author: BOLIN, Judge. MARVIN, Judge

text:
    Velma Miles ROBERTS, Plaintiff-Appellee, v. James Hugh ROBERTS, Defendant-Appellant.
    No. 12698.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.

      Jones, Blackwell, Chambliss, Hobbs & Henry, by Sam O. Henry, III, West Monroe, for defendant-appellant.
    John J. McKeithen, Burns & Lewellyan, by Ronald L. Lewellyan, Columbia, for plaintiff-appellee.
    Before BOLIN, PRICE, HALL, MARVIN and GLADNEY, JJ.
   BOLIN, Judge.

This appeal was originally argued and submitted to a panel of three judges, a majority of whom decided the judgment appealed from should be modified or reversed, with one judge dissenting. Pursuant to Louisiana Constitution Article V, Section 8(B) (1974), the case was reargued before a panel of five judges.

This appeal by the defendant-husband is from a judgment of the district court granting the plaintiff-wife a separation on the grounds of abandonment, awarding plaintiff alimony pendente lite in the amount of $100 per month, and recognizing plaintiff as the owner of an undivided one-half interest in all community property, specifically “including but not limited to a sum equal to one-half (i/£) of all retirement benefits payable from the Louisiana State Employee’s Retirement System.” On appeal the defendant-husband contends: (1) plaintiff is not entitled to alimony because she has sufficient income to meet her needs; and (2) plaintiff is entitled only to one-half of the value of the retirement fund as of the date of dissolution of the community and is not entitled to one-half of defendant’s monthly retirement benefits, defendant having retired after the separation suit was filed.

ALIMONY PENDENTE LITE

The trial court awarded $100 per month for alimony pendente lite. The parties had been married for over twenty-eight years at the time of their separation. Defendant was employed by the Louisiana Department of Wildlife and Fisheries at a salary of about $900 per month. He retired about three weeks after the separation suit was filed and draws monthly retirement benefits of $472.35. He has not sought other employment and has no other income, but the trial judge noted he is in his fifties and ablebodied.

Plaintiff had worked some during the marriage and went back to work several months prior to the separation. She works on an assembly line for a trailer manufacturer making $3.10 per hour, grossing about $340 per month and netting about $266. Plaintiff has some income from rental of about 85 acres of farm land she owns, but the rent varies and the evidence is inconclusive as to the amount she could expect to receive from this source. She testified her monthly expenses total over $700.

Louisiana Civil Code Article 148 governs plaintiff’s right to alimony pending the litigation. This article provides:

If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.

Taking into consideration plaintiff’s income, defendant’s income and his ability to earn, and the standard of living to which plaintiff was accustomed during the marriage, the amount awarded by the trial court is not excessive and is within the range of the trial court’s sound discretion. The wife did not appeal nor answer the appeal and, therefore, the inadequacy of the award is not at issue.

RETIREMENT PLAN

On the date the separation suit was filed, May 10, 1974, defendant was employed by the Department of Wildlife and Fisheries of the State of Louisiana, where he had worked for some twenty-seven years. As an employee of the State, he was a member of the Louisiana State Employees’ Retirement System, established by La.R.S. 42:541 et seq. The evidence does not disclose whether defendant was a wildlife agent and subject to the special retirement provisions for certain wildlife agents established by LSA-R.S. 56:681 et seq., but this fact is unimportant as it relates to the issue on appeal because the pertinent provisions of Chapter 10 of Title 42 remain applicable.

On the date the separation suit was filed there was credited to defendant’s account in the retirement fund accumulated contributions made by him of $6,609.81, plus interest of $502.94 or a total of $7,112.75. Defendant retired effective May 29, 1974, and exercised his option to take a monthly retirement allowance of $472.35. The evidence does not disclose whether defendant was eligible to retire on May 10, the date suit was filed, or whether he became eligible during the short interim between the time suit was filed and his retirement. The separation judgment was signed on March 20, 1975.

The district court held defendant’s interest in the retirement fund and/or monthly benefits was community property, citing Langlinais v. David, 289 So.2d 343 (La. App. 3d Cir. 1974); Hamilton v. Hamilton, 258 So.2d 661 (La.App. 3d Cir. 1972); and Laffitte v. Laffitte, 232 So.2d 92 (La.App. 2d Cir. 1970). See also Laffitte v. Laffitte, 253 So.2d 120 (La.App. 2d Cir. 1971). Neither party quarrels with this decision. The main dispute between the parties is whether the wife is entitled only to one-half of the value of or one-half of the contributions made to the retirement fund or whether she is entitled to one-half of the monthly benefits now being received by defendant. The district court noted that although LSA-C.C. Art. 155 provides the judgment of separation dissolves the community retroactive to the date the petition was filed, the Article also provides such retroactive effect shall be without prejudice “to rights validly acquired in the interim between commencement of the action and recordation of the judgment.” The court held that since defendant retired and exercised his right to receive monthly benefits in the interim between commencement of the action and rendition of the judgment, the right accrued during the existence of the community and the wife is entitled as owner thereof to receive a sum equal to one-half of the monthly benefits as and when paid. The Langlinais case, in which a contrary result was reached, was distinguished on the basis that the husband in that case did not retire until after the separation judgment was rendered.

Defendant argues on appeal that the district court misconstrued the provisions of Article 15S and contends that the exception to the retroactive effect of a separation judgment applies only to rights of third parties acquired in the interim and not to rights of the husband and wife, citing Aime v. Hebert, 254 So.2d 299 (La.App. 4th Cir. 1971). Defendant argues that since the community was dissolved as of the date the separation suit was filed, prior to the exercise of defendant’s right to receive monthly benefits, the wife is entitled only to one-half of the value of the account as of that date. Defendant cites the Langlinais, Hamilton and Laffitte cases, as well as Lynch v. Lawrence, 293 So.2d 598 (La.App. 4th Cir. 1974), in support of his position.

Defendant’s position is well taken on the effective date of the dissolution of the community. As between the parties, it is the date on which suit was filed. In Aime v. Hebert, supra, it was correctly held:

“While the apparent legislative intent was to provide for dissolution of the community between the parties as to the date on which the suit was filed, the statute does not specifically recite whose ‘rights validly acquired in the interim’ are unaffected by the retroactive provision.
“If rights acquired by the husband or the wife between the date of the filing of the suit for separation and the date of the judgment are not subject to the retroactive effect of the statute, then there is little reason to make the judgment retroactive.
“The only interpretation which gives effect to the entire statute is that the retroactive effect shall be without prejudice to rights validly acquired by third parties in the interim. See XXIII La. Law Review 41, 42 (1963). As between the parties, the community is dissolved as of the date on which the suit was filed.”

Our basic disagreement, however, with the decision of the district court, and indeed with the contentions of both parties, is in the classification of defendant’s interest in the retirement fund as community property. Such classification is consistent with the Langlinais, Lynch, Hamilton and Laffitte cases, and also with Daigre v. Daigre, 228 La. 682, 83 So.2d 900 (1955) and Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956). It is, nevertheless, inconsistent with Scott v. Scott, 179 So.2d 656 (La.App. 2d Cir. 1965) which squarely held an interest in the statutorily created State Teachers’ Retirement System is the separate property of the teacher-spouse.

In Daigre, the Supreme Court' held a pension in the nature of a pure gratuity received by the husband during the marriage was separate property, but stated that if a pension payable during the marriage results from a contract between the payor and the pensioner and is part of the consideration for the services which have been rendered then it unquestionably becomes a community asset.

In Messersmith, the court held a retirement plan certificate issued by a life insurance company to the husband as part of a group annuity policy of his employer, the premiums for which were paid with community funds, was a community asset.

In Laffitte, the Second Circuit held that the vested interest of the husband in an employee profit sharing plan established by his employer for the benefit of employees to provide a sum of money or income after retirement, the fund consisting entirely of contributions by the employer, was in the nature of additional remuneration and deferred compensation acquired during the marriage and was an asset of the community.

In Hamilton, the Third Circuit held the husband’s retirement income plan and thrift plan to which he contributed during the marriage were assets of the community.

In Langlinais, the husband’s interest in the State Police Retirement Fund, to which he contributed during the marriage, was recognized as community property by the Third Circuit.

In Lynch, the Fourth Circuit held that a pension plan established by the husband’s employer for the benefit of all full-time employees, with contributions made only by the employer, but in which the husband had acquired a vested right by length of service prior to dissolution of the community, was incorporeal, movable property and an asset of the community.

The cases which held interests in various retirement plans to be community property have reached varying results as to the disposition of the asset upon dissolution of the community. In Messersmith, the court recognized the wife as the owner of a one-half interest in the retirement certificate, even though it would have no value until the husband’s retirement. In the first Laffitte case, the wife was declared to be the owner of a one-half undivided share of the profit sharing plan for which the husband was accountable. The second Laf-fitte case held that the husband was not accountable for her share until such time as the proceeds were available, that is, at his retirement. Hamilton held that the wife was entitled to judgment against the husband for one-half of the amount of contributions made during the marriage. In Langlinais, the court ordered the husband to pay to the wife one-half of the value of the community’s interest in the fund as of date of dissolution of the community. In Lynch, the court devised a formula for determining the value of the wife’s community interest based on settlement provisions in the plan and directed that her interest be paid out of future benefits on a percentage basis at such time as the husband began to receive monthly benefits upon retirement.

Reaching an opposite result from the cases discussed above, but not necessarily inconsistent therewith, is a solid line of cases, starting with Scott v. Scott, supra, and including Broyles v. Broyles, 215 So.2d 526 (La.App. 1st Cir. 1968); Moore v. Moore, 187 So.2d 145 (La.App. 2d Cir. 1966) writ denied 249 La. 451, 187 So.2d 438 (1966); and Blalock v. Blalock, 259 So.2d 367 (La.App. 2d Cir. 1972), which squarely holds that a member’s interest in the State Teachers’ Retirement System established by LSA-R.S. 17:571 et seq., is the separate and paraphernal property of the member.

Scott v. Scott, supra, was a suit for partition of the assets of the community. The plaintiff-wife had for many years during the marriage been a teacher and while so employed there was deducted from her salary and paid into the retirement system, of which she was a member by reason of her employment, several thousand dollars. In holding that the annuity, pension or retirement benefit to which plaintiff is entitled under the statute is her separate property, the court noted membership in the system is limited by the statute to teachers. The court further noted that the rights of members in the system are exempted by the statute from levy and sale and other judicial process and are unassignable. The vested rights of a member were analogized to the rights of a beneficiary under a life insurance policy where no right is reserved to the insured to change the beneficiary. The court held:

“In giving consideration to the obvious legislative intent and purpose in enacting the- statute creating and governing the teachers’ retirement system, to which we have already referred, the conclusion is, to us, inescapable that the pension, annuity, or retirement benefit conferred upon plaintiff was' her separate and parapher-nal property, and that, therefore, its exclusion from the inventory as a community asset was proper.”

The court in Scott indicated that the teacher-wife would be obligated to reimburse the community for community funds contributed to the retirement system out of her earnings during the years, but did not expressly so hold under the procedural posture of the case before it. The subsequent cases cited above follow and adhere to the holding of Scott, and further expressly hold the teacher-spouse is indebted to the other spouse for one-half of the contributions made during the existence of the community.

Scott was distinguished by the Third Circuit in Langlinais, which dealt with the State Police Retirement System, on the basis that the statute establishing the State Police Retirement System did not contain similar provisions. In Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975), affirming 304 So.2d 53 (La.App. 1st Cir. 1974), the Supreme Court was not directly presented with a separate versus community property issue but treated a deceased teacher’s interest in the retirement system as separate property in disposing of one of the issues presented in that case. See particularly Section IV of the opinion. The Scott line of cases was cited and discussed in the First Circuit Court of Appeal opinion in Vial.

The statutorily-created State Employees’ Retirement System is virtually identical in all pertinent aspects to the State Teachers’ Retirement System. Its membership is limited to state employees and certain teachers and other public employees. Louisiana Revised Statutes 42:545 provides:

Any annuity, retirement allowance or benefit, or refund of contributions, or to any optional benefit or any other benefit paid or paid to any person under the provisions of this Chapter is exempt from any state or municipal tax, and is exempt from levy and sale, garnishment, attachment or any other process whatsoever, and is unassignable.

This provision is substantially the same as the provision in the State Teachers’ Retirement System law relied on in Scott.

While the reasoning underlying the Scott decision may be questioned, the holding is clear and has been consistently followed. There is no basis for distinguishing between an interest in the State Employees’ Retirement System and an interest in the State Teachers’ Retirement System and it would be entirely inconsistent to treat the two differently. Scott and its progeny mandate that we hold the interest of a member in the State Employees’ Retirement System to be the member’s separate property.

In reaching this result, we have not failed to note a most recent decision by our Supreme Court in T. L. James & Company, Inc. v. Montgomery, No. 56,138 (S.Ct. December 8, 1975), which decision-is not yet final, but have concluded it does not control the decision in this appeal.

In Montgomery, the court held retirement benefits payable upon the death of the employee-participant to a designated beneficiary were' community property. The court specifically refused to extend the rationale of those cases which hold life insurance proceeds are not subject to community claims or the laws regarding forced heirship to a situation involving benefits payable under a private employer’s retirement plan. In reaching its decision, the court reaffirmed the viability and vitality of our community property system.

The Montgomery case involving benefits payable under a private retirement plan devised by a private employer as deferred compensation for the employee is to be distinguished from' the instant case involving retirement benefits under the statutorily created State Employees’ Retirement System.

The Montgomery case makes clear that stipulations in private retirement plans “cannot alter the wife’s rights as a partner in the community.” However, this appeal involves retirement benefits under a system created by statute. We held in Scott that the terms of the statute creating the State Teachers’ Retirement System rendered the retirement benefits the separate property of the teacher-member. Consistently with Scott, we hold that the terms of the statute creating the State Employees’ Retirement System alter the Civil Code provisions relative to community property and render the husband-member’s interest in the retirement plan his separate property.

We find additional support for this holding in the fact that the Supreme Court in Montgomery did not mention Scott or the cases following it, nor did it mention its own decision in Vial.

It follows, then, that the judgment in this case recognizing plaintiff as the owner of a sum equal to one-half of all retirement benefits payable to defendant from the Louisiana State Employees’ Retirement System is in error. That portion of the judgment appealed from must be reversed and set aside. This court recognizes plaintiff’s right under Civil Code Article 2408 to claim one-half of the value of the increase to her husband’s separate property if it be proved the increase is the result of the common labor. However, it is not appropriate to render any judgment in that regard at this time, since the only issue before the court is the ownership of defendant’s interest in the system, and the posture of the case does not allow us to evaluate the debt owed to the plaintiff by defendant’s separate estate. Such a judgment will be appropriate in a suit for partition or liquidation of the community.

For the reasons assigned, that portion of the judgment of the district court recognizing plaintiff as owner of a sum equal to one-half of all retirement benefits payable to defendant from the Louisiana State Employees’ Retirement System is reversed and set aside. In all other respects, the judgment of the district court is affirmed. Costs of the appeal are assessed to defendant.

MARVIN, J., dissents and assigns written reasons.

MARVIN, Judge

(dissents).

The majority determination that the retirement benefits are . separate property stems from what I believe is an erroneous construction of R.S. 42:545 and a statute of similar wording which was under consideration in Scott v. Scott, cited by the majority. These statutes exempt retirement benefits from taxation, levy and sale, garnishment, attachment, and other processes and assignment to or by creditors. That is all these statutes were intended to do by their clear wording. See for example R.S. 13 :3881, a general exemption statute. Exemption statutes do not and should not determine the character of property as either community or separate.

This classification of patrimonial rights and obligations is determined by the contractual relationship existing between the spouses. In the absence of a marriage contract to the contrary, the Civil Code “superinduces of right” the community of gains as a contractual partnership between the spouses. See La.C.C. Arts. 2325, 2332, and 2399. In addition to the matrimonial regime provided by the Louisiana Civil Code, other statutes may affect the nature of the spouses’ patrimonial assets and liabilities, as an exception to the community property regime. However, I find no such statute in either the State Employees’ Retirement System or the State Teachers’ Retirement System. It necessarily follows that the character of the retirement benefits here is governed by the community of gains where no marriage contract or statute expressly provides to the contrary. See T. L. James Co. Inc. v. Montgomery, Docket No. 56,138, (La.1975).

Under the community of gains, La.C.C. Art. 2334 provides:

“The property of married persons is divided into separate and common property.
“Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly.
“The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.
“Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.
“Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared. * * * ”

The retirement benefits in question were produced by contributions from Mr. Roberts’s paycheck. Since the retirement benefits were acquired in a “manner different from” the methods of acquiring separate property, the provisions of Art. 2334 relative to separate property are not applicable. Therefore, these benefits are community property.

Suit for separation was filed May 10, 1974. By La.C.C. Art. 155, the community of gains was dissolved on this date. Upon dissolution of the community the value of the retirement benefits could have been determined by any competent actuary. I would reverse and remand for that purpose.

I respectfully dissent.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Mr. and Mrs. John H. MUSSER, IV v. William C. COPPING et al.
    No. 7101.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Feb. 10, 1976.

      Lawrence F. Babst, Jr., Koerner & Babst, New Orleans, for Mr. & Mrs. John H. Musser, IV, plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for Richard C. French, Jr., defendant-appellee.
    Beryl E. Wolfson, Wolfson & Wolfson, New Orleans, for William C. Copping, In-div. and D/B/A Metropolitan Realty Co. and Hanover Ins. Co., defendants-appel-lees.
    Before LEMMON, BOUTALL, and BEER, JJ.
   BOUTALL, Judge.

This is a suit by plaintiffs Mr. and Mrs. Musser, IV for recission of a contract of sale and damages. The defendants are William C. Copping, his insurer, Hanover Insurance Company, and Richard C. French, Jr. The defendants filed exceptions of no cause or right of action and prescription. After a hearing on the matter the trial court rendered two judgments. As to Copping the exception of no cause of action was maintained and plaintiffs’ suit dismissed. As to French, all three exceptions were maintained and plaintiffs’ suit dismissed. From these two adverse judgments plaintiffs have appealed. We reverse.

The facts, as alleged in plaintiffs’ petition, are as follows: The Mussers w.ere looking for a new home with an attached income producing apartment. They entered into negotiations with Copping relative to a home at 22 Richmond Place in New Orleans ownéd by Copping and French. Plaintiffs allege that Copping represented to them that although the home was zoned single family residential it had acquired a non-conforming use, thus, allowing the separate apartment. Relying upon this representation the Mussers purchased the home on March 6, 1972 for $55,250.00.

Following the purchase the plaintiffs allege that they expended $14,000.00 in renovations to the premises, found a tenant and then discovered that the premises did not have a non-conforming use. On April 15, 1974 the Mussers filed suit to rescind the sale and recover the purchase price, cost of renovations and various allegations of damages.

Defendants Copping and French filed exceptions of no cause of action which were sustained by the trial court. The basis of the exceptions is that neither the contract of sale nor the agreement to sell (neither being in' the record) mention a non-conforming use or that the premises contain a revenue producing apartment. They argue that the contract of sale and the agreement to sell constitute the final and entire agreement between the parties and this agreement cannot be supplemented by any agreement outside those written documents.

C.C.P. Art. 931 does not allow the introduction of evidence to sustain an exception of no cause of action. All that may be considered are the allegations of the petition and any properly attached exhibits or documents.

As mentioned, the agreement to sell and act of sale are not in the record, not attached to the petition and their terms are not set out in the petition. For this reason wé are unable to uphold defendants’ exception based on the terms of the two agreements. Rebman v. Reed, 286 So.2d 341 (S.Ct.1973); American Creosote Co., Inc. v. Springer, 257 La. 116, 241 So.2d 510 (S.Ct.1970).

Plaintiffs allege, however, that they were induced to enter into those written agreements through knowing misrepresentations made by Copping, a co-owner and they seek, not reformation of the contract, but its recission based on fraud as provided in Civil Code Art. 2547. That article reads:

“Art. 2547 Fraud on the part of the seller; rights of the buyer
“Art. 2547. A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
“It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys’ fees, in favor of the buyer.” (Amended by Acts 1968 No. 84 § 1.)

We consider the allegations of knowing misrepresentation as to the qualities the home possessed to be sufficient to satisfy the requirements of Art. 2547 and to serve as basis for a suit thereunder.

Allegations of fraud present an issue of fact which must be proven on the trial of the cause. R.C.C. Article 2547 states that allegations such as fraud, are to be considered under the title of Conventional Obligations. One of these articles is RCC 1882 which states:

“They (agreements made through fraud) may be avoided either by exception to suits brought on such contracts, or by an action brought for that purpose.”

The action brought by the Mussers is such an action and we feel that if the allegations in the petition prove correct then they may be entitled to the relief they seek. Overby v. Beach, 220 La. 77, 55 So.2d 873 (S.Ct.1951); Nicol v. Jacoby, 157 La. 757, 103 So. 33 (S.Ct.1925). See also Di Carlo v. Pacanins, 164 F.Supp. 841 (E.D.La.1958).

The trial court sustained the exception of no right of action as to defendant French. We reverse. We are somewhat confused as to why it was sustained as to French and not Copping. Both defendants plead the same exception and stated the same reasons for it; both were sellers of the property.

The obligation which was agreed to between the parties was an indivisible one. Indivisible obligations cannot be partially executed nor, a priori, can they be partially rescinded. RCC Art. 2109 & 2113; Tafolla v. Jones, 23 So.2d 569 (La.App. 2nd Cir. 1945). We hold that on the evidence presented (there is no evidence except the pleadings) there is no showing by defendants that the Mussers have no right of action against French.

The final exception sustained as to French was that of prescription. French attempts to characterize this action as one in redhibition, prescribing in one year. See RCC articles 2545 and 2546. Plaintiffs claim that the action is brought under RCC article 2547 and their claim prescribes in five or ten years. While article 2547 allows both rescission and redhibition actions we feel that this is basically an action for rescission of the contract due to fraud. There was no redhibitory defect alleged in the petition and the petition asks solely for rescission. The facts show that suit was brought slightly more than two years after the home was purchased, and it is well within the five year prescriptive period of RCC article 3542. Kearney v. Maloney, 296 So.2d 865 (La.App. 4th Cir. 1974).

Having decided that the main demand for rescission of the contract is not prescribed we will not pass upon the issues of prescription as it relates to the Mussers’ several alternative demands. These issues can best be decided at the trial level where evidence may be introduced.

For the above reasons the judgments of the trial court are reversed. This case is remanded to the trial court for further proceedings. Costs to await the final outcome.

Reversed and remanded.

      . The petition would lead us to suspect that the home was bought with community funds. If this were substantiated by evidence then Mrs. Musser would have no right of action to sue for the recission of the sale and return of community assets. RCC article 2402; Story v. Story, 131 So.2d 913 (La.App. 1st Cir. 1961).


author: ELLIS, Judge:

text:
    CAMERON CREW BOATS, INC., and Cameron Boat Rentals, Inc. v. TWIN DISC, INC., et al.
    No. 10579.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Jerry G. Jones, Cameron, for appellants.
    B. J. Rawls, Morgan City, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

Cameron Crew Boats, Inc. and Cameron Boat Rentals, Inc. were the owners and operators of the crew boat M/V Gulf Mist, which was acquired on March 4, 1970, from Swiftships, Inc., the builder. Among the equipment installed in the boat by Swiftships was a Twin Disc MG 514 clutch, manufactured by Twin Disc, Inc. The clutch had been purchased by Swift-ships from Sewart Supply, Inc., a distributor for Twin Disc.

The Gulf Mist was placed in service for a short while to Mobil Oil Company, and then was leased to Superior Oil Company. Throughout the time of this service, the clutch was noisy, and, on one occasion, some work was done on it by Lake Charles Diesel, Inc., a dealer for Sewart.

On February 3, 1971, the clutch failed, and the boat was brought to Lake Charles Diesel for repair. It was determined what parts were needed to repair the clutch, and George LeBoeuf, manager of the Cameron branch of Lake Charles Diesel, called Patrick Fields, store manager for Sewart, to get the parts. Sewart did not have all of the necessary parts in stock.

According to Mr. Fields, Mr. LeBoeuf then asked about an exchange and Mr. Fields said that he,had a new clutch which he would exchange for the burned out clutch, if the cost price of the new clutch plus $150.00 to rebuild the old clutch was paid. Mr. Fields testified that after consulting with Mr. Norman McCall of the plaintiff companies, Mr. LeBoeuf called back and ordered the new clutch sent immediately. The clutch was put on a “hot shot” truck that same night, and was installed the next morning. Mr. Fields stated that he instructed the driver to bring back the burned out clutch, which was not done.

Mr. LeBoeuf testified that after Mr. Fields told him the parts were not in stock, Mr. Fields said that there was a new clutch available which he would sell for $2,178.00. Mr. LeBoeuf testified that no exchange was discussed at any time. He further stated that he advised Mr. Fields that the burned out clutch might be still in warranty. Mr. McCall authorized Mr. LeBoeuf to buy the new clutch.

Mr. McCall, who was present during most of Mr. LeBoeuf’s telephone conversation with Mr. Fields, confirmed that he only agreed to buy a new clutch. He said that he would not have agreed to an exchange because the old clutch was still under warranty. He stated that he bought the new clutch because it was the only way he could get his boat back in service immediately.

About three days later, Mr. McCall returned the burned out clutch to Sewart. He stated that he was under the impression that it would be rebuilt and returned to him under the warranty.

On March 6, 1971, Cameron paid the invoice presented by Sewart for the transaction. The invoice was dated February 8, 1971, after the transaction and after the burned out clutch was returned, and described the item sold as follows:

“MG 514 2:00:1
“S/N 375637
“Spec 32309
“Exchange”

The price was $2,178.34 and there was included a $150.00 charge for “Flat rate labor to rebuild old clutch.” The total amount of the invoice, including tax, was $2,398.19.

Mr. McCall testified that he saw the word “exchange” on the invoice, but that it did not mean anything to him. He stated that he had never entered into an exchange transaction. He thought he was buying a new clutch and paying $150.00 to have the old clutch repaired under his warranty.

About 90 days after February 3, 1971, Mr. Fields .sent the damaged parts from the clutch to Twin Disc, which eventually gave Sewart a credit for all of them, amounting to a total of $1,226.01. The old clutch was rebuilt by Sewart and placed in its exchange inventory. It was eventually exchanged, at a time and under circumstances unknown.

Mr. McCall made a number of inquiries of Sewart relative to the warranty, and on April 20, 1971, placed a call to Twin Disc when he could get no information from Sewart. Shortly thereafter, he was offered a settlement of a little over $800.00 by Sewart, which he rejected. After some correspondence by his attorney, this suit was filed, seeking $2,785.03 in damages.

After trial on the merits, judgment was rendered in favor of plaintiffs and against Sewart and Twin Disc, for $1,376.01, being the amount of $1,226.01 allowed by Twin Disc to Sewart under the warranty, and the $150.00 paid by Cameron to rebuild the clutch. From that judgment, plaintiffs have appealed.

In reaching the above conclusion, the trial judge found that an exchange was agreed to by the parties on February 3, 1971, but that Cameron had reserved its right under the warranty of the old clutch.

The warranty referred to herein reads as follows:

“Twin Disc, Incorporated guarantees all assembled products and parts, except parts or equipment on which written warranties by respective manufacturers thereof are furnished the original purchaser, against defective material or workmanship for a period of eighteen (18) months from the date of original shipment by Twin Disc, Inc. to its customer, but not to exceed twelve (12) months or two thousand (2,000) hours of service, whichever occurs first.
“B. Complete units or 'parts returned within this warranty period, transportation charges prepaid, which are found by Twin Disc, Inc. to be defective in material or workmanship shall at their option be repaired, replaced or credited. No claims will be allowed which in the opinion of Twin Disc, Inc. result from complete units or parts having been subjected to abuse or neglect or where failure has been caused by accident.”

It is clear from the record that the old clutch was not damaged, abused or neglected, and that the failure occurred under conditions of normal usage. It was stipulated that there were less than 2,000 hours of use. The failure occurred during the first twelve months of service. We find that plaintiff is entitled to the benefit of the provisions of the warranty above quoted.

From the testimony of the parties involved in the transaction on February 3, 1971, we conclude that there was no mutual understanding reached that night. Clearly, however, Mr. McCall thought he had bought a clutch, and equally clearly, Mr. Fields thought that he had entered into an exchange agreement. We think it apparent that Mr. McCall would not have traded away a fully warrented clutch, and paid $2,398.19 additional for a new clutch. It is equally apparent that Mr. Fields would not have sold a clutch for $2,178.34 when the normal price under these circumstances was $2,792.00.

We attach little importance to the payment of the invoice as worded, since it was not prepared until five days after the sale and two days after the old clutch was returned. Mr. McCall testified that he was not familiar with that type of transaction, and that he attached no significance to the word “exchange” written on the invoice.

Article 1779 of the Civil Code provides:

“Four requisites are necessary to the validity of a contract:
“1. Parties legally capable of contracting.
“2. Their consent legally given.
“3. A certain object, which forms the matter of agreement.
“4. A lawful purpose.”
Article 1819 of the Civil Code provides:
“Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as is provided in the preceding paragraph, but also where it has been produced by—
“Error;
“Fraud;
“Violence;
“Threats.”
Article 1841 of the Civil Code provides:
“Error as to the nature of the contract will render it void.
“The nature of the contract is that which characterizes the obligation which it creates. Thus, if the party receives property, and from error or ambiguity in the words accompanying the delivery, believes that he has purchased, while he who delivers intends only to pledge, there is not (no) contract.”

We find that there was no mutual consent or understanding as to the nature of the agreement entered into on the night of February 3, 1971, and consequently no contract was made at that time. It is obvious, however, that mutual obligations did arise from the acts of the parties. We note that all of the actions taken by the parties hereto were consistent with their understanding of the agreement.

Article 2293 of the Civil Code provides:

“Quasi contracts are the lawful and purely voluntary act of a man, from which there results any obligation whatever to a third person, and sometimes a reciprocal obligation between the parties.”

Article 2294 of the Civil Code provides:

“All acts, from which there results an obligation without any agreement, in the manner expressed in the preceding article, form quasi contracts. But there are two principal kinds which give rise to them, to wit: The transaction of another’s business, and the payment of a thing not due.”

We are of the opinion that the actions of the parties hereto have created mutual quasi-contractual obligations, which must be determined by the analogical application of Articles 21 and 1965 of the Civil Code. Those articles provide:

Article 21:

“In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.” Article 1965:
“The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.”

See Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Actio de in Rem Verso in Louisiana: Minyard v. Curtis Products, Inc., 43 Tul.L.Rev. 263 (1969).

Plaintiffs have, in effect, paid the regular price of $2,792.00 for one clutch, which failed, and $2,178.34 for a second similar clutch. They also paid $150.00 to have the old clutch rebuilt. Under the terms of the warranty, they were entitled to have the old clutch repaired, replaced, or to receive an equivalent credit. Since it is no longer possible to repair or replace the old clutch, they are entitled to a credit. The testimony of Mr. Fields is that a rebuilt clutch in 1971 was worth $2,550,00. Plaintiffs should have a credit for that amount, plus a credit for the $150.00 paid by them to have the clutch rebuilt.

On the other hand, Sewart received only its cost price for the second clutch, and we are of the opinion that it would not have sold the clutch at that price had it not mistakenly believed that it had entered into a contract of exchange. It should be credited with the difference between the regular price of $2,792.00 and its cost of $2,178.34, or $613.66.

The judgment appealed from is therefore amended so as to increase the amount thereof to $2,086.34, and, as amended, it is affirmed, at defendants’ cost.

Amended and affirmed.


author: JULIAN E. BAILES, Judge Pro Tem.

text:
    Benjamin F. ESHLEMAN, Jr. v. Sterling J. DURACHER and John M. LaPlante, Jr.
    No. 10567.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Mike J. Balen, Covington, for appellant.
    Guy L. Deano, Jr., Covington, for appel-lees.
    Before SARTAIN, J., and BAILES and PICKETT, JJ. Pro Tem.
   JULIAN E. BAILES, Judge Pro Tem.

This litigation originated as a possessory action, however, it was converted to a peti-tory action by defendants-appellants claiming ownership of the subject property. Both plaintiff and defendants deraign their title from a common ancestor. The trial court decreed plaintiff-appellee the owner of the property. Additionally, the trial court issued a permanent injunction against defendants interfering with the possession and ownership of plaintiff.

From our consideration of the record we find the trial court correctly determined that plaintiff is the owner of the subject property, but we find the trial court erred in enjoining defendants as above stated. Accordingly, we affirm in part and reverse in part.

Involved is the ownership of a fifty-foot strip of property located in Mandeville, St. Tammany Parish, Louisiana. The area in question is located in Pine Place Subdivision and extends in a generally north-south direction between Villere and Monroe Streets therein.

This dispute arose between persons owning property on either side of the strip after the Town Council for the Town of Mandeville revoked any possible dedication of it for public purposes that might have existed. That action was taken after some uncertainty arose as to whether the area had been dedicated by the subdivider as a street.

The record indicates that Pine Place was originally laid out by Guy L. Deano, Sr., in September, 1937, and that he sold certain parcels of it in the following years. The original subdivision plat did not show the area as a proposed street. During the lifetime of the developer, several plans were considered for the further construction of streets in the subdivision and maps were drawn showing their proposed locations, but no action was ever taken to complete them.

On December 14, 1959, Mr. Deano, Sr. sold to Sterling J. Duracher Lots 39 and 40 of Pine Place; attached to the act of sale was a revised subdivision map dated November 5, 1956, showing the purposed street. Those lots adjoined that area on the west. Mr. Deano died in September, 1961; in May, 1962, that map was recorded in the public records of that parish by someone unknown to all testifying herein.

In December, 1956, William J. Dobson, the ancestor in title of the plaintiff here, Benjamin F. Eshleman, Jr., acquired Lots 21 and 22 of the subdivision which lie immediately to the east of the fifty-foot strip. By subsequent acts, Dobson also acquired from the Deano heirs other adjoining lots and the fifty-foot strip itself. He subse-' quently conveyed all of his holdings therein to Eshleman. When that transfer was attempted, the ownership of the fifty-foot strip was questioned by the title examiners. To rectify the uncertainty of the title, the Mandeville Town Council was requested to revoke any dedication that might have existed which they did, since no development of the street had ever taken place or was contemplated. Thereafter, this litigation ensued. The plaintiff claims full ownership due to his acquisition from Dobson, while it is the position of the defendants that the area was, as a matter of law, dedicated to public use and that, as a consequence of the revocation of that dedication, the adjoining land owners acquired to the center of it equally.

The trial judge concluded that the preponderance of the evidence was to the effect that there had not been a dedication of the area and that the plaintiff was the owner of the entirety of the strip as a result of his purchase from Dobson.

As noted by the trial court, the record contains some facts indicating that the strip might have been dedicated for public use as a street; the great weight of the evidence is, however, to the contrary and when viewed as a whole, the conclusion is compelled that no such action was ever intended by the developer.

The defendants contend that the actions of the landowner are sufficient to establish here a common law or implied dedication of this area as a street. They principally rely upon the fact that the map showing the street was made a part of the public records of the parish and that a sale was subsequently made to one of the parties herein with that map attached. They also argue that the sale to Dobson with mention made therein of the “proposed street” is further indication of the developer’s intentions.

Edward J. Deano, a realtor and notary public, was actively involved with his father in the planning and marketing of the subdivision. He related that a number of plans were devised through the years for the addition of streets for that area but that no one plan was ever settled on and that there was no intention on the part of his father to dedicate the strip at issue for public purposes. The personal residence of that witness now sits in the proposed path of that street and it is located at approximately the same place that his father’s home had been. He was the notary on the sale to Duracher and, in that connection, positively stated that the only reason that the map was attached to the act was to identify the property being sold and that it was not intended to be a final subdivision plan. We also note that in September, 1956, Mr. Deano, Sr. conveyed a parcel referred to herein as the “Tuttle Sale” which was a tract just across Villere Street from the former Duracher property; the area contained in that sale included part of the proposed street site north of Villere Street as shown on the 1965 map, yet no mention was made of the street in that sale, and the vendee acquired the land without the burden of such a public area. Most important, however, is the fact that there is no evidence of public acceptance of the allegedly dedicated area.

In the City of Baton Rouge v. State National Life Ins. Co., 271 So.2d 571 (La.App. 1st Cir. 1972), we said:

“Louisiana recognizes two types of dedication, statutory and implied or common law. The chief differences in result between the two types of dedication are that a statutory dedication operates by way of a grant and vests title in the public while a common law dedication operates by way of an estoppel in pais and confers to the public only a servitude. A statutory dedication is complete and irrevocable even where there is no exercise of the use of the dedicated property by the public. Effect of a statutory dedication is generally indicated by the statute itself. The Louisiana Statute governing statutory dedication is found in R.S. 33:5051. That statute, which dates back to 1896, requires among other things, the filing of a map and a formal dedication to the public use made by the owner or owners of the property or their duly authorized agent of all the streets, alleys and public squares or plots shown on the map.
“In a common law dedication, there must be shown a definite intent to dedicate on the part of the land owner and an acceptance by the public. Neither element must be formally expressed but both must be sufficiently clear so as to exclude every other reasonable hypothesis except that of dedication. See Parish of Jefferson v. Doody, 167 So.2d 489 (La.App. 4th Cir. 1964) and cases cited therein. Our courts have held that dedication to the public may be shown by any evidence which shows intent of the owner to so devote his property. Mere use by the public for the purpose intended by the dedicator can constitute a sufficient acceptance. Arkansas-Louisiana Gas Company v. Parker Oil Company, 190 La. 957, 183 So. 229; Best Oil Company v. Parish Council of East Baton Rouge, 176 So.2d 630 (La.App. 1st Cir. 1965).”

While some slight use of a very small part of this strip might have been made by Duracher, there is not the least evidence that anyone else ever used it or thought it was a street. We noted that John M. LaPlante, Jr., the present owner of the former Duracher residence, testified that he never used it. We think that the evidence is insufficient to show an intent to dedicate the strip on the part of the landowner; however, the equally essential element of public acceptance of the dedicated area is totally lacking. Therefore, the ownership of the plaintiff in entirety must be maintained.

The appellants also complain here of that part of the judgment rendered below which contains a permanent injunction against their interfering with Eshleman’s ownership of the property in question. Their contentions in that regard are well founded. This was originally a possessory action by the plaintiff which was converted into a petitory action by the reconventional demand filed by the defendants. See Code of Civil Procedure, Art. 3657.

Code of Civil Procedure, Art. 3663 provides, in part, as follows:

“ * * * Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right, is available to:
(1) A plaintiff in a possessory action, during the pendency thereof; and
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right of which he claims the ownership, the possession, or the enjoyment.”

The Official Revision Comments of that article are also pertinent here:

“(a) This article makes no change in the law.
"(b) Injunctive relief is made available in two separate and distinct types of cases: (1) as an ancillary remedy in a possessory action; and (2) as the relief to be granted in an injunction suit brought to enjoin trespassers and other disturbers, and which is neither a pos-sessory nor a petitory action. See Churchill Farms v. Gaudet, 184 La. 984, 168 So. 123 (1936).”

As this case has been converted to a peti-tory action, neither of the situations envisioned by that article or those official comments apply here; therefore, the injunction must be dissolved.

The judgment of the trial court is, therefore, affirmed in part, reversed in part and rendered; the costs of this appeal to be equally divided between the appellants and the appellee.

For the foregoing reasons, the judgment appealed is affirmed insofar as it decrees plaintiff the owner of the subject property; the judgment decreeing a permanent injunction against defendants is reversed; and costs incurred in the trial court are assessed against defendants and costs of this appeal are assessed equally against appellants and appellee.

Affirmed in part and reversed in part.


author: COVINGTON, Judge:

text:
    Elmonzer SANDERS, Individually and as natural tutrix of the minor child, Paula Dumas v. Robert D. ENGLISH et al.
    No. 10571.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Daniel R. Atkinson, Baton Rouge, for appellant.
    E. Robert Sternfels, Napoleonville, and Jerome J. Barbera, III, Napoleonville, for appellees.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

Elmonzer Sanders, individually and as the natural tutrix of her minor child, Paula Dumas, filed this suit to recover damages for personal injuries to Paula Dumas who was struck on March 21, 1974, at about 5:00 p. m. by a 1974 Ford automobile driven by Robert D. English, owned by Homco Corporation and insured by the Hartford Accident & Indemnity Company. The driver, owner and insurer were made defendants herein.

Plaintiff’s version of the accident is that Robert D. English, while driving in a southerly direction on La. Highway 1, in Assumption Parish, ran off the highway onto the western shoulder of the road, striking the minor child who was standing completely off the road.

Defendant, English, alleges that as he was proceeding from the area of Donald-sonville toward Thibodaux, within the town of Bertrandville, he noticed two pedestrians alongside Louisiana Highway 1 in a position of relative safety. These pedestrians were on the shoulder of the highway across from the Bayou Lafourche side. As English proceeded into this area, Paula Dumas suddenly and without warning darted into the highway, striking the left front side of the vehicle. Denying any negligence on the part of English, the defendants pleaded various acts of negligence by Paula Dumas and also pleaded her alleged contributory negligence in bar of recovery herein.

After trial, the court rendered judgment in favor of the plaintiff and the defendants have prosecuted this appeal, alleging that the trial court erred in the following particulars: in failing to consider the testimony of the State Trooper who investigated the accident, in holding that English was guilty of negligence, in holding that he had the last clear chance to avoid the accident, in holding that Paula Dumas was not guilty of contributory negligence, and in awarding excessive damages. The plaintiff-appellee has answered the appeal, urging us to affirm the trial court in every respect except the amount awarded as damages which appellee urges should be increased. We affirm.

The first specification of error assigned by the appellants is regarding the trial court’s alleged failure to consider the testimony of the State Trooper. The trial court, in his Written Reasons for Judgment, referring to the testimony of Trooper Dominque, stated:

“According to the testimony of the state trooper who investigated the accident Bertrandville is a highly congested mixed neighborhood of residences and business places which are located close together and where there is normally considerable activity with persons parking, standing and congregating along the highway. Defendant was familiar with the area having driven through the settlement on a fairly regular basis over the previous two years. The posted speed limit was 50 miles per hour.
The trooper further testified that there is a curve in the highway upon both entering and leaving Bertrandville but between the two curves and throughout the settlement itself the highway is straight and unobstructed.”
******
“The trooper found from the physical evidence at the scene that defendant’s left wheels left 47 feet of skid marks and his right wheels 5 feet of skid marks, indicating that the car skidded only 5 feet before the right wheels went off the highway, and then another 42 feet before the left wheels also left the highway positioning the entire car on the shoulder; that the car continued on down the shoulder an additional 70 feet before coming to a stop some 117 feet from the point where the skid marks commenced. The trooper was not however able to determine whether the car continued skidding on the shoulder or merely rolled down the shoulder after it left the highway.”

The trooper also testified that it was daylight, the weather was clear, and the roadway was dry.

A fair reading of the testimony reveals that the trial court succinctly summarized the trooper’s testimony and gave it due weight. This is particularly true in view of the testimony of the eyewitnesses to the accident who have no interest in the case, e. g., Messrs. Johnson, Andrews and Knockum, each of whom saw the English vehicle leave the road and strike the child. When credibility of the witnesses is a major issue, the trier’s findings should not be disturbed in the absence of manifest error.

Defendants next contend that the trial court erred in holding English guilty of negligence. English’s own version of the accident renders him negligent and liable. He testified that he saw two small children standing on the side of the highway only a foot or two off the pavement at least .200 feet ahead, with neither child looking in his direction. Appellant urges upon us our holding in Duraso v. Barbo, 215 So.2d 908 (La.App. 1st Cir. 1968). Although we did not allow recovery in the latter case, where a child suddenly darted from a concealed position into the motorist’s path, after setting forth the accepted jurisprudence that an automobile driver is not the insurer of the safety of small children we went on to state 215 So.2d at page 911:

“The rule is different, however, when the motorist sees or should have se'en the child near the street. For there a motorist is charged with knowledge that children playing or walking along the street may unexpectedly or unpredictably leave a position of safety for one of danger and peril. Under these circumstances a motorist is held to a higher degree of care, or better said, the highest degree of care. See Helgason v. Hartford Insurance Co., La.App., 187 So.2d 140; Ward v. Southern Bell Tel. and Tel. Co., La.App., 180 So.2d 750; McBride v. Raidt, La.App., 206 So.2d 299; Vander v. New York Fire and Marine Underwriters Inc., La.App., 192 So.2d 635.”

Appellants also contend that Paula Dumas was guilty of contributory negligence and that the trial court erred in holding otherwise. In the Written Reasons for Judgment the court held:

“The child was only nine years old at the time of the accident, and in view of the level of her mental and physical development as demonstrated on the trial of the case nearly a year later the court finds that she was too young to be considered contributory (sic) negligent.”

In Young v. Grant, 290 So.2d 706, 709 (La.App. 1st Cir. 1974), we said:

“The jurisprudence is clear to the effect that a child of nine or ten years of age may be capable of contributory negligence. White v. Hanover Insurance Company, 201 So.2d 201 (1st La.App.1967); Jones v. Fireman's Insurance Company of Newark, N.J., 240 So.2d 780 (2nd La.App.1970), writ refused 256 La. 1143, 241 So.2d 250 (1970). The test to be applied in evaluating whether the child’s conduct constitutes contributory negligence is whether the particular child, considering his age, background and intelligence, indulged in a gross disregard of his own safety in the face of known, understood and perceived danger and whether there was an intentional exposure to an obvious danger in connection with nontechnical and ordinary objects and situations with a capacity of the child to understand and realize.”

The trial judge was present and observed the Dumas child. He was in a better position to apply the test outlined in the Young case. This particular issue resolves itself to a question of fact; no citation of authority is needed to say that we do not interfere with a trial court’s finding of fact in the absence of manifest error and no such error is shown to exist herein.

From the discussion of the specification of errors above, it is unnecessary to discuss the doctrine of last clear chance. We hold as a matter of law that English is liable for the damages occasioned.

The award for damages were $930.28 for stipulated medical bills and $7,500.00 for Paula’s pain and suffering. The appellants argue that the award is excessive and constitutes an abuse of discretion. The appellee argues that it is inadequate and should be increased. Medical reports and testimony revealed that Paula Dumas suffered a compound fracture of the left fifth metacarpal, a fracture of the right radius, and hemarthrosis of the right knee. Because of the age of the child, it was felt by the treating orthopedic surgeon that she would fully recover and suffer no permanent disabilities. The trial judge was of the opinion that the amount awarded would adequately compensate the plaintiff for her pain, suffering and temporary disability. Under LSA-C.C. Art. 1934(3) and the jurisprudence, the trier of fact is vested with much discretion in fixing the amount of damages to which a plaintiff is entitled in a tort action. Appellate courts, while constitutionally required to review the law and the facts, are not to disturb the award of the trier of fact in the absence of an abuse of his much discretion; Parks v. Liberty Mutual Insurance Compa ny, 291 So.2d 505 (La.App. 2nd Cir. 1974), Gaspard v. Lemaire, 245 La. 239, 158 So.2d 149 (1963).

For the reasons assigned, the judgment of the trial court is affirmed and costs are assessed against the defendants-appellants.

Affirmed.


author: LANDRY, Judge.

text:
    Stephen B. HAMLETT v. DIVISION OF MENTAL HEALTH, LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION.
    No. 10523.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Victor L. Roy, III, Baton Rouge, for appellant.
    Robert L. Raborn, Baton Rouge, for ap-pellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

This appeal by Stephen B. Hamlett (Appellant) seeks review of rulings by the State Civil Service Commission (Commission) confirming two unsatisfactory service ratings given Appellant, and also confirming Appellant’s three day suspension without pay and ultimate dismissal by Appellant’s employer, Division of Mental Health, Louisiana Health and Human Resources Administration (Employer). We affirm Appellant’s three day dismissal without pay, but set aside the unsatisfactory ratings and Appellant’s discharge.

There is little, if any, dispute concerning the facts. Appellant was a classified employee in the State Civil Service System with the classification of Caseworker IV. From 1970 until his discharge on December 14, 1974, Appellant was employed at the Baton Rouge Area Alcoholism Clinic (Clinic), a division of the Baton Rouge Mental Health Center (Center), which is a division of Employer. Prior to his employment at the Clinic, Appellant had approximately 8 years service in other classified capacities, thus giving Appellant a total of over 12 years continuous service in the State Civil Service System. At the time of Appellant’s dismissal, Carl L. Hay-del, Administrator of the Clinic, was Appellant’s immediate superior, and Robert D. Watts, Administrator of the Center, was immediately superior to Haydel. The function of the Clinic is to guide and counsel Alcoholics and their families in handling the problems incident to alcoholism. As a Caseworker IV, it was Appellant’s duty to contact alcoholics as patients in state institutions, and also as out patients and offer guidance, direction and assistance. One of the more important aspects of the work includes dealing with alcoholics, who have been “dried out” in either public or private institutions, and assisting such persons in leading a life of total abstinence from alcohol as the only solution to their drinking problem.

It is apparent that friction developed between Appellant and Haydel shortly after Haydel became Clinic Administrator on June 1, 1972. Appellant felt that Haydel did not extend Appellant due professional courtesy because of Haydel’s unnecessary interference with what Appellant considered Appellant’s professional discretion in handling cases assigned to Appellant by Haydel. By the same token, Appellant’s attitude convinced Haydel that Appellant was “resistive” to Haydel’s supervision and control.

We deem the relationship between Appellant and Haydel to be essentially a personality conflict. In any event, this state of affairs resulted in four separate actions being taken against Appellant, three by Haydel and one by Watts. On April 1, 1974, Haydel, as Appellant’s rating officer, assigned Appellant an unfavorable service rating. On July 24, 1974, Watts suspended Appellant for three days without pay. A second unsatisfactory rating was given Appellant by Haydel on September 30, 1974. Appellant was discharged by Haydel on December 12, 1974, after Haydel had previously relieved Appellant of all duties, but with pay, on October 4, 1974.

THE UNSATISFACTORY RATING OF APRIL 1, 1974

Pursuant to the uniform rating system requirement contained in Civil Service Rules 10.1 et seq., on April 1, 1974, Haydel entered an unsatisfactory rating on Appellant’s record. Written notice of the rating and the reasons therefor were given Appellant that same date in conformity with Civil Service Rules. The basic reasons given were Appellant’s alleged resistance to supervision and negative attitude toward clinical programs in three enumerated instances.

First mentioned was an incident of Friday, June 29, 1973, when Haydel assigned Appellant the case of a patient about to be released from the alcoholic unit at East Louisiana State Hospital, Jackson, Louisiana. Haydel allegedly instructed Appellant to contact the patient by telephone before the patient’s imminent release on the following Monday. Appellant apparently resented the instruction as to when the patient should be contacted and informed Haydel that Haydel should merely assign Appellant the case and allow Appellant to handle the matter as Appellant thought best. At the hearing before the Commission, Appellant explained that he was familiar with the patient and the patient’s wife and family, and that Appellant also knew the circumstances into which the patient would be discharged. Appellant also testified that, after some discussion, Hay-del concluded the incident by simply telling Appellant to handle the matter. Since Appellant was leaving town that evening on a week of annual leave, Appellant further stated he assigned the case to a subordinate, Adrian Aycock, with instructions that Aycock handle the matter if Aycock felt capable and, if not, to leave the file on Appellant’s desk and Appellant would attend to the matter upon Appellant’s return from leave. Appellant conceded he did not relay to Aycock Haydel’s suggestion or instruction that the patient be contacted before discharge from the institution because Appellant felt that Haydel’s mention of contact was merely a suggestion; he also felt Aycock was fully capable of handling the matter without instruction from anyone, and that it was best to let Aycock exercise his professional discretion. Appellant also testified that, from his knowledge of the case and his review of the file when it was presented by Haydel, Appellant saw no need to contact the patient before his discharge and felt that the patient would in no way suffer if initial contact were delayed until after Appellant’s return from leave. The record shows that the patient was contacted during the next week. This incident was documented by Haydel in a memorandum dated July 10, 1973.

On July 12, 1973, without Haydel’s knowledge or consent, Appellant wrote Watts requesting permission to conduct psychological testing of patients. Although not a licensed psychologist, Appellant had conducted such tests under supervision by the Clinic’s prior administrator who was licensed in this field. Appellant testified that he felt such permission should be requested of his most immediate superior who was a licensed psychologist, and that Appellant knew Haydel was not so qualified. Haydel viewed the matter as an attempt to circumvent his authority as well as a violation of Haydel’s oral order that no communication regarding Clinic operations be made with higher authority without Haydel’s prior approval. This occurrence was entered by Haydel on Appellant’s record as another example of Appellant’s failure to- accept supervision and to cooperate in the affairs of the Clinic.

On February 19, 1974, Haydel requested Appellant to arrange his schedule so that Appellant could work on Wednesday evenings. Appellant expressed considerable displeasure at the request and responded that he would “try” to do so, and further responded by uttering a four letter obscenity which was overheard by Haydel. Although Appellant did work Wednesday evening shifts as directed, Haydel interpreted Appellant’s response and reaction as another example of Appellant’s failure to accept supervision and cooperate in conducting the work of the Clinic.

The final reason for the first unsatisfactory rating was Appellant’s alleged failure to maintain Appellant’s records, case files and charts up to date. The Commission refused to receive evidence of this charge because the records are made confidential by law and, as such, were not made available to Appellant; consequently, Appellant was unable to prepare a defense of this accusation. It is agreed that this charge is not at issue herein.

THE THREE DAY SUSPENSION ORDERED JULY 24, 1974

For the week of June 18 to June 24, 1974, Appellant was assigned to 24 hour page duty normally performed by Haydel who was then on sick leave. The assignment entailed answering a paging device known as a “beeper”. A signal from the pager required a telephone call to an answering service which received calls from alcoholics at all hours when the Clinic was closed. Appellant acknowledged receiving at least one call to which he did not immediately respond, but which he answered the following morning on returning to the office. Appellant explained that he failed to answer immediately because he considered such an action overtime work which would be in violation of a most emphatic no overtime work memorandum received from Watts after Appellant accepted the pager assignment, but before the call was received. When Appellant’s failure to respond was made known to Watts by Haydel, Watts summoned Appellant for an explanation. Appellant informed Watts that he had no explanation to offer. At the hearing before the Commission, Appellant testified that he refused explanation on advice of his counsel who instructed Appellant to offer Watts no explanation whatsoever unless counsel was present. Appellant conceded he did not tell Watts of the attorney’s instruction. For failing to answer the pager and refusing to offer an explanation for such conduct, Watts suspended Appellant for three days without pay.

THE SECOND UNSATISFACTORY SERVICE RATING

On September 30, 1974, Haydel gave Appellant another service rating, in compliance with Civil Service Rule 10.8(a), which requires a rerating of an employee within six months of a prior unsatisfactory rating. This second rating was also unsatisfactory, based solely upon Appellant’s conduct requiring the July 24, 1974 suspension, discussed above, during a period in which Appellant was already operating under the initial unfavorable rating. Except where an unsatisfactory rating is given, the only rating called for by the Civil Service Rules is an annual rating to be made March 31.

APPELLANT’S DISMISSAL ON DECEMBER 12, 1974

The reasons assigned in Haydel’s letter of dismissal, dated December 12, 1974, effective at the close of that work day, are the previously documented difficulties between Haydel and Appellant and the two consecutive unsatisfactory ratings herein-above discussed. Although Appellant was not terminated until December 12, 1974, it is conceded that on October 4, 1974, Hay-del suspended Appellant from all further performance of duties but required Appellant to report to the office daily during which limbo period Appellant received full pay. Haydel explained that he suspended Appellant from duty rather than dismiss him because at that time Haydel was not sure as to the proper dismissal procedure. Haydel also stated that on December 11, 1974, he received express delegation of authority to appoint and discharge all nonmedical personnel employed at the Clinic and exercised said authority the following day by discharging Appellant.

CONCLUSIONS OF LAW

The constitutionally established Civil Service Law of this state is clear in its requirement that disciplinary action against a classified employee must be based on legal cause. La.Const. of 1974, Article X, Section 8(A); La.Const. of 1921, Article XIV, Sec. 15 (N)(1). See also Civil Service Rule 12.1. Our Supreme Court has jurisprudentially defined legal cause for disciplinary action against a classified employee as that conduct which impairs the efficiency of the public service, and which bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5. Particularly appropos to the instant case are those authorities which hold that the mere fact that a classified employee has disagreements with co-employees or superiors, or that ill feeling arises between the employee and others, or that the employee is unpleasant to work with, or that the employee feels his superiors are incompetent, does not subject the employee to disciplinary action, unless it is shown that such conduct or personality traits produce results detrimental or prejudicial to the efficiency of the public service. Brickman v. New Orleans Aviation Board, 236 La. 143, 107 So.2d 422; Robbins v. New Orleans Public Library, La.App., 208 So.2d 25.

Applying the foregoing criteria, we find no legal cause for the initial unsatisfactory rating given Appellant in this instance. The record is barren of evidence showing that the efficiency of the service was impaired or disrupted or that the needs of any patient were neglected as a result of the incidents assigned by Haydel as grounds for the initial unsatisfactory rating. We conclude, therefore, that this rating is invalid for lack of legal cause.

As regards the three day suspension meted Appellant on July 24, 1974, the test of validity is the same 'as that discussed above in disposing of the issue of the initial unsatisfactory rating. However, in this connection, we find legal cause for the suspension. Appellant’s failure to answer the pager or beeper, after having accepted the responsibility, was a failure to perform a duty which could perhaps be detrimental to the service rendered by the Clinic. While there is some slight basis for Appellant concluding that the previously received memorandum prohibiting overtime work precluded his response to the summons after normal working hours, nevertheless, Appellant was not justified in declining to offer any explanation whatsoever to Watts for his failure to answer the pager. We are mindful of an employee’s right to counsel and the privilege of relying thereon. We are also mindful that an employee is not required to give incriminating testimony against himself. La.Const. 1921, Article XIV, Sec. 15 (P) (1). Nevertheless, the foregoing constitutional authority provides the penalty of forfeiture of position in the case of an employee who refuses to testify at a hearing against him on the ground of self-incrimination or who refuses to waive immunity from criminal prosecution on account of any matter about which he may be asked to testify at such a hearing. While the conference with Watts regarding Appellant’s failure to answer the pager was not a hearing as envisioned by La.Const, of 1921, Art. XIV, Sec. 15 (P)(l), Appellant’s refusal to answer Watts’ inquiry was a violation of the spirit if not the letter of said constitutional provision. We find that Appellant’s failure to answer the pager, coupled with his refusal to respond to Watts’ inquiry concerning the incident, is ample ground to sustain the three day suspension.

Since we find no legal cause to support the initial unsatisfactory rating, we must also reverse the ensuing rating of September 30, 1974. The only service rating authorized for an employee not operating under an unfavorable service rating is that provided in Civil Service Rule 10.2 to be made as of March 31 of each year. We therefore disregard entirely this latter rating as being unauthorized by Civil Service Rules under the circumstances shown herein.

The reasons given for Appellant’s discharge are the same as those assigned by Haydel for the prior unsatisfactory ratings. No new or additional reasons or grounds are urged in this connection. Granted that the pager incident may have supported Appellant’s discharge as urged by the Appointing Authority predicated on the holding in Hughes v. Department of Police, La.App., 131 So.2d 99. Nevertheless, the Appointing Authority saw fit to view the beeper incident, which occurred long before Appellant’s dismissal, only as ground for a three day suspension which was in fact meted Appellant. Having disciplined Appellant for this infraction, the Appointing Authority is estopped from waiting approximately six months to revive this episode as ground for further disciplinary measures. See Robbins v. New Orleans Public Library, above.

Appointing Authority strongly maintains that Appellant is subject to dismissal for cause in that Appellant breached his professional duty and obligation by exhibiting an indifference to the demands and needs of the patient whom Haydel requested Appellant to contact before the patient’s release from East Louisiana State Hospital. It is suggested that Appellant’s handling of the case rendered possible the patient’s discharge without benefit of prior consultation, and also subjected the patient to the possibility of a week’s exposure to outside conditions with no supervision, which was not in the patient’s best interest. In refusing to answer the beeper call for assistance, it is urged that Appellant callously ignored what could have been a call for help from an alcoholic in distress and that such conduct is proof of Appellant’s professional incompetence and grounds for dismissal.

As regards handling the case of the East Louisiana State Hospital patient, we are mindful that Appellant’s position is that of a professional who must, of necessity, be allowed a certain tolerance in the exercise of professional judgment within the realm of his specialty. We find no breach of professional duty by Appellant to the patient in question in this instance. Appellant was aware of the patient’s history and background. After reviewing the file, Appellant concluded as a matter of professional judgment that there was no need to contact the patient before release, and that failure to contact the patient within a week of discharge would not be detrimental to the patient’s welfare. We conclude that the ultimate result of Hay-del’s conversation with Appellant at the time of the assignment was that Haydel left the matter to Appellant’s professional discretion. The record shows the patient was in fact contacted during the following week. There is no showing that the manner in which the case was handled resulted in any adverse effect upon the patient concerned. So far as the record shows, it does not appear that standard procedure calls for the case to have been handled in the manner first suggested by Haydel. The record before us fails to show professional incompetence on Appellant’s part predicated upon Appellant’s handling of this particular assignment.

We have previously disposed of the pager or “beeper” incident by holding that while this occurrence properly subjected Appellant to disciplinary action, Appellant was initially suspended for the infraction and its ensuing related aspects, and that Appellant may not be twice disciplined for a single dereliction.

It is ordered, adjudged and decreed that the Commission’s affirmation of Appellant’s three day suspension ordered July 24, 1974, be and the same is hereby affirmed, and that the Commission’s confirmation of Appellant’s unsatisfactory ratings of April 1, 1974 and September 30, 1974, and Appellant’s discharge as of December 12, 1974, be and the same are hereby annulled, reversed and set aside.

It is further ordered that the aforesaid unfavorable ratings be removed and deleted from Appellant’s record, and that a satisfactory rating be granted Appellant as of April 1, 1974, and appropriately entered on Appellant’s record.

It is further ordered, adjudged and decreed that Carl L. Haydel, Administrator, Baton Rouge Area Alcoholism Clinic, Division of Mental Health, Louisiana Health and Human Resources Administration, or his successor in office, reinstate Appellant, Stephen B. Hamlett, to the position of Social Caseworker IV, at the aforesaid Clinic, with all of the rights, privileges and emoluments incident thereto, including full pay, promotions, salary increases or other benefits of any nature whatsoever to which said Stephen B. Hamlett was legally entitled as an employee in good standing, from March 31, 1974, to date of reinstatement, with credit to Employer for any income earned by said Stephen B. Hamlett, during the period December 12, 1974, to date of reinstatement; all costs for which Employer may be legally cast to be paid by Employer.

Affirmed in part, reversed in part and rendered.


author: GULOTTA, Judge. REDMANN, Judge

text:
    Ben BAGERT v. James A. MOREAU et al.
    No. 7106.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearings Denied Feb. 10, 1976.
    Writs Refused March 19, 1976.

      Broderick A. Bagert, New Orleans, for plaintiff-appellee.
    Blake G. Arata, Jacob Taranto, III, New Orleans, for members of the City Council for the City of New Orleans, defendants-appellants.
    Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., James P. Farwell, New Orleans, for New Orleans Public Service, Inc., intervenor-appellant.
    Monroe & L’emann, Andrew P. Carter, Eugene G. Taggart, William T. Tete, Kenneth P. Carter, New Orleans, for Louisiana Power & Light Co., intervenor-appellant.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   GULOTTA, Judge.

Plaintiff, alleging himself to be a consumer of energy furnished by New Orleans Public Service, Inc. (NOPSI), files a mandamus suit to compel the Council of the City of New Orleans to hold a public hearing with public notice before approving fuel cost adjustments to be paid by the consumer.

NOPSI and Louisiana Power and Light Company (LP&L) intervene. Exceptions of lack of jurisdiction ratione materiae, no cause of action and prematurity, filed by the defendants and intervenors, were referred to the merits. After hearing on the merits, the trial judge made the writ of mandamus peremptory and, in reasons for judgment, concluded that the public utility cannot assess the fuel cost adjustment against the consumer without first conducting a public hearing with public notice as set forth in § 4 — 1604 of the Home Rule Charter of the City of New Orleans.

Defendants and intervenors appeal. It is their contention, on appeal, that the court lacks jurisdiction ratione materiae oyer public utility rates since this responsibility is placed exclusively with the Council under Article 4, § 21(C) of the Louisiana Constitution of 1974 and the Home Rule Charter of the City of New Orleans; that plaintiff failed to request a public hearing and notice on the assessment of the fuel cost adjustment prior to instituting judicial proceedings; that mandamus is not the proper remedy; that plaintiff is not a proper party to file suit for the reason that he is not a person or corporation, as contemplated under § 4 — 1604 of the Home Rule Charter, who must be notified of the time and place of the public 'hearing.

Finally, it is defendants’-intervenors’ position that the fuel cost adjustment is not a “rate” change or alteration requiring notice and a public hearing as set forth under the Home Rule Charter. In this connection, NOPSI and LP&L concede that any rates to he fixed by the public utility require a public hearing by the City Council. However, it is their contention that the fuel cost adjustment is a part of the scheduled rate, not a change in the rate, and, as such, there exists no necessity for a notice of a public hearing. Defendants-intervenors support their contention with Supreme Court decisions from Virginia, Illinois, Mississippi and Massachusetts which, in effect, have held that a fuel cost adjustment is not a rate hike or rate increase requiring public hearing by the regulatory body under the statutes in those states.

Prior to a consideration of § 4 — 1604 of the Home Rule Charter of the City of New Orleans, relating to establishment of rates, which reads as follows:

“Section 4-1604. Establishment of Rates. In the exercise of its powers of supervision, regulation and control of any street railroad, electric light, gas, heat, power, waterworks or other public utility, the Council shall, in oases involving the establishment, change or alteration of rates, charges, tolls, prices, fares or compensation for service or commodities supplied by such utilities, cause notice of the matter to be served upon the person or corporation affected thereby, so that such person or corporation shall have an opportunity, at a time and place to be specified in said notice, to be heard in respect to said matter. The Council shall make all necessary and reasonable rules and regulations to govern applications for the fixing or changing of rates and charges of public utilities and all petitions and complaints relating to any matter pertaining to the regulation of public utilities, and shall prescribe reasonable rules and regulations to govern the trial, hearing and rehearing of all matters referred to herein, under the same procedure as provided for ordinances granting franchises.”

we direct our attention to other issues raised by defendants.

EXHAUSTING ADMINISTRATIVE REMEDY

It is well established that a party must exhaust his administrative remedy before relief can be sought in the courts. However, in the instant case, the Council has taken the position that public notice of a hearing is unnecessary since no price or rate increase is sought by NOPSI. Furthermore, the Council conducted a hearing without public notice in which it approved a fuel adjustment cost. Under the circumstances, requiring plaintiff to petition the Council for relief would be vain and useless. See Louisiana Milk Commission v. Louisiana Commission on Governmental Ethics, 298 So.2d 285 (La.App., 1st Cir. 1974). We find no m'erit to this contention.

MANDAMUS

We reject also defendants’ claim that mandamus is not the proper remedy. We have no quarrel with defendants’ argument that before mandamus will lie, plaintiff must show that he has a special interest in the rate or price increaase; that he seeks to compel the performance of a ministerial duty ; and that no other reme-dy is available. However, in Bussie v. Long, 286 So.2d 689 (La.App., 1st Cir. 1973), writ refused, 288 So.2d 354 (La. 1974), the court concluded that a taxpayer had sufficient interest to seek mandamus. In Bussie, on petition of a taxpayer, mandamus was issued to compel the tax commission to assess all property in the state at actual cash value. In the instant case, as in Bussie, plaintiff seeks the enforcement of a public duty. Furthermore, the remedy sought by plaintiff is ministerial in nature. Section 4 — 1604 of the New Orleans Home Rule Charter provides that the Council shall (emphasis ours) provide notice of a hearing when an alteration or change in a rate, charge, toll, price, fare or compensation for services is requested. If, in fact, the fuel adjustment cost is a price or rate increase or alteration, the request for notice is mandatory and therefore ministerial in nature. Furthermore, the same section of the Charter additionally requires that any order of the Council fixing or establishing any rate, fare or charge of a commodity or service furnished by the public utility requires such order to be issued upon a resolution or ordinance passed in open Council meeting by a majority vote of the Council. Under § 3-112(5), the Charter requires notice by publication, in the official journal of the City, of the introduction of a proposed ordinance, when the substance of the proposed ordinance involves the establishing or increasing of any service charge. Clearly, whether § 4-1604 requires notice to be served when a price or rate alteration or change is requested, or whether notice by publication is required for the adoption of an ordinance or resolution, these requirements are mandatory.

Finally, if we were to accept defendants’ argument that mandamus is not the proper remedy because other remedy is available in the instant case, we would restrict the function of the writ of mandamus to such an extent that it would then be a useless and superfluous remedy. See Barrett v. City of New Orleans, 33 La.Ann. 542 (La.App., Orl. 1881). We conclude that mandamus is the proper remedy in the instant case.

NOTICE

Section 4 — 1604 of the Home Rule Charter provides, in pertinent part:

“ . . . the Council shall, cause notice of the matter to be served upon the person or corporation affected thereby, so that such person or corporation shall have an opportunity, at a time and place to be specified in said notice, to be heard in respect to said matter. * * * ” (underline ours)

Defendants-intervenors contend that the “person or corporation affected thereby”, as stated in the above provision, refers to the public utility, i. e., NOPSI and LP&L, affected by the rate increase. On the other hand, it is plaintiff’s position that the pertinent phrase refers to all consumers, person or corporation, affected by the price fluctuations.

The district court concluded that plaintiff was a “person” within the contemplation of § 4 — 1604 and, therefore, had standing to sue under that section. We do not agree. The pertinent provision of the Charter requires that notice of the hearing be “served” on the person or corporation affected. The word “served” means notice by service of process. See Puderer v. City of New Orleans, 323 So.2d 835 (La. App., 4th Cir. 1975). Clearly, the cited part of § 4-1604 does not require all users of electricity and gas to be “served” with a notice of hearing. We can only conclude that the notice requirement under this part must be served on the public utility affected by the rate change request.

However, plaintiff does not seek notice by service of process, but seeks notice by publication. We find support for plaintiff’s position, if indeed a rate or price alteration or change is sought.

Under § 4-1604, when any rate or charge is established or fixed for any service or commodity furnished by a public utility, the Council shall do so by resolution or ordinance in open Council meeting passed by a majority vote of the Council. As pointed out hereinabove, the adoption of an ordinance requires notice by publication. Accordingly, we conclude that plaintiff, a consumer who has a pecuniary interest in the ultimate cost of electricity and gas, is entitled to assert a claim requiring notice of a public hearing in accordance with the provisions of the Home Rule Charter, if, infact, a rate or price alteration or change is sought by NOPSI.

RATE OR PRICE CHANGE

The pertinent section of the Home Rule Charter relating to rate or price changes or alteration is § 4-1604, which reads as follows:

“Establishment of Rates. In the exercise of its powers of supervision, regulation and control of any street railroad, electric light, gas, heat, power, waterworks, or other public utility, the Council shall, in cases involving the establishment, change or alteration of rates, charges, tolls, prices, fares or compensation for service of commodities supplied by such utilities, cause notice of the matter to be served upon the person or corporation affected thereby, so that such person or corporation shall have an opportunity, at a time and place to be specified in said notice, to be heard in respect to said matter. The Council shall make all necessary and reasonable rules and regulations to govern applications for the fixing or changing of rates and charges of public utilities and all petitions and complaints relating to any matter pertaining to the regulation of public utilities, and shall prescribe reasonable rules and regulations to govern the trial, hearing and rehearing of all matters referred to herein, under the same procedure as provided for ordinances granting franchises.”

The clear purpose and intent of this Home Rule Charter provision is to protect the consumer against unwarranted gas and electrical rate increases.

If NOPSI and LP&L have any control over the amount of the fuel adjustment cost to be paid by the consumer, presumably, under the Charter provision, a public hearing with notice would afford an opportunity for the introduction of evidence on the reasonableness or unreasonableness of the proposed increase. In this event, these costs would be a rate or price change requiring notice and a public hearing as contemplated in the Charter.

On the other hand, if the fuel adjustment cost is regulated by a governmental or regulatory agency and not controlled by NOPSI and LP&L, these costs are not price or rate changes requiring a public hearing with notice. A hearing, under these circumstances, would be a vain and useless act.

However, we find the evidence incomplete relating to what a fuel adjustment cost is, whether this cost is set by the Federal Power Commission or a supplier of fuel to the public utility company, and whether NOPSI and LP&L exercise any control over the amount of cost passed on to the consumer. This evidence is necessary for a determination of the crucial question, i. e., whether the fuel adjustment cost is a rate or price increase requiring a notice of public hearing.

In the instant case, Val E. Kissgen, a utility engineer in the Department of Utilities for the City of New Orleans, stated (though not clear from his testimony) that NOPSI estimates their fuel costs in advance and collects those costs in advance. According to Kissgen, if NOPSI overestimates, a complete refund is made to NOP-SI’s consumers, but the individual consumer would not necessarily receive the precise amount that he, individually, had overpaid. Kissgen’s testimony might infer that by exercising control over the amount of the estimate, NOPSI has control over the fuel adjustment cost. However, in oral argument, counsel for NOPSI stated that the fuel adjustment cost is determined by a regulatory agency and/or a supplier of energy and intervenors have no control over the amount of the fuel adjustment cost.

Under the circumstances, it is apparent to us that sufficient evidence is lacking in the record for a determination of whether or not the fuel adjustment cost is a rate or price increase as contemplated by the Charter.

Accordingly, the judgment appealed from is annulled and set aside. This matter is now remanded for the limited purpose of hearing evidence on: what a fuel adjustment cost is, what governmental agency or supplier of fuel determines the cost, whether NOPSI and LP&L exercise control over the amount which is passed on to the consumer and for rendition of judgment by the trial court consistent with the views expressed herein; all costs are to await a final determination.

Annulled, set aside and remanded.

REDMANN, Judge

(concurring in part).

The judgment should be set aside, but plaintiff’s suit should be dismissed rather than remanded. The trial judge is perhaps correct in his view that an automatic rate adjustment for fuel cost (why not for rent equipment costs, or staff salaries?) is a change in rate or price. But he erred in ruling that plaintiff is “the person or corporation affected,” City Charter § 4-1604, by the Council’s “establishment, change or alteration of rates,” entitled to have notice of a hearing “served upon” him. That was the basis of plaintiff’s demand. Regrettably — as plaintiff apologized at oral argument — personal problems prevented his submitting a brief arguing his case. There may be alternative theories which . might support ordering the Council to hold hearings, but they were not developed by any evidence in the trial court because they were not asserted at all.

      . These eases are City of Norfolk v. Virginia Electric and Power Company, 197 Va. 505, 90 S.E.2d 140 (1955); United Gas Corporation v. Mississippi Public Service Commission, 240 Miss. 405, 127 So.2d 404 (Miss.1961); Chicago v. Illinois Commerce Commission, 13 Ill.2d 607, 150 N.E.2d 776 (1958); and Consumers Organization for Fair Energy Equality, Inc. & Others v. Department of Public Utilities & Others, Massachusetts Supreme Judicial Court, No. S-235 Mass., 335 N.E.2d 341 (1975).

      . See State v. Adjustment Board of City of Baton Rouge, 220 La. 708, 57 So.2d 409 (1952).