text:
    BULK TRANSPORT, INC. v. The TRAVELERS INSURANCE COMPANY et al.
    No. 10574.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 23, 1976.
    J. Marvin Montgomery, Baton Rouge, for Marathon Glenn Hawkins.
    William A. Norfolk, Baton Rouge, for Travelers Indemnity Co., Retail Clerk’s Union, Local 1691 and Retail Clerks’ Intern. Assn.
    Mary Olive Pierson, Baton Rouge, for Retail Clerks Union, Local 1691.

      Calvin E. Hardin, Jr., Baton Rouge, for Bulk Transport Co.
    Before ELLIS, LOTTINGER and SAR-TAIN, JJ.
   LOTTINGER, Judge.

This case was consolidated for trial with Wilkinson v. Travelers Insurance Company, et al., 330 So.2d 351 (La.App. 1st Cir. 1975). The question before us is whether plaintiff-appellee, Bulk Transport, Inc. is entitled to property damages as awarded by the jury. Bulk Transport, Inc. was the owner of the tractor-trailer with which the automobile driven by Marathon Glenn Hawkins collided. The Lower Court awarded damages for cost of repairs, loss of driver time, and loss of use of the trailer while undergoing repairs all in the total amount of $2,614.79. From this judgment defendants, The Travelers Insurance Company, Marathon Glenn Hawkins, Retail Clerks Union Local 1691, and Retail Clerks International Association have appealed.

Hawkins ran into the rear of the Bulk Transport trailer. Defendant-appellant contends that the jury erred in finding that Hawkins was within the course and scope of his employment with Retail Clerks Union Local 1691 at the time of the accident; in finding that he was an executive officer of Retail Clerks Union Local 1691; that he was an employee of Retail Clerks International Association; and that the Pontiac automobile involved in the accident was a “temporary substitute automobile” within the meaning of the Travelers insurance policy in question.

According to the cases we quoted in Wilkinson v. Travelers Insurance Company, et al., supra, we must only determine whether there was evidence before the jury which upon its reasonable evaluation of credibility furnishes a reasonable factual basis for its findings. It is not enough that this court feel that its own evaluations and inferences are as reasonable as that of the jury who heard the testimony in this case.

As to whether Hawkins was within the course and scope of his employment with Retail Clerks Union Local 1691 at the time of the accident, there was testimony that Hawkins was on his way to the Holiday Inn to check a picket line, and we do know that the automobile was being driven in the direction of the Holiday Inn when the accident happened.

As to whether Hawkins was an executive officer of Retail Clerks Union Local 1691, there was testimony that he was business agent and special representative, was on the executive board, and also performed the duties of a union organizer of stores that did not have unions.

As to whether Hawkins was an employee of Retail Clerks International Association, there was his own testimony that he understood himself to be a special representative of the International Association, and defendant did not attempt to rebut this evidence in any manner.

As to whether the Pontiac automobile involved in the accident was a temporary substitute automobile within the meaning of the insurance policy in question, there was evidence that the automobile assigned to Hudgins was being repaired, and he was using his personal automobile for union business. It is true that Hawkins was driving and that the union automobile assigned to Hawkins was parked at the lounge that Hawkins, Hudg-ins and Mrs. Wilkinson left. However, there was evidence that since Hawkins was to chauffeur Hudgins and Mrs. Wilkinson to a restaurant on his way to the Holiday Inn picket line, the parties wanted to use the automobile assigned to Hudgins which in this case was a temporary substitute automobile, Hudgins’ personal automobile.

While there is evidence from which the jury could have reached conclusions contrary to each of those reached, there is likewise evidence from which it could reach the conclusions it did reach. We do not find that the jury’s inferences of fact are in anyway manifestly erroneous.

We do note that although The Travelers Insurance Company was made defendant by plaintiff, The Travelers Indemnity Company answered plaintiff’s petition and was the proper defendant inasmuch as the policy entered into evidence shows The Travelers Indemnity Company to be the insurer of the automobiles of Retail Clerks Union Local 1691 and Retail Clerks International Association. Therefore, the judgment of the Lower Court is amended wherein it reads The Travelers Insurance Company to read The Travelers Indemnity Company.

For the above and foregoing reasons, judgment of the Lower Court, as amended, is affirmed at the defendant-appellant’s costs.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Oscar J. TOLMAS v. Vernon TATUM, Jr.
    No. 7710.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Gerson Z. Tolmas, Metairie, for plaintiff-appellee.
    John F. Robbert, Garon, Brener & Mc-Neely, New Orleans, for defendant-appellant.
    Before STOULIG, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment of eviction. Vernon Tatum, Jr., the defendant, has suspensively appealed the judgment. Plaintiff, Oscar J. Tolmas has moved to dismiss the appeal on the grounds that defendant did not file an answer asserting an affirmative defense verified by the oath of the defendant.

The record discloses that no answer was filed in this case. Defendant argues that he asserted his affirmative defense in testimony under oath at the trial. This argument has been considered by this court before and rejected. McMillan v. Cahuvin, 281 So.2d 181 (La.App. 4th Cir. 1973). The jurisprudence has consistently interpreted CCP Article 4735 as requiring an answer containing the affirmative defense verified by the oath of the defendant.

For the above reasons the suspensive appeal is dismissed at appellant’s cost.

SUSPENSIVE APPEAL DISMISSED.

      . “Art. 4735. Appeal; bond
      “An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an afirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”


author: PAVY, Judge.

text:
    V. A. DUPLECHAIN et al., Plaintiffs-Appellants, v. EVANGELINE PARISH POLICE JURY, Defendant-Appellee.
    No. 5417.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.

      Donald Soileau, Mamou, for plaintiffs-appellants.
    A. Bruce Rozas, Mamou, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

Plaintiffs sued the Evangeline Parish Police Jury for damages resulting from its failure to perform an obligation contained in a right-of-way grant from plaintiffs to defendant. The trial judge awarded $1,500 and assessed the costs against said public body. Plaintiffs have appealed to have the award increased. Defendant has answered the appeal to reverse the award and to be declared exempt from payment of costs.

In 1970, the said Police Jury and the State Department of Public Works engaged in a joint effort to dredge and clean the channel of Bayou Des Cannes, an important drainage stream in Evangeline Parish. Although the exact arrangement is not clear, it appears that the Police Jury was to acquire the requisite rights of way for the dredging and the Department of Public Works would supervise the project and provide the cost.

When plaintiffs were approached to sign the right of way, V. A. Duplechain, the plaintiff who handled the family affairs for the Duplechains, requested that the Police Jury agree to close or fill gaps where Horseshoe Bayou emptied into or out of Bayou Des Cannes so as to dam off Horseshoe Bayou and thus form a lake on plaintiffs’ property. To meet this request, there was inserted into the right-of-way deed two paragraphs, the exact wording of which was mostly the choice of an employee of the Soil Conservation Service which was assisting the Police Jury in preparing the rights of way. These paragraphs read as follows:

“1. That the ends of the old horseshoe bayou be filled in for the purpose of making a small lake. Location as shown on sketch map attached and made a part of this easement document.
2. That the filling in of the old horseshoe bayou will not intercept and block drainage from adjourning land owners or cause any damage to any other farms.”

Plaintiffs signed the right-of-way deed in favor of the Police Jury. The Department of Public Works let the contract for dredging and when the contractor reached plaintiffs’ property, he refused to fill the gaps. This was in accordance with a specification in the dredging contract that no lateral or subsidiary drains in and out of Bayou Des Cannes would be dammed unless written releases were first obtained from landowners which might be affected by the damming.

There was some evidence to the effect that some of the adjoining landowners had granted verbal releases and that one had granted a written release but that document was not in evidence and the testimony is that it was not applicable to damming the gaps in Horseshoe Bayou at the point in question. In any event, we conclude that written releases sufficient to meet the requirements of the Department of Public Works were not furnished.

After the dredging was completed, plaintiffs had the gaps at the end of Horseshoe Bayou dammed off and instituted suit for the sum of $7,500, claiming that this was the cost to them for the damming or filling in of the gaps and that the Police Jury is liable in that amount.

We think the trial judge properly concluded that the requirement for obtaining releases was foreign to the relationship between plaintiffs and defendant. The provision in the right-of-way deed does not condition the Police Jury’s obligation on obtaining the releases. Whatever may have been the arrangement between the Department of Public Works, its contractor and the Police Jury, that would only affect the rights and obligations between those parties and could not change or decrease plaintiffs’ rights or defendant’s obligation. That obligation was conditioned only by the interception or blockage of drainage or damage to farms.

Defendant argues that because the provision relating to interception etc. was at plaintiffs’ request, it must be strictly ■construed against them to such an extent that the evidence discloses such interception or blockage that the obligation to fill the gaps never came into existence at all. We cannot agree. The two added provisions were put in because of plaintiffs’ request but the interception provision was mostly to protect the Police Jury. It must be construed in the light of its purpose and that was to prevent exposure of the Police Jury to liability or criticism for interfering with drainage as it had existed. The evidence does not show that the damming resulted in anything more than a minimum or insignificant amount of disturbance to the drainage in the area and, certainly, none that would create a cause of action for damages. We note particularly the trial judge’s observation that the trial was held two years after the damming and no showing was made of consequential flooding of adjoining lands. Much of defendant’s evidence regarding the interception and blockage consisted of opinions and speculations from a theoretical viewpoint and based on the experts’ knowledge gained solely from a topographical map. The two-year experience is contrary to those opinions. Further, we cannot help but realize that whatever flooding may result from the damming, the Police Jury cannot be held liable for it because it was plaintiffs who effected the damming. To give the stipulations the effect sought by defendant would necessitate a strained construction of the words therein resulting in an unrealistic and inequitable result. Therefore, we agree with the trial judge that plaintiffs are entitled to an award.

Plaintiffs strenuously argue that the $1,500 award is contrary to the evidence and should be increased to $7,500. They offered the testimony of Mr. Manson Vincent, a dirt contractor from Lake Charles, who testified that he did the work of filling in the gaps for plaintiff on an equipment rental and cost basis and that it came to $7,600. Vincent’s work apparently consisted of more than mere filling in of the gaps. This was borne out by plaintiffs’ other quantum witness. (Roger Lee La-fleur) whose estimate for the work done as observed by him after completion was $7,500 and which he described as the building of a levee all along the bayou at the point of the gaps and between the gaps, the dressing of the levee slope and the making of a roadbed on its top. For the convenience of V. A. Duplechain, a resident of Texas, who wished to be at the site during work, Vincent did the job on sixteen weekends. This necessitated hauling the equipment from Lake Charles to the job site with an additional cost of $1,500. Further unnecessary expense was incurred in this job because it was done from January to April, a substantial portion of which time dirt work was extremely difficult if not impossible. Vincent’s invoices for the work showed sixteen weekends’ work each of which included two 12-hour days. We compute this to be nine ordinary (five days of 8 hours each) weeks to complete the job that he did.

Plaintiffs’ other expert, Lafleur, gave a flat price of $7,500 for the work and could not break it down or otherwise explain his computation. Also, his work would have covered considerably more than the Police Jury was obligated to do under the terms of the added provision in the right-of-way grant.

The trial court relied on an estimate of cost to fill the gap given by Mr. George Johns, the district engineer for the Department of Public Works, with 21 years’ experience. He had not visited the site but had a detailed topographic map of the area. He allowed one day for assembling equipment at the job site, one day for returning it after completion and two days of work, all at $400 per day and added $300 for good measure. He estimated it would take from four to five hours to fill each of the gaps at the end of Horseshoe Bayou. One end had a gap 30-35 feet wide. The other had a gap (actually two gaps with high ground in between) 75 to 90 feet wide. The levee actually built was 20 to 30 feet high and had a base of approximately 100 feet wide and a top about 40 feet wide. The spoil for filling the gaps was right at or near the gaps themselves. It is also shown that the contractor, in dredging, traversed the whole of the Duplechain property in two weeks and about half of those days were poor working days. We cannot conclude that the lower court award of $1,500 constituted manifest error and will affirm it.

The decree of the lower court casting the Police Jury for costs is erroneous and must be corrected. R.S. 13:4521 clearly provides that no public body shall be required to pay costs in any judicial proceeding except stenographer’s cost for taking testimony. The jurisprudence has been constant that said statute applies generally except as to the noted exception regarding stenographer’s cost. Counsel for plaintiff has pointed out no authority in support of assessing the Police Jury with cost and we are unable to find any reason justifying it.

Accordingly, the judgment of the district court is hereby amended so as to relieve the defendant, Evangeline Parish Police Jury, from all court costs except the stenographer’s cost for taking testimony and as amended it is affirmed. Appellant is to bear all costs of this appeal.

AFFIRMED, AS AMENDED.


author: PETERS, Judge ad hoc.

text:
    HEMPS CREEK USERS, Plaintiff-Appellant, v. POLLUTORS OF HEMPS CREEK, Defendant-Appellee.
    No. 5413.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.

      William Henry Sanders, Jena, Edward A. Kaplan, Alexandria, for plaintiff-appellant.
    Long & Peters by Jimmie C. Peters, Ga-llaran, Richey & Wilson by Joseph Wilson, Jena, for defendant-appellee.
    Before HOOD and GUIDRY, JJ., and PETERS, J. ad hoc.
   PETERS, Judge ad hoc.

This is a class action suit brought by William Henry Sanders as representative of all Users of Hemps Creek. Although the caption to the suit lists as a defendant only “Polluters of Hemps Creek,” the body of the petition names as defendants the Town of Jena, LaSalle Sewerage District No. 1, Jena Sewerage District No. 1, and LaSalle Wire and Cable Company. Sanders alleges defendants are guilty of polluting Hemps Creek and asks for an injunction ordering defendants to cease the pollution.

Perhaps realizing that he might not be allowed to proceed as representative of a class, Sanders sets forth another demand in the alternative. In this part of the petition he alleges he is the owner of land through which Hemps Creek passes. As a landowner, he asks for an injunction and also asks for damages which he has allegedly sustained as a result of the pollution.

Three of the defendants — Town of Jena, LaSalle Sewerage District No. 1, and Jena Sewerage District No. 1 — filed exceptions of insufficiency of citation, insufficiency of service of process, prematurity, nonconformity of the petition with the requirements of LSA-C.C.P. Art. 891, improper cumulation of actions, and non-join-der of necessary parties. The lower court rendered judgment on four of these exceptions. This judgment maintained the decli-natory exceptions of insufficiency of citation and of service of process and maintained the dilatory exceptions of non-conformity of the petition with the requirements of C.C.P. Art. 891 and non-joinder of necessary parties. The court expressly made no rulings on the dilatory exceptions of prematurity and improper cumulation of actions. The court dismissed the suit and Sanders appealed.

I. Non-Conformity of the Petition with the Requirements of LSA-C.C.P. Art. 891.

Article 891 of our Code of Civil Procedure requires, among other things, that the petition meet the requirements of Article 853 of the Code. One of the requirements of Article 853 is that “The title of the action shall state the name of the first party on each side with an appropriate indication of other parties.” Sanders’ petition obviously did not meet this requirement, for neither the names of any plaintiffs nor the names of any of the four defendants appeared in the caption. We therefore affirm the lower court judgment insofar as it maintained the exception of non-conformity of the petition with the requirements of LSA-C.C.P. Art. 891. However, we cannot affirm the lower court’s dismissal of the suit. LSA-C.C.P. Art. 933 states that when the dilatory exception is sustained and the grounds for objection may be removed by amendment of the petition, the court shall order such amendment.

II. Insufficiency of Citation and Insufficiency of Service of Process.

The basis for both these exceptions is LSA-C.C.P. Article 1202, which sets forth the requirements of a valid citation, particularly that the citation must contain the “title of the cause.” Defendants argue because the title is defective (see exception of non-conformity discussed above) the citation is tainted with this defect. We cannot accept this argument. While the title of the suit is indeed defective, it nevertheless is the “title of the cause” until such time as it is amended. The citation in the instant suit does therefore contain the “title of the cause”; hence, there was no defect in the citation or the service of process. We therefore reverse the lower court judgment insofar as it sustained the exceptions of insufficiency of citation and service of process.

III. Non-Joinder of Necessary Parties.

Defendants used the dilatory exception of non-joinder of necessary parties to attack Sanders’ use of a class action. Such an exception is not the proper procedural vehicle to challenge the use of a class action. In Stevens v. Board of Trustees of Police Pension Fund, 309 So. 2d 144 (La.1975), our Supreme Court held that a peremptory exception to the use of a class action was the proper means to urge improper use of a class action. The lower court was in error in maintaining the exception of non-joinder of necessary parties. A class action may only be used if the members of the class are so numerous that it is impracticable to join them all as parties. In a class action, there is no need to join all parties who might otherwise be j oined as' necessary parties, but they are bound by the judgment of the court if they are members of the class. LSA-C.C.P. Art. 597. An exception of non-joinder of necessary parties therefore cannot be sustained when the alleged necessary parties are members of a class in a class action suit. We therefore reverse the judgment of the lower court insofar as it maintained the dilatory exception of non-joinder of necessary parties.

We must remand this suit to the district court. Plaintiff should be . allowed to amend his petition to make it conform with the requirements of LSA-C.C.P. Art. 853.

If defendants wish to object to the use of a class action in the instant suit, they should file a peremptory exception to the use of a class action in the lower court on remand. Should such exception be filed, the lower court should consider it in light of the clarified guidelines in determining when the use of a class action is proper as set forth by the Supreme Court in Stevens, supra.

In oral argument before this court it was questioned whether Sanders should be allowed to amend his petition if he is not allowed to proceed with a class action. This question is not before this court at this time, but it would seem logical, in view of the extensive record in this case, that plaintiffs will find it easier and simpler to commence a new action should the class action be successfully opposed.

For the reasons assigned, the judgment of the lower court is affirmed in part and reversed in part and remanded for further proceedings. All costs of this appeal are assessed against defendants-appellants.

Affirmed in part, reversed in part, and remanded.


author: STOULIG, Judge.

text:
    CAPITAL BUILDING AND LOAN ASSOCIATION v. H. T. NICHOLAS and Gordon J. Martin, Sheriff.
    No. 7358.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    H. Book Hopkins, Leo Jerome Lahey, Gretna, for plaintiff-appellee.
    Martin, Himel & Peytavin, Anthony J. Nobile, Lutcher, for H. T. Nicholas, defendant-appellant.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Capital Building and Loan Association, filed suit to annul the sale of a mobile home adjudicated to defendant H. T. Nicholas at a sheriff’s sale by public auction in St. James Parish. Nicholas, the only bidder, gave a personal check for $105.42 for the sale price and plaintiff contends this did not meet the terms of the advertisement of “cash” payment. It maintains the acceptance of a check changed the transaction into a credit sale. Defendants, the adjudicatee and Gordon J. Martin, the sheriff of St. James Parish, failed to file an answer but waived this deficiency by going to trial on the merits. From a judgment in favor of plaintiff nullifying the sale and ordering it readvertised and resold, defendant has appealed.

The sole issue is whether a personal check meets the requirement that the property be sold for cash. Plaintiff, having proceeded by executory process against its judgment debtors, Bobbie T. and Mildred Washington Davis, caused their mobile trailer to be seized and advertised for sale at 10 a. m., October 16, 1974, for cash and without appraisal. Several times before the sale, one of plaintiff’s representatives advised Deputy Sheriff Canatella of his intent to be present. Thus when he did not appear at 10 a. m., the time advertised, Mrs. Cana-tella delayed the sale until 10:10 a. m. Then with defendant still being the only bidder present, she proceeded. As the price of $105.42 was accepted and as defendant Nicholas was in the process of writing his personal check for this amount (he had previously been advised by the sheriff’s office that a personal check was acceptable), the plaintiff’s representative appeared and upon learning the action was concluded, protested the form of payment. The Sheriff nonetheless accepted and successfully negotiated the check. Plaintiff of course wished to appear at the auction to protect its judgment in excess of $6,300 and to insure the mobile home, to be sold without appraisement, did not go for a bargain basement price.

The trial judge reasoned the check was not the equivalent of cash. In written reasons for judgment, he stated:

“The court is of the opinion that the word ‘cash’ means legal tender or its equivalent, and should not be interpreted to restrict the sheriff to the acceptance of legal tender alone. Thus in the opinion of the court the sheriff would be justified in accepting cash, bank cashier’s check, bank money order, United States postal money order, certified check, or any other similar negotiable instrument generally recognized and accepted as being the equivalent of cash.
“The question however is whether a personal check, not certified, is the equivalent of cash. The court concludes that it is not. A personal check is simply an order drawn upon a banking institution directing that institution to pay to the order of the payee the specified amount of money. * * * ”

We disagree. It would not be possible for an adjudicatee at public auction to have a cashier’s check, a certified check, or a similar negotiable instrument at the bidding without knowing the exact sale price. Further it would be impracticable to require all bidders to carry money to cover whatever amount is needed to buy at public auction. This same issue was considered in General Electric Credit Corp. v. Tardo, 304 So.2d 89, 91 (La.App. 1st Cir. 1974), writs refused, and the court held:

“We do not wish to imply that the sheriff can not demand legal tender in payment of the purchase price, if, in the exercise of his discretion he deems it advisable to do so. Our holding is that when a check is given and accepted in payment of the purchase price at a judicial sale, and is subsequently honored by the drawee bank, the adjudication will not be set aside on the sole ground that the purchase price was not paid in legal tender.”

We fully agree with this result.

For the reasons assigned, the judgment appealed from is reversed and defendant Gordon J. Martin is hereby authorized to deliver to H. T. Nicholas documents that convey title to him in the 1971 Guardian Mobile Home, No. 026432239G. Plaintiff is to pay all costs of this litigation.

REVERSED AND RENDERED. -

      . Manuel v. Broderson, 298 So.2d 333 (La.App. 3d Oir. 1974).

      . Proceeding No. 11,408 of the Twenty-Third Judicial District Court for the Parish of St. James.


author: REDMANN, Judge.

text:
    Succession of Walter F. POYNOT.
    No. 7643.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Arthur C. Reuter, Reuter & Reuter, New Orleans, for William M. Duett, Co-Curator.
    Richard L. Greenland, Cabral & Cabral, Metairie, for Harry R. Cabral, Jr., and Henry J. Guidry, Jr.
    Before REDMANN, LEMMON and GULOTTA, JJ.
   REDMANN, Judge.

Airey v. Airey, 1972, 262 La. 383, 263 So.2d 330 (affirming La.App., 250 So.2d 52), differs from this rule to obtain physical possession of a will from the lawyer of a living but now interdicted testatrix in that this rule was filed (1) not in the proceedings for the interdiction of the testatrix but in her deceased husband’s succession, before a different judge of the same court, (2) by one co-curator who is not a bank, (3) against both the lawyer and the second co-curator (who is also executor of this succession), and (4) prior to any disclosure of the will’s content by photocopy. The judgment ordered both the lawyer and the executor to deliver the will to the two co-curators: that is, the executor as executor was ordered to deliver to himself as co-cu.rator as well as to the other co-curator.

The supreme court’s ruling in Airey, whatever its theory, is that when a trial court has ordered that the lawyer (who can make a photocopy for his own purposes) deliver the original will to the curator, that order will not be disturbed. Although we were originally of the opinion that the recited differences in circumstances distinguished this case from Airey, we now conclude that they do not.

Affirmed.


author: BEER, Judge. REDMANN, Judge

text:
    Eula Mae Trim, wife of/and Willie TRIM v. NEW ORLEANS PUBLIC SERVICE, INC. and Claudell Turner.
    No. 7373.
    Court of Appeal of Louisiana. Fourth Circuit.
    April 13, 1976.

      Birdsall, Alvarez & Rodriguez, Michael I. Rodriguez, New Orleans, for plaintiffs-appellants.
    C. B. Ogden, II, A. R. Christovich, Jr., New Orleans, for defendants-appellees.
    Before REDMANN, MORIAL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Eula Mae Trim was injured in a bus-automobile collision on September 23, 1971. Liability was stipulated. On appeal she seeks an increase in general damages and her husband seeks an increase in special damages primarily because of their thus far judicially unrecognized contention that Mrs. Trim is suffering from thoracic outlet compression syndrome caused or aggravated by the accident.

Dr. James Nix saw plaintiff from October 8, 1971 through April 6, 1972. She registered complaints of pain in her neck, left arm and back as well as numbness in her hand. He diagnosed her condition as sprain in the cervical, lumbar, and trapezius regions and presumed that these were caused by the accident.

Dr. Kenneth Vogel, a neurosurgeon, first saw plaintiff on December 16, 1971 with follow-up visits on March 24, 1972 and January 15, 1973. She registered complaints of cervical and lumbo-sacral discomfort and a sensation of numbness in the left hand and leg. He believed that she had sustained an acute cervical and lumbo-sa-cral strain and recommended physio-therapy including cervical traction. On her last visit to his office he noted that she was still experiencing pain in the left cervical region.

Dr. Hyman Soboloff first saw Mrs. Trim in May, 1972. She complained of radiation of pain in her left palm. He found no muscle spasm nor any other objective findings, noting only her subjective complaints. At that time she made no complaint of numbness. He concluded that she had experienced complete recovery from the injuries of September 23, 1971. He did, nevertheless, recommend neurological examination because of her complaints of dizziness.

' None of these physicians diagnosed or apparently suspected that Mrs. Trim was suffering from thoracic outlet compression syndrome nor could they, perforce, relate such condition to her accident. The same can be said of Dr. Richard Levy, a neurosurgeon, who saw her on July 30, 1974. At that time she related complaints of early morning dizziness and numbness in her left hand that subsided as the day progressed. Neurological examination revealed no objective symptoms. There was no muscle spasm and she was able to move her neck through a full range of motion. He found no loss of muscle power or tendon reflexes and x-rays of the cervical spine showed no disability.

Notwithstanding the fact that none of these well recognized expert medical witnesses diagnosed thoracic outlet compression syndr.ome, appellants, nevertheless, rely heavily on the testimony of Dr. Warren Gottsegen, an expert in vascular surgery, who saw Mrs. Trim on two widely spaced occasions: first in August, 1972 and finally in November, 1974. Examination on the first visit indicated pain and numbness in her arms and hands on raising of her arms away from the body (a possible sign of thoracic outlet compression syndrome) but resulted in no specific diagnosis. On the subsequent examination, over two years later, there was a finding of symptoms similar to those first observed in the August, 1972 examination coupled with findings of loss of circulation in her hand and loss of pulse in her wrist. Her anteri- or scalene muscles were in spasm and drew her first and second ribs up against her collarbone compressing the arteries, veins and nerves passing through these ribs. These findings, when considered along with the history and background information given by Mrs. Trim, resulted in the final diagnosis of left thoracic outlet compression syndrome, apparently caused or aggravated by the accident of September 23, 1971.

In explaining the delayed manifestation of this condition during the time between the two widely spaced examinations, Dr. Gottsegen noted that such “might be a little unusual . . . but, we have seen it take that long for a full grown outlet syndrome to develop.” He believed that this particular syndrome usually manifests itself considerably closer to the date of trauma — if it is trauma related — but felt that similar situations have occurred in isolated circumstances because muscle spasm can be intermittent and increase and subside for various periods of time. Thus, he does relate the positive finding of left thoracic outlet compression syndrome to the original injury of September 23, 1971.

As to the lack of these findings (and, perforce, the non-diagnosis of the syndrome) by the other physicians, Dr. Gott-segen observed:

“The orthopedist and neurosurgeon don’t ordinarily look for this type of muscle spasm or in this particular group of muscles until it is absolutely full blown and very obvious.”

The record discloses that by May of 1972 Mrs. Trim had returned to full employment as a nurse’s aide and continued (with certain interruptions unrelated to the issues in this litigation) until her hospitalization by Dr. Gottsegen for the corrective surgery of December, 1974, which was, in his opinion, required to deal with the thoracic outlet compression syndrome. Since her only absence from working during the period between May, 1972 and December, 1974 is unrelated to this claim, the implication is apparent that she was not — after May of 1972 — disabled as a result of the injuries received in the accident of September 23, 1971. She had, in the general medical opinions noted previously, essentially recovered to a degree sufficient to perform her nurse’s aide duties.

Essentially, the issue before us is whether the trial court erred in not affirmatively responding to those portions of plaintiffs’ claim for general and special damages which are attributable to the pain and suffering caused by thoracic outlet compression syndrome and the obviously related need for the corrective surgery performed by Dr. Gottsegen, as well as the subsequent discomfort and need for treatment of the postoperative complications experienced by Mrs. Trim. These complications were dealt with by Dr. Raul Montemayer who cared for plaintiff postoperatively in consultation with Dr. Gottsegen.

While at least one other medical expert witness seems to acknowledge that symptoms of which plaintiff then complained could, in retrospect, have indicated thoracic outlet compression syndrome, none, other than Dr. Gottsegen, affirmatively relates them to the accident for which Public Service is admittedly responsible. Dr. Gott-segen acknowledges that such late development of the condition is. unusual but does attempt to give a plausible explanation as to why his final diagnosis of thoracic outlet compression syndrome was not reached until three years after the accident.

If Mrs. Trim’s thoracic outlet compression syndrome did, in fact, result from the accident of September 23, 1971 it would be an act of prodigious insensitivity to judicially disregard the resultant pain and suffering and the medical, surgical, hospital, and related costs of dealing with the painful condition even though the final diagnosis was made long after the accident. However, it is obvious from the judgment that the trial judge either determined that the thoracic outlet compression syndrome was not a proximate result of the accident or, alternatively, determined that although it might be possible that the thoracic outlet compression syndrome was either caused or aggravated by the accident, the burden of proving same by a preponderance of the evidence was not successfully carried by Mrs. Trim.

We are unable to completely agree with the somewhat simplistic argument of able counsel for NOPSI who forcefully contends that this case is nothing more than one which must be resolved on the basis of the holding in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). Likewise, we are not in total accord with the contentions of able counsel for Mr. and Mrs. Trim to the effect that Dr. Gottsegen’s testimony must be regarded as uncontradicted and entitled to greater weight than that of the other practitioners, thus having the effect of shifting the burden of proof from plaintiff to defendant.

We conclude that the trial court, confronted by truthful but, nevertheless, apparently conflicting lay and expert testimony, ultimately resolved the conflicting testimony and evidence (which he heard and examined first hand) by concluding that Mrs. Trim’s pain and suffering, and Mr. Trim’s substantial expenditures, related to thoracic outlet compression syndrome were not, to an acceptable degree of legal certainty, the proximate result of the accident of September 23, 1971. A painstaking examination of the record leaves us with no compelling conviction that the trial court’s ultimate determination is either unsupported by the evidence or clearly at odds with it. This is not to say that we would not make a similar (or perhaps identical) observation if the trial court had opted in favor of recognizing the accident as proximately causing her thoracic outlet compression syndrome. Perhaps that very observation is the most impelling reason for us to conclude that the judgment, close call that it obviously is, must be affirmed, each party to pay its own costs of this appeal.

AFFIRMED.

REDMANN, J., dissents.

REDMANN, Judge

(dissenting).

Dr. Gottsegen’s opinion that the compression syndrome was caused by the accident (though based on plaintiff’s history as told by her) is nowhere contradicted by any other medical opinion. To the contrary, other medical opinion — beginning with that of Dr. Nix just a few days after the accident — refers to symptoms compatible with the compression syndrome.

The greatest obstacle to a conclusion that the accident caused the syndrome is the delay of three years in diagnosis. The second greatest obstacle is that about a third of the cases of compression syndrome are not the result of trauma; so plaintiff’s case may be non-traumatic. The statistical probability is greater, however, that it is traumatic — since two out of three cases are traumatic. The presence of relatable symptoms from a few days after the accident and throughout the intervening years proves plaintiff’s case, by proof which is not really contradicted and which therefore should have been accepted.

      . For a very detailed description of Thoracic Outlet Compression Syndrome including signs' and symptoms, diagnosis, and treatment, see Louisiana State Bar Journal, Vol. 20, p. 187 et seq. (December 1972). This article, by Drs. Rosenberg, Glass and Gottsegen forms a part of the record in these proceedings.

      . It should, however, be noted that Dr. Levy does acknowledge that Mrs. Trim’s subjective complaints were, in retrospect, “suggestive of a person who subsequently developed a thoracic outlet syndrome.”

      . One of the authors of the article referred to in footnote 1.


author: GULOTTA, Judge.

text:
    Eddie G. ELLIS v. F. C. DOYAL, Jr., Administrator and C. Crusta, Inc.
    No. 7372.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.

      New Orleans Legal Assistance Corp., Guy Huard, New Orleans, for plaintiff-appellant.
    Department of Employment Security, Marion Weimer, James A. Piper, Baton Rouge, and James A. McGraw, for defendants-appellees.
    Before GULOTTA, SCHOTT and St. AMANT, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a trial court judgment affirming a decision of the Board of Review of the Department of Employment Security. The Board of Review upheld the decision of the Appeals Referee and the Division of Employment Security, denying plaintiff unemployment benefits on the grounds that the employee left his job without good cause when he voluntarily quit the job because he was not given a requested pay increase. We affirm.

We find no merit to plaintiff’s position that the Board of Review erred in its finding of fact that plaintiff voluntarily - left his job without good cause and that the facts found by the Board of Review are-not supported by sufficient evidence.

LSA-R.S. 23:1601 provides, in pertinent part:

“§ 1601. Disqualification for benefits
“An individual shall be disqualified for benefits:
“(1) If the administrator finds that he has left his employment without good cause connected with his employment. * * *”

It is well settled that a refusal by the employer to grant a wage increase on demand of the employee does not furnish the employee with good cause to terminate his employment. Abrams v. Sharp, 115 So.2d 880 (La.App.Orl.1959).

LSA-R.S. 23:1634 expressly provides: “§ 1634. Judicial review; procedure
“* * * in any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. * * *”

In denying plaintiff’s application for benefits, the Appeals Referee stated:

“FINDINGS OF FACT

“The claimant worked for the above employer six years as a laborer. On June 24, 1974, the claimant requested a raise which was denied. He was due to begin work at 7:30 a.m., at which time he normally loaded the lawn mowers on the truck. On this morning he remained off the job and did not begin working. The employer went to the front of the plant where the claimant was standing and asked for the credit cards and keys to the truck. He last worked on June 21, 1974.”

This finding is supported by the testimony of Cosmo Crusta, president of C. Crus-ta, Inc., plaintiff’s former employer, who stated that plaintiff quit his job because he (plaintiff) was denied a pay increase. The employer’s version of the conversation between himself and Ellis was that he, Crus-ta, stated that he would go out of business before he would give his employees an additional raise. According to Ellis, Crusta said that he could not give a raise to Ellis and his fellow employees because he, Crus-ta, was going out of business. Therefore, Ellis contends that he did not voluntarily terminate his employment.

The Appeals Referee, in his opinion, stated:

“The claimant left the employment when he did not proceed to work as usual after being denied a raise in pay. It is concluded that he left the employment without good cause connected with the employment.”

Under the circumstances, we cannot say that the determination made by the Appeals Referee and affirmed by the Board of Review finding is not supported by sufficient evidence. Furthermore, a review of the record fails to show any error of law. The judgment is affirmed.

AFFIRMED.


text:
    ST. BERNARD BODY AND FENDER, INC. v. Mrs. Anthony Catalanotto, wife of/and Anthony CATALANOTTO.
    No. 7354.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    William H. Egan, Perez, Fernandez, Seemann & Egan, Chalmette, for plaintiff-appellee.
    Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before REDMANN, MORIAL and BEER, JJ.
   REDMANN, Judge.

A separated husband appeals from a judgment holding him liable for automobile repairs which his separated wife ordered. Because we find that the husband instructed the repairman not to repair the car, we reverse.

The wife had sued the husband for separation on October 25, 1972, and obtained a. judgment on March 5, 1974. Meanwhile, she had possession of one of the former community’s two automobiles. It suffered $853 damage in late December 1973 and she requested that plaintiff repair it. The $100-deductible collision insurer paid the husband $753 in early January 1974. The husband refused to pay the repairman, who completed repairs at the end of January (or, as his petition alleged, March 1), and who detained the automobile and finally sued wife and husband for $853 repairs and over 425 days of “storage” of the car at $2 daily. (We do not decide the “storage” issue, but we note this court’s decision in Lindsay v. Mills, La.App.1976, 325 So.2d 840). The husband reconvened for possession of the car and for loss of its use during the repairman’s detention of it. The trial court awarded both repairs and storage to the repairman, against the husband alone.

The trial judge expressed the view, at the outset and during the course of the trial, that if the husband had received the collision insurance proceeds, he was liable to the repairman irrespective of whether or not he had authorized the repairs. That conclusion does not necessarily follow that premise. An automobile owner is paid by the collision insurer for the owner’s loss (less deductible). That payment by the insurer does not oblige the owner to have his car repaired, and therefore that payment cannot be the foundation of any obligation to pay for having the car repaired. If an owner paid by an insurer has any obligation to pay for repair of his car, it can only arise because the owner has agreed, expressly or impliedly, in person or by agent, to pay for the repair.

In deciding whether any such agreement to pay occurred here, we do not have the benefit of a credibility evaluation by the trial judge. His view of the law made it immaterial who was telling the truth. Rather than remand for the trial judge to make that evaluation (see Gonzales v. Xerox Corp., La.1975, 320 So.2d 163), we ourselves decide that the husband’s testimony of having timely instructed the repairman not to repair is to be believed rather than the repairman’s testimony that he never heard from the husband until the repairs were nearly completed. The husband’s testimony is indirectly more consistent, and that of the repairman more inconsistent, with the insurance agent’s testimony that, after the appraisal of Thursday, December 27, 1973, a draft dated New Year’s Eve (Monday) was sent to the husband, who returned it by Friday January 4 with instructions that the payee should be himself alone rather than himself and plaintiff. Moreover, the repairman’s testimony of having been told by the insurance agency that “our draft was waiting . . . upon completion they would turn this draft over to us” is contradicted by the agency’s representative: “We had no contact whatsoever with the St. Bernard Body and Fender Company.”

We therefore find as a fact that, prior to any repair by plaintiff, the husband instructed plaintiff not to repair the car. This finding requires reversal of the judgment against the husband.

(Whether the repairman’s claim is valid against the wife, and whether he might have a repairman’s privilege against her presumable half interest in the car, is not before us. The wife was not cast in judgment and the repairman did not appeal.)

The husband’s reconventional demand for return of the vehicle and for loss of its use remains rejected. His remedy for realization of his rights to the automobile lies in the partition of the community. He can no more demand possession of the co-owned car his separated wife has possession of (or has delivered to the repairman) than she could demand possession of the co-owned car he has possession of.

Reversed as to main demand; affirmed as to reconventional demand.


author: MORIAL, Judge.

text:
    Mrs. Catherine M. RICE v. Louis J. KLIEBERT.
    No. 7340.
    Court of Appeal of Louisiana. Fourth Circuit.
    April 13, 1976.
    Ralph D. Hillman, Thibodaux, for plaintiff-appellant.
    G. Walton Caire, Edgard, for defendant-appellee.

      Before REDMANN, MORIAL and BEER, JJ.
   MORIAL, Judge.

On June 6, 1974 the Superior Court for the State of California in and for the County of San Diego rendered a judgment in favor of plaintiff Mrs. Catherine M. Rice, a resident of the County of San Diego, and against defendant, Louis J. Klie-bert, a resident of St. James Parish, Louisiana. This suit was brought in Louisiana seeking recognition of the California judgment under the full faith and credit clause of the United States Constitution.

Plaintiff and defendant were married and later divorced in California. Pursuant to the divorce decree, plaintiff was awarded custody of their three children and defendant was ordered to pay child support' in the amount of $100.00 per month, per child. In 1970, defendant returned to his hometown in St. James Parish, Louisiana, where he remarried and has since maintained his domicile.

On September 11, 1973 plaintiff filed a proceeding in California requesting an increase in child support. The citation and petition for this suit were forwarded to plaintiff’s counsel in Louisiana who allegedly thereafter served defendant at his residence. Defendant did not appear in the California proceeding and a default judgment was rendered against him. On September 12, 1974 plaintiff filed suit in Louisiana seeking recognition of this judgment. Defendant excepted to the suit on several grounds. The district court sustained the exceptions of lack of jurisdiction over the person of defendant and lack of service of process and dismissed plaintiff’s suit. Plaintiff appeals. We reverse and remand.

Plaintiff argues that the issues raised by defendant’s exceptions address themselves to the merits of the Louisiana suit for recognition of the foreign judgment and that the trial court acted improperly in dismissing this case on the exceptions.

It is well settled that in a suit for recognition of a foreign judgment, the only issue of the foreign proceeding which a Louisiana court may concern itself with is the question of domicile and jurisdiction over the parties and issues. Biri v. Biri, 192 So.2d 862 (La.App. 4 Cir. 1966). Hence, the issue of jurisdiction of the foreign court goes to the merits of the suit for recognition in Louisiana. Handling of the matter by exception is therefore, in the technical sense, improper. However, we must see whether this impropriety resulted in any prejudice to plaintiff.

Plaintiff asserts that the district court prevented her from introducing certified copies of Caifornia court documents which would prove that that court had personal jurisdiction over the defendant. We believe that a copy of the California summons and proof of service thereof upon defendant are vital to the present action. The question of jurisdiction over the person of defendant cannot properly be decided without them.

It is clear that the California court had jurisdiction over defendant to modify its prior award of child support. Imperial v. Hardy, La., 302 So.2d 5 (1974). In order to render a judgment against defendant though, service of process must first have been properly made. The method to be employed for service of process, being a procedural matter, is determined by the law of the forum state. Goodrich-Scoles, Conflict of Laws 82 (4th ed. 1964). The forum state, California, permits service of process on a person outside the state through any means allowable within the state. 14 Cal.Code § 415.40. 14 Cal.Code § 414.10 specifies that service within the state may be effected by anyone over 18 years of age and not a party to the action.

Although the record is barren of any evidence of service in the California proceeding, plaintiff alleges that her Louisiana counsel personally tendered service upon defendant. We believe that if proper service is confirmed and proof of such is shown to be within the provisions of California law, plaintiff is entitled to a judgment in Louisiana recognizing the foreign judgment. Accordingly, we remand this case to the district court for the taking of evidence relative to the method of service and the proof thereof in the proceeding instituted against defendant in San Diego, California on September 11, 1973.

The judgment of the trial court dismissing plaintiff’s suit on the exceptions of lack of jurisdiction over the person and lack of service of process is hereby reversed and the case is remanded to the trial court for proceedings in conformity with this opinion. Defendant is to pay all costs of this appeal.

REVERSED AND REMANDED.


author: SCHOTT, Judge.

text:
    Mrs. Carolyn T. SCHOFIELD v. The CONTINENTAL INSURANCE COMPANY et al.
    No. 7291.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Henican, James & Cleveland, C. Ellis Henican, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, Charles W. Schmidt, III, New Orleans, for defendants-appellees.

      Before REDMANN, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing her claim against the Zulu Social Aid and Pleasure Club and its liability insurer for damages for personal injuries she sustained while observing the Zulu parade on Mardi Gras day, 1974.

Plaintiff, accompanied by her son and several of his friends, was viewing the parade in a crowd of people at the intersection of Jackson and St. Charles Avenues in New Orleans. After several floats had passed with their riders throwing the usual Mardi Gras trinkets to the crowd, one of the floats stopped in front of plaintiff and her companions due to the uneven progress of the parade.

The uncontradicted testimony is to the effect that one of the riders on the stopped float picked up a decorated coconut (a traditional Zulu favor) and threw it in plaintiff’s direction. It struck plaintiff causing injuries to her face and mouth. At no time had plaintiff given any indication that she wanted a coconut, nor is there any reason to believe that the coconut was thrown to her rather than to the crowd generally.

The trial judge decided the case adversely to plaintiff on the theory of assumption of risk. He found that she understood the tradition of Mardi Gras in general and was familiar with the Zulu parade in particular so that she “assumed the risk of those acts which would normally occur during the time of watching the Zulu parade.”

At the outset it is emphasized that the coconut was thrown with force in plaintiff’s direction. It was not lobbed. Furthermore, the plaintiff was behind a police barricade off the street at least twenty feet from the float and the rider stood on a perch which was at least eight feet from the ground level. In his reasons for judgment, the trial judge stated that Jean Robbins indicated in her testimony “that the delivery of the coconut was somewhat in an underhanded motion and did not contain as much force as indicated by Mrs. Schofield.” But this is not borne out by the record. The testimony of this witness presented by deposition contains the following: “. . .he [the rider] stood up and then just heaved the coconut into the crowd. It seemed to be quite forceful.” Furthermore, when she was asked whether the coconut was thrown underarm or not she said, “I don’t remember.” Her testimony was quite consistent with that of every other witness who testified, to wit, the coconut was thrown with force.

The doctrine of assumption of risk applies where plaintiff knows and understands the risk involved in an activity and where plaintiff’s choice to incur such risk is entirely free and voluntary. Pollard v. Roberts, 306 So.2d 801 (La.App. 2nd Cir. 1975). The doctrine has no application to the facts of this case.

There is no evidence that plaintiff could or should know or understand that by attending this parade she incurred the risk of having a coconut thrown from a float in her direction. There is no testimony that this had ever happened before. Indeed, the president of the Zulu organization testified that the riders are instructed to hand out the coconuts and “not to throw them because it could be dangerous throwing heavy coconuts throughout the route.” He said that this had been the rule since 1949. It follows that plaintiff could not assume a risk which even the defendant disclaimed as an ordinary offshoot of its activities,

Defendants’ argument as to plaintiff’s contributory negligence is likewise without merit. When she saw the object flying in her direction she ducked but was too late. Defendants would fault her for not moving faster or for not putting her hands up. We disagree. It would not be reasonable to insist that plaintiff perform like a baseball outfielder under these circumstances. There is no proof of any negligence on her part.

Accordingly, the judgment of the trial court is reversed and set aside and there is judgment in favor of plaintiff, Mrs. Carolyn T. Schofield, and against defendants, The Continental Insurance Company and The Zulu Social Aid and Pleasure Club, jointly and in solido in the amount of $10,1300.0, with legal interest from June 5, 1974, until paid and for all costs of the proceedings, including the costs of this appeal.

REVERSED AND RENDERED.


author: DOMENGEAUX, Judge.

text:
    Isaac T. SEALE, Plaintiff and Appellee, v. EVANGELINE PARISH POLICE JURY et al., Defendants and Appellants.
    No. 5408.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    A. Bruce Rozas, Mamou, for defendants and appellants.
    Guillory, McGee & Mayeux by A. Frank McGee, Eunice, Donald Soileau, Mamou, for plaintiff and appellee.

      Before CULPEPPER, DOMEN-GEAUX, and PAVY, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellee, Isaac T. Seale, filed suit against the Evangeline Parish Police Jury and Baton Rouge Contracting Company, Inc., to enforce specific provisions of a contract which had been executed between the plaintiff and the Police Jury. The contract in effect granted the jury a right of way over plaintiff’s lands, all in connection with a drainage improvement project of the Durald-Des Cannes Watershed. The contracting company performed the work for the Jury. Judgment was rendered against the Police Jury ordering specific performance — in essence to level the spoil bank on plaintiff’s property to twenty feet so as to form a roadway. Baton Rouge Contracting Company, Inc. was dismissed from the suit. The judgment assessed all costs of the proceedings against the Police Jury.

Subsequently counsel for the Police Jury filed a “Rule to Amend Judgment” so as to relieve it from any costs except those specifically allowed under LSA-R.S. 13:4521. The motion was denied. After the denial, plaintiff appealed suspensively. Seale and the contracting company have answered the appeal seeking damages for frivolous appeal.

The Police Jury has abandoned its appeal insofar as the merits are concerned, limiting it to the issue of it’s being assessed with all costs in the face of LSA-R.S. 13:4521. The other issue presented is whether or not the appeal is frivolous.

COURT COSTS

LSA-R.S. 13:4521 provides:
“§ 4521. State and its subdivisions, boards and commissions not required to pay court costs
Except as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public board or commission shall be required to pay court costs in any judicial .proceeding instituted or prosecuted by or against the state or any such parish, municipality or other political subdivision, board or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the Parish of Orleans and the City of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony.”

Appellees suggest that it was within the discretion of the trial court to assess all costs against the Police Jury by virtue of LSA-C.C.P. 1920 which reads:

“Art. 1970. Costs; parties liable; procedure for taxing
Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

We find no merit to that argument. LSA-R.S. 13 ¡4521 is clear and needs no refinement. The cases interpreting this statute are legion and hold, inter alia, that the state’s subdivisions shall not be required to pay Court costs other than the stenographers’ costs for taking testimony. See for example Harelson v. Parish of East Baton Rouge, 272 So.2d 382 (La.App. 1st Cir. 1972); Corbello v. Jefferson Davis Parish Police Jury, 262 So.2d 151 (La.App. 3rd Cir. 1972).

The trial court therefore erred in taxing the Police Jury for all costs of court, and its edict in that regard must be amended to coincide with LSA-R.S. 13:4521.

FRIVOLOUS APPEAL

The main thrust of appellee’s demand for damages for frivolous appeal is cushioned in the proposition that the Police Jury appealed the entirety of the District Court judgment and now abandons all phases of the appeal excepting that concerned with costs, thereby causing appel-lees to unnecessarily incur additional attorney fees in connection with the appeal.

LSA-C.C.P. 2164 which authorizes the award of damages for a frivolous appeal, is penal in nature, and it must be strictly construed. Appeals are favored, and the imposition of penalties for frivolous appeals will not be granted unless they are clearly due, since the award of such penalties will tend to discourage appeals. Guidry v. Carmouche, 320 So.2d 267 (La.App. 3rd Cir. 1975).

The Police Jury’s appeal was general. It necessarily included the improper assessment of costs against it. Its motion to have the judgment amended so as to conform to the provisions of LSA-R.S. 13:4521 was denied by the district judge. Its only avenue for relief in this regard was through the appellate process. It cannot be said that its appellate action is frivolous, and we therefore reject appellee’s demand for damages for a frivolous appeal.

For the above and foregoing reasons, it is ordered that the judgment of the District Court be and the same is hereby amended so as to relieve the Evangeline Parish Police Jury from all court costs except the stenographers’ costs for taking testimony. The judgment is otherwise affirmed.

Costs of this appeal are assessed to ap-pellees Seale and Baton Rouge Contracting Company, Inc., in equal portions.

AFFIRMED, AS AMENDED.

      . At argument on appeal, counsel for plaintiff, Seale, candidly anticipating that we might amend the trial court’s assessment of all costs to the Police Jury, expressed some apprehension that difficulty might be encountered by plaintiff in securing reimbursement of the court costs which plaintiff advanced in the trial court. Of course that matter is not before us. We say, however, that our decision herein amending the judgment on the question of costs is not to be construed as assessing any trial court costs against plaintiff Seale.


text:
    Saul CLAY, Plaintiff and Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellee.
    No. 5430.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.

      McHale & Bufkin, by Louis D. Bufkin, Lake Charles, for plaintiff-appellant.
    Gist, Methvin & Trimble, by DeWitt T. Methvin, Jr., Alexandria, for defendant-ap-pellee.
    Before CULPEPPER, DOMEN-GEAUX, and PAVY, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Saul Clay, appeals the judgment of the District Court which maintained the exception of res judicata filed by State Farm Mutual Automobile Insurance Company.

The exception was tried on a stipulation of facts which show the following:

Clay was a guest passenger in a Ford automobile which was owned and being operated by Joseph Rayford Manuel when it was involved in a collision with a Louisiana Department of Highways truck on July 23, 1973. The Manuel automobile was insured for liability by the defendant herein, State Farm Mutual Automobile Insurance Company, and the Highway Department truck was similarly insured by the Travelers Insurance Company. Plaintiff-received some injuries. Travelers, as insurer of the Highway Department truck, paid the damages of Joseph Rayford Manuel, and entered into negotiations with plaintiff concerning his injuries and damages. Travelers issued two “advanced payments” to plaintiff to defray some of his expenses while negotiations were going on, the first in the amount of $187.48 and the second in the amount of $85.00. Thereafter the plaintiff secured the services of an attorney and negotiations continued towards a settlement. On May 10, 1974, Travelers’ Assistant Supervisor wrote a letter to plaintiff’s attorney and enclosed a settlement draft in the amount of $3,059.86, which, according to the letter, coincided with plaintiff’s attorney’s evaluation of the matter. The draft was over and above the two advance payments which Travelers already paid. The body of the letter stated:

“In reference to the above I have discussed this claim with Mr. Beavers who handled the investigation for us in regards to this settlement negotiation with you on behalf of Mr. Clay. He indicated that you felt the claim was worth $2,750.00 plus $309.86 of the unpaid specials. We had advance paid Mr. Clay $272.48. We agree with your evaluation of this matter and you will find attached a draft of $3,059.86 over and above the $272.48 we have already paid.
This means the entire claim is to be settled for $3,332.34. Again, you will find a draft made out to you and your client for $3,059.86. This is a release form draft so that there is no need for any paper work as far as releases or anything of this nature. Thanking you in advance, I remain.”

Prior to the time that plaintiff’s attorney received the above-mentioned letter and draft the attorney had not discussed with anyone the possibility that a payment to be made by Travelers would satisfy all of the claims which plaintiff may have had as a result of being injured, nor had the attorney discussed with anyone the possibility that plaintiff might desire to reserve his rights as against any other parties responsible for his injuries.

Upon receiving the aforementioned letter of May 10, 1974, with attached draft, the attorney prepared a “Release”, relieving the Highway Department and Travelers from any further liability as a result of the July 23rd, 1973, accident, but specifically reserving the rights of plaintiff against any and all other parties. Before negotiating the draft the attorney had plaintiff execute the above referred to release and placed said release in his (plaintiff attorney’s file). The draft was then negotiated by plaintiff and his attorney, and some time later the attorney made demand upon State Farm, as insurer of the Manuel vehicle for damages resulting from the aforementioned accident, and furnished State Farm with a copy of the release document referred to hereinabove. Neither the original nor any copy of the “Release” was ever transmitted to the Travelers Insurance Company. State Farm denied liability and this suit followed.

Based on the above facts we conclude that the trial court was correct in maintaining the exception of res judicata.

Louisiana Civil Code Article 2203 provides in pertinent part as follows:

“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.”

The provisions of C.C. Art. 2203 apply to debtors ex delicto as well as to debtors ex contractu. The established rule is that joint tortfeasors are solidarity liable for the damages which result from their concurrent negligence or wrongdoing. Hoffpauir v. Kansas City Southern Railroad Company, et al, 219 So.2d 29 (La.App.3rd Cir.1969). Further, a claimant’s unconditional release of one joint tortfeasor (in this case, Louisiana Department of Highways) without expressly reserving his rights against the other (in this instance the host driver Joseph Rayford Manuel) operates to discharge all joint tortfeasors from further liability to plaintiff arising out of the accident herein. Hoffpauir, supra.

See also the case of Dodge v. CLECO, 257 So.2d 802 (La.App.3rd Cir.1972); writ refused 261 La. 481, 259 So.2d 921, wherein it was said:

“The law is settled that the release of one solidary obligor, without reservation of the right to claim from another, discharges all solidary obligors from liability. LSA-C.C. art. 2203; Reiley v. Atlas Construction Company, 146 So.2d 211 (La.App. 2 Cir.1962); Sepulvado v. General Fire & Casualty Company, 146 So.2d 428 (La.App. 3 Cir.1962).
We find that the compromise settlement entered into by plaintiffs, and the release which they executed, had the effect of releasing all defendants from liability for damages for the death of plaintiffs’ son. There thus was no error in the judgment which sustained the pleas of res judicata filed by defendants.”

We find that the compromise settlement entered into by plaintiff with Travelers Insurance Company had the effect of releasing Joseph Rayford Manuel and his insurer, State Farm from liability for any damages sustained by plaintiff as a result of the accident herein. The settlement was a contract between plaintiff on the one hand and the Highway Department and Travelers on the other, and was completed when the draft was negotiated. See C.C. Arts. 1798, 1799, 1800, 1801, 1802, and 1803.

If it was the intention of plaintiff’s attorney to reserve a right of action against Manuel and State Farm, said reservation should have been expressed to Travelers when the settlement was made. The document prepared by plaintiff’s attorney and executed by plaintiff was a unilateral self-serving “release” and was merely placed in the attorney’s file without any prior notification to the offerer, Travelers. It had no effect whatsoever in changing the terms of Travelers’ offer of settlement. By cashing the draft, the offer made by Travelers to settle the entire claim constituted an acceptance by the plaintiff of the terms thereof, and plaintiff is bound thereby.

For the above and foregoing reasons the judgment of the District Court maintaining the exception of res judicata and dismissing plaintiff’s suit, is hereby affirmed.

All costs are assessed against plaintiff-appellant.

AFFIRMED.

      . Plaintiff’s petition alleged an acute cervical ligamentous strain, a contusion of his right shoulder and a larceration above his right eyebrow.