author: HOOD, Judge.

text:
    Christina M. PUTT v. Damon A. DAUSSAT and St. Paul Fire and Marine Insurance Company.
    No. 10710.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      Jonathan M. Lake, New Orleans, for Christina M. Putt, plaintiff-appellant.
    Schroeder, Kuntz & Miranne, New Orleans, Herman M. Schroeder, New Orleans, for Damon Daussat, defendant-appellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, David S. Kelly, New Orleans, for St. Paul Fire and Marine Ins. Co., defendant-appellee.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   HOOD, Judge.

Plaintiff, Mrs. Christina M. Putt, claims damages for the injuries she sustained as the result of a motor vehicle collision. The defendants are Damon A. Daussat and his liability insurer, St. Paul Fire & Marine Insurance Company. Judgment was rendered by the trial court in favor of defendants dismissing plaintiff’s suit at her costs. Plaintiff appealed.

Another damage suit arising out of the same accident was instituted by Damon Daussat against Mrs. Putt and St. Paul Fire & Marine Insurance Company. Mrs. Putt had no liability insurance, and for that reason Daussat named his own insurer, St. Paul, as a party defendant, alleging that it is liable under the uninsured motorist coverage provided in his policy. The two suits were consolidated for trial and appeal. In the companion suit, as in the instant case, judgment was rendered by the trial judge in favor of the defendants, dismissing Daus-sat’s suit at his costs. Daussat appealed from the judgment rendered in that case.

These consolidated cases were argued before us at the same time, and we are rendering judgment in both cases on this date. See Daussat v. Putt et al., 381 So.2d 959 (bearing No. 10,711 on the docket of this court).

In each suit the issues presented are whether the defendant driver was negligent and, if so, whether plaintiff is barred from recovery because of his or her contributory negligence.

The accident occurred at about 2:50 a.m. on January 22, 1976, at the intersection of Orleans Avenue and City Park Avenue in the City of New Orleans. The intersection is controlled by an electric semaphore traffic signal, which was operating at the time of the accident. Mrs. Putt was driving her automobile north on Orleans Avenue, and Daussat was driving his car east on City Park Avenue. They collided as they were attempting to negotiate that intersection. The front of Mrs. Putt’s car struck the right rear side of the Daussat vehicle.

City Park Avenue is a divided thoroughfare, with the two east-bound lanes being separated from the two west-bound lanes by a neutral ground. Daussat was travel-ling in the left east-bound lane of that avenue when the collision occurred. Orleans Avenue also is a divided thoroughfare, with the two north-bound lanes being divided from the two south-bound lanes by a neutral ground. Mrs. Putt was travelling in the left north-bound lane at the time of the collision.

The drivers of the two cars involved in this collision disagree as to which of them had a green traffic light as he or she approached the crossing. Daussat testified that the green light was in his favor as he approached and entered the intersection, and that Mrs. Putt ran into the right rear part of his vehicle as he was crossing the north-bound lanes of Orleans Avenue. Mrs. Putt, on the other hand, testified that she had a green light in her favor as she approached and entered the intersection, and that she did not see the Daussat vehicle until the instant of or a moment before the impact. There were no passengers in either vehicle, and the only other eye witness to the accident was Bruce N. Johnson, who was travelling in his automobile north on Orleans Avenue, less than two car lengths behind the Putt vehicle. He confirmed Mrs. Putt’s testimony that the traffic light was green in her favor as she approached and entered the intersection.

The trial judge did not assign written reasons for judgment, and we are unable to determine from the record the conclusion he reached as to which driver was favored by the traffic light at the time the collision occurred. It is necessary, we think, that a determination be made as to which of the two drivers had the right of way when he or she entered the intersection. We have reviewed the evidence in its entirety, therefore, to ascertain which driver had a favorable traffic signal and also to determine whether the result reached by the trier of fact is clearly wrong. See Martin v. Farkas, 241 So.2d 272 (La.App. 1st Cir., 1970); Aetna Casualty & Surety Co. v. Continental Ins. Co., 308 So.2d 489 (La.App. 1st Cir., 1975).

After reviewing the testimony, we find that the evidence preponderates to the effect that Mrs. Putt was favored with a green signal as she approached and entered the intersection. Under our view of the evidence, Daussat entered the intersection on a red light and he thus was not the favored driver.

We conclude that Daussat was negligent in entering the intersection on a red light, that his negligence in that respect was a proximate cause of the accident, and that Daussat thus is barred by his own contributory negligence from recovering against the other driver, Mrs. Putt, and against St. Paul. There is no error in the judgment rendered by the trial court in the companion suit, therefore, which dismisses Daussat’s suit against Mrs. Putt and St. Paul.

We turn now to the question of whether Mrs. Putt also was negligent and, if so, whether she is barred from recovery because of her contributory negligence.

As a general rule, a motorist who approaches and enters an intersection on a green light, where the intersection is controlled by an electric semaphore signal, is not required to observe traffic facing a red or stop signal at that crossing, but he may rely on the .assumption that motorists on the intersection street will obey the traffic signal and stop. Youngblood v. Robison, 239 La. 338, 118 So.2d 431 (1960). There, however, are exceptions to that rule. Although the motorist may assume that an electric semaphore signal will be obeyed by other motorists, he nevertheless must continue to exercise the caution that is commensurate with the circumstances as he approaches and enters the crossing. He is required to maintain a general observation of the controlled intersection, even though he enters with a green light facing him, and he must avoid accidents which can be averted by the exercise of the slightest degree of care. Modica v. Manchester Insurance and Indemnity Co., 284 So.2d 791 (La.App. 4th Cir., 1973); Jordon v. Great American Insurance Co., 248 So.2d 363 (La.App. 4th Cir., 1971); Champagne v. McDonald, 355 So.2d 1335 (La.App. 3rd Cir., 1978); Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (1964); Ashenfelter v. Gertrude Geddes Willis Life Insurance Co., 209 So.2d 299 (La.App. 4th Cir., 1968); Rome v. S. D’Antoni, Inc., 246 So.2d 331 (La.App. 1st Cir., 1971); and Higgins v. Johnson, 349 So.2d 918 (La.App. 1st Cir., 1977).

The evidence in the instant suit shows that although Daussat entered the crossing on a red light, he nevertheless crossed the south-bound lanes of traffic and the neutral ground of Orleans Avenue, and he traversed a substantial part of the northbound lanes of traffic on Orleans, before the collision occurred. Mrs. Putt had barely entered the first part of the crossing when the front of her car struck the right rear part of Daussat’s vehicle. There apparently was nothing to obstruct Mrs. Putt’s view of the crossing as she approached it. The evidence indicates that, the intersection was well lighted, and Daussat testified that he saw the Putt vehicle approaching when he was at least half a block from the traffic light.

Both vehicles were being driven at relatively slow rates of speed as they approached the intersection. Plaintiff was travelling about 30 miles per hour, and Daussat was driving about 35 miles per hour. Mrs. Putt testified that she did not see the Daussat car until a moment before the collision occurred. She stated that she first saw it “when I got into the intersection, when we hit,” that “it was like an instant,” that “I saw his car at the time of impact,” that she first saw it when “maybe he was a car length away,” and that only a “split second” intervened between the time she saw the other vehicle and the time the collision occurred. No skid marks were left by either vehicle before they collided.

We believe that Mrs. Putt could and would have observed the Daussat car as it crossed the south-bound lanes of traffic and the neutral ground of Orleans Avenue if she had been maintaining a general observation of the intersection as she approached it, or if she had been exercising the caution which was commensurate with the circumstances. If she had seen his car in the intersection before she reached it, she could have avoided the accident by merely reducing the speed of her car slightly, and thus allowing the other vehicle to clear her lane of traffic, before she proceeded into the crossing. She thus could have avoided the accident by exercising only the slightest degree of care.

Our Supreme Court stated in the recent case of Harris v. State through Huey P. Long Mem. Hosp., 378 So.2d 383 (La.1979), that:

“In connection with the standard to be applied by an appellate court in its constitutionally mandated review, the review of fact made by an appellate court must determine whether the district court was clearly wrong in its factual findings. Absent such a finding, the reviewing court should not disturb the findings of the trial court . . ”

In this case we cannot say that the trial judge was, or would have been, clearly wrong in holding that Mrs. Putt could and should have seen the Daussat car before the collision occurred, that she was negligent in having failed to exercise the slightest degree of care in attempting to avoid the collision, and that her negligence in that respect was a contributing cause of the accident barring her from recovery. We thus find no error in the judgment rendered by the trial court.

The judgment appealed from in the instant suit is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Damon DAUSSAT v. Christina M. PUTT.
    No. 10711.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Schroeder, Kuntz & Miranne, New Orleans, Herman M. Schroeder, New Orleans, for Damon Daussat, plaintiff-appellant.
    Wiedemann & Fransen, New Orleans, Edmund W. Golden, New Orleans, for St. Paul Fire and Marine Ins. Co., plaintiff-appellant.
    Jonathan M. Lake, New Orleans, for Christina M. Putt, defendant-appellee.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   HOOD, Judge.

This is a companion to the suit which was instituted by Christina M. Putt against Damon Daussat and St. Paul Fire & Marine Insurance Company, and which is being decided by us on this date. See Putt v. Daussat, 381 So.2d 955.

For the reasons which we assigned in the cited case, we hereby affirm the judgment appealed from in the instant suit. The costs of this appeal are assessed to plaintiff-appellant, Damon Daussat.

AFFIRMED.


author: GARRISON, Judge.

text:
    Joyce Compton HARRINGTON v. Robert L. HARRINGTON.
    No. 10739.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      Windmeyer & Dinwiddie, Bruce W. Din-widdie, Metairie, for plaintiff-appellant.
    Ernest V. Richards, IV$ Metairie, for plaintiff-appellant.
    Robert L. Harrington in pro. per.
    Before SAMUEL, BOUTALL, and GARRISON, JJ.
   GARRISON, Judge.

This case involves a judgment to eliminate alimony awarded pursuant to a divorce judgment where the husband-obligor has subsequently suffered a reduction in circumstances.

Joyce Compton Harrington, plaintiff-appellant and Robert Leonard Harrington a/k/a “Reverend Bob” Harrington were married on January 17, 1947. Two children were born of the marriage, both of whom are majors. On November 12, 1976, Joyce Compton Harrington filed for separation on grounds of cruel treatment. In December, the parties were judicially separated and alimony pendente lite in the amount of $2,750.00 per month was awarded.

On February 3, 1978, Mrs. ■ Harrington filed a rule to make past due alimony exec-utory. No alimony had been paid since rendition of the December judgment. Shortly thereafter, Mr. Harrington made payment in the full amount due.

On March 21, Mrs. Harrington again filed a rule to make past due alimony executory. In response thereto, Mr. Harrington moved to reduce alimony pendente lite. Three days later, Mrs. Harrington moved to increase the alimony awarded in December. Additionally, she filed a rule for contempt and to set aside a transfer of community property, alleging that Mr. Harrington had violated the temporary restraining order and preliminary injunction preventing him from disposing of community property when he transferred royalty interests to “The Ministry of Bob Harrington, Inc.” in February of 1978. She further requested an accounting.

On April 6 the trial court ordered Mr. Harrington to pay the past due alimony. On April 10 he presented to plaintiff two checks, one of which was dishonored for insufficient funds. On April 18 Mrs. Harrington filed a rule for contempt and the past due alimony.

On June 12 she again petitioned the court to make executory alimony past due since May.

On August 24, 1978 the district court rendered a judgment of divorce, finding Robert Harrington at fault and condemning him to pay alimony in the amount of $900.00 per month. In January of 1979 the husband filed a rule to eliminate all alimony. After a hearing, the district court rendered a judgment eliminating alimony which we now affirm.

Appellant contends that her former husband failed to meet his burden of proof in establishing a significant change in the financial condition of either party. We do not agree.

Under our jurisprudence, the burden is upon the party moving to reduce to show change in the respective financial conditions of either party so as to justify a reduction in the alimony which the former court required him to pay. Wilson v. Wilson, 205 La. 196, 17 So.2d 249 (1944); Qvist gaard-Peterson v. Qvistgaard-Peterson, 135 So.2d 669 (La.App. 2nd, 1961); Quaid v. Quaid, 206 So.2d 775 (La.App. 2nd, 1968); Rachal v. Rachal, 250 So.2d 560 (La.App. 1st, 1971); Daigle v. Daigle, 339 So.2d 1266 (La.App. 1st, 1976); Mancuso v. Mancuso, 352 So.2d 359 (La.App. 4th, 1977). We agree with the trial court’s determination that the burden was met by the evidence presented by Mr. Harrington.

Appellant contends that Mr. Harrington’s failure to produce tax returns for “The Ministry of Bob Harrington, Inc.” constitutes sufficient grounds to overturn the trial court’s decision. We note that the corporation in question is a non-profit tax-exempt organization which is not required to file tax returns. It is elementary that a man cannot be required to produce that which has never existed. Where the other evidence presented by the moving party is sufficient to establish changed circumstances, the absence of tax returns for a nonprofit tax-exempt corporation is not sufficient to overturn the trial court’s judgment.

Accordingly, the judgment of the district court is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Earnest AUGUST, Jr. v. Willie HAMILTON et al.
    No. 10764.
    Court of Appeal of Louisiana, ■Fourth Circuit.
    March 11, 1980.
    Steven F. Griffith, Sr., Ltd., Steven F. Griffith, James M. Callow, Destrehan, for Earnest August, Jr. plaintiff-appellant.
    Wayne W. Foley, Ralph R. Miller, Norco, for Willie Hamilton, et al., defendant-appel-lee.
    ' Before SAMUEL, BOUTALL and GARRISON, JJ.
   BOUTALL, Judge.

This is a petitory action in which plaintiff asserts title ownership of a tract of land against a party in possession. The defendant answered and reconvened claiming to be owner both under a prior title to a portion of the land and under 30 year acquisitive prescription possession. The trial court recognized the defendant to be the owner. We affirm.

The property in question was originally obtained by Jacques (Numa) Montz through a partition amongst the Montz heirs. The two lots at issue, Nos. 1 and 2, adjoin each other and form an irregular parallelogram measuring approximately 65 feet front along the River Road widening to approximately 85. feet in the rear over a depth of slightly in excess of 1000 feet. By act of sale dated June 30, 1911, Montz sold to Mack Hamilton a portion of the land “commencing at Two Hundred and Sixty-three feet from the base of the levee and measuring Two Hundred and Twenty-five feet in depth”, with a right of way along the upper side line in order to permit communications with the road and the levee. By act of sale dated September 10,1976, the Succession of Jacques (Numa) Montz sold to Earnest August, Jr., the property at issue less and except the portion sold to Mack Hamilton. Earnest August, Jr. brings this petitory action against the present possessors, Willie Hamilton (child of Mack Hamilton) and his wife Isabella to establish title to those portions of Lots 1 and 2 not previously sold to Mack Hamilton. Alternatively, he sues the Montz heirs for rescission of the sale with return of purchase price and damages. The trial court on the issue of ownership recognized Willie Hamilton to be the owner and found the following:

“A preponderance of the evidence substantiated defendant’s claim that defendant’s father acquired valid title to a portion of the land on June 30, 1911, and that thereafter and for a period in excess of thirty years defendant’s father and defendant took corporeal possession of the whole tract. This possession was peaceful, open, physical, continuous and uninterrupted. This possession was exercised as owners of the whole tract adverse to the world and this possession and ownership was not contested nor disturbed for a period in excess of thirty years.”

The evidence substantiates these findings. It is apparent that some time shortly after the purchase of a portion of the property in 1911, Mack Hamilton moved upon the property and built a house there. Mack’s son, Willie, the defendant, who was 61 years of age at time of trial in 1978 was born in that house in 1918. Willie and his father farmed the land together all the way down to 1938; during most of this time there was a fence across the property along the road as well as 2 line fences running all of the way to the rear. In 1938 Mack moved a short distance from this property but the farming continued within their fenced area, and the property was visited by them nearly every day in connection with their farming. Willie testified that he was only off the property approximately one year and that in 1943 he got married and moved back on the property with his wife, and has farmed it ever since. He not only farmed the entire property and kept up the fences during that period, but he also cleared the land, hauled sand and filling onto the property to keep it up, and after his father died in 1951, he built a new house in front of the old one for him and his wife. The evidence establishes that he actively farmed the property and appeared to possess it as owner in undisturbed possession down to the time of the act of sale to plaintiff in 1976.

We conclude that the evidence shows sufficient exercise of the corporeal possession of the property, as well as the intention of possessing as owner as provided by Civil Code Article 3436. Willie believed that his father owned the land and- that the ownership continued in him. Willie’s possession alone from 1943 satisfies the requirements of Civil Code Article 3499 providing for the acquisitive prescription of immovable property by thirty years possession without any need of title or possession in good faith, and of Article 3500 that the possession must be continuous and uninterrupted. See Hill v. Richey et al., 221 La. 402, 59 So.2d 434 (La.1952); Harris v. Galloway, 348 So.2d 1263 (La.App. 2d Cir. 1977). We further point out that under the evidence the short period during which neither Mack nor Willie Hamilton lived on the land did not constitute an interruption. They still continued to exercise possession by their almost every day farming of the land. Under these circumstances, the possession that they exercised previously is presumed to continue until it was either physically interrupted or abandoned. See Louisiana Civil Code Articles 3442, 3443, 3444, 3501 and 3502. See also Liner v. Louisiana Land & Exploration Company, 319 So.2d 766 (La.1975); Delatte v. Petit, 252 So.2d 733 (La.App. 1st Cir. 1971).

We pass now to appellant’s alternative contention against his vendor, that in addition to rescission of the sale and return of the purchase price, he should be awarded attorney’s fees in the amount of $1,000. He refers to Civil Code Articles 2531 and 2452 as permitting their recovery. We see nothing in these articles that require the payment of attorney’s fees as damages by a seller who knew less about the possession of the thing sold than did his purchaser.

For the reasons above assigned, the judgment is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Phyllis Reynolds HANLEY v. James J. HANLEY, Jr.
    No. 10782.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      Bruce W. Dinwiddie, Metairie, for defendant-appellee.
    Robert T. Garrity, Jr., Metairie, for plaintiff-appellant.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Mrs. Phyllis Reynolds Hanley brought this suit against her husband James J. Han-ley, Jr., for a separation on the ground that he abandoned her on March 10, 1978. He reconvened for a divorce on the ground that she committed adultery on numerous occasions with one Larry Coste. Alternatively he sought a separation becausé her affair with Coste constituted cruel treatment. From a judgment of divorce in his favor she has appealed. He has answered the appeal seeking custody of their three young children on the ground that she is unfit to be their custodian. The principal issue on appeal is whether the evidence is sufficient to support the judgment of divorce based on adultery.

Mr. Hanley testified as follows: For several years he thought Coste’s relationship with his wife was simply a friendship, but it eventually became evident to him that it. was more. He insisted that she discontinue the relationship, but it continued.

David J. Sterling, Jr., a private investigator, testified as follows: On Saturday, June 17, 1978, he set up a surveillance on Mrs. Hanley’s 'home beginning at 9 A.M. At 1 P.M. Coste arrived, stayed an hour, and left. At' 2:20 Coste returned and at 2:35 he .and Mrs. Hanley left in his car. Sterling returned to Mrs. Hanley’s home at 6:30 and found Coste’s car in the driveway and one of Mrs. Hanley’s cars gone. The following morning at about 6 A.M. Sterling returned to find her automobile still gone, and upon re-establishing a surveillance of the residence he saw Mrs. Hanley and Coste arrive in her car at about 6:30 A.M. At 7:30 A.M. Coste left in his car.

The Hanley’s next door neighbor, Mrs. Ethel Zeringue, gave the following testimony: In January, 1977, she attended a supper dance with Mrs. Hanley and Coste. They danced, he put his arms around her, and she called him baby. For six months prior to the Hanleys’ separation Coste would be at their house nearly every day at all different hours. “He just came as if he lived next door.” He would often come when Mr. Hanley was not at home and Mrs. Hanley on several occasions told her that Coste had come for lunch with her. After the separation in March until the trial in October Coste was there so much that she “thought he was living next door.” He came every day and “His car would be there at night all the time.” Zeringue would stay up until two-thirty and Coste would still be there and she “didn’t see any lights.” On cross examination, however, Zeringue stated that she would hear Coste leaving at two or three in the morning.

Mrs. Hanley admitted that she had gone out socially with Coste but always with her husband’s approval. She also admitted having seen Coste often but always for the purpose of chauffering her father or children. She denied having ever been in her home alone with Coste and insisted that other adults were always present.

Coste testified that he was never with Mrs. Hanley outside of the presence of another adult since April, 1978, when a temporary custody hearing was held. He produced his calendar to show that he was in Mobile, Alabama, on June 17, 1978, until he returned home between 3 P.M. and 3:30 P.M., contradicting Investigator Sterling’s testimony. As to the presence of his automobile at Mrs. Hanley’s house, he claimed that he was required to travel often and frequently used a Buick which was in Mrs. Hanley’s possession but belonged to her father. This was always done with the father’s permission and on those occasions he would leave his automobile at Mrs. Han-ley’s.

Mrs. Hanley also offered some evidence to show that her brother had an automobile similar in appearance to Coste’s which was often parked at her house. At one point in her testimony Zeringue demonstrated some confusion over her identification of the car as Coste’s as opposed to the brother’s.

We have detailed this evidence because it readily demonstrates why we are reluctant to affirm the judgment, considering the operative legal principles. Proof of adultery based solely on circumstantial evi-r dence must be so convincing that it will exclude any other reasonable hypothesis but that the act was committed. “The mere fact that a man and woman spend time together alone does not necessarily mean that they are engaged in illicit sex.” Coleman v. Coleman, 352 So.2d 710 (La.App. 4th Cir. 1977).

The evidence in this case is similar to that which was produced in Soroe v. Soroe, 334 So.2d 543 (La.App. 4th Cir. 1976) and which was found'to be insufficient to support a judgment based on adultery. In that case the court noted that speculation, conjecture, mere possibility, and even unsupported probability, are not sufficient to support a judgment.

This case is complicated, however, by the omission from the record of the transcript of testimony taken in April, 1978, shortly after the parties separated. While Mrs. Hanley was on the stand some reference was made to her previous testimony and that it was unnecessary for her- to repeat it. The trial judge stated that he would consider that previous testimony if agreed to by counsel, and both agreed. The record shows that the previous testimony was unavailable because of- a “faulty recording.” When Coste was on the stand both parties refrained from questioning him on his relationship with Mrs. Hanley before the hearing. In fact, Coste testified that he was advised by his attorney after the hearing that he should always have an adult in presence at the Hanley household.

A minute entry on the custody hearing indicates that the trial judge heard testimony from the three Hanley children and one Paul Wallace Williams, who did not testify on the merits. Apparently, there was much-evidence concerning the relationship between Mrs. Hanley and Coste before the separation which is not available to us.

In Succession of Walker, 288 So.2d 328 (La.1974), the court considered appellant’s motion to remand the case to the district court and the record on appeal contained only the deposition of one witness but omitted the transcribed testimony of the witnesses who testified at the trial. After recognizing that the appellant has the burden of implementing the provisions of C.C.P. Art. 2131 with respect to the furnishing of a statement or narrative of facts, the court concluded:

“The jurisprudence is uniform that, where there are factual issues involved and the record on appeal contains neither the transcript of the testimony nor an agreed statement of facts entered into between the parties or given by the trial judge, there is nothing for appellate review.”

The Supreme Court did not question the conclusion of the Court of Appeal that where the record contains no transcript, no agreed statement of facts signed by opposing counsel and no narrative of facts by the trial judge, the judgment of the trial court is presumed to be supported by competent evidence. The same presumption was applied by the courts in Bourgeois v. Daigle, 340 So.2d 1063 (La.App. 1st Cir. 1976), Vaughan v. Fair, 337 So.2d 675 (La.App. 3rd Cir. 1976), Hutcherson v. Welch, 316 So.2d 144 (La.App. 2nd Cir. 1975), Hill v. Smith, 284 So.2d 374 (La.App. 2nd Cir. 1973).

Appellant is in the position of having the burden to demonstrate error in the judgment of the trial court. For that reason the burden is on appellant to comply with Art. 2131 and to have a complete record before the Court of Appeal. Traylor v. Traylor, 337 So.2d 922 (La.App. 3rd Cir. 1976), where there is no transcript of testimony or narrative the appeal is subject to dismissal because the court is unable to decide the correctness of the judgment. Ernest Joubert Company v. Tatum, 332 So.2d 553 (La.App. 4th Cir. 1976), Landry v. Landry, 323 So.2d 507 (La.App. 4th Cir. 1975).

Thus, we have concluded that the missing testimony taken at the trial of the rule is presumed to support the trial judge’s conclusion that Mrs. Hanley committed adultery on numerous occasions entitling Mr. Hanley to a judgment of divorce.

As to the answer to the appeal by Mr. Hanley, the same presumption applies that the missing testimony supports that portion of the judgment concerning custody. Considering only the testimony produced at the trial on the merits there is nothing to demonstrate any abuse of the trial court’s discretion in the award of custody to Mrs. Hanley. The evidence at the trial does not indicate that the acts of adultery took place within sight or knowledge of the children, or that- Mrs. Hanley’s relationship with Coste detracted from her ability to care for the children. We presume that the missing testimony taken at the trial of the rule likewise supports the trial judge’s conclusion on custody.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Barbara Ditcharo, wife of Emile K. HEBERT v. Emile K. HEBERT
    No. 10848.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Salvador J. Chauppette, Marrero, for Barbara D. Hebert, plaintiff-appellee.
    Robert F. Fadaol, Gretna, for Emile K. Hebert, defendant-appellant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   BOUTALL, Judge.

Barbara Ditcharo Hebert sued Emile K. Hebert for a separation from bed and board on the grounds of mental cruelty and later amended her petition to alternatively ask for a divorce on the grounds of post-separation adultery. The trial court granted her a divorce, finding that her husband had committed adultery and was at fault for the separation, and that she was free from fault. The husband appeals, contesting the issue of pre-separation fault as well as the sufficiency of proof of adultery. We affirm.

The basic issue raised is the sufficiency of proof to support the decree of adultery. The evidence relied upon to establish the adulterous relationship was circumstantial. The principles of evaluation of that evidence is set forth in the ease of Hermes v. Hermes, 287 So.2d 789 (La.1973) at p. 790:

“In Kendrick v. Kendrick, 232 La. 1104, 96 So.2d 12 (1957), we quoted with approval the following statement of the applicable law:
‘ “The jurisprudence, as recently crystallized in the cited cases, is to the effect that, while proof of adultery may be established by indirect or circumstantial evidence, as well as by direct evidence, and a prima facie case for divorce on the ground, of adultery may be made by facts or circumstances that lead fairly and necessarily to a conclusion that adultery has been committed, courts must take such evidence as the nature of the case permits, circumstantial, direct or positive, and bring to bear upon them experiences and observations of life, and, weighing all with prudence and care, give effect to its just preponderance. Further, that in these modern times, the mere fact that a man and a woman are alone together does not necessarily presume it is for an affaire d’amour. * * * ” (Citations omitted)

A considerable portion of the facts of this case are undisputed by the husband, and to some degree admitted. Several years prior to the separation, Mrs. Hebert discovered that her husband had committed adultery, but reconciliation followed. The parties separated the day following a discussion between them on March 31, 1978. The circumstances of this separation are disputed and will be discussed later, however, it is undisputed that the parties were unhappy and the relationship between them was unsatisfactory for many months prior to the separation. Within a couple of days from the separation of the parties, another married couple with whom they were quite friendly and with whom they often socialized, also separated. It is admitted that Hebert’s first date after the separation was with the separated wife and that her first date was with him. For the last seven months prior to trial, they dated each other exclusively, seeing each other at least three or four times a week. They were in each other’s company on most major holidays and special events. Hebert admits that he has kissed her on numerous occasions and that he wanted to have sexual relations with her but denies that he committed adultery.

It is not disputed that Hebert visited this lady at her apartment on a number of occasions. Evidence was introduced that Hebert’s Ford van had been observed at his lady friend’s apartment on numerous occasions until 2 or 3 o’clock A.M. and with some frequency until 7:30 A.M. or later. On many of these occasions there were no lights visible in the apartment. On one of these no-light nights, Mrs. Hebert called the apartment at 3:30 A.M. and spoke to her husband. On one of the 7:30 mornings, Mrs. Hebert’s brother talked to Hebert after encountering him leaving the street on which the apartment is located. There is no direct evidence that Hebert committed adultery on any of these occasions.

The trial judge recognized the problems concerned with the circumstantial evidence offered, and considered these uncontested and admitted facts enumerated above. Additionally, he considered some contested issues such as the frequency of Hebert’s staying at the apartment, and whether he and the lady were alone. Also of significance is his finding that the parties separated because Hebert told his wife he no longer loved her and spent little time at home prior to the separation. Hence, based on the totality of the circumstances, the trial judge found that Hebert was guilty of adultery. In such situations as this, the findings of the trial court should be left undisturbed in the absence of a showing of manifest error. We cannot state that manifest error is present here. As stated in the case of Pearce v. Pearce, 348 So.2d 75 (La.1977), at p. 78:

“In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1st Cir. 1976). The factual findings of the trial court are therefore to be accorded very substantial weight on review. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976).”

We now pass to a consideration of the other issue raised, that is, pre-separation fault, not simply because it was raised on appeal, but because it was considered by the trial judge in his evaluation of the totality of the circumstances leading to adultery. On this issue there is a direct conflict between the testimony of the husband as to the cause of the separation, and that of the wife. This credibility call was resolved by the trial court in his characterization of Mrs. Hebert’s testimony as forthright, honest and spontaneous.

At the time of the separation, Mrs. Hebert was seven months pregnant. She had had a miscarriage the year before and was having considerable troubles with her pregnancy, confining her to bed much of the time. During this time, and indeed for some time previous, Mr. Hebert would spend very little time at home, frequently coming home from work only to change clothes and then leave, returning home late at night. Mrs. Hebert testified that he seemed unconcerned about her and about the problems in carrying the baby to full term. When Mrs. Hebert talked to her husband about their problems, he informed her that he did not love her, nor had he loved her for some time, and that there was nothing left of their marriage. When she commented as to her status with the pregnancy, he told her that she could go to her mother’s, who would take care of her and the baby. The next day she left. Under these circumstances, we agree with the trial judge’s finding that Mrs. Hebert was free from fault.

The judgment is affirmed.

AFFIRMED.

      . The trial judge remarked that “the testimony between these two people themselves lead me to the inescapable conclusion that Mr. Hebert has fallen out of love with his wife for one reason or another, and that he has taken up with another woman.”


text:
    Louis FISHER v. Priscilla KNIGHT and Dennis C. Knight, and Allstate Insurance Co.
    No. 10862.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      Beoubay & Gegenheimer, Jon A. Gegen-heimer, Gretna, for plaintiff-appellant.
    Drury, Lozes & Curry, Felicien P. Lozes, James A. Drury, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT, and GARRISON, JJ.
   GARRISON, Judge.

Plaintiff filed suit as a result of an auto accident occurring on July 25, 1977. After trial, the court rendered judgment consistent with the verdict of the jury, finding for the defendants and dismissing plaintiff’s case.

Plaintiff has appealed from that judgment, but has neither appeared nor filed a brief with this Court. Thus, the appeal may be considered abandoned pursuant to Rule 7, Section 5(b) of the Uniform Rules — Courts of Appeal.

Nevertheless, we have reviewed the record and found no manifest error. The jury could logically conclude from the testimony that plaintiff suffered no injuries nor damage from this accident, which consisted of a minimal impact between the vehicles, and that all of plaintiff’s complaints — if genuine at all — were not caused by the accident of July 1977 in question, but rather by his March 1977 accident, and/or his December 1978 accident, and/or one or more of the other numerous accidents in which he was involved.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Frank CARVER v. Manuel CABIRO and Allstate Insurance Co.
    No. 10863.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      John P. Ferrara, New Orleans, for plaintiff-appellant.
    John F. McDonald, III, Bagert, Bagert & McDonald, New Orleans, for defendant-ap-pellee.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment awarding him $2,000 for damages pursuant to a jury verdict. He contends that the award was inadequate. The issues are whether remarks made by defendants’ counsel during his voir dire of the jurors, his opening statement and his summation were prejudicial, whether the court’s giving of one of the special instructions requested by defendants constituted prejudicial error, and whether the verdict was so inadequate as to constitute an abuse of the jury’s discretion.

The accident occurred on June 18, 1976, when plaintiff’s automobile was struck from the rear by defendants’. On the following day he sought medical treatment at the emergency room of Methodist Hospital where X-rays were taken, he was given a prescription for a muscle relaxant and he was told to see his own doctor. He saw Dr. Bernard P. Manale, an orthopedic surgeon, for the first time on June 24 and saw him three times during the month of July and once each month during August, September, October and December, 1976, January, April, May and September, 1977, twice in May, 1978, and once in February, 1979, one week before the trial. Dr. Manale referred him to neurologist, Dr. Maria Palmer, for studies in July, 1976.

According to plaintiff, he experienced pain in his shoulder on the day of the accident and when this became worse on the following day he went to Methodist Hospital. Dr. Manale prescribed a cervical collar which he wore for ten or twelve weeks on a regular basis and still wore occasionally at the time of the trial, but his best source of relief was to lie flat on the floor with a rolled up towel under his neck. Asked why he was not wearing the collar on the days of the trial he answered: “Frankly, I feel pretty good today.” He still had pain at the time of the trial on an irregular basis in that it would last for three or four days and then be absent for one or two weeks. Although he missed a few days of work in seeing doctors in the earlier days of his injury he suffered no loss of pay on his job as buyer for a department store. He is required to travel a great deal, and long airplane flights particularly aggravated his pain. He has difficulty with the use of his left arm preventing him from carrying luggage, swimming, and gardening. He has gotten raises in the three years since the accident based on his performance, but he feels that the accident has distracted him from top mental performance on his job without permanently injuring it. He denied having any difficulties whatsoever pri- or to the accident.

Dr. Manale testified as follows: In his examination of plaintiff on June 24, 1976, he found pain and tenderness along the posterior aspect of the neck and the muscle between the base of the neck and the shoulder. There was no limitation of motion but with certain motions there was pain running into plaintiff’s left hand and he appeared to have a diminished feeling in the top of the forearm and base of the thumb. X-rays taken at the Methodist Hospital revealed a narrowed space between C-5 and C-6 with bone spurs. He prescribed the collar and medication and later a traction device. His initial diagnosis was cervical sprain with pre-existing degenerative arthritis in the neck and a possible nerve injury which caused the abnormality in his left arm and hand. He referred plaintiff to Dr. Maria Palmer, the neurologist.

Dr. Palmer testified she performed elec-trodiagnostic studies on plaintiff which consisted of conduction studies and an electro-myogram of the left arm. This revealed a mild abnormality “not very pronounced” indicating irritation of nerve root without positive findings for loss of nerve supply. She characterized the abnormality as a minimal or mild irritation emanating from the nerve at the C-5 level of the cervical spine.

Dr. Manale continued to treat plaintiff periodically and saw him for the last time on February 28, 1979, just before trial. In his opinion, plaintiff still had radiculitis, inflammation of the nerve root, degenerative arthrosis or arthritis of the neck and degenerative disc disease the symptoms of which were activated by the trauma. He had an abnormal neck before the accident based on the bone spurs found in the X-ray studies. Dr. Manale also spoke of possible surgery in the event that plaintiff’s condition would worsen.

A notable weakness in Dr. Manale’s testimony was his statement that his diagnosis was largely based on the history given to him by the patient, specifically that he had no difficulty prior to the accident. But he stuck to the opinion based on his own experience in treating patients, that plaintiff’s arthritis had been latent and was activated by the trauma of the accident. Significantly, although Dr. Manale spoke of the possibility that plaintiff had a ruptured disc he never found any spasm in plaintiff except on the very last visit on February 28, nor was there any significant atrophy in the left arm. Finally, Dr. Manale did not say that it was even probable that plaintiff would require surgery, only that it was possible if his condition worsened.

Plaintiff also called his wife and son who testified that his activities were curtailed since the accident and he complained of problems with his left arm whereas he never complained prior to the accident.

Plaintiff’s first specification of error concerns the remarks made by defendants’ counsel in voir dire, opening statement, and closing argument. We have concluded that this specification has no merit; first, because no objections were made during the trial at the time the statements complained of were made; and second, the trial judge properly instructed the jury that statements made by counsel were not evidence but were only “his game plan” in the case of opening statement and theories in the case of his argument. The only objection at any time was made during the opening statement of defendants’ counsel when he was outlining plaintiff’s activities on the day after the accident, as follows:

“Mr. Ferrara:
Your Honor, I object, I think he is testifying; I think he is going beyond the areas—up against the Court’s will.
The Court:
Again, I understand the jury that all intelligent individuals will understand what I said before—that because Mr. Ba-gert or Mr. Ferrara tells you something happened you are not to consider that as happening until you have a chance to view the creditability and the posture of the witnesses and then make up your mind, at that point, and again, for the Record this is only a statement of what the defense, at this time, intends to establish.
You are not to consider. that for any purpose as evidence.”

While this objection was made timely by plaintiff’s counsel the instruction of the trial judge was adequate to prevent defendants’ counsel from creating any undue prejudice in the minds of- the jurors.

Plaintiff’s specification of error on the instructions to the jury developed from the fact that plaintiff had subpoenaed Dr. Irving Redler to testify as a witness in his behalf but he failed to call Dr. Redler as a witness. In the presence of the jury he attempted to explain that Dr. Redler had not shown up in response to the subpoena because of the doctor’s busy schedule. On the day the two-day trial began defendants had submitted the following jury instructions:

“If plaintiff failed to call a witness who he has subpoenaed, you may presume that the witness’s testimony would have been unfavorable to the plaintiff.”

The trial judge in instructing the jury included the following:

“In this case, the record reveals that the plaintiff had subpoenaed a witness who did not appear. The law of this state relative to that situation is as follows: If a plaintiff fails to call a witness who he has subpoenaed, you may presume that witness’s testimony would have been unfavorable to the plaintiff.”

Plaintiff objected in globo to five instructions submitted by defendants, including the one quoted above, but on the ground that he had not received copies of these proposed instructions until the evening of the first day of the trial and was unprepared for them. He took the position that this was in violation of pre-trial orders which had been issued long before the case came to trial and which required counsel to include prior to pre-trial conferences a list of suggested jury instructions. Plaintiff’s counsel argued: He was prevented from calling a witness who was not included in the pre-trial order after defendants’ counsel objected because of being taken by surprise; but plaintiff’s counsel was likewise taken by surprise with defendants’ instructions but was denied the same consideration given to defendants. Plaintiff assigns error in the trial judge’s failure to permit him to call that witness as well as the giving of defendants’ instructions.

Three separate pre-trial orders were issued in this case on February 17, March 28 and July 14, 1978, in which both sides were ordered to submit a list of definite as well as possible witnesses. The order contained the statement that “only listed witnesses will be allowed to testify.” Thus, plaintiff was not entitled to call the witness he failed to list in his pre-trial order. Furthermore, there is no mention either by proffer or by statement of counsel in the trial court, or this court, as to what this witness would have testified to. We see no error in the ruling of the trial court denying plaintiff’s right to call that witness and we are unable to evaluate what effect that witness’s testimony may have had in any event.

The same, restriction on the use of special instructions is not contained in the pre-trial order, that is, there is no statement to the effect that the failure to submit the instructions in advance will preclude their use. Furthermore, plaintiff could not plead surprise since he was furnished with copies of the proposed instructions on the day before the trial reached that point where the instructions were to be given. Thus, plaintiff’s general objection to all five special instructions is without merit.

As to plaintiff’s objection to the one instruction on his failure to call a witness who was under subpoena, his failure to make a specific objection, stating his reasons for the objection, constitutes a waiver of an objection to that instruction, LSA-C.C.P. Art. 1973. In any event, for our purposes on review we are favored with a report in the record from Dr. Redler, dated November 23, with respect to his examination of plaintiff on November 18, 1977. This report concludes with the opinion that plaintiff has hád recurrent episodes of pain about the left side of his neck with radiation into the left hand since the accident eighteen months previous; clinical examination did not reveal any abnormalities with the exception of the fact that the left triceps and ulner reflex in the left upper extremity could not be elicited; X-ray studies reveal severe degeneration of the inter-vertebral disc space between the 5th and 6th cervical vertebra with osteophytes in the foramina on the left side between these vertebras but that these changes are probably of long standing. Dr. Redler recommended cervical traction for plaintiff which he used and of which the jury was aware.

The award of $2,000 includes specials amounting to $729.94. However, this includes $60 for medical report from Dr. Manale and $150 for his fee for attending a deposition. Thus, specials are a little over $500, leaving $1500 for general damages in the award. The award may be low, but we are unable to articulate reasons for increasing the award as required by Reck v. Stephens, 373 So.2d 498 (La.1979). We reach this conclusion because there is little evidence of any injury to plaintiff other than activation of pre-existing arthritis proof of which depends on plaintiff’s own credibility. If the jury did not believe plaintiff and his wife and son in their testimony that plaintiff had no difficulty before the accident as opposed to pain and disability following the accident, and they likewise concluded that plaintiff did not tell Dr. Manale the truth when he gave him the history of no pain or difficulty prior to the accident, this explains their verdict. All of plaintiff’s difficulties supposedly stem from the arthritis. He had no objective symptoms of disc disease such as spasm until the one visit two and a half years after the accident and no explanation was ever given as to why this isolated incident of spasm would be related to the accident in the absence of any spasm prior to that time. For us to increase the award would require us to invade the jury’s function of evaluating plaintiff’s credibility and would not be a proper exercise of our appellate function. We therefore affirm the judgment.

AFFIRMED.

      . Plaintiff testified that the traction device was prescribed by Dr. Redler.


author: GULOTTA, Judge.

text:
    Linda Giglio CANZONERI v. Ronald SMITH et al. Imelda Larsen BRUBAKER et al. v. SELF-SERVICE RESTAURANTS, INC. et al.
    Nos. 10866, 10867.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      Barker, Boudreaux, Lamy, Gardner & Foley, Daniel S. Foley, New Orleans and Gary J. Dragon, Chalmette, for plaintiffs-appellants.
    Wiedemann & Fransen, Clifton A. Adcox, New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

Plaintiffs in these consolidated wrongful death suits against executive officers appeal the dismissal of their claims on exceptions of no cause of action.

In one of these suits, Linda Giglio Can-zoneri, the surviving spouse of Francisco Canzoneri, alleges that on January 25, 1974 her husband was employed as a manager by Self-Service Restaurants, Inc., and was assigned to a Burger King Store in the City of New Orleans. According to the petition, in the early morning hours Ronald Smith, a former employee of the Burger King store who had been discharged “several days” earlier by Canzoneri, gained entrance into the store, perpetrated an armed robbery ' and, in the course of that robbery, shot and killed Canzoneri. The petition further alleges that the store had a large cash flow, was located in a high-crime area, and had experienced problems with theft. Ronald Smith, according to the petition, was a dangerous individual with a prior criminal record of theft and robbery, and at the time he became employed was a convicted felon on “probation” after having spent time at the Louisiana State Penitentiary at Angola, Louisiana.

The suit is directed not only against Ronald Smith, the assailant, but also against the chairman of the board/stockholder, the president and chief executive officer/stockholder, the executive vice-president/stockholder, the vice-president and treasurer/stockholder, the vice-president/legal secretary, the assistant secretary, and the managing agent/personnel director, all of whom are executive officers of Self-Service Restaurants, Inc., the decedent’s employer. According to the petition, these executive officers were delegated and charged with the duty of formulating, implementing and enforcing policies pertaining to the screening, hiring, management, discipline, security and safety of the personnel. The petition also sets forth that they were responsible for policy and procedures pertaining to cash flow and collection and transfer of revenue.

The specific acts of negligence, asserted in the petition, for each executive officer are identical and are as follows:

a. Failure to provide petitioner’s husband with a safe place to work.
b. Failure to properly screen applicants for employment, particularly the defendant, Ronald Smith.
c. Failure to properly develop, formulate and enforce an employment applicant screening system.
d. Failure to warn decedent and other employees working with Ronald Smith of his criminal record and his propensity for felonious acts, when he knew or should have known of his background.
e. Failure to provide adequate security at Store No. 1182 despite the fact that he knew or should have known that said store was in a high crime area, and had experienced prior to January 25, 1974 problems with theft and robbery, and had a high cash flow.
f. Failure to develop and/or properly enforce a safe and secure system for the handling of- its cash flow and the transfer of its cash.
g. Subjecting employees, particularly the decedent, to having to work with potentially dangerous co-employees.
h. Failure to issue adequate security instructions to its employees.
i. Placing an individual, namely, Ronald Smith, whom he knew, or should have known, had a dangerous criminal record, in an employment classification and work environment in which he was close to a large cash flow, without adequately explaining his character and background to the management of Store No. 1182.
j. The negligent and careless delegation of duties to subordinates pertaining to security, safety, personnel hiring and screening, employee discipline and management, and the control, collection, and transfer of revenues.
k. Other acts of negligence which shall be proven at trial.

Based upon these acts of negligence on the part of the defendant executive officers, plaintiff claims entitlement to recovery against them.

In a companion suit, Imelda and George Brubaker, parents of another Burger King employee killed in the robbery attempt, direct their suit against Self-Service Restaurants, Inc., the executive officers of the employer corporation, and the corporation’s liability insurer. The allegations of the petition and the supplemental and amended petition, when read together, assert (although in some cases in different language) substantially the same or similar acts of negligence on the part of the executive officers as set forth in the Canzoneri suit. In the companion Brubaker suit, however, plaintiffs also assert a tort claim against the decedent’s employer.

In connection with the claim against the employer, i. e., Self-Service Restaurants, Inc. and Self-Service Restaurants No. 132, Inc., our jurisprudence is well settled that plaintiff’s exclusive remedy against the employer is in workmen’s compensation. R.S. 23:1032; Jenkins v. Archer-Daniels-Midland Co., 347 So.2d 314 (La.App. 4th Cir. 1977). Accordingly, we find no error in the trial court’s judgment dismissing on exception of no cause of action the Brubaker tort claim against their decedent-son’s employer.

The more difficult problem, however, is whether the allegations of the petitions in the consolidated suits state a cause of action against the executive officers. R.S. 23:13 provides:

“13. Employers’ duty as to safety.
Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards,' shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.”

The landmark case of Canter v. Koehring Company, 283 So.2d 716 (La.1973), stated that the executive officer is individually liable to a third person, including co-employees, damaged solely by reason of the defendant’s individual breach of an employment-imposed duty, under the following circumstances:

1. The employer owes a duty of care to the third person, breach of which has caused the damage for which recovery is sought.
2. The employer delegated this duty to the defendant.
3. The defendant breached this duty through personal (as contrasted with technical or vicarious) fault. He must have a personal duty toward plaintiff, breach of which specifically caused plaintiff’s damages.
4. If the defendant’s general responsibility was ■ delegated with due care to responsible subordinates, he is not himself personally liable unless he personally knew or should have . known of its nonperformance or mal-performance, but he nonetheless failed to cure the risk of harm.

Further, in Pfister v. Phoenix of Hartford Insurance Company, 290 So.2d 362 (La.App. 4th Cir. 1974), writs denied, La., 293 So.2d 187, this court recognized the established rule that if an employer puts his employee in a position of undisclosed danger, he is liable to the employee who is injured thereby. See also, Abshire v. Hartford Accident and Indemnity Insurance Company, 289 So.2d 545 (La.App. 3rd Cir. 1974), writs denied La., 293 So.2d 170, which concluded that the petition stated a breach of employment-imposed duty to provide a safe place to work.

Lou-con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir. 1973), writs refused, La., 290 So.2d 899, 901 (1974), involved a tort claim asserted by a customer against a janitorial service for damages, caused to the customer as a result of a criminal act of a janitorial employee. In Lou-con, this court recognized and adopted the rule that an employer- who hires an employee who, in the performance of his duties, will have a unique opportunity to commit a crime against a third party, has the duty to exercise reasonable care in the selection of the employee.

In our ease the allegations assert that the executive officers are charged with the duties of formulating and enforcing policies pertaining to employment, hiring, management and security; that they failed to provide the employee with a safe place to work; that they failed to properly screen applicants for employment; that they failed to warn decedents and employees working with the assailant of his criminal record and his propensity for felonious acts, when they knew or should have known of his background; that they subjected employees to working with potentially dangerous co-employees; that they failed to issue adequate security instructions to the employees; that they placed the assailant, whom they knew or should have known had a dangerous criminal record, in an employment classification and work environment in close proximity to large cash flow without explaining the assailant’s character and background to the decedent manager; and that they carelessly delegated duties to subordinates regarding security, personnel screening and hiring as well as personnel discipline and management.

The petitions allege the breach of an employment-imposed duty to provide a safe place to work, R.S. 23:13 and Abshire, supra. The petitions further allege that the executive officers, who are responsible for the adoption of a policy and responsible for the implementation and carrying-out of that policy, breached the duty of exercising reasonable care in the selection of employees when an employee is possessed of a unique opportunity to commit a crime. Lou-con, Inc. v. Gulf Building Services, Inc., supra.

However, Smith was not a co-employee at the time the crimes were committed. He had been discharged “several days” before the robbery and murder. Significantly absent from the petitions in the two consolidated suits are allegations that Smith’s former employment was connected with his being in a position to kill Canzoneri and Brubaker so as to make the executive officers liable.

One may reasonably argue that such an implication arises from the allegations which connect the violent acts to Smith’s employment, but courts must look to the allegations of fact to ascertain whether or not those allegations, taken as true for the purposes of the exception, plainly state a cause of action. When we consider the allegations in these petitions we conclude that they fail to allege a connection between Smith’s earlier employment with Self-Service Restaurants, Inc. and his being in a position to commit the acts of violence so as to make the executive officers liable. Accordingly, we find no error in the judgment of the trial court maintaining the exceptions of no cause of action in the consolidated suits. However, where these exceptions have been maintained, the petitioner shall be afforded an opportunity to amend the petition to state a cause of action when the amendment to a petition can be made. LSA-C.C.P. 927 and 934. The judgments maintaining the exceptions of no cause of action are affirmed. These matters are remanded, consistent with the foregoing, to permit petitioners an opportunity to amend.

AFFIRMED AND REMANDED.


text:
    C. James HICKS, Ltd. v. Joseph SCHOUEST, Independent Insurance Corporation, and XYZ Insurance Company.
    No. 10868.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Badeaux, Discon, Cumberland & Barbier, Carl J. Barbier, New Orleans, for defendants-appellants.
    James H. Minge, New Orleans, for plaintiff-appellee.

      Before GULOTTA, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a lower court judgment which was rendered against a defendant who had made a general appearance in the case, but who was absent from the trial because neither he nor his attorney received a notice of trial.

On March 10, 1977,' plaintiff C. James Hicks, Ltd. brought this action seeking damages in the amount of $8,000.00 from Joseph Schouest, agent for Independent Insurance Corporation, alleging that on October 26, 1976, defendant had undertaken to procure for plaintiff an insurance policy including collision coverage.

On February 10, 1977, plaintiff’s vehicle was involved in an accident. Following the accident, plaintiff was informed that only liability coverage was in effect and that no collision coverage had been procured.

Defendant filed an exception to the petition, as well as answers to both the original and amended petition. On June 15, 1978, the case proceeded to trial. At that time, neither defendant nor his counsel appeared for trial. The case was presented in a manner similar to a default judgment. The case was taken under advisement and judgment in favor of plaintiff was- rendered on June 19, 1978. The defendant was served with the judgment on July 13; his attorney was served on July 13.

On July 13, 1978, counsel for defendant moved for a new trial. The motion was dismissed on the grounds that it was not timely filed. Defendant subsequently perfected the instant appeal.

On appeal, defendant contends that the judgment below should be vacated and the matter remanded for a new trial on the grounds that he was deprived of procedural due process. Defendant did not receive a notice of trial, hence he was deprived an opportunity to present a defense. We agree.

Article 1571 of the Code of Civil Procedure provides as follows:

“The district courts shall prescribe the procedure for assigning cases for trial, by rules which shall:
(1) Require adequate notice of trial to all parties; and
(2) Prescribe the order of preference in accordance with law.
These rules shall not allow the assignment of ordinary proceedings for trial except after answer filed.”

Additionally, Rule 10 § 5 ¶ 2 of the Rules of the Civil District Court for the Parish of Orleans provides:

“. . . The Minute Clerk of said Division shall mail to the attorneys of record in the case, a Notice of Trial not less than twenty days prior to the date fixed for said trial.”

Adequate notice is one of the most elementary requirements of procedural due process. In the instant appeal, there is nothing contained in the record to show that a notice of trial was ever mailed. We believe that fundamental fairness and the right of access to courts require that the judgment be vacated and the case be remanded for a new trial. Anders v. Anders, 267 So.2d 921 (La.App. 1st, 1972).

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial . . .” Art. I § 22, La.Constitution of 1974.

Accordingly, the judgment of the lower court is vacated and set aside, and the case is remanded.

VACATED AND SET ASIDE.

      . We note that every other pleading or notice in the record contains a sheriffs return, certificates of counsel or certificate of court.


text:
    Wayne PENNEY v. Mary Ann Bradford PENNEY.
    No. 10875.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    William Noland, New Orleans, for plaintiff-appellant.
    Reed & Reed, Floyd J. Reed, New Orleans, for defendant-appellee.
    Before GULOTTA, BOUTALL and CHE-HARDY, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment awarding $450.00 per month to his divorced wife as child support for their nine-year-old son, who has medical problems requiring the expenditure of extraordinary funds. The record shows the annual earnings of the husband (a police officer who was on strike at the time of hearing) amount to approximately $15,000.00. The wife’s earnings for the entire year were slightly over $2,000.00. The court ordered the husband to pay the wife $450.00 .per month in child support. We find no abuse of the trial court’s discretion in awarding this amount.

The trial judge stated:

“Court finds from the evidence, produced herein, that Mrs. Penney does not have the ability to make any contribution whatsoever to the support of that child. Her income is insufficient to support herself much less to pay for anything to support the child.”

We find no error in his conclusion. Unlike the situation in Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978), there is nothing in the record here to indicate Mrs. Penney did not perform the duties of a custodial parent in addition to working part-time as a substitute teacher. See Ducote v. Ducote, 339 So.2d 835 (La.1976).

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    SAUNDERS LEASING SYSTEM, INC. v. Gail NEIDHARDT, d/b/a Gail’s Automotive.
    No. 10879.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.

      Edward N. George, III, Joseph W. Rausch, Stassi & Rausch, New Orleans, for Saunders Leasing System, Inc., plaintiff-appellant.
    George P. Vedros, Gretna, for Gail Neid-hardt, d/b/a Gail’s Automotive.
    Before GULOTTA, BOUTALL and CHE-HARDY, JJ.
   BOUTALL, Judge.

Saunders Leasing System, Inc. sued to recover damages for an automobile delivered to defendant Gail Neidhardt, d/b/a Gail’s Automotive, for cleaning and which was taken from defendant’s premises and found destroyed. The trial court held plaintiff failed to prove its case insofar as the establishment of a relationship which would impose liability on the defendant, and dismissed plaintiff’s suit. Plaintiff appeals.

In its efforts to show a paid depositary relationship between the parties, plaintiff produced an employee who testified that another employee brought the vehicle to defendant’s premises on a Thursday in order to have cleanup services performed, and when she went to the premises on Friday afternoon to pick up the vehicle, she was told that the vehicle had been stolen. The defendant Neidhardt testified that the vehicle was brought in on a Tuesday, that' it could not be worked on Tuesday, but was cleaned Wednesday, that she took the vehicle to her home Wednesday night for safekeeping, and that the vehicle was returned to the business premises Thursday. She noticed the vehicle was parked there Thursday at noon, but was not there Thursday afternoon at 5:00 o’clock when she left. Although the trial judge made, no findings as to credibility of these two witnesses, presumably he must have disbelieved plaintiff’s employee to arrive at his finding. However, considering only the testimony of the defendant herself, we conclude there is sufficient evidence to support a finding of a relationship of paid depositary, and that the trial judge erred in his application of the law to these facts.

Neidhardt testified that she was operat-. ing a business which consisted of the cleaning of automobiles for various automobile dealers and others. Although she was not present when this vehicle was brought (she was one of three persons authorized to receive vehicles) someone told her that the vehicle was there for an interior cleaning job and she wrote a ticket for this job on it. The work could not be performed Tuesday, and was performed Wednesday. She testified that the vehicle was supposed to be picked up Wednesday afternoon but was not, so she took it to her home and put it under her carport with the windows open so the interior could dry out. It was returned to the business premises on Thursday and parked the second car from the door of the garage. At noon she got in the first car and went to lunch, and noted that when she left at 5:00 o’clock the car was no longer there. She testified that the normal practice is to keep the keys to the vehicles on a peg-board in the shop except when they are actually being moved in the process of being cleaned. The keys for this car were missing from the peg-board, but since she herself had not returned the car to the premises she did not know whether the keys, had been left on the peg-board or left in the car.

To these facts, we would apply the following law: Civil Code Article 2926 provides that a deposit is an act by which a person receives the property of another, binding himself to preserve it and return it in kind. The delivery of a car to a repairman constitutes a compensated deposit. Alexander v. Quik Change Car Center, Inc., 352 So.2d 188 (La.1977); Labbe v. Mt. Beacon Insurance Company, 221 So.2d 354 (La.App. 4th Cir. 1969). We perceive no basic difference between the repair of the vehicle or cleaning the interior of the car in accordance with the business of this defendant. Civil Code Article 2937 requires the depositary to use the same diligence in preserving the deposit that he uses in preserving his own property. The depositary, whether gratuitous or compensated, is held to the standard of prudent administrator. This standard is to be applied more rigorously when the depositary is compensated. Guillot v. Kaplan Farmers Co-Op, Inc. 352 So.2d 402 (La.App. 3rd Cir. 1977) and the cases cited therein. The facts in this case show both the fact of the deposit and the expectation of compensation.

Once the existence of a deposit and loss of or damage to the property while deposited is established, a presumption is raised that the loss resulted from the lack of due care on the depositary’s part, and the burden is then on the depositary to exonerate himself from fault. Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La.1973); Grabert v. James C. Noel Flying Service, Inc., 360 So.2d 1363 (La.App. 3rd Cir. 1978). In this case the only circumstances shown by defendant are that the vehicle was parked on her lot near the garage, and that it was removed by unknown parties between the hour of noon and closing time of 5:00 P.M. and that the keys to the vehicle were also missing. We consider the fact of the missing keys to be especially significant in our determination of whether the defendant has met its heavy burden of exonerating itself from fault for the disappearance and subsequent damage of the vehicle, and conclude that the defendant has not absolved herself from fault.

There remains the matter of damages. The evidence shows that the vehicle was found several days later, and was a burned out wreck. Although a repairman who testified admitted that he did not see the car in fact, from the pictures he con-eluded that the vehicle was a total loss. We agree. The problem is what value should be placed upon the vehicle? The evidence produced as to value is rather indefinite, and we are tempted to some degree to remand this matter for a more definite' proof of value, because of the unsatisfactory state of the evidence. However, we are convinced that the vehicle was a total loss, that it was in good condition, and was one year old at the time of the disappearance. It is not shown what amount was paid for the vehicle, but reliance is had upon the average value of used cars as set out in the National Automobile Dealers Used Car Guide (NADA). Plaintiff seeks recovery of the average retail price of $4750 plus $100 for additional vinyl top. However in view of the business of plaintiff, that is car leasing, and purchase of the vehicle from Ford itself, we believe a fairer value to be the average trade-in value or wholesale price indicated, that is $4025 with $75.00 for the additional vinyl top, or a total of $4100. We believe justice will be better served by fixing the amount of $4100, rather than remand.

For the reasons above expressed, the judgment appealed from is reversed and there is now judgment in favor of plaintiff, Saunders Leasing System, Inc., and against defendant, Gail Neidhardt, d/b/a Gail’s Automotive in the sum of $4100 with interest from date of judicial demand until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.


text:
    William Edward RIGDON v. RUSSELL ANACONDA ALUMINUM COMPANY and Travelers Insurance Company.
    No. 51714.
    Supreme Court of Mississippi.
    Jan. 16, 1980.
    Rehearing Denied April 16, 1980.
    Laurel G. Weir, Philadelphia, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Roger C. Clapp, Jackson, for appellees.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

AFFIRMED.