an orthopedic surgeon, testified that in his opinion Mrs. Boatner was exaggerating in her complaints about pain. He - examined her one month after the accident and found no orthopedic injury or abnormality. He did not feel any treatment was warranted.

Dr. Herbert K. Plauche, another orthopedist, examined plaintiff in January, 1973, and again in July, 1975. His examination in 1973 revealed a degenerative arthritic condition in the lower spine. He testified that she had improved greatly by July, 1975. Also of considerable importance is his testimony that Mrs. Boatner’s arthritic condition was commensurate with others in her age group.

The expert testimony supports the finding that plaintiff suffered a lumbo-sacral strain, which was aggravated by or which precipitated an arthritic condition. It was also reasonable to conclude that the arthritic condition was no worse than one would expect in a woman of her age. Dr. Loupe testified that he believed Mrs. Boatner was exaggerating in her complaints of pain. He supported this opinion by observing that she expressed inability to perform certain motion tests initially, but when told the tests were necessary to evaluate her condition, she did as she was asked.

The only evidence introduced to support plaintiff’s contention that she has continuously suffered extraordinary pain is the testimony of Mrs. Boatner herself and to a lesser degree, that of her daughter.

The testimony of Dr. Loupe, that of Dr. Plauche, her work record until November, 1972, the absence of testimony of treating physicians after discharge by Dr. James up to complaint of back pain at the Earl K. Long Charity Hospital on November 28, 1972, despite being treated there for other complaints, are of the contrary persuasion.

When as here the evidence is conflicting, an appellate court should not disturb reasonable evaluation by the trier of fact of one set of witnesses as credible, and its rejection of the testimony of the opposing set of witnesses; nor should the reviewing court disturb reasonable factual inferences drawn by the trier of fact from such testimony found by it to be credible. Billiot v. Bourg, La., 338 So.2d 1148 (1976).

We therefore affirm the award of $5,000.00 for general damages.

The parties have stipulated that Mrs. Boat-ner’s medical expenses were $391.96, and the propriety of that award is therefore not before us for consideration.

Plaintiff claims that the trial court erred in failing to award her damages for loss of wages, both past and future. The court evidently accepted the medical evidence indicating that Mrs. Boatner was not disabled at the time of trial, so therefore did not consider her claim for future loss of wages. We find no error.

The only independent witnesses who testified concerning loss of earnings were Mrs. B. E. Perkins, Jr., and the bookkeeper for Perkins Door Co. Mrs. Perkins said she was sure Ivory Boatner had missed some work because of the accident, but she could not recall how much. It seems clear, however, that she missed work until discharged by Dr. James on February 14, 1970. She worked at least four days a week for Mrs. Perkins at eight dollars per day. The bookkeeper for Perkins Door Co. testified her company paid Mrs. Boatner ten dollars a week for one-half day’s work. It was stipulated that Mrs. Dimaio would testify that she paid Mrs. Boatner eight dollars per week for one day’s work. We therefore find that the trial court erred in not awarding eleven weeks of lost wages at $50.00 per week and amend the judgment to that extent.

Following trial on the merits, plaintiff filed a rule to show cause why expenses of taking certain depositions should not be taxed as court costs. The court granted judgment in favor of the plaintiff and against the defendant for $315.15 additional court costs.

Defendants contend that they should not be taxed with the cost, because the depositions were taken by plaintiff for the purpose of discovery and only thereafter were offered into evidence by defendants.

La.R.S. 13:4533 provides as follows:

“The costs of the clerk, sheriff, witness’ fees, cost of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.”

In Succession of Franz, 242 La. 875, 139 So.2d 216 (1962) the Supreme Court stated:

“R.S. 13:4533 declares that the costs of taking depositions used on the trial shall be taxed as costs. This language is explicit and must be held to include all depositions, whether taken for proof of a claim or the defense of a claim, or for discovery purposes, provided the depositions are ‘used on the trial’.”

We therefore conclude that the cost of the depositions were properly taxed as court costs.

The judgment is amended so that there is judgment in favor of the plaintiff, Ivory Boatner, and against the defendants, McCrory Corporation, Rapid American Corporation, The Aetna Casualty and Surety Company and Shepard M. Latter, d/b/a Commerce Building, in solido in the sum of $5,941.96 with interest thereon at the rate of 7% per annum from October 29, 1970, until paid, and all costs. As amended the judgment is affirmed.

AMENDED AND AFFIRMED.


text:
    George STEWART and Geneva Stewart v. NATIONAL FOOD STORES OF LOUISIANA, INC., et al.
    No. 11075.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 25, 1977.

      St. Martin & Ellender by Timothy C. Ellender, Houma, for plaintiff and appellee.
    Guste, Barnett & Shushan by William M. Barnett, New Orleans, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Plaintiffs-appellees, George and Geneva Stewart, husband and wife, brought this suit against National Food Stores of Louisiana, Inc., National Super Markets, Inc. and National Tea Company, defendants-appellants, to recover damages for injuries, lost wages and medical expenses incurred by the appellees as the result of a slip and fall by Mrs. Stewart on April 9, 1975, while she was a customer in appellants’ store. After a trial on the merits, the District Court rendered judgment in favor of the appellees and against the appellants in the amounts of $330.00 for lost wages, $424.00 for medical expenses and $10,000.00 for injuries and disability.

The appellants in this appeal contend that:

“1. The Trial Court committed manifest error in holding that appellant did not exculpate itself from an assumption of negligence and that its alleged negligence was the sole and proximate cause of the accident sued on.
“2. The Trial Court committed manifest error in holding that warning signs had not been placed in the aisle in which the accident sued on occurred and in holding that appellant’s vigilence was not commensurate with any risk involved in the use of its premises by invitees on the day of the accident sued on.
“3. The Trial Court committed manifest error in rendering an award of $10,000.00 to Mrs. Stewart for injuries consisting of lumbo-sacral and cervical strains from which she recovered within ninety days without residual disability and was discharged by her treating orthopedist.
“4. The Trial Court committed manifest error in rendering an award to Mr. Stewart for alleged lost wages of his wife, the amount of which award was unsupported by any probative evidence adduced at the trial.”

The facts as found by the District Court are:

“Mrs. Stewart was a regular patron and customer of the store involved in this lawsuit. On the day of the accident, she was taken to said store by her employer, Mrs. Dorothy Smith, to pick up a few items which she needed for her personal use. They arrived at the store in Mrs. Smith’s automobile, and after parking said automobile on the customer parking lot at the store, Mrs. Stewart left the automobile and entered the store. She intended purchasing only one or two items and apparently intended only a short, quick visit to the store. After entering the store, she proceeded down the aisle to the meat counter where she selected a package and then returned to the aisle where the slip and fall occurred. (The court need not describe the store in any detail other than to say it is the usual common type of super market owned and operated by the defendants throughout this general area. It is a self-service store where the customer may circulate through rows of merchandise using aisles between the rows of merchandise about six to eight feet in width.) When Mrs. Stewart left the meat counter, she proceeded up Aisle 8 looking for bug killer displayed on the shelves of said aisle. Upon reaching a point about midway of the length of the aisle, her feet slipped out from under her and Mrs. Stewart fell to the floor. An attendant employee standing nearby came to Mrs. Stewart’s assistance, and was joined there by the manager who happened to be on the floor of the store in the vicinity. Mrs. Stewart was assisted to her feet and remained in the store long enough to give a report of the incident to the manager.
“It is clear and undisputed that just prior to Mrs. Stewart entering the store, an attendant employee on duty at the time, Herbert Castle, had mopped the floor area known as Aisle 8. He had been instructed to mop this area by the manager because the floor was marked and did not satisfy said manager because of its condition. The porter, Mr. Castle, testified that he first got signs and put them at each end of the aisle. These signs were used, when a dangerous and hazardous condition existed, to warn patrons to watch their step when walking through the aisles while shopping. Mr. Castle testified that after placing these caution signs, he then prepared a bucket of water and came back and began mopping the aisles. At the time of the accident, he was not on the aisle, but was very close by, and he further testified that he was not completely through mopping when the accident happened.
“The floor apparently was still damp, or wet, at the time Mrs. Stewart entered the store and used said aisle to look for bug killer on the shelf. The evidence is clear that Mrs. Stewart slipped on a floor which had just been wet mopped by an employee of the defendants, he having done so after being instructed and ordered by the manager of said store. “The court, after considering and reviewing the testimony and evidence in this case, is completely satisfied that the slip and fall by Mrs. Stewart was not due to her fault. The court is further satisfied and so finds that the floor was still wet and hazardous when walked upon by unwary and unsuspecting persons shopping in the store. Under those circumstances the defendants must assume the burden of exculpating themselves from negligence.
“It seems to the court that the most important defense made by defendants is the claim that the employees of the defendants posted caution signs to warn customers using the store of the potentially hazardous condition of the wet floor. The court is satisfied, and so finds, that the employees failed to post any caution signs or to take any other action to adequately warn customers of this hazardous condition.”

An examination of the errors specified by the appellants indicates that the only questions before this Court are whether the District Court’s findings of facts and determination of quantum can be supported by the evidence adduced. The standards of appellate review of facts in civil cases were set forth by the Louisiana Supreme Court in Canter v. Koehring Company, La., 283 So.2d 716 (1973) and reiterated in Dyson v. Gulf Modular Corporation, La., 338 So.2d 1385 (1976).

In these cases the Supreme Court said:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

There is testimony in the record which supports the Trial Judge’s conclusions that Mrs. Stewart slipped on a damp section of the floor, a hazard created by the appellants; that Mrs. Stewart was using reasonable care and was not contributorily negligent; and that the signs which would have warned of the dangerous condition were not in place. The District Court based its determination that the warning signs were not in place on the testimony of Mrs. Rosalie Trahan. While this Court might have reached a different conclusion as to the condition of the floor and as to whether or not the signs were in place, we cannot say that the findings of the District Court were manifestly erroneous.

From the Written Reasons for Judgment provided by the District Court, it appears that the District Judge concluded, based on the testimony of Mrs. Stewart, that Mrs. Stewart was still suffering from the effects of the accident at the time of the trial on the merits. Dr. Peter H. Rhymes, an expert witness for the appel-lees, testified that when he examined Mrs. Stewart on January 1, 1976, she did have a minimal amount of muscle spasms and tenderness in the neck. Mrs. Stewart had been dismissed as cured with no residual disability by Dr. Rhymes on July 1, 1975. Dr. Rhymes further testified that although Mrs. Stewart should not have had any additional problems after her release in July, the muscle spasms and tenderness in the neck could have resulted from her fall in the National Food Store. The District Court, based on its determination of the extent of Mrs. Stewart’s injuries and its conclusion as to the continuing nature of these injuries, awarded $10,000.00 as compensation.

Mrs. Stewart testified that because of her injury she was unable to work from the time of the accident until Christmas time. This testimony was supported by that of her employer, Mrs. Smith. The record also contains evidence that Mrs. Stewart earned $10.00 per week when she was able to work. Based on this evidence the District Court concluded that Mrs. Stewart was unable to work for 33 weeks as a result of the accident and that an award of $330.00 should be made for lost wages.

Civil Code Article 1934(3) provides in part:

“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”

“Appellate review of awards for damages in the trial court is limited to determining whether the trial court abused its discretion.” Revon v. American Guarantee & Liability Ins. Co., La., 296 So.2d 257 (1974); Spillers v. Montgomery Ward & Company, Inc., La., 294 So.2d 803 (1974). While this Court is of the opinion that the amount of the award to appellee is somewhat high, we cannot say that the award is unsupported by evidence or that the District Court abused its “much discretion.”

For the above reasons, the judgment of the District Court is affirmed at appellants’ cost.

AFFIRMED.

      . It would appear that essentially similar injuries were sustained by the plaintiff in Boatner v. McCrory Corporation, La.App., 341 So.2d 1174 (1st Cir., 1976). In that case an award by a different District Court of $5,000.00 for injuries was affirmed by this Court.


author: SARTAIN, Judge.

text:
    C/M OF BATON ROUGE, INC. v. James A. WOOD and St. Paul Fire and Marine Insurance Company.
    No. 10992.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Doris Gates Rankin, Baton Rouge, for plaintiff-appellant.
    E. Kenneth Barnette, Baton Rouge, for defendants-appellees.
    Before LANDRY, SARTAIN and CLAIBORNE, JJ.
   SARTAIN, Judge.

Plaintiff-appellant, C/M of Baton Rouge, Inc., appeals a judgment of the trial court dismissing its suit against James A. Wood, plaintiff’s former attorney, based on his alleged malpractice in representing the plaintiff.

The defendant, James A. Wood, was retained by the plaintiff, an employment agency, to file suit to collect fees allegedly due from Sandra L. Murray. Suit was filed on behalf of plaintiff, and on October 30, 1974, after trial of the matter, judgment was rendered against the plaintiff dismissing its suit. The judgment was signed on December 3, 1974.

The plaintiff authorized the defendant to appeal the adverse decision. Motion for appeal was filed on behalf of plaintiff on January 22, 1975, and the bond and return date were set. The bond was not posted, however, until March 21, 1975. This court dismissed the appeal because of the failure of the plaintiff to timely perfect the appeal. C/M of Baton Rouge v. Murray, 315 So.2d 336.

Assuming that the defendant was negligent in his failure to timely perfect the plaintiff’s appeal, it is necessary to determine if the defendant’s negligence caused any damage to the plaintiff for which the plaintiff could recover. Vessel v. St. Paul Fire and Marine Insurance Company, 276 So.2d 874 (La.App. 1st Cir. 1973); Toomer v. Breaux, 146 So.2d 723 (La.App. 3rd Cir. 1962). The plaintiff contends, first, that it was damaged to the extent that the defendant’s negligence cost it an opportunity to appeal the adverse decision, which decision if reversed would have entitled plaintiff to judgment in its favor. If, however, the decision of the trial court in C/M of Baton Rouge, Inc. v. Murray is not reversible, then plaintiff was not damaged by the loss of the opportunity to appeal.

Sandra L. Murray and C/M of Baton Rouge, Inc. (C/M) entered into a written contract on January 4, 1971, whereby Ms. Murray was liable for a fee for any employment procured from a contact made through C/M. Ms. Murray was not sent on any interviews by C/M before she obtained employment with the Louisiana Department of Highways on her own initiative at the end of the same month. When later contacted by C/M, she informed them that she was no longer in need of their services.

In June, 1973, C/M contacted Ms. Murray with regard to a job with Tymshare, Inc. Upon being told by C/M that the fee was not to be paid by the employer, Ms. Murray told C/M that she was not interested in the job. C/M replied that the fee was negotiable, meaning that the employer might agree to pay part or all of the fee, and thereby persuaded her to interview with Tymshare. It is evident from the record that no clear agreement was reached as to who would be liable for the fee should Ms. Murray accept employment with Tymshare. Also, no new written contract was entered into between Ms. Murray and C/M prior to the interview with Tymshare. Ms. Murray, after several interviews, obtained employment with Tymshare in July of 1973 at a salary of $935 per month for the first three months and $850 per month, plus commissions, thereafter.

C/M contacted Ms. Murray in September of 1973 with regard to the fee allegedly due. Again, it is evident from the record that at this point some dispute still existed as to who was liable for the fee, the employer or the employee. After C/M’s attempts to collect the fee were unsuccessful, it filed suit against Ms. Murray.

The trial judge noted in oral reasons that when a contract does not provide for a stated term during which the contract will be viable, a reasonable term is to be implied, depending upon the circumstances of the case. Louisiana Civil Code Article 2050. The 1971 contract had no stated term and no contact between the parties occurred again until 1973.

Relative to the applicability of the 1971 written contract to the employment with Tymshare in 1973, the trial court found that there was no intent on the part of the parties to apply the original contract and, in fact, found that the parties repudiated the old contract insofar as it applied to fees due based on any resumed contractual relationship. This finding by the trial court is supported by the record and is correct.

Having determined that the 1971 contract was not applicable, the trial court correctly noted that Louisiana R.S. 23:111 provides, in part:

“No employment agency shall charge or accept a fee unless in accordance with the terms of a written contract with an applicant. * * * ”

Since the 1971 contract was no longer viable and since the parties did not enter into a new written contract, there was no written contract in effect. Therefore, under R.S. 23:111 the judgment in favor of Ms. Murray dismissing C/M’s claim was correct.

Plaintiff also contends that some inherent damage results from the defendant’s failure to timely perfect the appeal. In effect, plaintiff urges that it is entitled to damages because of disappointment sustained by the loss of its right to appeal. This suit for malpractice was submitted without testimony, and the only evidence offered by stipulation was the transcript of the original case. No testimony or other evidence supporting this alleged element of damages appears in the record. Therefore, since no damages of this nature have been proved, we can make no such award.

For the foregoing reasons, the judgment of the trial court dismissing the plaintiff’s claim is affirmed. The costs of this appeal are assessed to the appellant.

AFFIRMED.