text:
    Freddie POOLE, Plaintiff-Appellant, v. WINWELL, INC., et al., Defendants-Appellees.
    No. 7484.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    George Griffing, Jonesville, for plaintiff-appellant.
    Smith, Taliaferro, Seibert, Boothe & Pur-vis by Leo Boothe, Jonesville, for defendants-appellees.

      Before CULPEPPER, GUIDRY and DOUCET, JJ.
   GUIDRY, Judge.

Plaintiff, Freddie Poole, owner of a forty-three acre tract of land in Catahoula Parish, seeks the cancellation of two surface leases affecting 5.5 acres of said tract and/or damages for the overflow of salt water from the lessees’ oil collecting facility onto both leased and adjacent non-leased portions of the tract. Made defendants in this suit are the lessees who own undivided interests in the two surface leases: Winwell, Inc., C. S. McCain, Jr., and the Succession of Douglas Whitaker. The defendant-lessees acquired the two surface leases from plaintiff’s ancestor in title, Rex G. Poole: one on December 23, 1962, covering 2.5 acres; and the other on August 21, 1963, covering 3 acres contiguous with the other leased premises. Defendant’s objective in leasing the property was to establish and maintain an oil and gas gathering facility thereon and this is specifically permitted under the terms of the leases. The term of said leases is so long as there is production from wells located in Sections 9, 16 or 41, Township 9 North, Range 6 EAst, Catahoula Parish, Louisiana. Winwell, Inc. operates the oil collection site on said leased property which consists of a tank battery, a salt water disposal well, and a salt water disposal pit. The oil currently collected is pumped from wells on land other than plaintiff’s, but located within the above mentioned sections.

Plaintiff alleges that defendants breached their engagements under the August 21, 1963 lease agreement by allowing salt water and/or oil to escape and damage his property. Further, plaintiff asserts that both lease instruments are null and void because they contain potestative conditions, are indefinite as to duration, and are unsupported by serious or adequate consideration. Defendants denied plaintiff’s allegations and filed an exception of prescription asserting that all damages alleged in plaintiff’s petition, if any, occurred more than one year prior to the filing of the suit. The trial judge sustained the exception of prescription of one year as to plaintiff’s damage claim. The trial court also held the leases to be valid and denied plaintiff’s demand for their cancellation. From this judgment plaintiff appeals.

The primary issues for our consideration are whether plaintiff’s claim for damages is barred by the liberative prescription of one year and whether the trial court erred in holding the leases valid and denying their dissolution.

PRESCRIPTION

In order to determine whether in the instant case plaintiff’s action for damages is barred by a prescriptive period of one year, it is necessary to examine the grounds on which his action is based. The nature of the obligation breached determines the applicable prescriptive period. LSA-C.C. Art. 3531; Dean v. Hercules, Incorporated, 328 So.2d 69 (La.1976).

The decision of the trial court apparently was founded on the conclusion that plaintiff’s petition sounded in tort and since all damage to the property occurred more than one year prior to the institution of suit, the action had prescribed under Civil Code Article 3536.

Our examination of the petition convinces us that the trial court erred in considering the action as one in tort. We conclude that the suit is one sounding in contract and that the one year prescriptive period of Article 3536 does not apply.

In Federal Insurance Co. v. Insurance Co. of No. Amer., 262 La. 509, 263 So.2d 871 (1972), the Supreme Court reiterated established guidelines in determining the appropriate prescriptive period in circumstances as are found in the instant case:

“It has been recognized by this Court on numerous, occasions that when a party has been damaged by the conduct of another arising out of a contractual relationship, the former may have two remedies, a suit in contract, or an action in tort, and that he may elect to recover his damages in either of the two actions. In such cases, the prescription applicable is determined by the character which plaintiff gives his pleadings and the form of his action. American Heating & Plumbing Co., Inc. v. West End Country Club, 171 La. 482, 131 So. 466 (1930); Kramer v. Freeman, 198 La. 244, 3 So.2d 609 (1941); LaFleur v. Brown, 223 La. 976, 67 So.2d 556 (1953); and Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (1957).”

In plaintiff’s petition, he cites in paragraph 9 a provision from the lease executed on August 21, 1963, which provides as follows:

“Lessee further agrees to keep these premises in good condition, and to conduct and operate its facilities thereupon in such a manner so as not to interfer (sic) with lessor’s use and enjoyment of the adjoining property owned by him."

In paragraphs 10 and 11, plaintiff asserts that the defendants breached the above cited lease provision by allowing salt water and/or oil to escape causing damage to plaintiff’s land which he particularly alleges as permanent damage suffered by the land, trees, and fences.

Although plaintiff did seek to argue the applicability of a continuing tort theory to the case, it is manifestly clear that the damages plaintiff seeks arise ex contractu, i. e., from the violation of the lease contract executed on August 21, 1963, as set forth in his petition. Accordingly, as plaintiff’s claim is not barred by prescription of one year, we now consider the question of what damages are due.

Plaintiff alleges in his petition that his land was damaged in the amount of $15,-000.00 because of the salt water and/or oil spill-over: $5,000.00 damage to leased premises; $10,000.00 damage to non-leased land. Testimony and evidence adduced at trial evidently convinced the trial judge, as we are likewise convinced, that plaintiff’s land in fact was damaged by salt run-off caused by the oil collection operation conducted on the leased premises by defendants. The salt run-off left the property directly adjacent to the leased premises barren and unsuitable for the growth of vegetation or the grazing of animals. However, as the trial judge was of the opinion that plaintiff’s claim for damages had prescribed, the trial court made-no determination as to the extent of damage to plaintiff’s property.

In determining an award for damages, we will consider only damage to the property that lies outside the leased premises. We do so because the lease is still ongoing, for reasons discussed infra, and the defendant-lessees have apparently made good faith efforts to keep the leased premises in good condition in light of the purpose for which it is employed. Defendant-lessees have filled in two of the original three salt water disposal pits and apparently intend to make further on-site rehabilitation efforts; therefore, the determination of damages to the leased property is inappropriate and, in any event, premature at this time.

Plaintiff utilizes the 37.5 acres outside of the leased premises by renting same for the grazing of livestock. As to plaintiff’s property adjacent to the leased premises that was damaged, the evidence in the record establishes this area to be 3.5 acres (out of a total of 9 acres damaged by the salt run-off). This damaged area is no longer suitable for the purposes plaintiff has been employing it. Although the damaged 3.5 acres retains some residual value, it has little or no rental or use value. Using the evidence adduced at trial as to the land’s market value, based on comparable sales of land in the vicinity of plaintiff’s tract, we find that the damage sustained by plaintiff amounts to the sum of $2,250.00, exclusive of the leased premises.

VALIDITY OP THE LEASES

Plaintiff attacks the validity of the two surface leases on three alleged grounds: (1) they lack a definite term; (2) they contain potestative conditions; and, (3) they are not supported by serious or adequate consideration. We find plaintiff’s arguments against the validity of the leases to be without merit.

First, as to the term element of the leases, the December 23,1962 lease contains the following provision:

“This lease shall continue in force and effect so long as oil, gas and other minerals are being produced from Sections 9, 16 and/or 41, Township 9 North, Range 6 East, Catahoula Parish, Louisiana.”

The August 21, 1963 lease provides as follows:

“This lease shall be for a term of ten (10) years from this date or for so long as oil, gas, or other minerals are produced by this lessee or its assigns from the Rex G. Poole # 1 well, the Louisiana Central— International Paper wells number Al, A2, and A3, or any other oil or gas well produced by this lessee or its assigns in Sections 9, 16, or 41 of Township 9 North, Range 6 East, Catahoula Parish, Louisiana. ”

Plaintiff argues that the above cited term provisions provide for no “certain time” in contravention of the definition set forth in LSA-C.C. Article 2674, which provides:

“To let out a thing is a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay.”

However, the origin of Article 2674 as reviewed in Judge Culpepper’s dissent in Hartford Fire Insurance Co. v. Roger Wilson, Inc., 252 So.2d 161, (La.App.3rd Cir. 1971), writ denied, 259 La. 939, 253 So.2d 381, suggests a different conclusion:

“. . . The source of this article is Code Napoleon of 1804, Article 1709, which reads the same. Planiol, Volume 2, No. 1669, explains that the purpose of the requirement that a lease be for “a certain time” is to prohibit leases is perpetuity, which had developed in feudal states during the Middle Ages. Laws passed during the first years of the French Revolution limited the duration of leases to 99 years. However, the Code Napoleon of 1804 makes only the vague limitation that leases shall be during “a certain time”, and the redactors of our Civil Code used the same language. Nevertheless, the purpose of the limitation is to prohibit leases in perpetuity. The legislative intent was not to require that leases be for a certain period of time, such as a week, month, year, etc.”

Our jurisprudence has confirmed this interpretation. In Busch-Everett Co. v. Vivian Oil Co., 128 La. 886, 55 So. 564 (1911), our Supreme Court upheld a lease with a production term similar to those in the instant case, holding that it is not necessary that the term of a lease be expressed in terms of time, for the lease may be stipulated to continue only during the continuation of a given condition. Accordingly, the term provisions of the leases involved in the instant suit are not at variance with codal requirements.

The term provisions of the leases, cited above, are also the bases for plaintiff’s argument that the leases contain potestative conditions. Plaintiff argues that the term of the leases, conditioned on production, are purely potestative because the continuance of the lease depends on an event which is in the power of the defendants to bring about or hinder.

The trial court held that the term provisions of the leases were not purely potesta-tive, but simply potestative, thereby, affirming the use of such conditions as sanctioned by LSA-C.C. Article 2035. Although .we agree with the trial court’s conclusion that the term provisions are not purely potestative, we do not find Article 2035 applicable. The pertinent codal articles are as follows:

LSA-C.C. Article 2023:
“The casual condition is that which depends on chance, and is no way in the power either of the creditor or of the debtor.”
LSA-C.C. Article 2024:
“The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.”
LSA-C.C. Article 2025:
“A mixed condition is one that depends at the same time on the will of one of the parties and on the will of a third person, or oh the will of one of the parties and also on a casual event.”
LSA-C.C. Article 2034:
“Every obligation is null, that has been contracted, on a potestative condition, on the part of him who binds himself.”
LSA-C.C. Article 2035:
“The last preceding article is limited to potestative conditions, which make the obligation depend solely on the exercise of the obligor’s will; but if the condition be, that the obligor shall do or not do a certain act, although the doing or not doing of the act depends on the will of the obligor, yet the obligation depending on such condition, is not void.”
LSA-C.C. Article 2036:
“An obligation may also be made, by consent of the parties, to depend on the will of the obligee for its duration. Thus a lease may be made during the will of the lessor, and a sale may be made conditioned to be void, if the vendor chooses to redeem the property sold.”

Applying the definitions of the three types of conditions to the case at hand, it is clear that the provisions concerning the duration of the leases, being dependent on production, are mixed conditions as described in Article 2025. The production of oil does not depend solely on the will of the lessees as„the wells may go dry or production may decrease to such a degree to make it economically impracticable to continue.

However, assuming arguendo, that the assailed lease provisions are purely potesta-tive, i. e., the decision to produce or not produce being solely dependent on the defendant-lessees’ will; nevertheless, they relate only to the duration of the lease. In such case they would be resolutory potesta-tive conditions, which are specifically authorized under LSA-C.C. 2036. Long v. Foster & Associates, Inc., 242 La. 295, 136 So.2d 48 (1962). In Long, supra, the court stated:

“. . . But conceding for the sake of argument (and for that purpose only) that the assailed cancellation clause was purely potestative in nature, nevertheless it related solely to the duration of the contract; and Revised Civil Code Article 2036 specifically recognizes the validity of an agreement when the duration thereof is left to the will of one of the parties.

Plaintiff’s third argument, that the consideration paid for the lease is not serious and not in proportion to the value of the thing leased, is not supported by the record. Plaintiff’s father, Rex G. Poole, was paid $575.00 in advance for the execution of the leases. Plaintiff failed to come forward with any evidence to show that the price paid by the lessees was not serious or not in proportion to the market rental value of the 5.5 acres either in 1962 and 1963 or in 1977. Quite to the contrary, defendant’s expert, on the basis of conveyances executed in the immediate vicinity of plaintiff’s property, shows that the $575.00 paid for the lease of plaintiff’s 5.5 acres is not greatly disproportionate to prices paid for the sale of land in fee in 1963.

DISSOLUTION

Finally, we consider whether the trial court abused its discretion in not dissolving the leases for the non-fulfillment by defendant-lessees of their engagement to not interfere with the lessor’s use and enjoyment of the adjoining property owned by him. .

Plaintiff seeks dissolution on the basis of LSA-C.C. Article 2729, which provides:

“The neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease, in the manner expressed concerning contracts in general, except that the judge can not order any delay of the dissolution. ”

The trial court concluded that the salt water overflow was not of such a severe nature so as to warrant cancellation. We agree. As we stated in Vidrine v. Morein, 360 So.2d 659 (La.App.3rd Cir. 1978):

. .It is well settled that the right to dissolve a lease Is subject to judicial control according to the circumstances. Housing Authority of the City of Lake Charles v. Minor, 355 So.2d 271 (La.App.3rd Cir. 1977, cert. denied). In the cited case, we stated: ‘. . . our courts, on the basis of equity, are vested with discretion under some circumstances to decline to grant a lessor cancellation of a lease although such right appears to be otherwise available to him.’ . . . ”

In the instant case, the salt water overflow was an unfortunate consequence of the operation conducted on the leased premises. It is inherent in the nature of oil production that a great quantity of salt water is also produced. Defendant-lessees have taken measures to prevent any further overflows by the drilling of a salt water disposal well and the addition of a salt water storage tank. We are of the opinion that plaintiff’s rights have been sufficiently vindicated by the award of damages that we make today for plaintiff’s loss.

For the reasons assigned, the judgment appealed from is affirmed in part, reversed in part and rendered to read as follows:

The exception of prescription filed by defendants is overruled and judgment is rendered in favor of plaintiff Freddie Poole and against the defendants, Winwell, Inc., C. S. McCain, Jr., and the Succession of Douglas Whitaker, in solido, condemning said defendants to pay unto plaintiff the sum of $2,250.00 with legal interest thereon from date of judicial demand until paid.

It is further ordered, adjudged and decreed that all of plaintiff’s other demands are dismissed with prejudice.

All costs of these proceedings at the trial level and on appeal are to be borne one-half (V2) by plaintiff and one-half (V2) by defendants.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . The record indicates that the apparent cause of the damage is the result of the deepening of the salt water pits and pit overflow onto adjoining lands. In 1965, Winwell, Inc. deepened the pits with a dragline and the salt-saturated sand and silt from the pits was used to make a levee around the pits. Subsequent rain action or overflow from the salt water pits washed the salt from the levee and spilled over onto the surrounding area.

      . Plaintiff filed suit September 7, 1977. From the testimony and evidence adduced, the trial judge concluded that the property damage had already occurred prior to the taking of an aerial photograph in 1972.

      . The prescriptive period for an action arising ex contractu is 10 years as set forth in LSA-C.C. Article 3544; however, as defendant failed to plead the exception of prescription of 10 years, any issue pertaining thereto is not before this court.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    CITIES SERVICE COMPANY, Plaintiff-Appellee, v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY, Office of the Commission on Alcoholic Beverage Control, Defendant-Appellant.
    No. 7495.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Robert L. Roshto, Baton Rouge, for defendant-appellant.
    Jones, Patín, Tete, Nolen & Hanchey, William T. McCall, Lake Charles, for plaintiff-appellee.
    Before CUTRER, STOKER and La-BORDE, JJ.
   LABORDE, Judge.

Plaintiff-appellee seeks to obtain a license allowing it to sell alcoholic beverages of less than 6% alcohol by volume. The defendant-appellant denied plaintiff-appel-lee’s request for a beer permit. Plaintiff-appellee petitioned the district court and after a trial on the merits the district court rendered judgment reversing the administrative determination and granting the desired permit to Cities Service Company.' It is from this judgment that defendant-appellant has perfected this appeal.

Cities Service Company owns a convenience store known as Quick-Mart # 7272 at 2060 South Ruth Street in Sulphur, Louisiana. Plaintiff-appellee made an application with the City of Sulphur to obtain a beer permit. Since a church is located in the immediate vicinity of the premises to be licensed, state, law and an ordinance of the City of Sulphur required that the premises to be licensed be 300 feet from the church.

LSA R.S. 26:280 reads in pertinent part:

A. No permit shall be granted under this Chapter in contravention of any municipal ordinance adopted pursuant to the zoning laws of the state.
B. No permit shall be issued by state or local authorities to authorize the conduct of business in any subdivision of the state wherein that business has been prohibited by referendum vote.
C. When prohibited by municipal or parish ordinance no permit shall be granted for any premises situated within three hundred feet or less, as fixed by the ordinance, of a public playground or of a building used exclusively as a church or synagogue, public library,' or school, except a school for business education conducted as a business college or school. In municipalities and in unincorporated areas which are divided into subdivisions with streets, blocks, sidewalks, etc., this distance shall be measured as a person walks using the sidewalk from the nearest point of the property line of the church or synagogue, library, playground, or school to the nearest point- of the premises to be licensed.

The City of Sulphur has an ordinance identical to the state statute. It reads in pertinent part:

(a) No application for a new permit, or for a change from a class “B” permit to a class “A” permit (for either'beverages of high or low alcoholic content) shall be considered by the collector or the city council until the applicant has secured the written consent, on a form provided by the city, for the sale of the alcoholic beverages he proposes to sell, of the majority of the resident homeowners residing within three hundred (300) feet' of the proposed location.
(b) No permit shall be granted for any premises situated within three hundred (300) feet of a public playground or of a building used exclusively as a church or synagogue, public library, or school, except a school for business education conducted as a business college or school. This distance shall be measured as a person walks, using the sidewalk, from the nearest point of the property line of the church or synagogue, library, playground or school to the nearest point of the premises to be licensed.

The City of Sulphur determined that the premises to be licensed was over 300 feet from the church and issued the permit to the plaintiff-appellee.

The defendant-appellant denied the application for a beer permit submitted by Cities Service Company on the grounds that the premises was within 300 feet of a church.

At the trial, the parties to this litigation entered into a joint stipulation regarding the method of measurement. Except for one major difference, both parties measured the distance the same way. Plaintiff-appel-lee measured the distance to the nearest door of the facility. The total distance equaled 304 feet. The defendant-appellant measured to the corner of the building nearest the intersection of Cemetery Road and Ruth Street. The total distance equaled 289 feet.

The trial judge rendered a decision in favor of plaintiff-appellee. We quote from the oral reasons given by the trial judge.

Apparently there is no real fact dispute in this matter. It is simply how we should measure to determine if a business is within the 300 foot limitation under the ordinance. The State Statute tells us that we are to use sidewalks and so on in municipal areas, and as I appreciate the stipulation and counsel’s arguments for the State, the measurement to the premises, which is the corner of this facility, is 289 feet. Well, that measurement is not to an entrance into the building where beer would be purchased. In fact, you’d have to go another . . . about 15 feet along the outside of the building to get into a door. I don’t think we ought to belabor all of this too much. There’s apparently no case that counsel have been able to point out to me, and I haven’t found one where we talk about measuring to the door. We talk about premises and so on, and you know, there’s a rule of law that says we are to give our laws and the interpretation of our laws a reasonable interpretation so as to be meaningful. To me, and I very well could be wrong; I’ve been wrong before, but to hold that a corner where you cannot get in the building is what we mean in the statute as premises, to me it gets kind of ridiculous because you can’t enter the building, and I would think that it has to be an entrance of some sort into the building. So, I’m going to rule in favor of the plaintiff.

Defendant-appellant argues that the statute in question is clear, unequivocal, and certainly not unreasonable. It is further argued by defendant-appellant that “the nearest point of the premises to be licensed” does not mean the nearest entrance and contends that if the legislature had intended to mean entrance, it would have been easy enough to have said so. In addition, defendant-appellant argues that to accept the trial court’s interpretation would give rise to various schemes to secure permits by persons who are not now eligible but who would become so by relocating the entrance of their building from one end to another or by sealing a rear entrance. Randolph v. Village of Turkey Creek, 240 La. 996, 126 So.2d 341 (1961) is cited by defendant-appellant as authority that the Supreme Court interpreted “premises” to mean building and not the entrance.

The Supreme Court considered the language of LSA-R.S. 26:280, Subd. C. in Randolph v. Village of Turkey Creek, supra, and held that:

The use of the property line of the church, school, et cetera, is in our opinion an obvious attempt by the Legislature to permit the removal from the area occupied by such institutions, including their yards and grounds, those activities which are undesirable and which may be associated with establishments selling alcoholic beverages. It is felt, therefore, that insofar as the measurement at the church, school, et cetera, is concerned it must be made from the point nearest the sidewalk of its outer boundary or property line in which the usual and ordinary activities incident to such an institution are carried on. With respect to the other point of-measurement, the premises to be licensed, was it the legislative intent to designate the building, structure, or area, or, in a proper case, the portion thereof in which beverages of low alcoholic content were sold, or the property line, or outer boundary? No plausible reason occurs to us and none has been advanced such as exists in the case of a church, et cetera, to make the measurement from the property line or outer boundary of the land on which a building, structure or area selling alcoholic beverages is located merely because it is located thereon. Especially is this true when we consider, as in the case at bar, that there may be some appreciable distance intervening between the property line or outer boundary and the actual building, structure or area whereon the activity which is sought to be removed from the church, et cetera, is ' carried on. It is not necessarily true that the property line of the lot on which the' building, structure, or area selling alcoholic beverages is the location whose proximity is in question; rather, it is the building or structure where the alcoholic beverage is sold which is the location contemplated; whereas, in the case of a church or school the lot itself used by that institution is sought to be protected from proximity to the liquor establishment. The lot on which a building selling alcoholic beverages is located is not necessarily used in connection, with that activity, or, in other words, is not necessarily a portion of the “premises to be licensed”.

On rehearing, the court in Food Town v. Town of Plaquemine, 129 So.2d 877 (La. App. 1st Cir. 1961) followed the rationale of the Supreme Court.

. According to this wording, and the clear intention of the statutes and the ordinance under consideration, we feel that, under the facts set forth in this suit, the distance shall be measured as a person walks using the middle of thé sidewalk from the nearest point of the property line of the school to the nearest point of the premises wherein liquor is to be sold.

We now come to the crux of this case wherein we are asked to interpret the phrase “to the nearest point of the premises to be licensed.”

Plaintiff-appellee urges that said phrase should be construed as requiring a measurement to the nearest entrance of the premises to be licensed. It contends that the City of Sulphur used this approach in finding that the premises was not within the prohibited distance from the church.

We conclude that plaintiff-appellee’s argument, while novel, has no merit. It is clear that the Legislature intended to put a 300 foot minimum distance between the protected property and the premises to be licensed. In Randolph v. Village of Turkey Creek, supra, our Supreme Court interpreted “premises” to mean building. “. (I)t is the building or structure where the alcoholic beverage is sold which is the location contemplated . . . .”

We accept the measurement of defendant-appellant. Since the distance between the corner of the building to be licensed and the church property is 289 feet (as stipulated), a permit cannot be issued to plaintiff-appellee under LSA R.S. 26:280.

For the above and foregoing reasons, the decision of the trial court is reversed. The costs are assessed to plaintiff-appellee.

REVERSED AND RENDERED.


text:
    Jimmy L. JACOBS, Plaintiff-Appellant, v. Joseph GERACE, Administrator, Division of Employment Security, and City of Alexandria, Defendants-Appellees.
    No. 7496.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Camille J. Giordano, Alexandria, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, Garrett, Ryland & Nunnally, B. Dexter Ryland, Alexandria, for defendants-appellees.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

The plaintiff, Jimmy L. Jacobs, was held disqualified for unemployment compensation by decision of the Board of Review of the Louisiana Office of Employment Security. The disqualification was based on the determination by the Appeals Referee that plaintiff had been discharged for misconduct connected with his employment. The plaintiff filed suit in district court to obtain judicial review of this decision. The trial court affirmed the decision of the Board of Review. The plaintiff appeals from that judgment.

Our review in this case is controlled by LSA-R.S. 23:1634 which provides in part:

“In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to question of law.”

This court interpreted that language in Turner v. Brown, 134 So.2d 384 (La.App. 3rd Cir. 1961).

Under the statute, the courts must accept the factual findings of the administrative agency if supported by sufficient evidence. But the legislature has also provided for judicial review of questions of law affecting the administrative determinations, which review includes the judicial determination of whether, under the facts found by the agency, the claimant is or is not as a matter of law entitled to receive the benefits provided by the unemployment compensation statute. As summarized in Broussard v. Administrator, Division of Employment Sec., La. App. 1 Cir., 121 So.2d 268, 270-271: “ ‘ * * * the courts may not invalidate the findings of fact by the Board of Review where supported by evidence entitled to judicial acceptance. It is equally clear, however, that where a court must ascertain the effect of the act, judicial responsibility embraces the question of whether such findings are indicative of a disqualification under the statute,’ * * ‘While the courts cannot question facts as found by the Board if supported by sufficient evidence, they should always be able to determine the meaning, of the law to be applied to those facts and to review the application of the law.’ * * * ”

We do not review the facts presented because we do not feel that the facts, if proved, would support the conclusion of the Appeals Referee that claimant’s discharge was due to his own misconduct connected with his employment and was under disqualifying conditions.

The relevant statute is LSA-R.S. 23:1601 which provides: “An individual shall be disqualified for benefits . . . [i]f the administrator finds that he has been discharged for misconduct connected with his employment. . . . ” Misconduct is not defined under the Louisiana Employment Security Law.

Louisiana jurisprudence had adopted the definition of misconduct found at 48 Am. Jur., Social Security, Unemployment Insurance, Etc. § 38 at 541.

Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

The notice of hearing specifies that the claimant is charged with “ . . . firing a firearm on city property, which endangered other city employees in the area. Your action resulted in a willful disregard of your employer’s interests.” [Emphasis supplied.] We believe that, in determining whether as a matter of law claimant willfully disregarded his employer’s interest, we must consider claimant’s actions and not those of another person. In concluding that claimant was discharged due to misconduct connected with his employment, the Appeals Referee stated:

From the evidence and facts presented, it is concluded that the claimant had been threatened that morning but did not use sound judgment in reporting to work and also taking a gun with him when he did and when he was shot at, he returned the fire without considering the other people around him, and that his actions did endanger other people’s life [sic] and did not consider the results of what would have happened to his employer had anything happened to his fellow workers around him.

We agree with the Appeals Referee that claimant may not have used sound judgment. But failure to' use sound judgment is not the same as a willful disregard for the employer’s interest. See, Turner v. Brown, 134 So.2d 384 (La.App. 3rd Cir. 1961); Johnson v. Brown, 134 So.2d 388 (La.App. 3rd Cir. 1961); Beaird-Poulan, Inc. v. Brady, 154 So.2d 589 (La.App. 3rd Cir. 1963). The above cited cases all involve single incidents which, as phrased by this court in Johnson, at p. 389, “cannot be considered the type of premeditated and seriously improper conduct which constitutes, within the meaning of the statute, the serious cause sufficient to deny unemployment compensation benefits to an employee.” "

We agree with Justice Holmes that, “Detached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961 (1921). We therefore hold that claimant’s conduct was not a willful disregard for his employer’s interest.

We think it worth noting that, prior to any shots being fired by claimant, shots were fired by the assailant at claimant and in the general direction of city employees, Transcript, pp. 12,13, and that the assailant continued to attack claimant, Transcript, p. 23. We feel the danger to city employees was created by the assailant and not by claimant. To find that claimant had willfully disregarded his employer’s interest here would ignore the plain fact that the danger was created by the assailant.

We do not have before us the issue of the fairness of the hearing, but we feel constrained to point out that the hearing reviewed here strains the bounds of fairness required by LSA-R.S. 23:1629. See, Huddleston v. Brown, 124 So.2d 225 (La.App. 2nd Cir. 1960) and Thompson v. Brown, 163 So.2d 868 (La.App. 2nd Cir. 1964). The leading questions of the referee a,nd hearsay testimony of three of the.four witnesses of the employer do not meet the approved test of legal and competent evidence. Huddleston v. Brown, supra; Gardere v. Brown, 170 So.2d 758 (La.App. 1st Cir. 1964).

For the reasons stated before, the judgment appealed from is reversed and it is now ordered that the Board of Review of the Office of Employment Security, Department of Labor, State of Louisiana, issue an order directing payment to claimant of the unemployment compensation benefits to which he is entitled under the Louisiana Employment Security law. The defendant-employer is cast for all costs as may be legally assessable.

REVERSED AND RENDERED.

      . Horns v. Brown, 243 La. 936, 148 So.2d 607 (1963) and cases cited therein.


author: FORET, Judge. DOMENGEAUX, Judge,

text:
    Marvin Kent WIDCAMP, Individually, etc., Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 7501.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Nathan A. Cormie and Harold L. Thibo-deaux, Lake Charles, for plaintiff-appellant.
    Stockwell & Sievert, Viccellio Clements & Shaddock, John S. Bradford, Raggio, Cap-pel, Chozen and Berniard, Richard B. Cap-pel, of counsel, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   FORET, Judge.

This is a tort suit that arises out of an accident which occurred at approximately 12:20 P.M. on July 19, 1977. The accident occurred at the intersection of U.S. Highway 90, also known as the Old Spanish Trail, and Hoffpauir Lane, in Calcasieu Parish, Louisiana, when a vehicle driven by Donald J. Ellender struck Daniel Widcamp, age 8, while the Widcamp boy was crossing U.S. 90.

Daniel Widcamp’s father, Marvin Kent Widcamp, brought this suit on his own behalf and on behalf of his minor son against Ellender, his insurer, State Farm Mutual Automobile Insurance Company, and his own underinsured motorist carrier, Allstate Insurance Company. The case was tried to a jury which found that the defendant, Ellender, was guilty of negligence in the operation of the vehicle he was driving at the time of the accident. The jury also concluded that Daniel Widcamp was guilty, of contributory negligence or assumed the risk, and accordingly, denied recovery. Further, the jury answered the portion of the special interrogatories on damages and awarded the sum of $1,786.68 in medical expenses, and the sum of $2,000.00 for personal injuries to Daniel Widcamp. Judge Hood informed the jury that its answers were inconsistent and told them that it would be necessary for them to review the verdict sheet and either answer question 2 “No”, or delete the damages which they awarded. The jury chose to delete the damages they awarded.

Plaintiff now prosecutes this appeal, assigning as error, the failure of the jury to properly apply the law to the facts, as they were instructed by the trial judge, and in finding Daniel Widcamp to be contributorily negligent, or having assumed the risk.

The issues presented are:

(1) Negligence of Ellender; and
(2) Was Daniel Widcamp guilty of contributory negligence.

NEGLIGENCE OF ELLENDER

At the time of the accident, Daniel Wid-camp, Laura Lee Hoffpauir, and Becky Richard were on their way to a nearby store to buy candy. Becky Richard and Laura Lee Hoffpauir crossed the highway first. (The record does not reveal why Daniel Widcamp did not cross the highway with the girls.) Daniel Widcamp then started to cross the highway. As he reached a point approximately three to four feet from the northern edge, he noticed the oncoming El-lender vehicle. The boy made no effort to run or move, but instead froze there in the center of the lane in which Ellender was traveling. Ellender applied his brakes, which caused his vehicle to skid some seventy-two feet. The Ellender vehicle struck the boy before it came to a complete stop.

The evidence shows that Ellender was traveling approximately 50 miles per hour, in a westerly direction, when he first noticed the Widcamp boy. He then took his foot off the accelerator and began to apply the brakes. Ellender was approximately one hundred twenty to one hundred fifty feet from the boy when he first saw him. Ellender was given a traffic citation for exceeding the posted speed limit, 25 miles per hour, and subsequently plead guilty to that violation. According to Trooper Clayton J. Fontenot, Ellender was traveling.45 miles per hour at the time he applied his brakes and his vehicle began to skid. Ellen-der testified that he did not sound his horn immediately prior to the accident.

Daniel Widcamp remembers nothing about the accident except that he was going to the store to buy candy. The next thing he remembers is that he awoke in a hospital bed. (Tr. rec. pg. 614).

As a result of the accident, Daniel Wid-camp suffered multiple bruises, abrasions, minor cuts, and a concussion described as somewhat similar to the type a boxer or football player may receive.

It has uniformly been held by the courts of this State that a motorist who sees or should see children near the roadside must exercise a high degree of care in view of the propensity of young children to dart or run into the street, heedless of their own safety. LaCroix v. Middle South Services, Inc., 345 So.2d 136 (La.App. 1 Cir. 1977), writ refused, 346 So.2d 716 (La.1977); Kelly v. Messina, 318 So.2d 74 (La.App. 4 Cir. 1975); Sutton v. Rogers, 222 So.2d 504 (La. App. 2 Cir. 1969); Ates v. State Farm Mutual Automobile Insurance Co., 191 So.2d 332 (La.App. 3 Cir. 1966); Dufrene v. Dixie Auto Insurance Co., 373 So.2d 162 (La.1979).

Ellender, by his own admission, was exceeding the posted speed limit at the time of the accident. He also testified that there was sufficient time for him to stop or to slow down to allow Daniel Widcamp to cross the street. (Tr., pgs. 992 and 993). We quote from his testimony starting at page 992:

“Q. Did you see two little girls that had walked across the street just before the little boy?
A. Yes, sir, I could see the little girls.
Q. That is, you could see them standing on the other side of the road, couldn’t you?
A. Yes, sir.
Q. Were they looking back at the little boy?
A. They appeared to be.
Q. Now, at that 150 feet there where you saw the little boy three feet from the pavement and the little girls across looking back at him, could you have stopped you car within the speed limit of 25 miles an hour at that time?
A. Was there any reason for me not to stop?
Q. That’s correct. Could you have stopped it then?
A. I didn’t think they were running out, no, sir.
Q. I’m asking you, though, could you have stopped it then, the car, before getting to the little boy?
A. When I saw them, when I first saw them?
Q. Yes, sir.
A. I could have stopped.
Q. All right. Did you have adequate distance to have reduced—
A. Yes, sir.
Q. —your speed where you could have let the little boy pass had you wanted to slow or stop?
A. Yes, sir.
Q. Did Danny appear to be looking across the street at the little girls as he was standing there at the edge of the pavement?
A. Yes, sir.
Q. Did you sound your horn at this little boy or these children to warn them of your approach?
A. No, sir, I didn’t have time.
Q. You didn’t have time when you saw them there looking back at. him when you were 150 feet back?
A. I didn’t think he was going to run out in the road.
Q. No, I didn’t ask you that, sir. I asked you: Did you sound your horn to warn the children of your approach with them situated—
A. No sir. They were just standing there, so I figured they knew I was coming.”

Nevertheless, he failed to bring his car under such control that would enable him to avoid the accident, as was his duty, regardless of any unexpected or expected action on the part of the child. Guillory v. State Farm Mutual Automobile Insurance Co., 300 So.2d 595 (La.App. 3 Cir. 1974), writ refused, 304 So.2d 669 (La.1974). We therefore conclude, as did the jury, that Ellender was negligent.

CONTRIBUTORY NEGLIGENCE OF DANIEL WIDCAMP

The jury found, in its answer to written interrogatories, that Daniel Widcamp was contributorily negligent, and consequently plaintiff was ultimately denied recovery. The law concerning the contributory negligence of a pedestrian has been clearly delineated in Baumgartner v. State Farm Mutual Automobile Insurance Co., 356 So.2d 400 (La.1978). The Supreme Court said, at page 405:

“Since the operator of a motor vehicle is aware that he could meet many emergencies in which pedestrians will not always act prudently and will sometimes be found in perilous situations, he should have the added burden of keeping the roads safe even for those who are negligently caught off their guard. Further, where injury results, the burden should fall on the motorist who, with the exercise of care reasonable under the circumstances, saw or should have seen the impending peril and had, at that moment, the opportunity to avoid it.

Earlier this court, without expressly saying so, signaled an intention to abolish the contributory negligence defense in pedestrian-motorist cases. Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958). In Belshe, a motorist, who failed to keep a proper lookout and if he had done so would have avoided striking a pedestrian, was held liable. The court indicated that even if it were to find the pedestrian contributorily negligent, defendant would still be held liable.7

What was implicit in Belshe became explicit in the more recent case of Guilbeau v. Liberty Mutual Ins. Co., 338 So.2d 600 (La.1976), where we said:

“Under Louisiana jurisprudence, an operator of a vehicle or heavy equipment who observes, or who should by the exercise of reasonable care have observed, a pedestrian in a position of peril of which the latter is apparently unaware, is responsible for injuries caused when his vehicle strikes the pedestrian in his path, despite any contributory negligence on the part of the latter; providing that, after the duty to make such observation arose, the operator could reasonably have avoided the accident.’
And again, in Pierre v. Landry, 341 So.2d 891 (La.1977), relying on the above quoted language from Guilbeau, this court held liable a motorist who failed to see what he should have seen and struck a pedestrian who was in a position of peril. The court spoke of defendant’s ‘clear chance’ without referring to it as his last clear chance, further indicating the court’s intention to ignore whether the plaintiff or defendant had the final opportunity to ■ avoid the accident in pedestrian-motorist cases.”

Defendants argue, however, that Baumgartner does not apply because that case involved a pedestrian crossing at a crosswalk when struck by defendant driver.

We agree with plaintiff that Baumgartner does not appear to be limited to pedestrians at crosswalks. Defendants herein cite the recent case of Osby v. Harris, 375 So.2d 181 (La.App. 2 Cir. 1979) which states that Baumgartner was inapplicable in that case because Baumgartner is applicable only to pedestrian-crosswalk accidents. As stated above, we do not agree that Baumgartner is strictly limited to crosswálk accidents. In Osby, it was rather clear that the defendant driver was not negligent for the reason that the pedestrian in that case was crossing the street at 1:30 A.M. when he was struck, and that plaintiff was a black man, wearing a dark shirt and dark trousers, thus being very difficult to see.

Finding Baumgartner to be applicable in this case, we do not need to reach a decision as to whether or not Daniel Widcamp was contributorily negligent, inasmuch as that defense is no longer available under Baumgartner. Accordingly, we find that the jury was manifestly erroneous in finding Daniel Widcamp contributorily negligent, and we will reverse.

QUANTUM

Immediately after the accident, Daniel Widcamp was taken by ambulance to the Cal-Cam Hospital emergency room where he was attended by Dr. Roy L. Sas-ser, Jr. Dr. Sasser found evidence of head trauma with abrasions around the eyes, he-matoma or swollen area over the forehead, and swelling in the posterior portion of the skull. The child complained of pains around his upper legs and in the pelvic region. Also, there was some slight swelling in the face. The boy was kept in the hospital from July 19 thru July 21, 1977, and was then released, there being no signs of serious injury. Dr. Sasser saw Widcamp subsequently on July 26 and August 8 of 1977, and again in February of 1978. The February, 1978 visit was not related to the accident.

Daniel Widcamp was next seen by Dr. A. D. Ericsson, a neurosurgeon from Houston, Texas, on September 22, 1977. X-rays which were taken of the Widcamp boy’s skull were negative as to fractures. Next, Dr. Ericsson had a Catscanic test performed. This test was likewise negative, showing no subdural hematoma either outside or inside the brain. An electroencephalogram (EEG) was performed and was negative, there being no evidence of seizure activity. A brain scan was performed which showed normal brain function. Routine laboratory tests were also negative.

Daniel Widcamp was also seen by Drs. James Albert Brown, Robert Bobele, William Franklin Foster, Jr., and several others.

There is notable contradiction in the medical and/or psychological evidence. Let it suffice to say, after a full review of the record, and all the medical evidence available to this Court, we are convinced that the amount of $1,800.00 for medical expenses, and $4,000.00 for general damages is justified.

Drs. A. D. Ericsson, Robert Bobele, and James Albert Brown testified by deposition. Dr. Roy L. Sasser, Jr. testified in open court. $100.00 each as expert witness fees will be awarded and taxed as costs.

For the above and foregoing reasons, the judgment of the trial court is reversed, and:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment for the plaintiff and against the defendants, Donald J. Ellender and State Farm Mutual Automobile Insurance Company, in solido, as follows:

(1) In favor of Marvin Kent Widcamp, individually, for $1,800.00 and in favor of Marvin Kent Widcamp, as natural tutor of the minor, Daniel Widcamp, for $4,000.00, with legal interest on both amounts from the date of judicial demand, until paid;
(2) Expert witness fees of Drs. A. D. Ericsson, Robert Bobele, James Albert Brown and Roy L. Sasser, Jr. be fixed at $100.00 each and taxed as costs, and that the • defendants pay all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the trial court judgment in favor of the defendant, Allstate Insurance Company, and against the plaintiff rejecting plaintiff’s demand be affirmed.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

DOMENGEAUX, J., concurs and assigns reasons.

SWIFT, J., concurs.

DOMENGEAUX, Judge,

concurring.

Baumgartner, in its totality, seems to say that contributory negligence is no longer available as a defense to a negligent motorist in a vehicular-pedestrian accident. Ap-pellees herein suggest that Baumgartner is only applicable to vehicular-pedestrian accidents at crosswalks.

Assuming, arguendo, the correctness of appellees’ position, I would go on to conclude that the young 8-year old in this case was not contributorily negligent. Ordinarily, under the jurisprudence, an 8-year old is legally (although barely) capable of contributory negligence, but the test to determine the negligence of a youth is not the same as that of an adult.

Considering Daniel’s age, intelligence, and experience under the facts of this case, he could not have been expected to react in the same manner as an older and more mature person. The only legal negligence in this case was that of the defendant, Mr. Ellender.

      . See also Hryhorchuk v. Smith, 379 So.2d 281 (La.App. 3 Cir. 1979).


author: DOMENGEAUX, Judge.

text:
    Albert A. BROUSSARD et al., Plaintiffs, Albert A. Broussard, Appellant, v. John Harry BROUSSARD, Defendant-Appellee.
    No. 7502.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Lucius A. Hornsby, Jr., Lafayette, for plaintiffs and appellant.
    J. Nathan Stansbury, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, FORET, and SWIFT, JJ.
   DOMENGEAUX, Judge.

Albert A. Broussard (hereinafter referred to as “appellant”) appeals from a judgment dismissing his suit on exceptions of vagueness and of no cause of action.

Appellant is a former employee of the Vermilion Parish Police Jury. His employment was terminated’ in 1977. Subsequent to his dismissal, appellant and three former fellow employees filed suit against defendant, John Harry Broussard, alleging he “made statements which were detrimental to the employer-employee relationship between petitioners and their said employer.” Plaintiffs further alleged that defendant’s statements constituted wrongful intervention in the employment relationship between plaintiffs and the Vermilion Parish Police Jury and caused plaintiffs to be “dis-criminatorily terminated from their work .” Each of the plaintiffs sought $25,000.00 in damages.

In response to this petition, defendant filed a dilatory exception of vagueness and a peremptory exception of no cause .of action. The trial court, in a brief minute entry judgment, sustained both exceptions and dismissed plaintiffs’ suit. We find that the able trial judge erred in dismissing plaintiffs’ suit without first giving plaintiffs an opportunity to amend their petition.

EXCEPTION OF VAGUENESS

In his exception of vagueness, defendant alleged “[t]he petition does not state how and by what action defendant cost plaintiffs their jobs with the Vermilion Parish Police Jury.” Defendant characterized the allegations in the petition as being vague, general, and indefinite.

The purpose of the exception of vagueness is to place the defendant on notice of the nature of facts sought to be proved so as to enable him to prepare his defense. This exception does not tend to defeat the action but merely retards its progress. Washington v. Flenniken Construction Company, 188 So.2d 486 (La.App. 3rd Cir. 1966). By sustaining the exception and dismissing the action without first giving plaintiffs an opportunity to amend, the trial court granted defendant relief for which he did not ask and to which he was not entitled.

The defendant asked the trial court to order plaintiffs to amend the petition by particularizing the vague, general, and indefinite allegations made in the petition. He did not request that the case be dismissed. Article 933 of the Louisiana Code of Civil Procedure, quoted below, directs that an opportunity to amend a vague petition must be given by the trial court:

“Art. 933. Effect of sustaining dilatory exception
If the dilatory exception pleading want of amicable demand is sustained, the final judgment shall impose all court costs upon the plaintiff. If the dilatory exception pleading prematurity is sustained, the suit shall be dismissed. ■
When the grounds of the other objections pleaded in the dilatory exception may be removed by amendment of the petition or other action by plaintiff', the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the suit shall be dismissed only for a noncompliance with this order.” (Emphasis added).

It is clear, then, that an opportunity to amend should have been granted after the trial court sustained the exception of vagueness, pursuant to Article 933 and the relief requested in the exception.

EXCEPTION OP NO CAUSE OF ACTION

Defendant filed a peremptory exception of no cause of action on the grounds that the petition failed to allege any actionable negligence on the part of the defendant. Without giving any reasons, the trial court sustained this exception also. We find that, since this exception is based on the insufficiency of allegations in the petition, (i. e. failure to allege any actionable negligence), it is in effect an exception of vagueness, and plaintiff should be afforded the opportunity to amend the petition rather than to dismiss the suit. United Carbon Company v. Mississippi River Fuel Corporation, 230 La. 559, 89 So.2d 122 (1956); Bates v. Prudential Ins. Co. of America, 192 La. 1029, 190 So. 120 (1939).

Even if the exception of no cause of action is. not in effect an exception of vagueness, under Article 934 of the Code of Civil Procedure the trial court must allow the petitioner an opportunity to amend the petition when the ground for the peremptory exception can be removed by an amendment. Fanguy v. Duthu, 371 So.2d 1201 (La.App. 1st Cir. 1979); Spell v. Executive Officers, Directors, and/or Shareholders of P & W Industries, Inc., 316 So.2d 474 (La.App. 1st Cir. 1975).

We do not suggest or conclude that appellant’s petition can be amended so as to state a cause of action, but since the petition is replete with vague and uncertain allegations, we likewise are unable to conclude that the petition cannot state a cause of action. Therefore, we reverse- the dismissal to at least afford appellant an opportunity to amend his petition.

DECREE

For the above and foregoing reasons the judgment of the District Court dismissing appellant’s suit is reversed and the case is remanded for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

      . The three other original plaintiffs were Doris L. Menard, Joseph Winters, and Joseph Char-gois. Appellant and these three plaintiffs were dismissed from their jobs at the same time. However, Winters was dismissed from the suit on his own motion, and Menard and Chargois have not filed an appeal so appellant is the only one whose rights will be affected by these proceedings.


author: STOKER, Judge.

text:
    James Harold RICHARD, Plaintiff-Appellant, v. HEBERT'S CREAMERY, INC., et al., Defendants-Appellees.
    No. 7508.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff-appellant.
    Armentor & Wattigny, Gerard B. Wattig-ny, New Iberia, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr., Lafayette, Paul deMahy, St. Martinville, for defendants-appellees.
    Before CUTRER, STOKER, and LA-BORDE, JJ.
   STOKER, Judge.

This is an action for personal injuries sustained by plaintiff when he jumped from a milk truck when the brakes on the truck allegedly failed. Plaintiff was driving the truck in the course of his employment by Hebert’s Creamery, Inc. Some of the defendants are persons alleged to be executive officers of the corporation. Firemen’s Insurance Company of Newark, N. J., is the insurer of Hebert’s Creamery, Inc., and plaintiff asserts that the policy of insurance covers the liability of the company’s executive officers.

Motions for summary judgment were granted on behalf of the insurer and also in favor of certain of the alleged executive officers who are defendants. This appeal is from the dismissal of these parties on the motions for summary judgment. The case presents several issues:

(1) Whether, as to Moise Hebert and elevens Bijeaux (employees of the creamery), there is any genuine issue of fact as to any duty they may have owed to plaintiff and, if so, whether any duty was breached which made them legally responsible,
(2) Whether, as to Marcel P. Hebert, Jr., and Helen T. Hebert, there was any genuine issue of fact concerning their position that they had no connection with the creamery other than -as having been token shareholders of one share of stock each to permit incorporation under the corporation law which existed when the corporation was formed, and
(3) As to the insurer, hereinafter, referred to as Firemen’s, and sometimes as the insurer, whether or not certain provisions of the policy of insurance excluded coverage under the facts of this case, particularly under the “cross-employee” exclusion of the automobile portion of the policy, and also under the automobile exclusion of the comprehensive general liability portion of the policy.

FACTS

Plaintiff was a routeman for Hebert Creamery, Inc. He was provided a truck by his employer for making his deliveries. The truck was known as truck number eleven. Several days before the accident plaintiff’s regular truck, number eleven, had been pulled for a motor overhaul by the company maintenance section. The company had a spare truck, number twenty-one, which was assigned to plaintiff to be used during the period truck number eleven was being overhauled. Plaintiff was driving truck number twenty-one when his accident occurred. Plaintiff had been using this truck for several days. According to plaintiff, the emergency hand brake in this truck was defective and had been for quite a long time. Plaintiff claims he had complained in the past about the emergency brake on this truck and also on his own truck, number eleven. He made his complaints to Reeves Thibodeaux, the company mechanic.

It is not too clear how plaintiff’s accident occurred. His vehicle only was involved. Plaintiff claims the regular brakes failed. Plaintiff’s deposition testimony does not exactly follow the facts as alleged in the petition. He testified that he applied his brakes at a stop sign, and the brakes went to the floor, and pumping the brakes did no good. He maintained that the brake line burst. Plaintiff also testified that, as he had a defective emergency brake, it would have been futile to apply it. Also, plaintiff maintained that he could not otherwise stop his truck (by shifting down for example), could not make a turn without being in danger of overturning the truck, and that he was headed for a canal. Therefore, he leaped from the truck and injured himself in the process.

Hebert’s Creamery, Inc., is almost solely owned and is managed by Marcel Hebert, Sr. According to plaintiff’s testimony, the company did its own maintenance. Reeves Thibodeaux was the mechanic, but John Tabor had something to do with maintenance. Moise Hebert and elevens Bijeaux are supervisors of routemen, and, according to plaintiff’s deposition testimony, have nothing to do with vehicle maintenance. Their only duties were to supervise the routemen, see that they were on the job, assist them in whatever may be necessary, including helping make collections, and fill in for them in case of absence.

Plaintiff’s attorney took the deposition of Marcel P. Hebert, Sr. In that deposition he corroborated the deposition testimony of plaintiff. The senior Hebert owns all but two shares of 1,000 shares of the company stock, and his wife and son each own one share. The senior Hebert has virtually exclusive control of the corporation. He explained that John Tabor, Sr., was his maintenance supervisor and, in addition, was his second in charge. Reeves Thibodeaux was his mechanic, and Moise Hebert and elevens Bijeaux performed the duties indicated by plaintiff.

MOTION FOR SUMMARY JUDGMENT OF MOISE HEBERT AND CLEVENS BIJEAUX

It appears to be plaintiff’s complaint that the executive officers he has sued failed to perform a duty owed to him to furnish him with an operable vehicle free from risk of harm, specifically, one free from the risk of brake failure. In this context, we first consider the motions of Moise Hebert and Clevens Bijeaux.

The foundation for executive officer liability (assuming an executive officer is in fact involved) is a finding that the executive officer owed a duty to plaintiff, delegated to him by the employer, which the executive officer breached. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Plaintiff admits in his deposition that neither Moise Hebert nor Clevens Bijeaux was in charge of maintenance or inspection of trucks. In their depositions, Moise Hebert and Clevens Bijeaux show that the duties assigned to them were confined to those listed above. Hence, it would appear that these two individuals had no duties which they could have breached so as to cause plaintiff’s accident. However, plaintiff relies on the following testimony which appears in the deposition of Moise Hebert:

Page 19:
Q. Well, if you knew that one of your crew members had a problem with his truck and Mister Tabor or Mister Thibodeaux refused to fix it would you allow that employee to take the truck out?
A. No, sir.
Q. What would you do?
A. I would just tell them to leave it parked where it’s at because that’s where it belongs, right there.
Page 21:
Q. ... if you would tell him to park his truck and you know that that milk has to go out what would be your next step?
A. If there would be no more truckfs] and the truck would be broken what would you do; leave it parked there; that’s all.
Q. But you wouldn’t appeal to Mister Marcel Hebert? .
A. If he would have gone to Marcel? If Jim would have gone to Marcel?
Q. No, he didn’t go to Marcel.
A. Oh, yeah; I would have gone to Marcel.
Q. You would have gone to Mister Mar-eel and you would confront him with the problem?
A. Oh, yeah.
Q. And that would be part of your duty?
A. Yes, sir.

Plaintiff urges the above statements present a factual question as to whether or not Moise Hebert had a duty to provide plaintiff with reasonably safe equipment. As both Moise Hebert and Clevens Bijeaux testified, they had equal jobs and equal duties; the same would apply to Bijeaux.

We fail to see how the quoted language establishes that the employer corporation had assigned any duties regarding truck maintenance or inspection to the two supervisors or route managers. It is clear from their testimony, and plaintiff’s own testimony, that Moise Hebert and Clevens Bijeaux had no active responsibilities in this area. It is also clear that the routemen, such as plaintiff, dealt directly with Reeves Thibodeaux or John Tabor. The suggestion is that, if the supervisors knew a route-man’s truck was defective, so as to create a risk, they would owe a duty to order or authorize the routeman not to make his run. It is also suggested that the supervisors would owe a duty in such a situation to intercede with Mr. Marcel Hebert, Sr., the owner and manager, for correction of the unsafe condition. Plaintiff testified that the only person he ever complained to was Reeves Thibodeaux, and that complaint concerned the emergency brakes being defective. The accident occurred, according to plaintiff, when the brake lines for the regular brakes burst. Furthermore, plaintiff himself testified that he had checked the brake fluid, and that the brakes were full. Since plaintiff did not complain to Moise Hebert or elevens Bijeaux about the absence of an effective emergency brake on truck number twenty-one, we fail to see how the speculations referred to above disclose a material issue of fact. If their only duty was to do something if they knew of defective conditions, and they did not in fact know thereof, it follows that no duty to plaintiff Was breached.

For the foregoing reasons, we affirm the motion for summary judgment granted in favor of Moise Hebert and elevens Bijeaux.

MOTION FOR SUMMARY JUDGMENT ON MARCEL P. HEBERT, JR., AND HELEN T. HEBERT

Marcel P. Hebert, Sr., was the sole owner of the creamery business when it was incorporated in about 1965 as Hebert’s Creamery, Inc. As the corporation laws then required three natural persons to incorporate, he selected his wife, Helen T. Hebert, and his son, Marcel P. Hebert, Jr., as the other two incorporators. The incorporation took place with 998 shares in the name of the senior Hebert and one each in the names of his wife and son. The company officers were: Marcel P. Hebert, Sr., president; Marcel P. Hebert, Jr., vice-president; and Mrs. Hebert, secretary. The senior Hebert testified that neither his wife nor son have ever participated in the management of the company. Marcel P. Hebert, Jr., at one time worked as a routeman, but for approximately four years prior to the accident was disassociated from the creamery and devoted himself exclusively to a trophy business operated by him.

Helen T. Hebert gave her deposition and was questioned by plaintiff’s attorney. Her testimony is consistent with that of her husband. It is quite clear that neither Helen T. Hebert or Marcel P. Hebert, Jr., the son, had any connection with the corporation other than as nominal stockholders of one share each and as holders of the empty titles of vice-president and secretary. They had no duties delegated to them by the corporation. There is no material issue of fact on this point, and we affirm the motion for summary judgment in favor of Helen T. and Marcel P. Hebert, Jr.

MOTION FOR SUMMARY JUDGMENT OF FIREMEN’S INSURANCE COMPANY OF NEWARK, N. J.

According to the oral reasons for judgment given by the trial judge (Tr. 132) the policy in question consists of a two-part policy furnishing both comprehensive general liability coverage and automobile liability insurance coverage. The briefs of counsel treat the policy as though it furnishes both types of coverage. However, we are unable to find within the documents in the record, which purport to constitute the policy, any specific provisions affording comprehensive general liability coverage. (Tr. 58) After close examination, it is clear that the assemblage of sheets purporting to be the policy appearing at page 58 of the transcript is neither the original of the policy nor a certified copy of the policy. It is incomplete, even if it is being relied upon by the parties as an uncertified copy. While the documents include what appears to be a xerox copy of some provisions relating to an automobile liability policy, it is evident that the entire contract is not included.

Inasmuch as we have concluded that neither the insurance contract nor a certified true copy of it are in the record, the motion for summary judgment granted in favor of mover, Firemen’s ' Insurance Company of Newark, N. J., must be reversed. This reversal will be without prejudice to the filing of another motion for summary judgment based upon the policy itself or competent evidence thereof.

For the foregoing reasons the motions for summary judgment granted in favor of Helen T. Hebert, Marcel P. Hebert, Jr., Moise Hebert and elevens Bijeaux are affirmed; the motion granted in favor of Firemen’s Insurance Company of Newark, N. J., is reversed.

AFFIRMED IN PART; REVERSED IN PART.

      . Another phase of this matter was before us in a previous appeal as reported by 359 So.2d 1088 (La.App. 3rd Cir. 1978). The accident occurred on September 9, 1976. Therefore, the accident preceded the effective date of Act 147 of the 1976 Regular Session of the Louisiana Legislature which granted immunity to executive officers. Our holding in 359 So.2d 1088, supra, followed previous holdings to the effect that the immunity legislation was not retroactive.


text:
    Paul SIMAS et al., Plaintiffs-Appellants, v. John W. HICKS, Defendants-Appellees.
    No. 7512.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    W. Glenn Soileau, Breaux Bridge,, for plaintiffs-appellants.
    Peter C. Piccione, Lafayette, for defendants-appellees.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This is an appeal from a judgment of dismissal sustaining an exception of lack of personal jurisdiction over the defendant. On April 25, 1979 plaintiffs filed an action for damages against John W. Hicks, who was alleged to reside in Beaumont, Texas. A curator was appointed to represent Mr. Hicks.

An exception based on' lack of personal jurisdiction was filed by Winston C. Hicks, the son of John W. Hicks, which alleged that John W. Hicks had died on April 28, 1979 in France and that he had never been domiciled in St. Martin Parish, Louisiana.

On June 22, 1979 counsel for plaintiff filed a motion to set the exception for trial. The record reflects that a notice of the setting was mailed to counsel of record. The law suit was dismissed after a hearing on July 20, 1979. Formal judgment was signed July 23, 1979. Neither plaintiffs nor their counsel appeared at the hearing. On July 27, 1979, plaintiffs moved for a new trial, alleging that their counsel “was never notified of the date set for the exception in the above caption [sic] matter.” The District Judge denied this motion without a hearing on the following grounds:

1. The Petition shows on its face this court lacks jurisdiction of the person of the defendant.
2. The record shows counsel was sent notice.
3. The motion does not show a certificate of service on opposing counsel.

Plaintiffs-appellants urge reversal of the trial court’s actions on four errors. The errors, as we interpret appellants’ brief, are as follows:

1. Failure to give notice of hearing.
2. Failure to grant motion for new trial.
3. Denying the motion for new trial without contradictory hearing.
4. Dismissal of plaintiffs’ suit without giving plaintiffs an opportunity to amend to cure the defects complained of in the exception.

We shall treat appellants’ first three specifications of error together. Plaintiffs urge this court to rule that failure to receive notice of trial and the resultant loss of opportunity to be present at the trial of the exception was improper and prejudicial. We cannot agree. The only requirement of notice we find applicable is LSA-C.C.P. Article 1571 which requires the district court to adopt rules which shall “[rjequire adequate notice of trial to all parties.” We note that the district court in question had done so. See Rule 4, Sixteenth Judicial District Court Rules. No violation of the relevant codal article or court rule has been demonstrated; on the contrary, the record reflects compliance therewith.

This court in Prejean v. Ortego, 262 So.2d 402 (La.App. 3rd Cir. 1972) noted that

“. . . the mailing or sending of a notice to plaintiff’s counsel by the clerk of court constituted adequate notice to plaintiff that the trial of the exception of vagueness had been refixed for September 10, 1971. If plaintiff’s counsel failed to receive that notice, then we believe that he nevertheless should have discovered that the hearing had been refixed for another date when the exception failed to come up for trial on July 16. We hold, therefore, that plaintiff received adequate notice of the hearing . . . ”

In this case, plaintiffs-appellants moved to set the exception for trial. Therefore counsel for plaintiffs-appellants would be as aware of a fixed but unknown trial date as was counsel in Prejean.

Failure. to receive notice is not a peremptory ground for a new trial under LSA-C.C.P. Article 1972. Where the motion for new trial is based on discretionary grounds, LSA-C.C.P. Article 1973, then the established rule is clear that unless an abuse of discretion can be demonstrated, the appellate court will not reverse the trial court’s action. Shows v. Williamson, 256 So.2d 688 (La.App. 2nd Cir. 1972), writ refused, 261 La. 231, 259 So.2d 76 (1972); Strobel v. Schlegel, 145 So.2d 664 (La.App. 4th Cir. 1962).

There is no abuse or denial of due process in refusing a contradictory hearing. Sonnier v. Liberty Mutual Insurance Company, 258 La. 813, 248 So.2d 299 (1971); Borras v. Falgoust, 285 So. 583 (La.App. 4th Cir. 1973), writ denied, La., 289 So.2d 161, cert. denied 419 U.S. 854, 95 S.Ct. 97, 42 L.Ed.2d 86.

Therefore, we affirm the trial court’s denial of a new trial.

Plaintiffs-appellants last argument is that, under LSA-C.C.P. Article 932, they should be allowed an opportunity to amend their petition to cure the defects.

LSA-C.C.P. Article 932 states:

When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove, them within the delay allowed by the court.
If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action shall be dismissed; except that if it has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.

The trial court, in denying plaintiffs’ motion for a new trial, noted that “the petition shows on its face this court lacks jurisdiction of the person of the defendant.” Whether or not that is so we find unnecessary to determine. The article cited above provides plaintiffs the opportunity to remove the defect where it .is possible to remove it. In Louisiana Power & Light Company v. Ursin, 334 So.2d 559 (La.App. 4th Cir. 1976), in a similar factual context, the court held that plaintiff? should be afforded an opportunity to cure the defect by amendment.

We believe this to be in accord with the language of LSA-C.C.P. Article 923 which states:

The function of the declinatory exception is to decline the jurisdiction of the court, while the dilatory exception merely retards the progress of the action, but neither exception tends to defeat the action. The function of the peremptory exception is to have the plaintiff’s action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.

Only where no amendment could cure the defect is outright dismissal warranted. In Raborn v. Louisiana Health and Human Resources Administration, 349 So.2d 903 (La.App. 1st Cir. 1977), an exception of lack of subject matter jurisdiction was maintained and the dismissal of suit without opportunity to amend was upheld since a specific statute granted exclusive jurisdiction to another tribunal—a defect that an amendment could not cure.

From the record before us, we cannot exclude the possibility that the plaintiffs can amend to cure the defect. In our opinion, the trial court erred in not giving plaintiffs an opportunity to cure the defect by amendment.

For the above reasons, the trial court judgment dismissing plaintiffs’ lawsuit is reversed and remanded to the trial court to enter an order allowing the plaintiffs a delay within which to amend their petition or to otherwise cure the defects complained of in the exception of personal jurisdiction. The case is to be dismissed only upon noncompliance with such order. The costs of this appeal are assessed against the plaintiffs-appellants.

REVERSED AND REMANDED.


text:
    Louis C. LASSEIGNE, Plaintiff-Appellee, v. PERPETUATE TESTIMONY, Defendant-Appellant.
    No. 7526.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Armentor & Wattigny, Minos H. Armentor, New Iberia, for defendant-appellant.
    Stassi & Rausch, Allan L. Durand, New Orleans, for plaintiff-appellee.
    Before CUTRER, STOKER and LA-BORDE, JJ.

      . Correct title should be: In the matter of Louis C. Lasseigne to Perpetuate the Testimony of Anne Bernard Lasseigne. To prevent confusion the title will remain as set out above.

   LABORDE, Judge.

.On May 25,1979, Louis C. Lasseigne filed a petition to perpetuate the testimony of Anne Bernard Lasseigne. The petition alleges that Anne Bernard Lasseigne, Louis C. Lasseigne’s mother, disposed of certain immovable property in violation of his legi-time. Named as expected adverse parties are Elsie Lasseigne Hebert, Lorraine Lass-eigne Alvarez, and Lucille M. Lasseigne, sisters of Louis C. Lasseigne.

Anne Bernard Lasseigne answered the petition requesting the court to reject plaintiff’s demands. Following a hearing held on July 27, 1979 the court rendered judgment in favor of plaintiff authorizing the taking of Anne Bernard Lasseigne’s deposition. From this judgment, Anne Lasseigne perfected a suspensive appeal to this court.

Appellant contends that petitioner is seeking a perpetuation of testimony for the purpose of proving that the conveyance of the immovable property by appellant was a simulated sale. Appellant contends that since a simulated sale may be attacked at any time by any person of interest plaintiff has not complied with the requirements of C.C.P. Art. 1429.

C.C.P. Art. J.429 states:

“A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in a court in which the anticipated action might be brought. The petition shall be entitled in the name of the petitioner and shall show:
(1) That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought.
(2) The subject matter of the expected action and his interest therein.
(3) The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it.
(4) The names or a description of the persons he expects will be adverse parties and their addresses so far as known.
(5) The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask .for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.”

In the Matter of Vermilion Parish School Board, 357 So.2d 1295 (La.App., 3rd Cir., 1978), this court stated:

“ . . . The source of our present Art. 1429 is Federal Rule 27(a)(1). Its provisions are almost verbatim with ours. The Federal courts have generally agreed that Rule 27 is not to be used for the purpose of fishing for some ground for bringing suit. Its primary purpose is to preserve testimony that might otherwise be lost to a prospective litigant.”

The first requirement of Art. 1429 is that the petitioner show that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought.

In the present case, petitioner alleges that the conveyance of the immovable property by Anne Lasseigne was a simulated sale and impinges his legitime. The petition goes on to add that he is unable to bring suit because, until Anne Lasseigne’s succession is opened, it cannot be proven that the conveyance constitutes an impingement of petitioner’s legitime. Appellant’s contention that plaintiff has not satisfied the first requirement of C.C.P. Art. 1429 is without merit.

An examination of the petition for the perpetuation of testimony reveals that petitioner has complied with the requirements of C.C.P. Art. 1429. Plaintiff’s petition sets forth the subject matter of the expected action, an action to enforce petitioner’s legi-time. The petition sets forth the names and addresses of the expected adverse parties. The petition sets forth the name and address of the person to be examined and the substance of testimony which petitioner expects to elicit. The petition sets forth the reasons for perpetuation of testimony, to establish whether or not the conveyance was a simulated sale, a donation to the named adverse parties.

C.C.P. Art. 1431 states:

“If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may .then be taken in accordance with this Chapter; and the court may make orders of the character provided for by Articles 1461 through 1465. For the purpose of applying the provisions of this Chapter to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.”

In the present case, petitioner seeks to perpetuate the testimony of Anne Lass-eigne. Petitioner seeks testimony to establish that the conveyance of property to his sisters is a simulated sale. If the conveyance was a donation, plaintiff is concerned that it may impinge his legitime. However, assuming that the conveyance was a donation, whether' the conveyance will impinge his legitime will not be determinable until after Anne Lasseigne’s demise. The perpetuation of Anne Lasseigne’s testimony may prevent a failure of justice.

In the alternative, appellant contends that the order granting perpetuation of Anne Lasseigne’s testimony should be limited so as to permit written interrogatories only. However, C.C.P. Art. 1431 provides that the court shall specify in its order whether the depositions shall be taken upon oral examination or written interrogatories. The article allows the court discretion in the manner of the nature of the deposition. Although Anne Lasseigne is an elderly lady, the court’s order allowing oral examination was not an abuse of the court’s discretion.

The trial judge commented that this case “strikes me as a classic situation for the application of the rules of the Code of Civil Procedure for the perpetuation of testimony.” We agree.

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

AFFIRMED.


author: GARRISON, Judge.

text:
    Harold J. GAUDET v. The NORTH RIVER INSURANCE COMPANY.
    No. 10648.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    Meyer Sabludowsky, New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, Alexander N. Breckin-ridge, IV, New Orleans, for defendant-ap-pellee.
    Before BOUTALL, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

In this appeal from a judgment awarding him worker’s compensation benefits for a four-week total disability, plaintiff contends that the trial judge erred in failing to award him benefits for permanent total disability. The sole issue is whether the aggravation of plaintiff’s pre-existing grade one spondylolisthesis, for which he was hospitalized and continues to suffer, was caused by his work-related accident or by a subsequent auto collision in which he was involved. We affirm.

On August 24, 1976, plaintiff injured his back by loading a truck in the course and scope of his employment. Dr. David Vial diagnosed his injury as a lumbar sprain, noting that plaintiff had an underlying back defect. After a one-week course of treatment of therapy and medication, Dr. Vial discharged plaintiff and told him he could return to work. Plaintiff neither returned to work nor consulted another doctor, although he testified at trial that his back continued to hurt him after his discharge.

On September 20, 1976 plaintiff was involved in an automobile collision. He claims he injured only his neck in that accident. He testified that his back pain after the auto accident was the same as it had been before. (Dr. Raul Reyes, however, testified in deposition plaintiff had told him his back had been hurting more ever since the collision.)

On September 23, 1976, Dr. Raul Reyes examined plaintiff at West St. James Hospital. Dr. Reyes had plaintiff admitted to the hospital for two weeks of treatment, and plaintiff continued under Dr. Reyes’ care for some time afterward. In his deposition, Dr. Reyes testified that plaintiff had a pre-existing grade one spondylolisthesis aggravated by trauma. Although Dr. Reyes thought either accident could have aggravated the pre-existing defect, he concluded the auto accident was the major factor since he did not examine plaintiff after the work accident and Dr. Vial had discharged plaintiff after one week.

In December 1976 plaintiff was examined by Dr. Raymond Kitziger. Dr. Kitziger testified in deposition that plaintiff gave him a history only of being hurt on the job in August 1976, but made no mention of a September auto accident. Bearing in mind the subsequent auto accident, Dr. Kitziger concluded the most likely cause of plaintiff’s continued pain was the collision, assuming plaintiff had been asymptomatic following his August 31 discharge. Dr. Kit-ziger said, however, he would attribute the pain to the work accident if the back pain had continued after August 31 and was unchanged by the collision.

Plaintiff was seen in January 1977 and twice thereafter by Dr. Bernard Manale. In his deposition, Dr. Manale testified plaintiff told him specifically that he had not injured his back in the auto accident, but only his neck. Dr. Manale initially stated the aggravation of plaintiff’s underlying spondylolisthesis was from the trauma of lifting an object. After being told at the deposition that plaintiff had been discharged by his doctor one week after the accident, however, Dr. Manale concluded that plaintiff’s problems must be related to the auto accident.

The trial judge concluded, “The preponderance of the medical evidence points to the automobile-truck accident of September 20, 1976 as the cause for plaintiff’s continued complaints of back injury.” This is a factual finding based on the trial judge’s evaluation of the weight of the testimony and the credibility of the witnesses. Plaintiff has failed to show, and we do not find, that the judge was clearly wrong in his conclusion. Absent a finding of manifest error, we must affirm. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Despite plaintiff’s discharge by Dr. Vial after only a week, the trial judge awarded plaintiff compensation benefits from August 24th up to the date of the auto accident, thus giving him the benefit of the doubt. Although defendant contends plaintiff’s work-related injury was of only one week’s duration, defendant has not appealed the trial judge’s award of four weeks. In light of the testimony, which could have been interpreted either way, we find the award to be an eminently fair disposition of the claim, which could equally as well been limited to one week’s benefits.

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

AFFIRMED.