text:
    Jessie PAUL, Plaintiff and Appellant, v. John L. ROBICHEAUX, the Board of Supervisors of Elections of St. Mary Parish, the Honorable Benny A. Blakeman, Chairman, and the Honorable Paul J. Hardy, Jr., Secretary of State, State of Louisiana, Defendants and Appellees.
    No. 12161.
    Court of Appeal of Louisiana, First Circuit.
    April 14, 1978.
    James B. Supple, Franklin, counsel for plaintiff and appellant, Jessie Paul.
    Sostenes Ruiz, III, Morgan City, Charles C. Culotta, Jr., Patterson, counsel for defendant and appellee John L. Robicheaux.
    Before ELLIS, BLANCHE, COVING-TON, EDWARDS and PONDER, JJ.
   PER CURIAM.

The election for the office of Chief of Police for the Town of Patterson, Louisiana, is contested by the losing candidate on the following grounds. He has alleged that numerous persons casting votes were not qualified to vote because they lived outside the municipal limits of Patterson and that commissioners allowed persons to vote even though their registration cards showed that they did not reside within the corporate limits of Patterson. The case was tried on its merits and the trial judge, in excellent reasons for judgment, dismissed the contestant’s suit. He has taken this appeal.

We affirm and adopt the following portions of his reasons for judgment as our own:

“All of the Election Commissioners, the Registrar of Voters, Deputy Registrar of Voters and the Clerk of Court testified. From the testimony of all of these witnesses the court finds that the City of Patterson is within Ward 5 of St. Mary Parish, however, only two precincts of Ward 5 vote in ‘Patterson’ Town elections. These two precincts are precincts one and three of Ward 5.
“The voter registration ‘official record’ and a duplicate record are kept in the Office of the Registrar of Voters in Morgan City, Louisiana, a short distance from the Town of Patterson. The voter cards which form the official record reflect the names of the voters who have registered and are entitled to vote. On the cards in the official record book, those persons who have been found by the Registrar of Voters in charge of the Morgan City office not eligible to vote in Ward 5 precincts one and three because they live outside the city limits of Patterson have been marked with the letters ‘O.T.’ These letters are placed on the voter cards to show Election Commissioners that the persons have ‘O.T.’ written on their voter cards are not eligible to vote in elections held within the Town of Patterson for its municipal officer.
“A number of the voter cards have erasures, and ‘scratch outs’ of the letters ‘O.T.’. This was explained to the satisfaction of the court by the testimony of the Registrar of Voters. The Morgan City office has had many Deputy Registrar of Voters. The present Deputy Registrar, a Ms. Charpentier, has held this office only ten months. Within the past few years, several other persons have held this office. The present Deputy Registrar did not cause any erasures or ‘scratch outs’ on the voter cards. These imperfections were on these cards before she assumed her office. The Registrar of Voters of the Parish of St. Mary testifies these erasures and ‘scratch outs’ have been on the cards for many years. The court is convinced that the voter cards were not altered or changed for the purpose of this election and in no way prejudiced the parties to their election.
“Testimony adduced show that throughout the years erasures and ‘Scratch outs’ on the voter cards reflected changes in domicile and/or residences of the voters. Persons previously living outside the Town of Patterson moved into the Town of Patterson and advised the Registrar of Voters who took the simple expediency of scratching out or erasing the ‘O.T.’ on the voter cards of these persons. Obviously there are some voters who have not advised the Registrar of Voters of changes in address and their voter designation has not changed. Thus, we have persons living within the city limits of the Town of Patterson with an ‘O.T.’ on there voter cards because they moved from another Ward 5 location into the Town of Patterson and also persons formerly living within the City having moved outside the city limits were eligible to vote because the Registrar was not advised of the change of address.
“These series of events, that is, the change of residents and/or domicile and failure to change designation of voter cards have occurred for many years. This was known to the Board of Election Supervisors, of which the plaintiff was and still is a member of this august body. Plaintiff, by his own testimony admitted knowledge of persons moving in and out of the Town of Patterson without notifying the Registrar of Voters of change of address. In fact, the plaintiff indicated he had participated in four election contests in Patterson, Louisiana, and his testimony indicates that he was aware of the circumstances surrounding the election contest. Plaintiff had a list of all registered voters sometime prior to the election contest of April 1, 1978. Of course he won the previous election contests, but this contest he lost and the court finds therein lies the reason for the suit filed in this instance. The plaintiff acknowledged that automobiles, probably about six automobiles, were going out beyond the city limits to pick up voters to vote in the election. Although these vehicles were not per se working for the plaintiff, plaintiff knew full well what was going on. This court is of the opinion that the plaintiff cannot, under L.R.S. 18:1434, know of objections to voter qualifications and/or irregularities in the conduct of the election to await the outcome of an election and then, after losing the election, contest or complain of these objections to voter qualification and irregularities.
“L.R.S. 18:1434 reads as follows:
‘An objection to the qualifications of a voter or to an irregularity in the conduct of the election which, with the exercise of due diligence, could have been raised by a challenge of the voter or objections at the polls to the procedure is deemed waived.’
“Plaintiff alleges commissioners selectively refused persons to vote on the basis that they would have cast votes favorably to the plaintiff. This allegation has not been proven, and if we were to assume it was, only six persons were proven to have been refused the right to vote. This would not change the election results.”

For the above reasons the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Shirley Goodman, wife of/and Carl BERNOFSKY v. Rose Anne Teller, wife of/and Robert M. SCHWARTZ.
    No. 9597.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1979.
    Rehearing Denied for Schwartz Feb. 15, 1979.
    On Rehearing April 10, 1979.

      Baldwin & Haspel, Robert R. Rainold and Robert R. Rainold, Jr., New Orleans, for plaintiffs-appellants.
    Krieger & Krieger, I. Jay Krieger and David R. Paddison, New Orleans, for defendants-appellees.

      Post, Reinhardt & Rougelot, William H. Reinhardt, Jr., Metairie, for Gertrude Gardner, Inc., third party defendant-appellee.
    Charles F. Barbera, Metairie, for Stan Weber & Associates, Inc., third party defendant-appellee.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Plaintiffs, Dr. and Mrs. Carl Bernofsky, appeal a judgment dismissing their action in redhibition.

On July 15, 1975, plaintiffs purchased property at 1351 Burbank Street in New Orleans for $45,000 from defendants, Mr. and Mrs. Robert Schwartz. On September 15, 1975, plaintiffs formally tendered title to the defendants demanding the sale be rescinded because (1) the property had latent defects that became apparent after they had moved into the house; and (2) vendors and their agent had misrepresented several important qualities of the house. The defense is that plaintiffs could have discovered the alleged defects and misrepresentation of which they now complain by simple inspection prior to sale. The vendors filed a third party claim against their real estate agent, Stan Weber & Associates, Inc., and the purchaser’s agent, Gertrude Gardner, Inc. When the original suit was dismissed, the third party actions fell with the adverse judgment against plaintiffs.

After sifting through the volumes of testimony and exhibits, it becomes evident the plaintiffs’ complaints are that the slab was a dish-shaped configuration that caused the flooring to be unlevel and they were given a diagram prior to sale showing the study measured 24 feet by 13 feet and only learned the length of this room was 4 feet shorter after moving into the house.

The first complaint, if established, would entitle plaintiffs to rescission under C.C. art. 2520, provided the defect was not one that could be detected by simple inspection. The record establishes the perimeter of the house is at a higher elevation than the center and that the floor slopes in many areas throughout. For example, the back bedroom, measuring IOV2 feet by 12 feet, slopes as much as 46/s inches in this one room. In other rooms throughout the house the levelness differential varies between lVs inches and 3% inches. These differentials in levelness were established by the expert testimony of a civil engineer and a slab foundation specialist, whose measurements established extensive instances of unlevelness. In short, the problem is substantial.

However, the purchasers’ right to rescind a sale upon discovering redhibitory vices after the sale, conferred by C.C. art. 2520, is modified by C.C. art. 2521, which excludes apparent defects from the redhibi-tory vices. That article requires the buyer to discover any defects that he should find by a simple inspection. The extent to which the vendee is obligated to inspect is not limited to casual observation, rather the examination must be conducted with a view toward determining soundness. In Pursell v. Kelly, 244 La. 323, 152 So.2d 36, 41 (1963), Justice McCaleb, speaking for the Supreme Court, discussed what simple inspection entails, viz:

“Article 2521 of the Civil Code excludes, from the vices for which redhibition may be demanded, apparent defects ‘that is, such as the buyer might have discovered by simple inspection * * ’. Inspection, as defined by Webster’s New International Dictionary, 2nd Ed., means a strict or prying examination. This connotes more than mere casual observation; it envisages an examination of the article by the vendee with a view of ascertaining its soundness. However, the Code limits the exclusion of warranty to those defects discoverable by a simple inspection. This, it is manifest, relieves the buyer of examining the inner or hidden parts of the object of the sale for the purpose of ascertaining the existence of latent defects.
“The proper test to be applied to this case, we think, as in all other cases of this kind, is whether a reasonably prudent buyer acting under similar circumstances, would have discovered the presence termite damage in the premises. * of

In this case the defense witnesses establish that the sloping was not ascertainable by simple inspection. Defendants and several of their friends testified that in frequent visits to the Schwartzes in their Burbank Avenue home they never noticed the sloping floors. They were all well acquainted with the defendants and had occasion to spend time in every room in their home. One lady, a friend who babysat often, described playing jacks with the children on the rear bedroom floor, which was measured to have one of the greatest degrees of unlevelness. If none of these people noted the problem, it would be unreasonable for us to conclude that the Bernof-skys in their short inspection tours would have discovered it. Plaintiffs first became aware of the unlevel condition when they attempted to set up a bed after moving in.

An additional complaint is the misrepresentation of the size of the study. When plaintiffs’ visited the Burbank property with their real estate agent (Dottie Ray of Gertrude Gardner) either the first or second time, Mrs. Schwartz gave Dr. Ber-nofsky an information sheet which included a diagram of the floor plan of the house. The dimensions of the den are shown as 24 feet by 13 feet. The evidence preponderates to the effect that the buyers did not learn that this room was only 20 feet long until after they took title.

Dr. Bernofsky, a biochemist engaged in leukemia research at Tulane Medical School, testified that one of the salient features of this house that prompted the offer was the size of the den. He had planned to use this as a study and build shelving to hold his extensive research materials. In moving a houseful of furniture from Minnesota to New Orleans, approximately one-fifth of the shipment contained research materials based on the amount of the moving bill that Tulane Medical School’s grant reimbursed plaintiff for the expense of moving medical materials.

Mrs. Bernofsky also emphasized that the size of the study was the feature that attracted them to this particular house because her husband had numerous books and research materials to house. It might perhaps be argued that the testimony of plaintiffs, which is naturally favorable to them, might be colored; however, realtor Dottie Ray described how the Bernofskys discussed the den size and studied the information diagram at length before making the offer. It was her impression that the selling feature of the house was the size of the den, coupled with the location in an area where the Bernofskys wished to send their children to school. We point out here that Mrs. Ray and Gertrude Gardner have no liability whatsoever and this is obvious almost from the beginning of the trial; therefore, at the point where she did testify, there can be no suggestion that her testimony could have been influenced by a wish to exculpate her agency from liability.

It is not clear who was responsible for the mistake. The record indicated Cleo Carmichael, a Weber agent; Mrs. Carmichael’s husband; and Robert Schwartz measured the rooms in the house. Whether the error in the length of the den is due to an inaccurate measurement or an improper transcription from notes to the finished information sheet is not explained. Insofar as the buyers’ right to have the sale rescinded for this reason under C.C. art. 2529, how the error was made is unimportant; however, the buyers’ right to a third party judgment does hinge on where the mistake lies.

In any event, C.C. art. 2529 provides:

“A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase.”

This also is a factor for holding the Bernof-skys are entitled to rescission. The study was not the size the vendors represented it to be and this was one of the principal motives that prompted them to purchase this house. In reaching this result we have considered whether the purchasers should have noticed this as inaccurate by simple inspection and been estopped from recovery by C.C. art. 2521.

We think not. Several experienced realtors failed to detect the error. Mrs. Ray was aware that the measurements on the diagram were discussed before the offer was submitted and she did not know they were erroneous. Further, we often review testimony that reflects a witness’ inability to accurately approximate measurements. Since the information sheet gave the exact dimensions, the purchasers had no reason to question their accuracy.

In addition, the information sheet gave inaccurate information on the age of the carpets and the air conditioning-heating unit. Perhaps no one single complaint would be sufficient to support the order of rescission, but when considered altogether, we think plaintiffs’ proven complaints entitle them to the relief they seek.

The sellers’ liability is proscribed by C.C. art. 2531 because the record leaves no doubt the mistaken declaration was made in good faith. Thus the sellers must reimburse them for the purchase price and reasonable expenses incurred in connection with the sale. Because they have occupied the property for more than three years at the time of this writing, they should be required to pay a reasonable rental for the use of the house. The sellers were not permitted to introduce the testimony of two realtors to establish rental value but by proffer we learn that one placed the rental value at $350, while a second placed it at $375. The proffer, consisting of direct and cross-examination, fully developed the theories upon which both experts rested their valuations. The trial court improperly excluded their testimony. While it is true neither had experience with rental in this area, the fact that there is little if any rental property in this neighborhood would prevent any realtor from becoming knowledgeable on rental values in the area through experience. We are more impressed with the expert who sets the $375 rental figure and will fix the monthly credit due at that amount.

We summarize the amounts to be refunded (the sale price and expenses occasioned by the sale) as follows:

Sale price $45,000.00
Moving expenses 3,457.74
Cost of loan appraisal 55.00
Closing costs $1,219.90
Less one year prepaid insurance premium 277.00 942.90
Bartlett Pest Control 200.00

Because the plaintiffs will be obligated to release the mortgage that now encumbers the property prior to or simultaneous with reconveyance, the defendants are to pay any expenses of reconveyance and releasing the mortgage. Defendants are further obligated to reimburse plaintiffs for all homestead charges (interest, insurance, taxes, etc.) paid on the mortgage which are not included in the reduction of the principal.

The exact dollar figure to be paid by the Schwartzes is not computable because we have no estimate on costs to reconvey the property nor do we know the period of time for which the rental credit must be allowed.

The third party demands are dismissed. No one seriously questions Gertrude Gardner’s liability. As to the claim against Weber, the evidence is unclear as to who was responsible for the mistake. Schwartz participated in the measurement and he could not explain how the 24-foot study length was recorded. In order to be entitled to indemnification, it would be incumbent on the defendants to prove that the Weber representative was responsible for the mistake. Schwartz stated his eyesight was diminished and it is possible this is where the mistake came in. This of course is speculation, but any other conclusion we might reach as to fault would be equally speculative. Like any plaintiff, a third party claimant has the burden of proving his case by a preponderance of the evidence.

For the reasons assigned, the judgment appealed from is reversed in part and it is ordered that the plaintiffs, Shirley Goodman, wife of/and Carl Bernofsky, convey, free of all encumbrances and alienations, to defendants, Rose Ann Teller, wife of/and Robert M. Schwartz, the following described property:

“ONE (1) CERTAIN LOT OF GROUND, together with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes and appurtenances thereunto belonging or in any wise appertaining situated in the Third District of this City, in square No. 45 of Oak Park Garden Addition, bounded by BURBANK STREET, ST. BERNARD AVENUE, SOLDIERS STREET and CARTIER AVENUE, designated as LOT NO. 7 on a survey made by Gilbert, Kelly and Couturie, Inc., Sur., dated December 21, 1967, revised on July 15, 1971, and revised on June 5,1975, a copy of which is annexed to the Vendor’s Act of Purchase, passed before me, Notary, this date, and according thereto, said LOT commences at a distance of 125.16 feet from the corner of BURBANK STREET and CARTIER AVENUE, measures thence 60 feet front on BURBANK STREET, the same in width in the rear, by a depth of 100 feet between equal and parallel lines. “Improvements thereon bear the Municipal No. 1351 BURBANK STREET”

upon the payment by defendants to plaintiffs of the sum of $49,655.64. All notarial cost for the act of conveyance and cancellation charges are to be borne by the defendants. The credit for rental due defendants is to be computed at $375 per month from the date the property was conveyed to the plaintiffs to the day it is reconveyed to the defendants. In all other respects the judgment appealed from is affirmed. Costs of this appeal are to be borne equally by appellants and appellees.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

ORDER

The application for a rehearing of Rose Anne Teller, wife of/and Robert M. Schwartz is denied.

On the application of Mrs. Shirley Goodman, wife of/and Carl Bernofsky a partial rehearing is granted limited to the issues of:

1. Adjustment of rental award; and
2. Reimbursement of expenditures for the preservation of the property.

Matter is to be submitted on briefs only. Brief on behalf of Mr. and Mrs. Carl Ber-nofsky is to be filed by February 23, 1979 and the reply of Mr. and Mrs. Robert M. Schwartz by March 5, 1979.

ON REHEARING

We granted rehearing in this matter to reconsider what amount of rental credit, if any, should be awarded the vendors (Mr. and Mrs. Robert M. Schwartz) and whether the costs and expenditures awarded the vendees (Mr. and Mrs. Carl Bernofsky) in the original decree are adequate.

The Bernofskys urge that no rental credit be allowed, pointing out that the sellers refused a rescission of the sale almost four years ago when the vendees tendered return of the property. They further point out that their continued occupancy was caused by the sellers’ refusal to cancel the sale; therefore, they were compelled to continue living in a home they considered defective.

That the sellers declined to rescind the sale when the property was first tendered is no basis for disallowing rent. Before a suit for redhibition may be filed by any purchaser, he must first tender the return of the property and offer to restore things to the pre-sale status quo. This tender is a prerequisite to the maintenance of any action in redhibition. Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir. 1975). Under C.C. art. 2531 the sellers are entitled to a credit for the value of the use of the thing. Obviously there is no penalty on the seller refusing tender other than those stipulated in the Civil Code.

The Bernofskys alternatively complain that the rental was excessive considering the condition of the home. We find no merit in this contention. The three-foot short measurement in the den does not render the house uninhabitable nor do the un-level floors render it unlivable. While we have allowed redhibition because of the circumstances in this case, particularly the Bernofskys’ requirements in buying a home, we did not conclude this dwelling was unfit for residential purposes.

We summarize purchasers’ complaints, which, when considered together, assert the sellers are being unjustly enriched by the rent credit. It is true years have passed while this matter has made its way through the trial court to this initial stage of appellate review; however, the sellers cannot be penalized for this time lapse. Article 2531 permits credit for use of the property which the sellers are entitled to have.

We agree that the Bernofskys are entitled to the sum of $272 they expended to replace the heat exchanger six months after they moved in the house, particularly when they were told this equipment was recently installed.

We also think the Bernofskys are entitled to interest at the rate of 7% per annum on their $9,000 cash deposit from the date of sale to the date the rescission is completed. It should be noted that the return of the $9,000 cash deposit is included in the $45,000 sale price awarded in our original decree.

For the reasons assigned, our original decree is amended to add a $272 award to the Bernofskys, plus 7% per annum interest on the $9,000 deposit from date of the original sale to date the act of rescission is passed. Our original decree is amended as herein provided and as amended is reinstated.

ORIGINAL DECREE AMENDED AND REINSTATED.

      . C.C. art. 2531 provides in part: “The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.”


author: REDMANN, Judge. STOULIG, Judge, REDMANN, Judge. PER CURIAM.

text:
    Walter ROBERTSON et al. v. Leroy PERRY et al.
    No. 9824.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Order On Rehearing Denied April 16, 1979.
    Per Curiam On Rehearing May 8, 1979.

      Lester J. Waldmann (Tooley, Gardner & Waldmann), Gretna, for plaintiffs.
    David M. Cambre (Dillon, Cambre & Marshall), New Orleans, for defendants South Carolina Ins. Co.
    Before REDMANN, STOULIG and BEER, JJ.
   REDMANN, Judge.

Defendant homeowner’s liability insurer appeals, on issues of its coverage and of its insured’s liability, from a judgment for plaintiff’s child’s injury by a toy motor scooter owned by the named insured’s 11-year-old child but operated by a 13-year-old neighbor.

Coverage

The insurer relies on the policy’s exclusion of:

bodily injury . . . arising out of the ownership . . . operation, [or] use . of:
(3) any recreational motor vehicle owned by any Insured, if the bodily injury . occurs away from the residence premises

The evident “reason” for the exclusion is stated by Couch, Insurance 2d, 44:453: “coverage in such case is ordinarily procured as automobile public liability insurance.” See also Long, The Law of Liability Insurance, app. 44, commenting on the Standard Provisions for General Liability Insurance effective October 1966 (not contained in our policy). Long notes that those general liability provisions cover “mobile equipment,” including any land vehicle not subject to motor vehicle registration. The clarity of those provisions would avoid the problem of having general liability insurance (through a homeowner's policy) as well as automobile liability insurance yet finding both insurers, post-accident, denying coverage.

Defendant homeowner’s liability insurer argues that the motor-propelled toy is a “recreational motor vehicle” within the exclusion and that, because the injury occurred in the street at the curb in front of a driveway adjoining the insured’s house and lot, it occurred “away from the residence premises.” (“Residence premises” is defined as the “dwelling building, appurtenant structures, grounds and private approaches thereto.”)

We disagree as to the . applicability of this exclusion. To be a “recreational motor vehicle,” a thing must be, in the first place, a motor vehicle. The policy provides: “‘recreational motor vehicle’: means (1) a golf cart or snowmobile or (2) if not subject to motor vehicle registration, any other land motor vehicle designed for recreational use off public roads.”

The word vehicle is applied to many things, such as vehicles of medicine, ideas, paint pigments, artistry. The common thread is conveyance: inert liquid conveys active medicine; words convey ideas; oil conveys paint pigment; a concerto conveys the pianist’s art, or a play conveys an author’s message.

We recall toy automobiles in which a child can sit and which are propelled at low speed by a battery-powered motor. Such a toy is not a recreational motor vehicle because it is not, in the ordinary sense of a motor vehicle, a vehicle. It is not a conveyance but an entertainment; it is not, in the ordinary sense, a means for carrying a person or thing from one place to another. It is an imitation of a motor vehicle, a child’s plaything.

Like that toy automobile, the toy scooter here is not a means of transportation. It is not a reduced-size motorcycle, a “minibike” with powerful engine capable of relatively high speeds. It uses a lawn-mower size or smaller engine capable of speed of five to ten mph, a speed easily attainable on the ordinary bicycle. Its tires are no more than ten inches in outside diameter, on axles bolted directly to its tubular frame with neither springs nor shock absorbers. Its seat is slightly more than knee-high to its now 13-year-old owner. We conclude that it is not a vehicle within the ordinary understanding of the term in the phrase motor vehicle. It is at least doubtful that the exclusion applies, and therefore, because policy clauses must be construed against the insurer, Albritton v. Fireman’s Fund Ins. Co., 1954, 224 La. 522, 70 So.2d 111, and exclusions must be strictly construed in favor of coverage, Brouillette v. Phoenix Assur. Co., La.App. 4 Cir. 1977, 340 So.2d 667, writ refused 342 So.2d 1115, we construe the exclusion as inapplicable.

Insured’s Liability

Although we have no doubt that the insured is not liable, the difficult question of whether the exclusion applies had to be resolved because of a procedural problem. The insured was also cast by the judgment appealed from, but the insurer alone appealed. The insured had been represented by other counsel, presumably because of the conflict on the coverage question, but that counsel withdrew. If the judgment is final as to the insured, and the exclusion is inapplicable, then the insurer cannot raise moot arguments about its insured’s already finally adjudicated liability. On the other hand, if the insurer’s unlimited appeal from the judgment necessarily constituted a conditional appeal from the casting of its insured, so that the judgment as against the insured is not final but is reversible by us on the ground that he is not liable, then we may reverse on that ground as to the insurer.

We conclude, as in Emmons v. Agricultural Ins. Co., 1963, 245 La. 411, 158 So.2d 594, 600, relying on C.C.P. 2086’s grant of the right of appeal to any person who could have intervened (as the insurer could, had the insured been sued alone), that the insurer’s appeal does constitute an appeal from the judgment as against the insured. To hold otherwise “would be attributing to the [insured] the right to control the appeal and, so to speak, deprive [appellant insurers] of rights vested in them under the Constitution.” Appellant insurer cannot have an appeal on the question of its insured’s liability if its insured’s failure to appeal “controls” the insurer’s appeal. See also Vidrine v. Simoneaux, La.App. 3 Cir. 1962, 145 So.2d 400, cert. denied; Fontenot v. Grain Dealers Mut. Ins. Co., La.App. 3 Cir. 1964, 168 So.2d 478; Murry v. Bankers F. & M. Ins. Co., La.App. 3 Cir. 1967, 198 So.2d 532. Furthermore, from the insured’s point of view, he had no need to have the judgment “revised, modified, set aside, or reversed", C.C.P. 2082, and therefore no need to appeal from the judgment, as long as it cast his insurer for its full amount: the insured is not aggrieved by the judgment as rendered.

We recognize, as did Murry, at 198 So.2d 538 n. 12, that one defendant’s appeal necessarily brings up the question of the other’s liability only to the extent necessary to decide the first’s appeal. Thus, if we reversed as to the insurer by applying the exclusion, that reversal would not reverse as to the insured on the ground that he was not liable. But, because we cannot reverse on the ground of the exclusion, and appellant insurer has the right to appeal on the question of its insured’s liability, we must consider that ground although it requires reversal of a judgment against the insured who did not appeal. Otherwise the insurer will be liable to the insured and, as in Emmons, the absence of a third-party demand by the insured against the insurer is not pertinent; C.C.P. 1113 preserves his right to sue hereafter.

We do reverse because there is no basis for holding the insured liable for a neighbor child’s negligent operation of the scooter. The scooter is not an unreasonably dangerous thing, such as the rifle the defendant parent allowed children to play with on the street in Sutton v. Champagne, 1917, 141 La. 469, 75 So. 209. (Lending even a rifle does not, in the absence of knowledge of the borrower’s unsafeness, make the lender liable for injury caused by the borrower; Laney v. Stubbs, 1969, 255 La. 84, 229 So.2d 708.) This scooter was no more dangerous than an ordinary bicycle. Because of the absence of any showing of a breach by the insured or his son of a duty owed to the child knocked down by the neighbor child, the judgment against the insured, and therefore that against the insurer, must be reversed and plaintiff’s suit against insured and insurer must be dismissed.

Reversed as to Leroy Perry and South Carolina Insurance Company.

STOULIG, Judge,

concurring.

I concur.

I am in accord with the finding expressed in the majority opinion that there is no evidentiary basis for concluding that the insured Leroy Perry is liable for the negligent operation of the minibike by the neighbor’s child. However I am also of the opinion that the motorized minibike qualifies as a “recreational motor vehicle” within the scope of the exclusion contained in the homeowner’s policy issued by the South Carolina Insurance Company.

ORDER

The application for a rehearing of Walter Robertson is denied.

On the application of South Carolina Insurance Company, a partial rehearing is granted limited to the following issue:

Is a minibike a “recreational motor vehicle” within the contemplation of the exclusion contained in the liability insurance policy against coverage for bodily injuries arising out of its operation or use?

Matter is to be submitted on briefs only. Brief on behalf of South Carolina Insurance Company is to be filed by April 23,1979 and the reply of Walter Robertson by April 30, 1979.

REDMANN, Judge.

I am of the opinion that both applications for rehearing should be denied.

PER CURIAM.

The limited rehearing granted by this court on April 16, 1979 is recalled, vacated and set aside, and our opinion of March 7, 1979 is reinstated.

      . The policy defines motor vehicle in terms of “a land motor vehicle . . thus using motor vehicle to define itself.

      . Lalomia v. Bankers & S. Ins. Co., 1970, 35 App.Div. 114, 312 N.Y.S.2d 1018, app. dismissed 27 N.Y.2d 796, 315 N.Y.S.2d 856, 264 N.E.2d 349, app. denied 27 N.Y.2d 1001, 318 N.Y.S.2d 750, 267 N.E.2d 484, held that a bicycle to which an engine had been affixed became a motor vehicle for purposes of an exclusion. To the extent that Lalomia may conflict with this opinion, we simply disagree.


text:
    Leon JONES v. Irwin J. ROUSSEAU and Travelers Insurance Company.
    No. 10166.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 1979.
    Rehearing Denied May 17, 1979.
    Writs Refused June 25, 1979.
    Robert Henry Sarpy, Jr., John L. Dorsey, New Orleans, for relator.
    Darleen M. Jacobs, Steven A. Watts, New Orleans, for respondents.
    Before BOUTALL, SCHOTT and GARRISON, JJ.
   We granted certiorari to review the correctness of a decision to strike a plea of contributory negligence.

The plaintiff, Leon Jones, filed suit for damages for an injury arising out of a pedestrian-automobile accident. The petition alleges that plaintiff was attempting to cross the street when struck by the auto driven by Irwin J. Rousseau, one of the defendants. Rousseau and his insurer answered by denying any negligence on their part and by setting out the affirmative defense of contributory negligence on the part of the plaintiff. Plaintiff then filed a motion to strike the defense from defendant’s answer. The trial judge maintained the motion, striking the defense and also excluded all evidence referring to plaintiff’s alleged negligence. The only question before us is the correctness of this decision.

The decision was based upon the case of Baumgartner v. State Farm Mutual Automobile Insurance Co., 356 So.2d 400 (La.1978). In that case, the Louisiana Supreme Court held that a pedestrian-plaintiff’s contributory negligence will not bar his recovery. The trial judge held in this case that contributory negligence could not, under Baumgartner, be set out as an affirmative defense and an answer by the driver of the automobile. We agree with this ruling and affirm the striking of the defense of contributory negligence. The ruling apparently went further than this, however, and we do not feel that Baumgartner intended to create a broader rule than the one stipulated above.

The motion to strike asked that paragraphs VIII and IX of defendant’s answer be removed. These read as follows:

“XIII
“And now further answering, defendants aver that the plaintiff was guilty of negligence in the following particulars, among others to be shown at the time of trial:
“1. Failing to see what he could or should have seen;
“2. Failing to take any means to avoid the accident;
“3. Failing to maintain a proper lookout.
“4. By suddenly and without warning just walking into the path of the defendant;
“5. Generally, in the careless and reckless fashion in which he handled himself under all the circumstances;
“IX.
“And further answering, defendants aver that the above acts of negligence amount to contributory negligence, which acts as a bar to plaintiff’s recovery herein.”

In our view, the striking of paragraph IX was properly done in accordance with Baumgartner. Paragraph VIII, however, merely alleges that the plaintiff was guilty of negligence. In striking this paragraph and preventing the introduction of any evidence of the plaintiff’s negligence, the trial judge has expanded Baumgartner beyond the realm of contributory negligence as a bar to recovery. The exclusion of all evidence on the subject of negligence interferes with other defenses which the driver may wish to plead.

In Baumgartner, the Supreme Court states the following:

“It must be noted, however, that a motorist who exercises all reasonable care to protect a pedestrian, who nonetheless suffers injury, is not at fault.”

An examination of whether or not the driver exercised “all reasonable care” will almost surely require an examination of the actions of the pedestrian. Normally, the actions of the driver are examined in light of the situation presented by the actions of the pedestrian and judged in terms of distance and time. There are also cases in which there may be some negligence on the part of the driver, but the negligence of the pedestrian is the proximate cause of the accident. Under this ruling the driver is prohibited from introducing proof as to causation if this proof involves the pedestrian’s negligence, as it invariably will. We therefore feel that exclusion of all evidence relating to the pedestrian’s negligence is actually in conflict with Baumgartner and renders that decision unworkable.

The recent case of Bonfiglio v. McDempsey, 360 So.2d 237, (La.App. 1st. Cir. 1978) provides an illustration of the rationale of our holding. In that case the trial court held that the contributory negligence of the plaintiff-pedestrian barred his recovery. The First Circuit, after citing the rule of Baumgartner, stated that the absolution of pedestrian-plaintiffs from contributory negligence did not compel reversal of the judgment in that case. The court then proceeded to examine the evidence and affirmed the trial judge for lack of proof of causation. See 360 So.2d 238.

In its discussion of the evidence the following paragraph was included in Bonfig-lio :

“The only eyewitness, Mr. T. V. Thompson, testified that he observed the incident from a balcony approximately fifty or sixty feet from the scene. He testified emphatically that the vehicle did not strike plaintiff, but that plaintiff more or less slapped or ran into the car. Thompson stated that the contact was at the right rear of the car.”

Proof of causation clearly includes an examination of the activities of the plaintiff-pedestrian. Exclusion of all such evidence would apparently have led to an opposite result in Bonfiglio. We do not believe that Baumgartner was intended to have such an effect.

There is another contention dealing with the fact that the trial judge stated in the judgment and in his written reasons that the court considered these proceedings not only as a motion to strike, but also as a motion for partial summary judgment. This was apparently done because of the fact that the motion to strike was not filed within the 10 day time limit of Code of Civil Procedure Article 964. We simply point out that Article 964 authorizes the court to bring a motion to strike on its own and this may be done “at any time”. There is no other basis for the trial judge’s consideration of this matter as a summary judgment. The motion to strike is applicable to this type of pleading situation.

We therefore affirm the judgment granting the motion to strike the defense of contributory negligence from the answer and prohibiting argument or other presentation to the jury of such defense. We amend by allowing Article VIII of the answer to remain and permit evidence of plaintiff’s negligence to be introduced in accordance with it.

AMENDED AND AFFIRMED.

      . L.C.C.P. Art. 964 makes the action of the trial judge on the motion discretionary.


author: BOUTALL, Judge.

text:
    Thomas L. YARBROUGH, Jr. v. LOUISIANA CEMENT COMPANY, INC., et al.
    No. 9767.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    Writ Refused July 2, 1979.

      Rudolph R. Schoemann, Mary Ann McGrath Swaim, New Orleans, for Thomas L. Yarbrough, Jr., plaintiff-appellant.
    Allen R. Fontenot, Lemle, Kelleher, Kohl-meyer & Matthews, New Orleans, for OKC Corp., defendant-appellee.
    O’Keefe, O’Keefe & Berrigan, Peggy M. Vicknair, New Orleans, for Pollution Control-Walther, Inc., defendant-appellee.
    Richard C. Baldwin, Leach, Paysse & Baldwin, New Orleans, for American Standard, Inc., defendant-appellee.
    Raymond J. Salassi, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for R. N. Steinlee, C. A. Lloyd, A. L. Hatley & C. E. Lyons, defendants-appellees.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is an appeal from two judgments maintaining peremptory exceptions of prescription of one year.

Plaintiff Thomas Yarbrough filed a suit in tort on December 4,1975, for injuries and damages alleged to have been caused by the defendants in their various business operations. He alleges that he was exposed to noxious substances, such as dust, gases and chemical compounds while he was at work, causing pulmonary difficulties, other health problems, and disability to work. He ceased work on August 1, 1974. The various defendants filed the peremptory exceptions of prescription of one year limitation in bringing suit based on Louisiana Civil Code Article 3536 and 3537.

It is apparent on the face of the petition as noted above that the suit is one in tort, and that more than one year had lapsed from the occurrence (ceasing work and removal from a work related condition) and that his action had prescribed. When plaintiff’s cause of action has prescribed on the face of his own petition, the plaintiff bears the burden of proof at the trial of the exception to establish facts which would have the effect of interrupting or avoiding prescription. Marcel v. Hospital Corp., 322 So.2d 302 (La.App. 1st Cir. 1975); Lasseigne v. Earl K. Long Hospital, 316 So.2d 761 (La.App. 1st Cir. 1975).

Plaintiff defended against the exceptions on two bases: 1.) That prescription had been interrupted because of his earlier filing suit in the United States District Court on the same cause of action; and 2.) that he was not aware of the connexity between his pulmonary disease and the environment at his place of employment more than one year prior to service of process on the defendants.

The first issue arises under the provisions of LSA-9:5801, as follows:

“§ 5801 Interruption of prescription by filing of suit, service of process
“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process. As amended Acts 1960, No. 31, § 1.”

It is stipulated that plaintiff filed on this cause of action in the United States District Court for the Eastern District of Louisiana on January 16, 1975, basically against the same defendants named herein. Service was made on three of the defendants, American Standard, Inc., and Louisiana Cement Company, a subsidiary of the OKC Corporation, and C. E. Lyons on January 21, 1975. Defendant Pollution Control-Walther, Inc. was brought into that suit in September of 1975 as a third party. The other defendants R. N. Steinlee, C. A. Lloyd and A. L. Hatley were not served. It is further conceded that the United States District Court was an incompetent court to try this matter. Thus, unless plaintiff can show that the prescriptive period did not start prior to one year from the date of service, January 21, 1975, his present suit is prescribed, because the prescriptive period was not timely interrupted. See Tally v. Lovett, 332 So.2d 924 (La.App. 3rd Cir. 1976); Venterella v. Pace, 180 So.2d 240 (La.App. 4th Cir. 1965).

The trial judge found that plaintiff had knowledge of the cause of action on January 16, 1974, more than a year before service of the U.S. District Court suit. We agree. The exceptors introduced into evidence a deposition of plaintiff given in connection with this case and plaintiff’s answers to written request for admission of facts. The deposition demonstrates that plaintiff had consulted his doctor in 1972 complaining of shortness of breath and pulmonary difficulties, and that thereafter during his course of employment he made a number of complaints to his employers concerning the emissions from the neighboring cement plant as well as the environment in his own place of employment. He further admitted that he consulted the same doctor on January 16, 1974 with the complaint of shortness of breath and on that occasion he told the doctor that he worked in a dusty environment and that he was having trouble breathing following working. The evidence preponderates that the plaintiff’s knowledge of pulmonary problems and the symptoms arising from exposure to noxious elements at various times during his working hours was sufficient to begin the running of the prescriptive period, although he may not have known of the precise effect it had on him. We refer to the case of Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (La.1970) at page 287:

“ * * * Also, it is not necessary that the party have actual knowledge of the conditions as long as there is ‘constructive notice.’ Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.”

We also refer to the following cases which have applied the same principles to medical cases wherein the plaintiff had knowledge of his injury, but was perhaps not aware of the full measure of damages occasioned. Duhon v. Saloom, 323 So.2d 203 (La.App. 3rd Cir. 1975); Marcel v. Hospital Corp. of the Sisters of St. Joseph, supra; Lasseigne v. Earl K. Long Hospital, supra.

In opposition to the exceptions, plaintiff relied only on the following: A proffer of the deposition of the treating physician, Dr. Diamond, and a later affidavit by him. We discuss this separately because all of the exceptions were not heard at the same time. The procedural situation was that OKC Corporation and American Standard had first filed the exceptions and the doctor’s deposition was proffered during that trial. After judgment, the affidavit was offered in relation to a new trial request. The remaining defendants had filed their exceptions after the first judgment was rendered, and their exceptions were tried at the same time as the motion for new trial was considered. Thus, the affidavit formed no part of the evidence as to the first exceptors, but apparently was offered against the second exceptors. There was no showing that the doctor could not have been produced, and an affidavit standing alone is not competent evidence.

In connection with the proffered deposition of Dr. Diamond, we note that it was taken in connection with an unrelated suit filed in U.S. District Court by plaintiff against a disability insurer. Louisiana Code of Civil Procedure Article 1450 permits a deposition taken in one case to be used in another case brought against the same parties involving the same subject matter, but it is apparent in this case that none of the defendants were parties to the litigation in which the deposition was taken, and the proffered deposition should not be considered by us. However, appellant has strenuously argued and presented in brief the pertinent facts therein that he seeks to establish. We say in passing that while the deposition may have established the date that the Doctor concluded that plaintiff’s working conditions caused him some problems, that evidence does not negate the earlier awareness of the plaintiff that inhalation of the cement dust, noxious fumes, etc. caused him difficulties at work.

For the reasons above expressed, the judgment appealed is affirmed.

AFFIRMED.


text:
    Carol Johnson TOTH v. INTERSTATE FIRE AND CASUALTY CO.
    No. 9817.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    Writ Refused June 25, 1979.
    Exnicios & Nungesser, Samuel Richard Exnicios, New Orleans, for Carol Johnson Toth, plaintiff-appellant.
    Carmelite Bertaut, Dillon, Cambre & Marshall; Gerard M. Dillon, New Orleans, for defendants-appellees and third party defendants-appellees, the Parish of Jefferson and Fireman’s Fund Ins. Co.
    A. W. Wambsgans, Cronvich, Wambsgans & Michalczyk, Metairie, for Joseph M. Beh-rens and Interstate Fire & Cas. Co., appel-lees and third-party plaintiff appellant.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

Plaintiff, Carol Johnson Toth, appeals a judgment dismissing her suit for personal injuries resulting from an interseetional collision. We affirm. The basic issue is credibility of the witnesses.

The undisputed facts are that Carol Johnson Toth was driving her vehicle in Jefferson Parish south on Causeway Blvd. into the intersection of Causeway with Veterans Memorial Blvd. At the same time Sgt. Joseph M. Behrens was driving his police vehicle east on Veterans Memorial Blvd., and when the two vehicles reached the southwest quadrant of the intersection, they collided. The traffic flow at that intersection was regulated by lighted semaphore signals. There was construction work under way at that intersection due to the preliminary phases of construction of an overpass over the intersection on Causeway. There were numerous barricades in the area, consisting of black and white boards held on tripods delineating the areas where work was in progress, and diverting traffic from those areas. The collision occurred approximately 9:30 at night, and there was no active construction work being done at that time.

Each driver contends that the light was green in his favor and that the other driver had a red light requiring that vehicle to stop. Additionally, driver Behrens contends that there was a malfunction of the signal light at that time. As a result of this the defendant police officer and his insurer filed third party pleadings against the Parish of Jefferson and its insurer, and the plaintiff brought suit against both the policeman driver and the Parish of Jefferson, as well as their insurers.

The issue presented is a classic case of credibility of the witnesses. Driver Toth contends that she entered the intersection on the green light and in corroboration produced two witnesses occupying another vehicle at the intersection, who supported her testimony that the light was green for her and red for the police vehicle. In defense of this, the defendants produced the testimony of Sgt. Behrens, the driver, that the light was green for him, and he is supported by the testimony of an off-duty policeman who was at the southeast quadrant of the intersection. Behrens also testified that there was some malfunction of the light, and this was supported by the testimony of the deputy who investigated the accident and again noticed a very quick change in sequence of the lights. The trial judge resolved the issue by finding that plaintiff Toth was guilty of negligence in failing to stop for a red signal light, and dismissed plaintiff’s suit against the defendant driver. In considering the liability of the Parish of Jefferson, the court found as a fact that there was no malfunction of the electric semaphore light at the intersection and dismissed the pleadings against that defendant.

The latest expression of the duty of appellate courts in reviewing and evaluating the trial court judgment is found in the case of Arceneaux v. Domingue, 365 So.2d 1330 (La.Sup.Ct.1978). In that case the court referred to its previous holding in the case of Canter v. Koehring, La., 283 So.2d 716, 724:

“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.”

The court went on to explain this to mean that:

“ * * * We said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).” 365 So.2d 1333.

We find that the record does reveal a reasonable factual basis for the finding of the trial court and that that finding is not clearly wrong (manifestly erroneous). There is little in the way of factual demonstrative evidence to resolve the conflict and testimony. What little there is supports the finding of the trial judge. There was a conflict between the testimony of the parties as to the speed of the vehicles, and the point of collision between them. From the resting places of the vehicles, and the physical damage inflicted on each, we conclude that it is more reasonable to believe that the police vehicle was proceeding slowly rather than rapidly as stated by plaintiff, and that the vehicles collided at the point of the respective front fenders rather than broadside as stated by plaintiff. Additionally, there is the conceded factor that two or three vehicles (presumably police vehicles) passed in front of plaintiff’s car before she proceeded into the intersection and this collision ensued. Plaintiff and her witnesses testified that these cars did not have flashing lights and sirens in operation. Yet it is clearly established that the police vehicles were proceeding on an emergency call, and the driver of one of those vehicles who returned to the scene to investigate the accident, testified that all had flashing lights and sirens. It is more reasonable to conclude that these police vehicles answering the emergency call were in fact using their flashing lights and sirens, and at the same time one could conclude that Sgt. Behrens, who was a supervisor and was not imposed with the duty of answering the emergency, would be proceeding slower and not using his lights and sirens. Indeed he testified that the proceeding vehicles had passed him up shortly before. These conclusions tend to support the finding of the trial judge and we find no manifest error in his ruling.

For the reasons above assigned, the judgment appealed is affirmed.

AFFIRMED.


author: STOULIG, Judge. REDMANN, Judge, BEER, Judge,

text:
    WILLSWOOD PLANTATION, INC., and Estate of E. G. Robichaux v. Clarence P. FORET.
    No. 9834.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    Writ Refused June 25, 1979.
    Filié & Filié, M. Arnaud Pilié, New Orleans, for plaintiff-appellant.

      Jacob L. Karno, Metairie, for defendant-appellee.
    Before REDMANN, GULOTTA, STOUL-IG, BEER and GARRISON, JJ.
   STOULIG, Judge.

Plaintiff, Willswood Plantation, Inc. (Willswood), has appealed a judgment dismissing its rule to evict its tenant Clarence P. Foret from Mississippi River batture property for nonpayment of rent for the years 1974, 1975 and 1976.

Plaintiff’s right to possession — a simple issue — is made complex by the procedural imbroglio that developed from plaintiff’s initial attempt to eject this tenant. The first suit, filed February 18, 1975, resulted in a judgment that awarded Willswood past-due rentals of $29,100 and was silent as to its right to possession. From this judgment Foret obtained two orders for appeal, one suspensive and one devolutive. From the record it is apparent the suspensive appeal was never perfected timely; however, the devolutive appeal does remain.

Judgment denying Foret’s motion for a partial new trial was signed on May 11, 1977. The motion for suspensive appeal, filed June 24,1977, was signed July 5,1977, and the required $44,000 appeal bond was not posted until July 26,1977. Construed in the light most favorable to Foret, he had 30 days from June 24, 1977 within which to post the suspensive appeal bond (C.C.P. art. 2123). Because July 24,1977 was a Sunday, under C.C.P. art. 5059 Foret had through Monday, July 25, 1977 to post the bond, which he did not do until the following day, July 26, 1977. Therefore the suspensive appeal was never perfected timely.

The motion for devolutive appeal was granted by the trial court July 7,1977. The $500 cost bond was filed July 11,1977 within the 60 days allowed for perfecting a devolutive appeal. (C.C.P. art. 2087).

After the trial court lost jurisdiction of this case, plaintiff filed, on September 1, 1977, another petition for possession of the premises in the same proceeding then pending on devolutive appeal. Defendant Foret then pleaded exceptions of lack of jurisdiction, no right of action, unauthorized use of summary proceeding and nonjoinder of a necessary party. The trial court rendered judgment maintaining the “exceptions”, without specifying which ones were maintained. The trial court had no jurisdiction to entertain any procedure in the matter reviewable on appeal having been divested thereof when the devolutive appeal was perfected within the delays allowed by law. C.C.P. art. 2088 provides the trial court loses jurisdiction over all matters in a case reviewable on appeal once the appeal is perfected.

Thus when the trial court adjudicated the exceptions filed in response to plaintiff’s second petition to evict in the same suit, it was only competent to pass on its lack of jurisdiction. C.C.P. art. 1 defines jurisdiction as a legal power of a court to determine an action involving the legal relations of the parties and to grant relief to which they are entitled. C.C.P. art. 3 stipulates jurisdiction cannot be conferred by consent and judgment rendered by a court lacking jurisdiction is void. As these articles apply to this case, we conclude that the only exception the trial court had power to entertain was that as to lack of jurisdiction.

This brings us to the petition for possession of the premises from which this appeal directly emanates. Plaintiff filed a new proceeding to have defendant evicted for 1974, 1975 and 1976 rents. Foret pleaded, inter alia, the exception of res judicata. Admittedly the rents have not been paid and once the first judgment became execu-tory the rents awarded Willswood on the first judgment were due. The judgment rendered in the petition for possession filed in the first suit after a devolutive appeal was taken could not serve as a basis for res judicata because it was a nullity. The exception has no merit.

The lessor is permitted under C.C. art. 2712 to evict the lessee from the property if he fails to pay the rent when it becomes due. To exercise this right, the lessee is required by C.C.P. art. 4701 to send written notice to vacate to the lessee, allowing him five days from the date of delivery of the notice to return the premises.

We are satisfied that plaintiff has complied with the procedural requisites for eviction; therefore, we think the trial court erred in failing to order the eviction when the record clearly establishes that rentals for 1974, 1975 and 1976 were unpaid. For-et’s position rests primarily on the premise that a timely suspensive appeal was perfected from the first judgment. Having demonstrated there is only a viable devolu-tive appeal in the first case, we need not discuss the merits of the effects of a sus-pensive appeal. Foret’s failure to perfect the suspensive appeal timely obviates a discussion of what would have happened had the suspensive appeal been effected.

In the present case before us, demand for eviction was based upon the non-payment of 1974, 1975, 1976 and 1977 rents. Once the judgment became executory in the first case, it is beyond dispute that the 1974, 1975, and 1976 rents are unpaid and plaintiff is entitled to possession of his property.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that defendant, Clarence P. Foret, be ordered to vacate and to surrender to Willswood Plantation, Inc., possession of the premises.

The lease of batture by the Estate of E. G. Robichaux to Clarence P. Foret dated March 4, 1971 is hereby cancelled. Defendant is to pay all costs of these proceedings.

REVERSED AND RENDERED.

REDMANN J., concurs with written reasons.

BEER, J., dissents with written reasons.

REDMANN, Judge,

concurring.

The judgment maintaining “exceptions” to the supplemental petition in the first suit did not purport to adjudicate the substantive question at issue. That question is therefore not a thing adjudged.

The controlling fact is that defendant has not paid rent, even after the first judgment casting him for the rent spared him eviction on the apparent theory of an earlier tender. That fact entitles plaintiff to eviction.

BEER, Judge,

dissenting.

I respectfully dissent.

In my view, the non-payment of the rent was predicated upon the fact that an appeal had been taken from the judgment ordering same to be paid. Even though the central issue on appeal was not directly concerned with the amount of the basic rental figure, the majority opinion (at least in my view) presumes this action to be a calculated nonpayment of rent sufficient to cause the cancellation of the lease.

I do not think this is fair. Whereas I have no hesitancy in agreeing that the rent should, certainly, be paid without further delay, I can, nevertheless, sympathize with and understand the failure to pay it timely because of the pending appeal.

In my view, the majority reaches a result which I believe to be harsh, since it imposes an absolute burden upon the lessee to have paid the rent in spite of the appeal or suffer cancellation of the lease.

I cannot agree that non-payment under these circumstances can form a proper basis for cancellation.

I would order the lessee to bring all payments up to date at his cost, including interest, attorneys’ fees, etc., but I cannot vote to cancel the lease.

      . The record is silent as to whether Foret was entitled to notice of the judgment of May 11, 1977 denying his motion for a partial new trial. However, his motion for a suspensive appeal, filed on June 24, 1977, confirms that at least by this time he had knowledge of the May 11, 1977 judgment.

       Editor’s Note: A sketch delineating the premises is attached to the original opinion but not to the copy for publication.


author: LEMMON, Judge. STOULIG, Judge, GARRISON, Judge,

text:
    Donna GALLAND v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 9881.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Writ Granted June 1, 1979.

      Herman & Herman, Fred L. Herman, New Orleans, for plaintiff-appellee.
    James Maher, III, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON, STOUL-IG, BEER and GARRISON, JJ.
   LEMMON, Judge.

The issue in this tort case is whether the ankle injury sustained by plaintiff in alighting from defendant earner’s bus was caused by the bus driver’s failure to set the passengers down in a safe place (which was plaintiff’s sole theory for recovery).

I

Plaintiff presented the only three witnesses at trial. Plaintiff herself testified: She and her 13-year old brother were riding the bus on the evening of the accident. The driver passed the designated bus stop at Canal and Clark Streets, despite a timely signal, and let them off on the lake corner of Clark (rather than the river corner), about five or six feet from the curb. The brother exited first, and she then stepped from the lower step of the bus to the ground with her left foot, explaining that “I stepped down, it was a steep step to take and when I got off, I twisted my (left) ankle and fell on all fours”. Asked about the street conditions, she replied “when he left me off, it was on a slant and I did not know how steep it was”. However, she stated that the street was paved and even and was the same at both corners, that there wasn’t any more slope at one corner than at the other, and that there was no problem with the street where she fell except “just slant”. Finally, she affirmatively answered an inquiry as to the cause of the fall being “the height between the bus and the street”.

The brother testified similarly, stating “the street was further down than normal” and “you had to step a little further”. He added that “the reason why it was steeper is because the bus was further out from the curb”, estimating “it was four to six-inches steeper”.

The final witness was the policeman who found plaintiff sitting in pain on the curb and took her to the hospital. However, he did not mention in his testimony that he observed (or was shown) any physical condition which may have caused the fall.

The bus drove off from the scene as soon as plaintiff alighted. None of the bus drivers on the particular route that evening were called to testify.

The reasons for judgment announced by the commissioner stated:

“The Court finds that there was negligence on the duty of care of a common carrier was not adhered to in the situation by the fact that the bus stop which would ordinarily have served a safer place for disembarkment was not used.”

II

A carrier need not set down its passengers exactly at the designated stop; the duty of the carrier is simply to discharge its passengers at a place which is reasonably safe for that purpose. Clogher v. New Orleans Ry. & Light Co., 143 La. 85, 78 So. 247 (1918). Furthermore, it is immaterial if the designated stop was relatively safer, as long as the place where the passengers were actually discharged was not unsafe. Nor is the carrier’s duty necessarily breached because the bus stopped to discharge passengers at an otherwise safe place five feet away from the curb, rather than directly at the curb. Cary v. New Orleans Public Service, Inc., 250 So.2d 92 (La.App. 4th Cir. 1971), cert. den., 259 La. 808, 253 So.2d 67.

The evidence in this case falls far short of establishing that the place at which plaintiff was discharged was not reasonably safe. However, because of broad and imprecise language used in some appellate decisions to describe the burden of proof in passenger-carrier litigation involving personal injury, further discussion is required.

Ill

Because of the special responsibility involved, a public carrier, although not the insurer of its passengers, is required to exercise the highest degree of care for their safety. Gross v. Teche Lines, Inc., 207 La. 354, 21 So.2d 378 (1945). Indeed, when a vehicle operated by the carrier is involved in a collision which causes inj'ury to a passenger, Louisiana courts have consistently held that, in view of the high degree of care required, it is presumed that the carrier was negligent, and the carrier (in a suit by the passenger) has the burden of proving itself free from negligence. See, for example, Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963).

Unfortunately, some decisions in collision cases have stated that the mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence against the carrier. Such broad and unqualified language, however, cannot be applied literally, away from the background of the circumstances of the particular inj'ury. A more accurate statement is that a fare-paying passenger, in order to establish a prima facie case, must not merely prove an inj'ury, but must further prove the inj'ury was caused by an incident, occurrence or condition which is inferentially attributable to the carrier. The presumption of negligence which then arises is not based on the mere fact of injury, but on the surrounding circumstances. Causation of the injury is therefore an element of the passenger’s burden of proof in establishing a prima facie case of negligence, and mere proof of an injury does not create any presumption which establishes such a prima facie case.

For example, a fare-paying passenger who is injured during the course of an otherwise uneventful trip, in which no collision is involved, does not carry his burden of proof if he rests his case after simply showing that he bit his tongue while on the bus. The passenger must further show (at least by his own testimony) that some incident, occurrence or condition inferentially attributable to the carrier, such as an abrupt start or a sudden swerve, caused him to bite his tongue. Once some proof of such causation is presented, the carrier then has the burden of 'overcoming the presumption that it was responsible for the incident which caused the injury. But prima facie proof of causation, by direct or circumstantial evidence, is always part of the passenger’s burden.

Here, plaintiff did not prove any incident, occurrence or condition that caused her to fall. The most definite of her vague statements places the blame on the “height between the bus and the street.” Of course, the distance from the bottom step of the bus to the ground always remains the same, in the absence of some special condition on the ground, such as a hole or a rise, which plaintiff negated in her testimony. The facts and circumstances described by her therefore do not give rise to any inference or presumption of negligence by the carrier in discharging its passengers.

Plaintiff’s claim falls for lack of proof of causation.

Accordingly, the judgment of the trial court is reversed, and it is now ordered that plaintiff’s suit be dismissed at her cost.

REVERSED AND RENDERED.

STOULIG, J., concurs and assigns reasons.

GARRISON, J., dissents and assigns reasons.

STOULIG, Judge,

concurring.

I concur in the result. I am of the opinion that the case of Cary v. New Orleans Public Service, Inc., 250 So.2d 92 (La.App. 4th Cir. 1971), is sufficiently apposite to be controlling in the disposition of this matter.

GARRISON, Judge,

dissenting.

Based on the evidence presented, I see no manifest error in the trial court’s factual conclusions. Accordingly, I would uphold the decision in favor of plaintiff. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

      . This rule has been characterized as the result of the confusion and intermingling of two principles, one concerned with the sufficiency of circumstantial evidence (a principle which itself is largely misunderstood) and the other with burden of proof. Prosser, Torts § 39, p. 213 (4th ed. 1971). As pointed out, a carrier’s collision with a stationary object gives rise to an inference of negligence, but in a two-vehicle collision there is no logical reason to presume that the carrier’s operator was the negligent party, except on the basis that the carrier’s higher degree of care makes its operator the more likely negligent party (at least in a suit by a passenger).

      . In personal injury litigation by a passenger against a public carrier the passenger has the burden of proof, but in fulfilling his burden, the passenger is assisted by certain presumptions and inferences relating to the sufficiency of circumstantial evidence necessary to establish a prima facie case. Once a prima facie case has been established, the carrier then has the burden of proceeding with evidence to overcome the prima facie case. In the final analysis, however, the preponderance of the evidence, direct and inferential, must rest with the plaintiff.


author: SCHOTT, Judge.

text:
    Lee PEYTON v. TORG FILMS COMPANY.
    No. 9893.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.

      John J. Cummings, III and Gregory F. Gambel, New Orleans, for plaintiff-appellant.
    McGlinchey, Stafford, Mintz & Hoffman, William F. Bologna, New Orleans, for defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

On January 21, 1977, plaintiff brought this suit for damages he allegedly sustained on February 6, 1976, when he tripped over pipes and cables being utilized by defendant. Defendant was named as The Torg Film Company and service of process was attempted under the provisions of the long arm statute R.S. 13:3201 et seq.

An appearance was made by Torq Film Services, Inc. by way of the declinatory exception of insufficient citation and service of process on the ground that the subpoena addressed to Torg Films Company was insufficient citation and service of process as to Torq Film Services, Inc. Plaintiff then amended his petition on May 10, 1977, to substitute as defendant Torg Film Services, Inc. for Torg Film Company, whereupon Torg Film Services, Inc. responded with an exception of prescription. This appeal is by plaintiff from a judgment which maintained the exception of prescription and dismissed his suit.

At the outset, we note that there was some confusion in the correct name of the defendant even in the amended petition and the exception of prescription, and that the correct name now appears to be Torq Film Services, Inc. The issue on this appeal is whether or not the filing of the suit against Torg Film Company interrupted prescription under the circumstances as against Torq Film Services, Inc.

Defendant relied primarily on Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974) in which the same procedural problem was presented to the court with the result that the court held that the timely filing of suit against “Comet-Mercury-Ford Co. of Lorain, Mich.” did not interrupt prescription as to the proper defendant, Ford Motor Company. However, we distinguish the Majesty case from the instant case on several grounds. First, the dissimilarity between the name Ford Motor Company and the name in which it was sought to be sued in the Majesty case is much greater than the dissimilarity between Torg Film Company and Torq Film Services, Inc. Second, in the Majesty case the court noted that Ford Motor Company had been properly qualified to do business in Louisiana since 1920 and plaintiff could easily have obtained its proper identification from the Secretary of State. Third, the court in Majesty found the situation to be similar to and controlled by Bowerman v. Pacific Mutual Insurance Co., 212 La. 1000, 34 So.2d 53 (1948, in which the timely filing of suit against Pacific Mutual Insurance Company was found insufficient to interrupt prescription against Pacific Employers Insurance Company. But in the Bowerman case the court noted that plaintiff’s mistake could easily have been avoided because the Casualty and Surety Rating Commission had and could have supplied to plaintiff the proper name of that defendant in much the same way as the plaintiff in Majesty could have gotten the correct information from the Secretary of State. On the other hand, in the instant case Torq Film Services, Inc. was not qualified to do business in the State of Louisiana and hence plaintiff had no ready reference to insure that he was using the correct name of defendant.

We likewise distinguish the instant case from Roby v. Owens-Illinois, Inc., 357 So.2d 99 (La.App. 4th Cir. 1978), in which this court held that the timely filing of a suit against Aetna Life & Casualty Insurance Company did not interrupt prescription against Aetna Casualty & Surety Company because, in that case, there were two separate Aetna companies and plaintiff’s suit was filed against the wrong company. It appears that plaintiff could easily have ascertained the correct Aetna to sue just as the plaintiffs could have avoided their errors in the Majesty and Bowerman cases. That same advantage was not at the disposal of the plaintiff in the instant case.

We have concluded that the original petition was sufficient to interrupt prescription against Torq Film Services, Inc. Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff Lee Peyton and against defendant Torq Films Services, Inc. overruling its exception of prescription. The case is remanded to the District Court for further proceedings. The costs of this appeal are to be taxed against defendant, and all other costs will await the outcome of the case.

REVERSED AND REMANDED.


author: BEER, Judge.

text:
    Brenda PISCIOTTA, wife of/and Joseph Pisciotta v. ALLSTATE INS. COMP. and R. B. Coleman et al.
    No. 9896.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    Writ Granted July 2, 1979.

      Normann & Normann, Russell M. Cornelius, and Chaffe, McCall, Phillips, Toler & Sarpy, James A. Babst, New Orleans, for defendants-appellants.
    Marvin C. Grodsky, New Orleans, for plaintiff-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   BEER, Judge.

Our review of this record leads us to factual and legal conclusions very much different than the “Reasons for Judgment” contained therein and obliges us to state our appreciation of the facts of this case so that a reviewing court may have the benefit thereof. We conclude that the testimony and exhibits materially contradict the “Reasons for Judgment” and find as follows:

Brenda Pisciotta was a part-time clerk in the catalog sales department of Sears, Roebuck & Company, located in the Clearview Shopping Center. As a result of the incident hereinafter described, she was injured in the course and scope of her employment and, thereafter, received all available employee benefits, including medical expenses and compensation payments, due in the premises.

She filed this tort claim against numerous defendants, some of whom were dismissed on motions after clear and unequivocal showings that they had absolutely nothing to do with anything that transpired on the day in question and some of whom have been cast in these proceedings. Those cast have appealed.

On October 1, 1975, work was in progress on renovations at Sears, Clearview facility. Gulf Best, the only contractor on the job who was at work that day, had employees installing a valance at a point near the spot where Pisciotta was working behind the counter in the catalog sales department. While this valance installation was in progress, a 2' X 4' plastic openwork panel weighing approximately three pounds fell from the ceiling above her, causing an injury which the “Employee Accident Preliminary Report” describes as follows: “Cut middle finger — (metal) pos. break — bad bruise & cut — needs tetanus left hand.”

The accident above described happened on a Wednesday. Plaintiff returned to work on Friday of the same week and worked steadily after that throughout the balance of October and all of November, December, January, February, March, and into April, when she quit working because Dr. Russell Levy recommended that she do so. Plaintiff made it clear that she worked continuously during the time above described and only stopped because of Dr. Levy’s recommendation. Shortly thereafter, this suit was filed, alleging, among other things, negligence on the part of Gulf Best’s employees and on the part of certain Sears’ supervisory personnel, contending that they had negligently permitted the remodeling work to proceed without clearing Sears’ employees from the area when they knew or should have known that they might be injured. In her deposition, plaintiff sought to verify this contention by reference to a Miss Bullock, a Sears’ employee, by way of the following response: “Miss Bullock said something about they really should do something about it because that was the second or third accident.” When asked who Bullock was referring to by “they,” Pisciot-ta replied: “I don’t know.” But, Bullock was never called to testify at the trial of this case, and the record is devoid of any evidence that any of the Sears’ supervisory personnel, found guilty of negligence in the “Reasons for Judgment,” had any actual or imputed knowledge of any prior incident of any injury of any Sears’ or other employee resulting in any way from the remodeling work in progress. On the basis of the record, the facts are completely to the contrary: there were no previous incidents; there was no reason to believe that this incident would occur; and there was no proof of any nature whatsoever to support any sort of contention that the Sears’ supervisory personnel should have cleared the area of Sears’ employees for any reason whatsoever.

The same cannot be said for Gulf Best. Though there is little or no indication of any actual negligence in the performance of their work, we believe that there is support in the record for the conclusion that Gulf Best’s employees knew or should have known that their work — even assuming skillful and workmanlike performance— could cause one or more of the above described panels to shake loose — as obviously was the case here — and fall. We conclude that their actions in not expressing this possibility to those in the immediate area, such as Pisciotta, breached their legal duty to her. Accordingly, we turn to a consideration of the quantum issue.

We find great disparity between the record and the “Reasons for Judgment” as we turn to a consideration of the issue of the damages allegedly incurred by Pisciotta. Although the “Reasons for Judgment” come to the immediate (yet essentially unsupported and undiscussed) conclusion that Pisciotta’s back claim (dubious itself and to be discussed in detail later) was the result of the incident, the record indicates otherwise:

Dr. Guzetta, who saw plaintiff immediately following the incident, concluded that she had “. . . minor lacerations of the finger, not enough to suture but merely to put an antibiotic dressing on it, and I don’t think we gave her a tetanus shot and I discharged her. We didn’t have to see her any further.” Asked if she had made any complaints at all about her head, neck or back, he answered in the negative; asked if such complaints had been made would they have been entered on his report, he answered in the affirmative. Indeed, there is no clear testimony to indicate that plaintiff suffered any back or neck pains referable to the accident until around the time that she was referred to Dr. Levy and quit work in April of the following year except for an isolated instance of a complaint in November, approximately six weeks after the accident.

Even so, the question of what, if anything, was causing the alleged back or neck pain looms unanswered in this record. Although Pisciotta was briefly hospitalized for conservative therapy of her alleged back pain, she left on her own volition after refusing to undergo any of the recommended objective tests which might indicate a basis for her various complaints. Thus, the evidentiary basis for the disc involvement conjectured by Dr. Vogel is highly questionable. Likewise, the “Reasons for Judgment” refer to plaintiff’s “decreased earning capacity,” apparently indicating some trial court determination, unexplained in the “Reasons,” that she can no longer do all of the part-time work that she previously was doing (approximately 28 hours a week) at the rate of $2.60 per hour. Such conclusion then forms the basis, apparently, for an award of $44,441 as the present value of her future earnings loss, which is awarded in addition to $35,000 for general damages.

Pisciotta’s middle finger injury healed without complication and without the necessity of any sort of surgical intervention or, for that matter, any need for a tetanus shot. At best, her alleged back pain falls into the category of an unconfirmed claim with little or no relation to the incident of October 1,1975 and even less as substantiation for any sort of continued inability to perform the same sort of basic clerical work that she was doing on a part-time basis as clerk in the catalog sales department when the incident occurred and which she continued to do for over six months thereafter.

We have concluded that the amount of the award constitutes an abuse of the trial court’s discretion.

Aware, however, of the mandate of our Supreme Court in matters such as this and taking all pertinent factors into consideration, we conclude that the highest award that this record will support (and considerably higher than we would otherwise award) should be a total of $15,000.

We concludé that the trial court has manifestly erred in its determination of liability on the part of the supervisory personnel of Sears Roebuck and further conclude that the quantum of the award for damages is manifestly in error and unsupported by the record.

Accordingly, the judgment of the 24th Judicial District Court for the Parish of Jefferson is amended and recast as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs, Brenda Pisciotta, wife of/and Joseph Pisciotta, and against defendants Gulf Best Electric Company and The Fidelity and Casualty Company of New York, in solido, in the sum of $15,000, together with interest at the legal rate from the date of judicial demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiffs’ claim against R. B. Coleman, William Laughmiller and Lang Eddins be and the same is hereby dismissed.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of intervenor, Sears, Roebuck & Company, to such extent as is possible under the terms and provisions of this judgment.

All costs, including those of the expert witnesses, are taxed against Gulf Best Electric Company and The Fidelity and Casualty Company of New York, in solido.

REVERSED IN PART, AMENDED IN PART, AFFIRMED IN PART.

      . There is an additional entry written across the report and obviously written at a later date which says: “Also hurt back but did not notice pain until a day or two later — ”