author: BYRNES, Judge.

text:
    Gloria C. Cisneros, Wife of/and Marco CISNEROS v. Elizabeth C. Ferro, Wife of/and Gerald FERRO, et al.
    No. 12699.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Writ Denied April 21, 1982.

      Glenn C. McGovern, New Orleans, for plaintiffs-appellants.
    E. Kelleher Simon, Murphy & Simon, C. Gordon Johnson, Jr., Porteous, Toledano, Hainkel & Johnson, New Orleans, Stephen L. Huber, Borrello & Huber, Metairie, W. Paul Andersson, Hammett, Leake & Hammett, New Orleans, for defendants-appel-lees.
    Before BARRY, BYRNES and WARD, JJ.
   BYRNES, Judge.

This suit arises out of a chain reaction collision involving five vehicles on a rain-soaked portion of the interstate highway. The speed limit is fifty-five (55) miles per hour, but due to the weather conditions and the medium to heavy traffic all the vehicles involved in the accident were traveling at approximately twenty (20) to twenty five (25) miles per hour. At the location of the collision, the westbound interstate is five (5) lanes wide. The extreme right two (2) lanes are entrance lanes merging from Tulane Avenue. The innermost of these two (2) lanes continue for approximately one (1) mile before becoming an exit onto Metairie Road. The outermost lane merges into the inner lane, approximately midway between the Tulane entrance and the Metairie Road exit. A vehicle driven by the plaintiff, Gloria Cisneros, in the first right hand lane either stopped or drastically reduced its speed. The following car driven by Ferro came to a stop behind Cisneros’ car and was hit from behind by a car driven by Mrs. Bolling. This subsequent collision drove Ferro’s car into the rear of the Cisneros’ vehicle, causing the injuries complained of by Cisneros. Following the collision between Bolling and Ferro, Bolling’s car was hit in the rear by a car driven by Donald T. Ranna, Jr., and in turn Ranna’s car was rearended by a car driven by Mrs. Todt. Ferro testified that she was propelled into the Cisneros car by the impact and that the subsequent two impacts did not cause her to hit Cisneros again. This testimony is consistent with Cisneros’ testimony whereby she stated that she was hit once and that she heard several subsequent impacts.

In a jury trial, the jury found that the defendants were not negligent and that the plaintiff was negligent and that her negligence was a proximate cause of the accident. Appellant appeals the judgment dismissing her suit and urges this court to render a judgment in her favor awarding appropriate damages.

The appellant maintains the trial court erred in not permitting certain jury charges to be read to the jury. Further, it is argued that the jury erred in finding Cisneros totally negligent and that her negligence was a proximate cause of the accident. Finally, the appellant argues that the trial court should have granted a motion for a new trial because the jury’s decision was against the weight of the law and the evidence. The trial court refused to charge the jury with appellant’s jury charges No.’s 1, 4, 5, 7, 14,16, and 17. The jury charges set forth by the judge were quite succinct and set forth in part:

“The law concerning liability for rear end collisions reads as follows:
‘The court recognizes the rule that a following driver should drive at such a speed, and maintain such an interval, and keep a lookout, that he can avoid the collision with the leading car, under circumstances which should be reasonably anticipated by him.’
The mere fact that a vehicle is moving in close proximity to a moving vehicle ahead and keeping up with it does not in itself constitute negligence. In determining whether or not the driver was negligent in not maintaining a proper distance between his automobile and the one preceeding him, the speed at which he was traveling and his ability acting with ordinary care to stop his car is required to do so by a situation not produced by another’s negligence should be considered. However, no driver is required to be on guard for unusual situations that may suddenly and unexpectedly arise.
Therefore in an exception to this general rule of law has been recognized, however, in instances where the driver of the lead vehicle negligently creates a hazard which the following vehicle cannot reasonably avoid — let me check the verbiage. Let me reread that because I left out a comma. It doesn’t read right.
As a rule, when the following vehicle collides with the rear of a lead car, the following driver is considered to be at fault, however, no driver is required to be on guard for an unusual situation that may arise. Therefore an excep-lion to this general rule of law has been recognized ...., in instances where the driver of the lead car negligently creates a hazard which the following vehicle cannot reasonably avoid.”

We feel that this charge is in accordance with present day law pertaining to rear-end collisions and the attendant liability. In light of the charge given to the jury, the absence of the special charges requested by appellant in our opinion was not of such importance that had they been given, the jury would have reached a different verdict.

The apparent reason the jury rendered a verdict against the plaintiff appears to be that the weight of the law and the evidence was such that the jurors concluded that Mrs. Cisneros’s negligence was a contributing factor to the accident. The testimony of Ferro indicates that Mrs. Cisneros came to a complete and abrupt stop in her lane and although Mrs. Cisneros testified that she had not completely stopped, the jury obviously chose to believe the testimony of Ferro. We find adequate evidence in the record to support the jury’s determination and we thereby leave it intact pursuant to the guidelines enunciated in Canter v. Koehring Co., 283 So.2d 716 (La.1973). Further, the mere fact that the jury made a factual decision on the differing testimony suggests to this court that in the case at bar there does not exist “the hopeless conflict” in testimony as alluded to in plaintiff’s jury charge No. 14, and as a result, the legal presumption of the defendant’s responsibility cannot be said not to have been overcome.

In today’s litigious society, to even the most casual observer, it is almost axiomatic that a rear-end collision will invariably result in a finding of liability on the part of the following driver absent showing a fairly substantial negligence on the part of the preceding driver.

Failure to maintain a specific distance between automobiles proceeding in the same direction does not constitute negligence per se. The facts of each case determine what is a safe or reasonable distance, but the following motorist is only liable for failing to avoid foreseeable dangers and emergencies. The driver of the following automobile is entitled to rely upon the assumption that the automobile ahead is being driven with care and caution in accordance with the laws of the road and that the driver thereof will not commit acts of negligence which will endanger the following traffic. Taylor v. Genuine Parts Co., 192 So.2d 241 (La.App. 4th Cir. 1966), Aetna Casualty & Surety Co. v. Henry, 307 So.2d 375 (La.App. 1st Cir. 1974), Morgan v. Whittington, 191 So.2d 911 (La.App. 1st Cir. 1966), Nomey v. Great American Indemnity Co., 121 So.2d 763 (La.App. 2nd Cir. 1960), Flowers v. The St. Paul Co., 336 So.2d 1018 (La.App. 2nd Cir. 1976).

In Am.Jur.2d, Volume 7 A, on page 1116, Section 849, states generally:

“The general rule that motorist on public highways or streets must exercise reasonable care in the operation of their vehicles, that is such care as a person of ordinary prudence would exercise under the same similar circumstances, governs the reciprocal rights and duties of motorist proceeding in the same direction . . . Generally speaking, however, a motorist ahead owes no duty to a motorist to the rear except to use the road in the usual way, in keeping with the laws of the road, and until he has been made aware of it by a signal or otherwise he has a right to assume either that there is no motorist in the close proximity to the rear or that, being there, the motorist to the rear has his vehicle under such control so as not to interfere with the free use of the road in front of and to the side of him in any lawful manner. [Footnote omitted] Further, Section 851 states: “The sudden stopping of a vehicle by a motorist, resulting in a collision between his vehicle and one behind constitutes negligence, particularly when such stopping is unsig-naled.” [Footnotes omitted]
Section 852 goes on to state: “In a number of cases it has been held that the operator of a vehicle which was struck from behind by another when the first came to a sudden stop because of traffic, could properly be found guilty of negligence in failing to properly signal his intention to stop the following motorist, .... In particular, the contention has been frequently raised, with considerable success, that the stopping motorist was confronted with an emergency justifying him in coming to an abrupt stop without signaling the following motorist, such as where an animal or person darted across the path of the motorist.... However, the claim that a sudden or unsignaled stop was justified by an emergency involving other vehicles on the road ahead . . . has been rejected where it appeared that an emergency requiring the stop was created in part at least, by the preliminary negligence of the stopping motorist.” [Footnotes omitted]

This circuit in Deiler v. Clayton, 378 So.2d 516 (La.App. 4th Cir. 1979), applied the principles enumerated in the case of Taylor v. Genuine Parts, Co., supra. In Deiler the following vehicle was suddenly faced with the sudden stop of the preceding vehicle. Brakelights were displayed and the driver of the following vehicle was not able to stop in time. Further, the following vehicle was unaware of any reason why the preceding vehicle would have to make a sudden stop until he was appraised of the hazard after the collision. From his vantage point there was for all practical purposes the same situation as faced by Ferro, namely, that there was no reason ascertainable by the following vehicle which would cause him to have noticed that the preceding vehicle might have cause to stop.

We discuss now the contention by plaintiff that the verdict was against the weight of the law and the evidence. Plaintiff was driving on the interstate highway. The lane she was driving in, although a merging lane, did not end but instead exited off the interstate. There was no reason for her to stop as there was testimony that there were no cars in front of her. This court does recognize that there would be a duty for a following motorist to be charged with the knowledge that in many instances, a person will improperly use a merging lane by driving to the point said lane stops, and then waiting for a break in oncoming traffic before again proceeding. In the present case, this knowledge cannot be charged since the lane did not end, but merely exited off the interstate. There was no reason based on these facts for plaintiff to stop or even slow down so drastically as to cause a collision and that the only inconvenience she would have suffered by not merging into traffic would be that she would be forced to exit to Metairie Road, cross the road, and continue back onto the interstate via what is essentially the same thoroughfare. The jury concluded, as do we, that Mrs. Cisneros’ actions were of such a nature so as to reasonably preclude any other hypotheses than that her negligence was a proximate cause of the accident. For this reason we affirm the lower court’s decision in not granting a new trial.

We therefore affirm the lower court’s decision in full and assess all costs to appellant.

AFFIRMED.

      . “1. A motorist is held to have seen an automobile which by the use of ordinary care and prudence he should have seen in time to avoid colliding with it, and when a collision occurs, it is presumed that defendants were negligent in driving at a rate of speed greater than that permitting them to stop within their range of vision.
      4. The driver of the leading automobile on a highway owes no duty to the driver of the following vehicle except to use the road in the usual way in keeping with the laws of the road.
      5. Flashing of a lead car’s brake lights is sufficient warning to following automobiles. The burden of proving the rear brake lights or other signal was not given is on the defendants and unless the defendants overcome this burden of proof, then you must find that the defendants were not exercising the proper care and attention and are liable to plaintiff.

        7. A motorist is required to keep his automobile under control at all times. His duty to do so increases in periods of low visibility and adverse road conditions. When visibility is impaired a motorist should reduce his speed and keep his automobile under proper control.
      14. If you find that the testimony is in a hopeless conflict, and that the defendant has in fact rear ended plaintiffs car, then the defendant, as a matter of law, has not exonerated himself from this legal presumption and is therefore responsible for the accident.
      16. Generally, a motorist is held to have seen an automobile by which use of ordinary care and prudence he should have seen in time to avoid colliding with it, and he is guilty of negligence in driving at a rate of speed greater than that permitting him to stop within the range of his vision.
      17. A motorist does not have the right to assume that his course of travel is free of obstruction and must at all times keep his vehicle under control that he can stop within his range of vision.”


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of Frank A. RUSCHEL.
    No. 12596.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.

      Harry F. Connick, Dist. Atty., Orleans Parish by Paul G. Mayoral and Michael T. McGuckin, Asst. Dist. Attys., Juvenile Division, New Orleans, for State.
    Arnold & Giepert, Melvin J. Giepert, New Orleans, for appellant.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

This matter is before this Court on appeal from a judgment of the Orleans Parish Juvenile Court, wherein the defendant child, Frank A. Ruschel, and two co-defendants were found guilty of two counts of aggravated battery. The defendants were adjudicated delinquent. Frank A. Ruschel was sentenced to serve six months in the custody of the Department of Corrections. Only Frank A. Ruschel appeals the judgment of his sentence.

The record reflects that on the night of October 18, 1980, the victims, Gary Savage and Mark Morgan, were brutally attacked, without provocation, by a group of youths, as they stood outside the Aurora Mall Cinema, located at 4100 General DeGaulle Boulevard. Following the incident, the juveniles, Frank A. Ruschel, James Parker, and Timmy Isreal were arrested in the immediate vicinity of the crime and were charged with its perpetration.

By way of alibi, defendant Ruschel testified that he was not involved in the fight. He stated that when the fight began he left the area and went to Funland. He testified that the reason he left was because he had been in trouble before and was advised by his attorney and probation officer to leave whenever there was trouble.

The defendant’s testimony was refuted by the victims and three eye witnesses to the incident. The victim, Gary Savage, testified that he distinctly remembered being struck by defendant Ruschel. Mark Morgan, the second victim, testified that he saw defendant Ruschel hit him and his companion, Gary Savage. An eye witness to the incident, A. J. Hernandez, manager of the Aurora Mall Cinema, testified that he saw Ruschel kick at Mark Morgan and kick Gary Savage. The female companions of the victims, Denise Caswell and Kelly Clau-dell, testified that they witnessed defendant Ruschel strike, hit and kick Mark Morgan. Miss Caswell further testified that none of the co-defendants attempted to stop the attack.

On appeal, the defendant contends that the trial court erred in convicting him as charged, because the state failed to prove all the elements of the crime beyond a reasonable doubt.

The United States Supreme Court has held that the State must prove a juvenile’s guilt beyond a reasonable doubt in order to prevail in the adjudicatory stage of a delinquency proceeding. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

In the case at Bar, defendant is charged with the crime of aggravated battery. “Aggravated Battery” is defined as “a battery committed with a dangerous weapon.” R.S. 14:34. The term “dangerous weapon” includes any gas, liquid or substance or instrumentality, which in the manner used is calculated or likely to produce death or great bodily harm. R.S. 14:2(3). Thus, a “dangerous weapon” is not limited to those instrumentalities which are inherently dangerous, but includes any instrumentality which, in the manner in which it is used, is calculated or likely to produce death or great bodily harm. State v. Bonier, 367 So.2d 824, (La., 1979). This Court is satisfied that a steel toed/heeled boot is a “dangerous weapon” within the context of the aggravated battery statute, when the boot is used to kick a victim, with the purpose of causing great bodily harm.

The defendant argues that since there is no evidence to indicate that he wore the boots or struck anyone with a steel toed/heeled boot, that he cannot be guilty of aggravated battery. We do not agree.

One may be guilty as a principal to a crime if he directly commits the act constituting the offense, aids and abets its commission, or directly or indirectly counsels or procures another to commit the crime, whether he is present or absent. R.S. 14:23-24. The law will impose criminal liability upon a principal for the same reason it imposed such liability upon a co-conspirator; that is, because both of these inchoate offenses are directed at persons who knowingly participate in planning or executing the crime. R.S. 14:24. State v. Knowles, 392 So.2d 651 (La., 1980), rev. other grounds, 395 So.2d 678.

In considering the criminal liability of the defendants the trial court stated.

* * * * * *
We have already heard the trial and I have been satisfied that the evidence was such as to implicate your son James Parker with the other two Timmy Isreal and Frank Ruschel.

We have carefully reviewed the record in this matter and we are convinced, as was the trial judge, of the defendant’s involvement in the attack upon Gary Savage and Mark Morgan. The direct evidence presented by the three eye witnesses to the crime satisfies us that the State proved beyond a reasonable doubt the involvement of defendant Frank Ruschel in the commission of the crime.

There is direct evidence of the use of a boot in the attack upon Gary Savage and Mark Morgan. Gary Savage testified that he was kicked in the face with a work boot during the incident of October 18, 1980. The victim, Mark Morgan, testified that he was kicked in the ribs with a boot during the incident. Thus, the evidence, taken as a whole, convinces this Court that the guilt of Frank Ruschel, as principal to the crime of aggravated battery, was proven beyond a reasonable doubt. There is no error in the judgment of the trial court.

Defendant, Frank Ruschel, argues that the trial court erred in sentencing him to six months in the custody of the Department of Corrections. The defendant reasons that there was no showing that the welfare or safety of the public or of himself was threatened. He relies upon Code of Juvenile Procedure Article 86. The mentioned article reads as follows:

Article 86 of the Code of Juvenile Procedure
The court should impose the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society. The court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal. (Emphasis Supplied)

At the dispositional hearing, the trial judge made the following pronouncements before sentencing this defendant, Frank Ruschel:

THE COURT:
James Parker, some people may consider this incident just as a brawl, a fight between friends, amongst friends, but this is not the kind of juvenile prank or mischievous behavior that I think is typical of teenagers when a bunch of guys jump two innocent individuals — and, I say innocent because from all the testimony that I heard, they did not do anything on this evening to precipitate this altercation but were merely going to purchase tickets for a movie and were jumped by a bunch of others who may have been younger than them but certainly were outnumbered. ‘We can’t look upon this as something light or just mischievous, particularly, in light of what happened to the victims. One was out of work; one has lost his job as a result of missing work.’ We’re talking about persons being injured. We’re talking about individual human beings who have certain rights to go about freely without fear of being molested, and in this particular case, being injured. So, I have not looked upon this matter very lightly from the very beginning of the trial. I hope nobody else has considered it lightly either because of juveniles being involved and because of the seriousness of the injuries to these victims.

As reflected in the reasoning of the trial court, the crime of aggravated battery is a crime of violence, which was committed against two members of the general public.

Moreover, the record reveals that at the time of the commission of the crime in question, this defendant was on probation as the result of an adjudication wherein he was found guilty of burglary. This Court is convinced that the removal of this juvenile was mandated for the protection of the public. The trial judge did not err in committing Frank A. Ruschel to the custody of the Department of Corrections for six months.

For the reasons assigned the judgment of adjudication and the disposition of this matter by the Juvenile Court for the Parish of Orleans are affirmed.

AFFIRMED.


author: LOBRANO, Judge.

text:
    Mrs. Irene Palko, wife of Robert Scott McINTOSH, II., v. Robert Scott McINTOSH, II. Robert Scott McINTOSH, II., v. Irene P. McIntosh, wife of Robert Scott McINTOSH, II.
    Nos. 12742, 12743.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.
    Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for appellee — Irene Palko McIntosh.
    Robert Scott McIntosh, II, New Orleans, for appellant — R.S. McIntosh, II.
    Before LOBRANO, SCHOTT and AUGUSTINE, JJ.
   LOBRANO, Judge.

On March 24, 1980, a judgment was rendered in favor of Irene Palko, wife of Robert Scott McIntosh, II., appellee, and against Robert Scott McIntosh, II., appellant, decreeing an absolute divorce between the parties. Thereafter, appellant filed a motion for a new trial which was denied on March 27, 1980. Appellant then filed his motion for appeal on April 30, 1980.

The delay within which to appeal from a judgment granting a judgment of separation or divorce is set forth in Article 3942 of the Code of Civil Procedure, as follows:

“An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1) — (3).”
* *
La.C.C.Pro. Art. 3942.

As applied in this case, the provisions of Article 2087 are clear that the thirty day period begins to run from the Court’s refusal to grant a timely application for a new trial. The new trial was denied on March 27, 1980, and therefore the last day to file for the appeal was April 28, 1980. Appellant argues that the delay commences from the date of the mailing by the clerk of the notice of the court’s denial of a new trial. This is only applicable when a party files a written request for notice of the rendition of a judgment on a motion for new trial. La.C.C.Pro. Art. 1914. Our jurisprudence is clear that the clerk is obligated to mail an interlocutory decree or judgment on a motion for new trial only in those instances where such a written request is filed. Clark v. Clark, 351 So.2d 779 (La.App. 1st Cir. 1977); Harris v. Dupree, 322 So.2d 380 (La.App. 2nd Cir. 1975); Dounson v. Faia, 246 So.2d 729 (La.App. 4th Cir. 1971). Since no written request was filed by appellant in these proceedings, the delay for filing the appeal began March 27, 1980. For the foregoing reasons, this appeal is hereby dismissed.


text:
    Joseph E. SCHIELDER v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 12657.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.

      Ford T. Hardy, Jr., New Orleans, for appellant.
    C. Monk Simons, III, New Orleans, for appellee.
    Before LOBRANO, SCHOTT and AUGUSTINE, JJ.
   LOBRANO, Judge.

On September 5, 1979, while employed as a porter by Schwegmann Giant Supermarkets, Inc., appellant, Joseph E. Schiedler, was arrested for allegedly marking down damaged dog food without authority. He was charged with misdemeanor theft in the amount of $41.00, and was brought to trial on May 8, 1980 in the 34th Judicial District Court, where he was found not guilty. Thereafter, on August 25, 1980, appellant brought these proceedings seeking damages from Schwegmann for malicious prosecution. Trial of this matter was begun before a jury, and at the close of appellant’s case, the trial judge granted appellee’s motion for directed verdict dismissing the matter. Appellant perfected this appeal.

The sole issue posed by this appeal is whether or not, in view of the evidence presented at trial by plaintiff, the lower court erred in granting Sehwegmann’s motion for a directed verdict. The directed verdict is a common law procedural device added to the Code of Civil Procedure in 1977 by Art. 1810.

“A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.” La. C.C.P. Art. 1810.

The standard of proof to be applied by the court in ruling on a motion for a directed verdict is clearly set out in Ragas v. Argonaut Southwest Ins. Co., 379 So.2d 822 (La.App. 4th Cir. 1980) In that case we held that since the language of the La. Statute is taken directly from F.R.C.P. 50(a) we would adopt the federal standard as enunicated by the Fifth Circuit Court of Appeals in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969), which is as follows:

“On motions for directed verdict and for judgment notwithstanding the verdict the court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.” id. at p. 374.

The La.Sup.Ct. approved this standard in Breithaupt v. Sellers, 390 So.2d 870 (La.1980). See also Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979); Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir. 1981); Gunter v. Plauche, 399 So.2d 727 (La.App. 1st Cir. 1981)

To prevail in an action for malicious prosecution, the plaintiff must establish the following elements:

(1) The commencement or continuance of an original criminal or civil judicial proceeding.
(2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding.
(3) Its bona fide termination in favor of the present plaintiff.
(4) The absence of probable cause for such proceeding.
(5) The presence of malice therein.
(6) Damage conforming to legal standards resulting to plaintiff.
Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975); Eusant v. Unity Industrial Life Ins. and Sick Benefit Ass’n of New Orleans, 195 La. 347, 196 So. 554 (1940)

The trial judge’s appreciation of the “directed verdict standard” as set forth in his oral reasons for granting the motion was correct. However we feel that viewing the evidence in the light most favorable to the plaintiff, the matter should have been ultimately decided by the jury.

The trial judge, in granting the motion, felt that Schwegmann had sufficient probable cause for appellant’s arrest, particularly in view of the fact that he “confessed” to the crime. In his oral reasons the trial judge stated to appellant:

“Get by and explain to me probable cause when this man confessed. That is giving me trouble.”

The judge further pointed out:

“In light of all of the other evidence available that they (the jury) received, that he had a marks-a-lot in his hand, that some of the merchandise was not damaged, in light of all the other evidence admitted, I cannot see how reasonable men can get it, and I grant the motion for those reasons.”

Admittedly there was evidence indicating that Schwegmann had sufficient or probable cause to have appellant arrested. However, there also was evidence indicating that, perhaps there were explainable reasons why appellant should have not been arrested. There was evidence which explained his reason for “confessing”. Appellant had recently been demoted, presumably because he could not work the number of hours required due to his starting college. All of these matters, we feel, should have been decided by the jury. We understand the trial judge’s feelings in this matter, and his concern for the time and expense in unnecessary litigation. However, the granting of a motion for directed verdict in a jury case is a harsh remedy in that the aggrieved party is denied his right to be judged by his peers. In view of the evidence presented we are compelled to give appellant his day in court.

The judgment appealed from is reversed, and the case is remanded to the trial court for a new trial. Costs of this appeal are taxed against defendant, Schwegmann, and the taxing of other costs is to await final judgment.

REVERSED AND REMANDED.


author: WARD, Judge.

text:
    Harold E. FUNCK v. LOUISIANA FIREMAN’S SUPPLEMENTAL PAY BOARD.
    No. 12525.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.

      Plauche F. Villere, Jr., New Orleans, for appellant.
    John L. Hantel, New Orleans, for appel-lee.
    Before GARRISON, WARD and AUGUSTINE, JJ.
   WARD, Judge.

The Louisiana Fireman’s Supplemental Pay Board appeals the trial court’s judgment in favor of plaintiff Harold E. Funck ordering the Board to make supplemental salary payments to him. The Board contends its decision denying supplemental pay is final and not subject to judicial review, and that if judicial review is available to the plaintiff, the trial court erred when it found plaintiff was entitled to supplemental pay.

As to appellant’s first contention, the trial court is correct, plaintiff is entitled to judicial review. LSA-R.S. 49:964, the Administrative Procedure Act, provides for judicial review of a state administrative board decision to determine if the Board’s decision is “manifestly erroneous in view of the reliable, probative and substantive evidence on the whole record.” The Louisiana Fireman’s Supplemental Pay Board is a state board whose decisions are subject to judicial review.

The Board also contends the trial court erred when it ordered supplemental salary paid to Funck, claiming Funck is excluded by statute, since he is employed in a clerical capacity. LSA-R.S. 33:2002.

Funck had been employed by the New Orleans Fire Department for many years as Deputy Chief of Administration. In that capacity he received the supplemental pay that he now seeks. He elected to retire to take advantage of a dubious City employment policy which permits some employees to retire and then to be appointed to the same job so that they receive retirement pay in addition to the salary they previously earned. Funck retired September 8, 1979, and was appointed on September 9, 1979, to the same position, that of Deputy Chief of Administration.

After his reappointment, Funck applied to the Board for the supplemental pay. Although he had previously received supplemental pay as Deputy Chief of Administration, the Board refused to give him supplemental pay after his retirement and reappointment, not because he was retired, but because he was a clerical employee excluded from those benefits by statute. LSA-R.S. 33:2002.

The decision of the Board not to base its refusal upon Funck’s retired status was motivated by its prior decisions authorizing supplemental pay to retired firemen.

After the Board’s decision, Funck filed this suit in the district court. The district court held the Board’s decision was manifestly erroneous. Funck was not a clerical employee. He was entitled to supplemental pay benefits.

The trial court’s record indicates, that as a Deputy Chief, it was Funck’s duty to aid in an administrative capacity, to supervise clerical and other administrative employees, and to assume command of the New Orleans Fire Department whenever the Chief and Assistant Chief were absent. He was third in the chain of command. He performed the exact duties after retirement as before retirement, when he received the supplemental pay. We agree with the trial court. Funck, as a Deputy Chief who was third in the chain of command, was not a clerical employee excluded from eligibility by the statute.

The statute also excludes from eligibility those retired firemen presently receiving pensions. While the Board has consistently interpreted this to mean those receiving pensions at the time the act became law, other provisions indicate retired firemen receiving pensions are not eligible. Paragraphs (1), (2), (3), and (4) provide for payments to a “regularly employed fire department employee.” However, this defense was not presented for the trial court’s consideration.

On the narrow question presented, we affirm the trial court’s decision that Funck was not a clerical employee excluded from eligibility to receive supplemental pay, and that the Board’s decision denying supplemental pay to Funck was manifestly erroneous.


author: WILLIAMS, Judge.

text:
    Elizabeth WASHINGTON, et al. v. Bertha GOLDATE, et al.
    No. 12597.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.

      David Stone, Stephen G. Bullock, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for intervenor-appellant.
    Daniel Lund, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellees.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from the district court dismissing an intervention.

The facts underlying this action are not disputed by the parties. On July 5, 1978, Daniel Washington and Junius Banks were travelling in a truck that was struck by an automobile driven by defendant Bertha Gol-date. Washington was killed and Banks was injured. Elizabeth Washington, as ad-ministratrix for her minor son, and Banks filed suit against Bertha Goldate alleging that her negligent operation of her car was the cause of Washington’s death and the injury to Banks. The plaintiffs also sued the defendant’s liability insurer, United States Fidelity and Guaranty Co. [hereinafter referred to as “USF&G”] and Washington’s uninsured motorist insurer, Hartford Accident and Indemnity Co. [hereinafter referred to as “Hartford”]. At the time of the accident, Washington and Banks were employees of Cort Furniture Rental Corporation [hereinafter referred to as “Cort”]. The truck in which they were travelling at the time of the accident was owned by Cort. Cort claims that as a result of the accident, the vehicle was damaged beyond repair. Cort intervened in the action seeking recovery for property and other damages.

A chronology of the substantive and procedural events in this case is helpful to an understanding of the issues presented herein:

(1) July 5, 1978—Accident
(2) July 3, 1979—Banks and Washington survivors sue USF&G and Hartford
(3) July 10,1979—Service on USF&G and Hartford
(4) September 17, 1979—Service on Gol-date
(5)December 14, 1979—Cort files petition of intervention

There are two issues presented by this appeal: (1) did Cort have a right to intervene in this action, and (2) if it did have a right to intervene, did prescription bar its right?

I. RIGHT TO INTERVENE

Article 1091 of the Louisiana Code of Civil Procedure states:

“A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff’s demand; or
(3) Opposing both plaintiff or defendant.”

Until recently it was well established that an intervention in a personal injury suit for the purposes of asserting a property claim would not lie. See, e.g. Klotz v. Nola Cabs, Inc., 209 So.2d 158 (La.App. 4th Cir. 1968); Resor v. Mouton, 200 So.2d 308 (La.App. 4th Cir. 1967).

Recently, however, this restrictive approach to the construction of Article 1091 has been eased considerably. See, e.g. Home Indem. Co. v. Central La. Elec. Co., 384 So.2d 455, 458-61 (La.App. 3d Cir. 1980). In Gallin v. Travelers Insurance Co., 323 So.2d 908 (La.App. 4th Cir. 1975), this court specifically expanded its interpretation of Article 1091. The court specifically overruled its prior decision in Resor v. Mouton, supra. Resor involved a factual situation markedly similar to the one at issue in the present case: an automobile accident resulted in property damage to a nearby building. The Resor court refused to allow the building owner to intervene in the suit brought by the owners of the cars involved in the accident.

In Gallin, the court noted that the strict interpretation of Article 1091 had been criticized in Bellow v. New York Fire and Marine Underwriters, Inc., 215 So.2d 350 (La.App. 3d Cir. 1968). Although the operative facts in Gallin are somewhat different from the facts in the case before the court, its holding is broad enough to permit Cort’s intervention. Furthermore, Gallin specifically overruled Resor v. Mouton, supra, which involved a similar set of facts.

In light of the broad interpretation to be given to Article 1091 as expressed by this court, we hold that Cort had the right to intervene in the action by Banks and Washington.

II. PRESCRIPTION

The second issue now before the court is whether Cort’s right to intervention has prescribed.

La.C.C.Pr. art. 1067 stated:

“An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the ease of a third party defendant within ninety days from service of process of the third party demand.”

Because an intervention is an incidental demand this article is applicable to the present case. La.C.C.Pr. art. 1031.

It is clear that at the time the main demand was filed, Cort could have filed suit against the defendants. La.C.C. art. 3536. Cort’s intervention was filed on December 14, 1979, within ninety days after service on one of the defendants in the action, but after ninety days had elapsed since service on the remainder of the defendants. The issue presented, therefore, is whether the right to intervene prescribes ninety days after service of the main demand is first made on any of the defendants or after service is effected on any defendant, including the last one to be served.

Because this issue is one of first impression in Louisiana and there is some question as to the interpretation of Article 1067, we must follow the rules of statutory construction as set forth by the Louisiana Supreme Court. It has been held that prescriptive statutes should be construed strictly and in favor of that construction that maintains an action, rather than bars it. E.g. Foster v. Breaux, 263 La. 1112, 270 So.2d 526 (1972).

In light of the Louisiana Supreme Court’s mandates on the rules of construction and the nature of this code article, we find that an intervention filed within ninety days of service on any of the defendants, including the last to be served, is proper. Although it has been suggested that this interpretation may lead to procedural delays, we nevertheless are compelled to allow the intervention. To rule otherwise would be to usurp the power accorded to the legislature. A holding disallowing intervention on prescriptive grounds in the instant case would require legislative, rather than judicial action.

We note that this article was added to the Code of Civil Procedure and amended in 1970 and 1974, respectively. Although the legislature may not have intended all of the procedural consequences of Article 1067 as it now is written, they nevertheless flow from the provision. Any decision to limit the application of Article 1067 to preclude an intervention such as the one in the present case should be made by the legislature.

For the foregoing reasons, the decision of the trial court dismissing the intervention of Cort is hereby REVERSED.

REVERSED.


author: GUIDRY, Judge.

text:
    Kenneth H. LAVALLAIS, Plaintiff-Appellee, v. DAIRYLAND INSURANCE COMPANY, Defendant-Appellant.
    No. 8152.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Stafford, Stewart & Potter, Larry A. Stewart, Alexandria, for defendant-appellant.
    John T. Bennett, Marksville, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

This matter comes back to this court on remand from the Louisiana Supreme Court.

In our original opinion in this case we concluded that the trial court judgment which found plaintiff’s automobile to be totally destroyed and awarded damages accordingly was erroneous. In reaching this conclusion we stated as follows:

“For an automobile to be deemed a total ioss, the cost of the repairs must exceed its value before the accident. The burden is on the plaintiff to prove the car is a total loss by introducing evidence of the automobile’s prior value, the cost of repair and the salvage value. Roy v. Commercial Union Assur. Co., 385 So.2d 1273 (La.App. 3rd Cir. 1980) and cases therein cited.
Since there is no evidence in the record indicating that the cost of repairing plaintiff’s automobile exceeds the stipulated value of $4,775.00, the trial judge was clearly wrong in finding that plaintiff’s automobile was a total loss.”

We also concluded that the matter should be remanded, 404 So.2d 1249, to the trial court for further proceedings because, in our view, the evidence contained in the record was not sufficient on which to base a proper award. Subsequent to the rendition of our opinion the Louisiana Supreme Court granted a writ of certiorari, on application of plaintiff, and issued the following order:

“Granted. The ruling of the Court of Appeal to the effect that the car could not be a total loss because the cost of repair did not exceed its stipulated value is reversed, and the case is remanded to the Court of Appeal to fix the damages for the car in an amount which will compensate for the damages as nearly as possible on the record before it.”

We have again reviewed the record and conclude, for the reasons hereinafter set forth, that the trial court judgment should be affirmed.

Although we remain unimpressed with the expert evidence in the record, following the Supreme Court mandate “to fix the damages. . . as nearly as possible on the record”, and in line with the principles enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979), we find, based upon the testimony of plaintiff’s witness, Mark Ducote, that as a result of the accident plaintiff’s automobile was totally destroyed.

For the reasons assigned the judgment of the trial court is affirmed and defendant-appellant is cast with all costs in the appellate courts.

AFFIRMED.

      . Our original opinion is reported at 401 So.2d 559 (La. App. 3rd Cir. 1981). Reference is made to that reported decision for a summary of the stipulated facts, the evidence presented, and the disposition by the trial court.


author: DOUCET, Judge.

text:
    Elijah GREEN, Plaintiff-Appellant, v. PROVENCAL TIE MILL, et al., Defendants-Appellees.
    No. 8550.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Writ Granted May 7, 1982.
    Führer & Flournoy, George A. Flournoy, Alexandria, for plaintiff-appellant.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendants-appellees.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Elijah Green, plaintiff, secured a judgment for workmen’s compensation benefits against Provencal Tie and Lumber Co., Inc. When no payments followed, plaintiff, pursuant to a writ of fi.fa., caused the seizure of 200 cross ties located on Provencal’s premises. Cecil Boswell intervened in the seizure proceedings claiming ownership thereof and seeking release of said ties. The trial court held that the ties were owned by intervenor and ordered them released from seizure. Plaintiff has appealed, assigning as error the trial court’s determination that intervenor established ownership of the cross ties. We affirm.

Provencal Tie and Lumber Co., Inc. is a family corporation which produces railroad ties and lumber products. It is managed by the Boswell brothers, Terry and Cecil, who acquired their respective interests therein upon the death of their father, who had previously owned and operated the mill. Terry Boswell is the President, and while Cecil holds no official title, he has assumed management of the corporation during periods his brother was hospitalized. The corporation became insolvent as the result of seizure of its bank accounts to satisfy a workmen’s compensation judgment in another case. Thereafter, Cecil allegedly took over the corporation and assumed its management, operating under the name “Boswell Saw Mill”. Appellant contends that the transformation from Provencal Tie and Lumber Co., Inc. to Boswell Saw Mill consisted of only a change in name, done to defeat his rights.

At a judgment debtor exam conducted prior to the trial, Terry claimed ownership of all cross ties, movable equipment, fixtures, etc. located at the site. However, at the seizure proceedings both Terry and Cecil testified that Cecil owned the 200 cross ties involved, though no written records were produced to confirm same. The trial judge agreed and held Cecil to be the owner of the ties, and accordingly released them from seizure.

Appellant claims intervenor failed in his burden of proving ownership of the seized property allegedly valued at over $500.00. LSA-C.C. Art. 2277 provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

It is appellant s contention that the testimony of the Boswell Brothers was self-serving and not credible; the trial judge obviously felt otherwise. However, it is well established that a party claiming the movable under a contract can serve as a credible witness, Samuels v. Firestone Tire and Rubber Co., 342 So.2d 661 (La.1977); O’Rourke v. Tracy, 375 So.2d 747 (La.App. 4th Cir. 1979); Great Marine Corp. v. Vinet, 217 So.2d 480 (La.App. 1st Cir. 1968), writ refused 253 La. 739, 219 So.2d 515 (La.1969); Reeves v. Enterprise Products Co., 354 So.2d 1081 (La.App. 2nd Cir. 1978). As corroborating evidence the trial judge apparently accepted the testimony of Cecil’s brother, Terry, and considered possession to be in Cecil rather than the defunct corporation.

We will not disturb reasonable evaluations of credibility and inferences of fact simply because another result might be just as reasonable, absent manifest error, Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring, 283 So.2d 716 (La.1973). In applying this rule of appellate review to the present article, the Supreme Court in Samuels v. Firestone Tire and Rubber Co., supra, quoted the following from Cormier v. Douet, 219 La. 915, 54 So.2d 177 (1951):

“Since the requirement of Article 2277 R.C.C. is such that it of necessity draws into its legal vortex the sufficiency of proof shown by the record, and since the evidence is correlated with the credibility of the witnesses, the district judge’s conclusions must be accepted, unless they are manifestly erroneous. Barnes v. Le Blanc, 207 La. 989, 22 So.2d 404; Thornton v. Ellington, 209 La. 613, 25 So.2d 282; Meridian Land & Mineral Corp. v. Bagents, 211 La. 627, 628, 30 So.2d 563, and Martin v. Martin, 212 La. 1092, 34 So.2d 329.”

We cannot say the trial judge was manifestly erroneous. Accordingly, we affirm. All costs taxed to appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Susan BREAUX, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY and The Restaurant Angelle, Inc., Defendants-Appellees.
    No. 8570.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Coleen McDaniel, Lafayette, for plaintiff-appellant.
    Woodley, Barnett, Cox, Williams & Fen-et, E. E. Woodley, Lake Charles, for defendants-appellees.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

This is a workmen’s compensation suit. The plaintiff, Susan Breaux, seeks workmen’s compensation benefits from the defendants, The Restaurant Angelle, Inc. and its workmen’s compensation insurer, Allstate Insurance Company. From a judgment rejecting her demand, the plaintiff has perfected this appeal.

The only issue on appeal is whether or not the trial court erred in holding that the plaintiff is not entitled to workmen’s compensation benefits because she did not prove that her disability was caused by an accident which had occurred in the course and scope of her employment.

The Supreme Court set forth the applicable legal principles governing the burden of proof necessary to establish the work-related injury in West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979) as follows:

“In a workman’s compensation suit, the employee must establish the work-accident causing the injury by a preponderance of the evidence — i.e., “the testimony, as a whole, must show that more probably than [not] the employment accident caused the disability.” Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347, 349 (La.1974). The causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).
In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony. Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Farley v. Ryan Stevedoring Co., 238 La. 1048, 117 So.2d 587 (1960); Bonanno v. Decedue, 186 La. 1041, 173 So. 756 (1937).”

Further discussing the employee’s burden of proof in workmen’s compensation cases, the Louisiana Supreme Court in Prim v. City of Shreveport, 297 So.2d 421 (La.1974) stated:

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture (emphasis ours)

The plaintiff alleges that her neck, right shoulder and arm were injured when lifting a heavy tray of food onto her right shoulder on or about July 24, 1980. The defendant denied that any accident took place and asserted that if plaintiff had any physical problems subsequent to the termination of her employment, they were not causally related to anything occurring during her employment at the restaurant.

During the period in question, plaintiff was employed as a night waitress at An-gelle’s and worked during the day as a legal secretary at a local law firm.

Plaintiff testified that she had previously injured her neck in September, 1979, when she was struck by a soccer ball. She was treated for this by Dr. John G. Bernard, her family physician in Lafayette. Dr. Bernard diagnosed a cervical strain and prescribed medication until May 15, 1980. The plaintiff testified that on July 25, 1980, she again saw Dr. Bernard after her alleged accident at Angelle’s restaurant. Dr. Bernard, in his deposition, testified that he could not say if the injury occurred from the soccer ball incident or from her being a waitress.

The plaintiff testified that she had reported her accident to Jackie Maybry, the head waitress, the day after the accident. Jackie Maybry testified that plaintiff did not report to her that she hurt herself carrying a tray even though she had instructed the waitresses to make such complaints to her.

Plaintiff further testified that during the weekend following the alleged accident, she reported the accident to Danny Guilbeau, the assistant manager. Mr. Guilbeau, to whom the accident should have been reported, denied that plaintiff had ever mentioned any accident because if she had he would have had to fill out a report for the insurance company.

Mrs. Geraldine Wheaton, a paralegal employed with plaintiff at the law firm, testified that plaintiff stated that she had hurt herself at Angelle’s. Sonya Ruth Weaver, a bartender at Angelle’s, testified that plaintiff told her she had an accident at her other job (legal secretary) and that she was asking people who had quit Angelle’s to testify for her.

The trial court, noting the irreconcilable nature of the testimony given by some of the witnesses, expressly stated in its reasons for ruling that its factual determinations were based upon its own credibility evaluations of those witnesses. Our review of the record establishes that the trial court’s finding that plaintiff failed to prove, by a preponderance of the evidence, that she suffered personal injury by accident arising out of and in the course of her employment by The Restaurant Angelle, Inc., is not clearly wrong.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . The trial court noted that both of the witnesses called by plaintiff to corroborate her testimony regarding the occurrence of the accident had quit work at the restaurant, and that defendants’ witnesses, who testified that no work-related accident involving plaintiff was brought to their attention, were still employed there. The trial court apparently gave much weight to the testimony of one witness, which was unequivocal and in direct opposition to that given by plaintiff, because that witness had resigned from her job at the restaurant and was preparing to leave this State at the time of trial. In essence, the trial court was called upon to make credibility evaluations and did so.


author: CUTRER, Judge.

text:
    Robert John RICHARDSON, Plaintiff-Appellant, v. CITY OF LAFAYETTE, its Mayor, Police Chief and Other Police Officials and Attorney General for the State of La., Defendants-Appellees.
    No. 8586.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Walter J. Landry, Lafayette, for plaintiff-appellant.
    Voorhies & Labbe, D. Mark Bienvenu, Lafayette, Cassandra Simms, Baton Rouge, for defendants-appellees.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This appeal arises from the trial court’s judgment denying a preliminary injunction which sought to enjoin the enforcement of the second hand dealers’ licensing statute.

The facts presented in this case are as follows:

Robert Richardson is the owner and operator of a business known as “Coin and Treasure” in the city of Lafayette, Louisiana. He operates the business under a general retail occupational license.

Approximately September 1980, several law enforcement officers and other officials of Lafayette had a meeting to discuss the increase in the crime of burglary and theft in Lafayette. These officials included the chief of police, detectives, the district attorney and the revenue administrator. The principal concern of the officials was the rising theft rate of items made of precious metals and stones, especially gold and silver. They decided that they would utilize the “Secondhand Dealer’s Statute” as a means of tracing and identifying the stolen properties and the persons who may have committed the offenses.

The Secondhand Dealer’s Statute (LSA-R.S. 37:1861, et seq.) requires all establishments, dealing in used or secondhand merchandise, to obtain a license and to post a bond of $300.00 in favor of the city. The statute requires that such establishments keep detailed records of all purchases including the names, addresses and descriptions of persons from whom the articles are purchased. Also, the article purchased must be described with particularity. The records of such purchases are open to inspection by the law enforcement authorities. The secondhand dealer must retain the purchased items for at least ten days before disposing of them. The statute contains a criminal sanction for the failure of a dealer to comply.

The City of Lafayette began to enforce the licensing of such establishments in October 1980. In December, Richardson was notified that he must comply with the statute by posting bond and obtaining a license for his “Coin and Treasure” shop. Richardson refused to do so. He was arrested for the violation of the statute. Richardson obtained a temporary restraining order which prohibited the police from enforcing the statute against him. This restraining order expired under its own terms. Richardson then posted the required bond and obtained a license “under protest” and filed a rule for a preliminary injunction to prevent further enforcement of the statute.

Following trial of the rule, the trial court rendered judgment dismissing the suit. Richardson appealed. We affirm.

The issues as presented for determination are as follows:

(1) Whether the statute is constitutional or in violation of Federal law;
(2) Whether Richardson was irreparably harmed by the enforcement of the statute;
(3) Whether Richardson’s business was exempt from the provisions of the statute; and
(4) Whether the City of Lafayette had the authority to enforce the statute,

CONSTITUTIONALITY OR VIOLATION OF FEDERAL LAW

Richardson contends that the Secondhand Dealer’s Statute is unconstitutionally vague. LSA-R.S. 37:1861 defines secondhand dealers to be:

“Every person in this state engaged in the business of buying, selling, trading in, or otherwise acquiring or disposing of used or second-hand property such as jewelry, silverware, diamonds, pictures, objects of art, clothing, mechanic’s tools, carpenter’s tools, automobile accessories and supplies, and other such property, is a second-hand dealer. The provisions of this Part shall not apply to the retail jewelry, automobile, furniture, and antique business.”

The Supreme Court, in Johnson v. Welsh, 334 So.2d 395, 396 (La.1976), stated:

“It is well settled that all laws are presumed to be constitutional until the contrary is made to appear, .. .. ”

From our reading of the definition provision of the statute, we do not find it to be, on its face, vague and thus unconstitutional. The statute fairly designates the class of persons which constitute secondhand dealers. The list of items therein is merely illustrative and not inclusive. Those businesses which are exempt from this statute are clearly set forth.

Even though the statute was enacted in 1926, but not enforced until 1980, does not, in and and of itself, render it unconstitutional. The purpose of the statute, to effectively regulate those persons who deal in secondhand merchandise, is the controlling factor to be considered rather than the lapse of time between promulgation and enforcement. The testimony of witnesses for the city state that the purpose of enforcing this statute was to cut down on burglaries involving items made of precious metals, especially gold and silver. This was due to the sharp price increase in the gold and silver market coupled with the easy disposal of stolen items to dealers. The statutorily required registration of those who sold the secondhand items and the ten day required waiting period before such items could be disposed of would allow law enforcement personnel time to ascertain whether the items were stolen as well as get information on the person who sold the items.

The public interest in the regulation of secondhand dealers is clearly set forth by our Supreme Court in the case of State v. Barnett, 389 So.2d 352, 356 (La.1980), where the court stated as follows:

“The present case involves an inspection system aimed at state-licensed dealers in secondhand goods. State regulation of secondhand dealers had been in effect since 1926. . . . Close scrutiny of traffic in secondhand goods is undeniably of central importance to state efforts in discouraging burglaries, thefts, and robberies, serious crimes that can be violent. Large interests are at stake, and inspection directly furthers those interests since it tends to limit access to channels through which thieves may safely convert stolen property into cash."

We conclude that this statute is not unconstitutionally vague.

Plaintiff further contends that the statute violates the United States Constitution in that it is an unauthorized regulation of interstate commerce by the state, it violates due process protections of the Fourteenth Amendment, and it is contrary to Federal law which allows unrestricted purchasing and selling of gold and silver.

We find this argument to be without merit. The secondhand licensing statute, and its subsequent enforcement, does not prohibit the movement of gold and silver in interstate commerce. The only restriction by the statute upon the local movement of gold and silver, sold or bought, is that it be held for ten days by the secondhand dealer before resale or before its identity is altered. This is merely to aid law enforcement officials in determining whether the object is stolen and to help trace the person selling it.

We also find no deprivation of due process rights as the statute applies to all secondhand merchants and does not prohibit them from engaging in any activity but selling or altering the identity of any object prior to the expiration of the ten day waiting period. An appropriate governmental interest is furthered by any “differential” treatment of the secondhand merchants and other merchants. This is self-evident from the source of their goods and as reflected in the statute. Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). The governmental interest is the stifling of crime and the recovery of stolen goods.

Further, the statute does not prohibit one from purchasing, selling, holding or dealing in gold and silver as claimed by Richardson. The only restriction is one which requires secondhand gold or silver items to be held for ten days prior to sale or alteration of its identity. This is to allow law enforcement authorities to ascertain if the item is stolen and use the business records of the dealer to discover the identity of the seller.

Richardson also contends the statute to be unconstitutional as it has been administered in a discriminatory, as well as, in an arbitrary and capricious manner. This statute, thus far, has been enforced against all secondhand dealers in gold and silver. The testimony of Police Chief Hyde stated that at the time of this suit for a preliminary injunction the enforcement of the statute was in its initial phases; the first phase was enforcement against dealers in gold and silver as there was a correlation between burglaries and the theft of these items; the second and later phases would enforce the statute against all secondhand dealers.

Thus, as no evidence was adduced in the record to show that the statute would not be enforced against all secondhand dealers, but against only those dealing in gold and silver, this portion of Richardson’s allegations is without merit. Therefore, we find that the statute was not administered dis-criminatorily nor in an arbitrary or capricious manner.

We conclude these contentions of Richardson are without merit. We find the statute to be a proper exercise of the police power of the state and the local law enforcement authorities and is constitutionally sound.

IRREPARABLE INJURY

Richardson argues that the ten day waiting period before any gold or silver items could be resold or its identity changed would cause irreparable injury due to the fluctuations in the precious metals market.

Such an interest is overriden by the strong state interest in policing this area and the resulting substantial impairment of the governmental function if this regulation is prohibited from controlling this area. State v. Barnett, supra. Furthermore, Richardson has failed to prove that the market prices will turn downward nor can he positively prove his business has declined due to the enforcement of the statute rather than due to the market in general. Without more conclusive evidence we will not impair this valid government interest and police power. This contention is without merit.

EXEMPTIONS

Richardson contends that his business is exempt from the statute as he deals primarily in antique coins.

LSA-R.S. 37:1861 exempts certain businesses from coverage under the act when it states:

“.. . The provisions of this Part shall not apply to the retail jewelry, automobile, furniture, and antique business."

Richardson testified that 60% to 80% of his business was dealing with “antique” coins. He stated that approximately 10% to 15% of the business was in jewelry and the remainder was in current coins. Richardson did not explain what an “antique” coin was in comparison to a “current” coin. Richardson’s statement that he dealt primarily in “antiques” is self-serving and the only testimony in the record in this regard. The trial judge was unimpressed with this testimony. We agree.

Furthermore, Richardson admitted that he bought used jewelry made of gold and silver, some of which he sold to be smelt-ered. His testimony in this regard is as follows:

“Q. Do you sell gold to be smelted for money that you have acquired from an individual who had purchased it from somewhere else, is that correct?
“A. What type of gold?
“Q. Any type, a ring.
“A. Yes, rings, yes.
“Q. What about a gold cross?
“A. A gold cross? Yes.
“Q. You buy that from an individual who has purchased it from somewhere else. Correct?
"A. Yes.
“Q. So you are engaged in the business of not only buying but disposing of second hand jewelry?
“A. Correct. Also new jewelry.”

It is to be noted that Richardson admitted that a sign in front of his shop stated, “We buy and sell Gold and Silver.”

Richardson has failed to prove any exemption.

AUTHORITY OF THE CITY TO ENFORCE THE STATUTE

Richardson contends that the City of Lafayette had no authority to enforce the secondhand dealers statute. We disagree. We find this statute to be a state statute and not a city ordinance. No enabling action is necessary to apply this state law to all merchants (secondhand dealers) within a municipal corporation. Richardson is charged with violations of the state statute.

To require enforceability to be predicated upon the enactment of an enabling city ordinance would defeat the purpose of state legislation; and, it would allow a city to circumvent or obviate any state regulations with which it did not agree by a refusal to promulgate the requisite city ordinance. Furthermore, the statute specifically provides that the bond of $300.00 to be posted by a business shall be made in favor of the city or parish. This indicates that the legislature intended that the city or parish shall enforce same. The argument that the city had no authority to enforce the statute is untenable and utterly without merit.

For the reasons set forth herein the judgment of the trial court is affirmed. Plaintiff-appellant, Robert John Richardson, is to pay the costs of this appeal.

AFFIRMED.

APPENDIX

LSA-R.S. 37:1861, et seq.

§ 37:1861:

“Every person in this state engaged in the business of buying, selling, trading in, or otherwise acquiring or disposing of used or second-hand property such as jewelry, silverware, diamonds, pictures, objects of art, clothing, mechanic’s tools, carpenter’s tools, automobile accessories and supplies, and other such property, is a second-hand dealer. The provisions of this Part shall not apply to the retail jewelry, automobile, furniture, and antique business.”

§ 37:1862:

“No person shall do business as a secondhand dealer in this state without having first obtained the license required by law. Any person desiring a license as secondhand dealer shall make application in writing, specifying the street number and house number of the building where the business is to be carried on. This application shall be signed by at least three property tax payers of the city or parish where the business is to be established, certifying that the applicant is of good moral character. He shall also submit with his application, a bond in favor of the city or parish, as the case may be, where the business is to be established, in the sum of three hundred dollars with security, conditioned for the due observance of all provisions of this Part.

§ 37:1863:

“If after issuance and delivery of a license under the provisions of this Part any change is made in the location of the place of business designated therein, the business shall not be conducted at the new location or under such license, until the official issuing the licenses notes the change on the license, and the superintendent of police of the city or the sheriff of the parish in which the second-hand dealer is doing business is notified in writing of the change.”

§ 37:1864:

“Every secondhand dealer as defined in this Part shall be required to maintain a book or ledger setting forth each purchase of secondhand or used merchandise when the value of any single piece of merchandise or article received shall be twenty-five dollars or more, for each single transaction. The price at which a piece of merchandise is offered for sale by a secondhand dealer shall be considered prima facie evidence of the value of the piece of merchandise. Each ledger entry shall be entered at the time of each transaction and shall contain an accurate description in the English language of the merchandise or article received including serial numbers of said objects, if distinguishable, along with the amount paid therefore.

“The name, address, sex, race, height, weight, and driver’s license number of the person or persons selling or delivering said merchandise or articles to the dealer shall be obtained and included with each ledger entry. Records of each purchase shall be preserved for a period of at least three years.”

§ 37:1865:

“The book containing the record of purchase as provided for in R.S. 37:1864 and the various articles purchased and referred to therein shall at all times be open to the inspection of law enforcement officers of the Office of State Police, or the superintendent of police or sheriff of the parish or anyone designated by them of the city, town, or parish in which the secondhand dealer does business.”

§ 37:1866:

“Every person, licensed under the provisions of this Part shall make out and deliver to the superintendent of police of the city or town or to the sheriff of the parish in which he is doing business, every day before the hour of twelve o’clock noon, a legible and correct copy of the entries in the book mentioned in R.S. 37:1864 during the previous day. The name given by the person making a sale shall be furnished the superintendent of police or sheriff when they specially request it.”

§ 37:1867:

“No second-hand dealer shall sell or dispose of or change or destroy the identity of any goods, articles or things, purchased by him before an interval of ten days from date of purchase has elapsed.”

§ 37:1868:

“A second-hand dealer shall neither open his place of business before the hour of 7 o’clock a. m. nor keep it open after the hour of 7 o’clock p. m. except on Saturdays and during the month of December, during which time the hour of 7 o’clock p. m. shall be extended to 10 o’clock p. m.”

§ 37:1869:

“Any secondhand dealer who violates, neglects, or refuses to comply with any provision of this Part, shall, for the first offense, be fined not less than twenty-five dollars, nor more than one hundred dollars, or be imprisoned for not less than ten days nor more than thirty days, or both. For the second and subsequent offenses he shall be fined five hundred dollars, or be imprisoned for not less than thirty days, nor more than sixty days, or both. If convicted three times his license shall be revoked and he shall not thereafter be permitted to engage in the business of secondhand dealer in the state of Louisiana.”

      . See Appendix attached.

      . Pub.L. 93-110, Section 3(b) as amended by Pub.L. 93-373 Section 2, 88 Stat. 445, provides as follows:
      “No provision of any law in effect on the date of enactment of this Act (September 21, 1973) and no rule, regulation or order in effect on the date ... may be construed to prohibit any person from purchasing, holding, selling, or otherwise dealing in gold in the limited States or abroad.”


author: SWIFT, Judge.

text:
    Christina Lynn WOMACK FOR the DECLARATION OF ABANDONMENT.
    No. 8610.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Bolin & Elkins, Randy D. Elkins, Minden, for defendant-appellant.
    Michael W. Shannon, Alexandria, for plaintiff-appellee.
    Kenneth Womack, in pro. per.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

Catherine Ann McGuire and her husband, Willie Allen McGuire, filed this action (with an affidavit by a supervisor of the Louisiana Department of Health and Human Resources, Offices of Human Development, attached) pursuant to LSA-R.S. 9:403 to have the minor child, Christina Lynn Wom-ack, declared abandoned and to obtain her custody. The natural parents of the child are Sharon Womack and Kenneth F. Wom-ack, Jr. The trial court found that Mr. and Mrs. Womack had abandoned their child and awarded her custody to Catherine and Allen McGuire. From this adverse judgment, Sharon Womack has perfected this appeal. We affirm.

The undisputed facts are that Kenneth and Sharon Womack were married on February 27, 1977. Sharon was fifteen years old at that time. On March 30, 1977, she gave birth to her first child, Rebecca Wom-ack. In late spring of 1978 the Womacks learned that Sharon was pregnant with a second child. In July, 1978, they agreed to allow Kenneth Womack’s sister, Catherine Womack, and Allen McGuire to raise the unborn child as their own upon the latters’ arranging for and paying the medical expenses of the delivery and also the expenses of her future care. Approximately a month before the child was born, Sharon moved in with the McGuires in Pineville, Louisiana. Kenneth Womack remained in St. Francis-ville, Louisiana. On September 5, 1978, Sharon wrote a letter to Catherine stating that she felt Catherine would take good care of the child and that she would not seek the return of the child.

On September 20, 1978, Christina Lynn Womack was born. Sharon Womack signed Christina’s birth certificate as Catherine Womack instead of her own name. Sharon remained at the McGuires’ house for two days after the birth to regain her strength and then returned to St. Francisville without the child. Since that time the McGuires have raised Christina as their own child and have paid all medical and other necessary expenses to raise the child. Christina has been well cared for by the McGuires. The Womacks have not contributed in any way to her financial needs or welfare.

In December, 1980, Sharon Womack obtained a judicial separation from her husband. On January 2 and 5, 1981, she made demands on the McGuires for the return of Christina. They refused and filed this action on January 12, 1981.

The issues on appeal are whether the trial court erred in finding that Sharon and Kenneth Womack had abandoned their child, Christina, and in awarding custody of the child to the McGuires under the statute.

A child is considered abandoned when clear and convincing evidence is introduced at a judicial proceeding to prove the parents have failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility. LSA-R.S. 9:403(A)(l)(b). The introduction of such evidence creates a presumption that the parents intended to permanently avoid parental responsibilities and the child will be declared abandoned unless the parent or parents present evidence that rebuts the presumption. LSA-R.S. 9 ¡403(A)(2). All reasonable doubt should be resolved against entering a decree of abandonment, which is in derogation of the natural rights of the legitimate parents. State, in Interest of McGruder, 386 So.2d 155 (La.App. 3 Cir. 1980). However, once the trial court decrees a child abandoned it may place the child in the custody of an agency, person or persons, or make any other disposition of the child which is in its best interest. LSA-R.S. 9 ¡403(C).

The evidence presented by the McGuires, revealed that in the summer of 1978 Sharon Womack asked Allen McGuire if he thought Catherine would like to have her unborn child. This was confirmed by Geraldine Womack, Kenneth’s sister. After Allen discussed the proposal with Catherine, they visited the Womacks in St. Francisville to determine if Sharon was serious about her offer. Kenneth Womack, having no knowledge of the prior proposal, asked his wife why she had made the offer. After she explained that she did not want to have another child, Kenneth agreed that the unborn child should be given to the McGuires. The testimony of the McGuires and Kenneth Womack was to the effect that this arrangement was permanent and that Sharon was not coerced or threatened in any way. The above mentioned letter written by Sharon confirms this.

The evidence clearly reflects that the child has been cared for exclusively by the McGuires from birth to the present and that the Womacks have not expressed any interest in her welfare or support. On one occasion Mrs. McGuire requested Sharon to babysit the child while they were moving to a new home. Sharon asked to be compensated for such services and not long thereafter returned the child to the McGuires because of its crying.

The evidence also establishes that Sharon Womack attempted to conceal the birth of Christina from her mother and her neighbors, telling them that she had had a miscarriage.

The Womacks provided no support for the child for a period of nearly three years and demonstrated their intention to permanently avoid parental responsibility.

The evidence presented by Sharon Wom-ack in an attempt to rebut the presumption of her intent to avoid parental responsibility is unpersuasive. She testified that her husband and the McGuires coerced her into giving the child to the latter and that Kenneth Womack forced her to write the September 5, 1978, letter. She said her husband felt he could not afford a second child and that the McGuires and he would not let her send gifts or financial aid to the child. She also said that she was frightened by the threats of the McGuires and her husband and this was the reason she did not try to obtain the child prior to this suit. However, she had at least two lengthy separations from her husband when she stayed with her mother and was not subject to Kenneth’s influence, during which she did nothing that would indicate she desired to have the child returned to her.

With regard to the mother’s testimony the trial court stated:

“ * * * Sharon’s unsupported and self-serving testimony to the effect that she gave up the child unwillingly, because of coercion, must fall on deaf ears. The main thrust of her claim is that her husband induced her to give away a baby that they could not afford. Though the father has demonstrated no paternal interest in the child, there is nothing whatever to substantiate this claim. On the contrary, the weight of evidence indicates that Sharon alone, for whatever reason at the time, made the decision to surrender her unborn child, without counsel of, or knowledge by, her husband.”

The court eventually concluded that “. . . this Court harbors no doubt whatever that Christina has long since been abandoned by Kenneth and Sharon Womack.”

We agree fully with the trial judge’s findings and conclusion that the Womacks abandoned Christina within the meaning of LSA-R.S. 9:403(A)(l)(b). The evidence in this regard is clear and convincing. It also establishes that the McGuires have cared for the needs of Christina well since birth and that she and they recognize and enjoy the parental relationship. The custody of Christina was properly awarded to the McGuires.

For the foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Cleo TASSIN, Plaintiff and Appellant, v. CITY OF MARKSVILLE, Defendant and Appellee.
    No. 8688.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Michael Johnson of Bordelon & Johnson, Cottonport, and Maxwell J. Bordelon, Jr., Marksville, for plaintiff and appellant.
    Rodney M. Rabalais and Tucker L. Me-lancon, Marksville, for intervenor and appellee.
    Michael F. Kelly, Marksville, for defendant and appellee.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   CULPEPPER, Judge.

Plaintiff filed this suit for declaratory judgment to determine the validity of an ordinance of the City Council of the city of Marksville which rezoned plaintiff’s property from single family to multi-family residential. Approximately 22 owners of property in the immediate vicinity intervened attacking the validity of the ordinance. The district judge held the ordinance invalid for lack of proper notice of the meeting of the City Council at which the ordinance was adopted. Plaintiff appealed.

The substantial issue is whether the ordinance is invalid for lack of compliance with the provision of the “Marksville Zoning Ordinance” requiring the posting of signs on the property to be rezoned for a period of not less than ten days prior to the hearing at which the City Council considered the rezoning ordinance.

The facts are that in 1972 the city of Marksville adopted a comprehensive zoning ordinance as authorized by LSA-R.S. 33:4721-4729. During August of 1978, the plaintiff, Cleo Tassin, went to the office of the City Council and asked for instructions on the procedure for rezoning his property from Residential A-2 (single family dwelling) to Residential A-3 (multi-family dwelling). A clerk in that office instructed plaintiff to place advertisements in the local newspaper, which Mr. Tassin did. The clerk did not tell Mr. Tassin about another requirement of the comprehensive zoning ordinance which provides in pertinent part as follows:

“No amendments, supplements, or change of the zoning ordinance or district map shall become effective unless and until ... a printed notice in bold type shall have been posted for not less than ten (10) consecutive days prior to the hearing on signs not less than one and one-half (IV2) square feet in area prepared, furnished, and placed by the building inspector on each block of each street adjoining the area proposed for a change in zoning classification. Said signs shall contain an accurate statement of the proposed changes and also the time and place of public hearing as provided above. (Emphasis added).”

Plaintiff concedes there was no compliance with the above quoted requirement as to posting of signs. Nevertheless, at the meeting of the City Council held on September 12, 1978, the City Council adopted an ordinance rezoning plaintiff’s property from Residential A-2 to Residential A-3.

At a special meeting held on September 19, 1978, the City Council voted to rescind the September 12, 1978 ordinance rezoning the property of Cleo Tassin. There were no signs posted on the property giving notice of the September 19, 1978 meeting. Moreover, there is some question as to whether the minutes of the September 19, 1978 meeting are correct. Certain members of the City Council testified at the hearing in the present case that although they were present at the September 19, 1978 meeting, they did not vote to rescind the September 12, 1978 resolution. For reasons hereinafter explained, this question as to the minutes of the September 19, 1978 meeting does not change our decision.

Plaintiff filed the present suit for declaratory judgment on April 6, 1981. He alleges he has begun foundation work for an apartment building on his property, and he therefore prays for a judgment determining the validity of the September 12, 1978 ordinance.

In reasons dictated into the record at the completion of the hearing, the trial judge finds as follows:

“Well, first of all, I think it’s clear that unless the town specifically re, rescinds an ordinance provision, the city of Marksville itself, is bound by the ordinance of procedures. Now, it’s clear that the Sept 19, 1978, meeting was an attempt to pass some sort of zoning resolution. You can say it was a, uh, rescinding something, or you can say what you want to, but it was an attempt to zoning resolution. However, the provisions of the ordinance had not been followed; proper notice had not been given; certainly no signs had been posted. So this action by the council on Sept 19, 1978, was not good; it was invalid. So the exception is overruled and denied. I will get to the case-in-chief in coming back to the same problem. We have some admissions here by the plaintiff by non-answer and by admission in open court. Answer of admission by the defendant by answer filed saying that the requirements of Part A, Sec. 8.103 of the Marksville zoning ordinance that was in effect on Sept 12, 1978 concerning the posting of an accurate statement of the proposed zoning change and the time and place of the zoning commission hearing to be held in connection therewith was not complied with prior to the adoption of the zoning ordinance referred to in Paragraph 3 of plaintiff’s petition. So, we have here the same problem unless the town of Marksville has specifically rescinded one or more of the provisions of the zoning ordinance. The, then the city of Marksville is bound by this ordinance as are all the other parties. Therefore, since the terms of the zoning ordinance were not followed, in the actions taken on Sept 12, 1978, this attempted zoning resolution is also invalid and void. Now it’s unfortunate that Mr Tassin, the plaintiff, followed the advice of a town employee who didn’t, I’m sure inadvertantly, but he did not give him complete instructions as to what the requirements were. Second of all, assuming that the town employee had the actual physical job of .posting the signs and did not do it, regardless of who was at fault, the sign was not posted. The terms of the ordinance were not followed. So there we have an invalid attempt to pass the zoning resolution that was on Sept 12, 1978. Now Mr. Tassin has every right to go back to the council of the zoning commission and follow the correct procedure, and I’m sure that if he goes back again, he’ll do a little bit more preliminary homework. That’s the ruling of the court.”

We conclude the trial judge was correct. For cases holding rezoning ordinances invalid for similar reasons see Breaux v. Town of Oberlin, 247 So.2d 195 (La.App. 3rd Cir. 1971); Beauvais v. D. C. Hall Transport, 49 So.2d 44 (La.App. 2d Cir. 1950); Mills v. City of Baton Rouge, 210 La. 830, 28 So.2d 447 (1946); arid State ex rel Holcombe v. City of Lake Charles, 175 La. 803, 144 So. 502 (1932).

On appeal, plaintiff argues the posting of the signs giving notice to adjoining property owners was actually unnecessary because notice of the meeting was given in the local newspaper and some owners of property in the vicinity had actual notice and appeared at the council meeting on September 12, 1978 to oppose the rezoning. Plaintiff cites no authority to support this argument, and we find none. Failure to give the required notice is fatal to the rezoning ordinance despite the fact that some property owners had actual notice.

Plaintiff also relies on testimony by the town clerk and members of the City Council that other property had been rezoned without complying with the requirements as to posting signs. This argument also has no merit. The fact that the requirements were not met in other cases does not constitute a waiver of the requirement in this case.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.