author: DOUCET, Judge.

text:
    Darryl HOYCHICK, Plaintiff-Appellee, v. GULF STATES TOYOTA, INC., Defendant-Appellant.
    No. 7551.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.

      Bernard, Cassisa, Babst & Saporito by-Joe Palermo, Metairie, for defendant-appellant.
    Young & Burson, M. Terrance Hoychick, Eunice, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

This is a redhibitory action in which the plaintiff, Darryl Hoychick, sued Gulf States Toyota, Inc. and Toyota Motor Sales, U.S.A., Inc. to obtain a reduction of the purchase price of a 1978 Toyota Corolla Station Wagon, plus damages and attorney’s fees. Both defendants denied liability. After a trial, the district court rendered judgment in favor of plaintiff and against Gulf States Toyota, Inc. in the amount of $700.00, representing a reduction of the purchase price, $600.00 as damages incurred by the rental of a replacement vehicle, and $1,186.00 for attorney’s fees. Plaintiff’s claim against Toyota Motor Sales, U.S.A., Inc. was dismissed at his costs. Gulf States Toyota, Inc. appeals. No appeal has been taken from the dismissal of Toyota Motor Sales, U.S.A., Inc.

The record shows that on May 28, 1978, plaintiff purchased a 1978 Toyota Corolla station wagon from Bubba Oustalet Ford & Toyota in Jennings, Louisiana. The car had been manufactured in Japan by Toyota Motor Sales Co., Ltd., a foreign corporation not qualified to do business in the United States. It was imported by Toyota Motor Sales, U.S.A., Inc., which distributes all Toyotas sold in the United States through twelve regional distributors. Gulf States Toyota, Inc. one of the regional distributors, had received the car upon its arrival at the Port of Houston, Texas and delivered it to the dealer.

On October 26, 1978, plaintiff changed the car’s engine oil and oil filter. When he removed the original oil filter, which had been installed at the factory, a circular rubber gasket remained attached to the motor mount. Unaware that the oil gasket had not been discarded with the filter, plaintiff installed the new filter and gasket over it. A gap was present between the two gaskets, which allowed all of the oil to escape. Consequently, the motor “burned up” after plaintiff’s wife had driven the car a short distance.

Plaintiff brought this suit, seeking a reduction of the purchase price in an amount sufficient to cover the cost of replacing the damaged engine. He alleges three bases for finding that the car contained redhibito-ry defects. First, he argues that the design of the original oil filter was defective, because the gasket was not permanently affixed to the filter. Second, he argues that there was a manufacturing defect, because the adherence of the gasket to the motor mount had resulted either from its improper lubrication or from overtorquing of the oil filter when it was installed. Third, he argues that the instructions for changing the oil in the Owner’s Manual were inadequate, because they did not alert the owner of the danger of oil loss as a result of a gasket remaining attached to the motor mount.

The record does not contain the trial judge’s reasons for judgment. However, he obviously found that the car contained a redhibitory defect, since he rendered judgment in plaintiff’s favor. On appeal, Gulf States Toyota, Inc. argues that the trial judge erred in the following respects: (1) in holding it liable in redhibition despite the lack of privity between it and plaintiff, (2) in finding that the car contained a redhibi-tory defect, and (3) in allowing legal interest on the award of attorney’s fees.

LACK OF PRIVITY

In the landmark case of Media Production Consultants, Inc. v. Mercedes-Benz of North America, 262 La. 80, 262 So.2d 377 (1972), our Supreme Court established the rule that both the manufacturer and the dealer may be held liable in solido to the purchaser in a redhibitory action, despite the lack of privity between the purchaser and the manufacturer. See also, Rey v. Cuccia, 298 So.2d 840 (La.1974); Reeves v. Great Atlantic & Pacific Tea Co., Inc., 370 So.2d 202 (La.App. 3rd Cir. 1979). In Media, the Court also held that a national distributor of automobiles manufactured by a foreign corporation not qualified to do business in the United States had the same responsibility, for purposes of redhibition, as the manufacturer. See also, Moran v. Willard E. Robertson Corp., 372 So.2d 758 (La.App. 4th Cir. 1979); Perrin v. Read Imports, Inc., 359 So.2d 738 (La.App. 4th Cir. 1978). In holding the distributor liable, the Court specifically noted the following:

“The maker of Media’s [the purchaser’s] vehicle is a foreign corporation, not qualified to do business in the United States. In its distribution agreement, MBNA [Mercedes-Benz of North America, Inc.] assumes the total responsibility for marketing the cars in the United States and for selling, servicing, and establishing franchise dealerships. Its name appears upon the Dealers Claims Policies and Procedures Manual, the owner’s service policy, and the owner’s automobile manual.
“It operates a vehicle distribution center and inspects, adjusts, and prepares the automobiles for placement in the hands of a dealer for retail sale.”

262 So.2d at page 380.

In the case at hand, the responsibilities set out above were shared by Toyota Motor Sales, U.S.A., Inc. and appellant. Toyota Motor Sales, U.S.A., Inc. imports all Toyo-tas sold in the United States and is the final determiner of who will be granted franchise dealerships. However, the actual physical handling of the cars is done by twelve regional distributors. Nine of the regional distributors are subsidiaries of Toyota Motor Sales, U.S.A., Inc. The remaining three, one of which is appellant, are independent.

Appellant handles all Toyotas sold in a five-state area, which includes Louisiana. Its Vice-president of Service Operations, Bill Jarrett, testified that appellant operates a vehicle distribution center at the Port of Houston, Texas, where it receives Toyotas shipped from Japan and prepares them for delivery to 130 dealers in the five-state area. This preparation includes the installation of air conditioners, radios, stereos, luggage racks and mag wheels. It also involves the assembly and installation of beds on pickup trucks. Mr. Jarrett also testified that in his position as Vice-president of Service Operations, he manages service operations and supervises field personnel, handles warranty claims and customer relations, and provides technical assistance and service training for the five-state area.

Although appellant's contract with Toyota Motor Sales, U.S.A., Inc. was not introduced into evidence, it is clear from Mr. Jarrett’s testimony that appellant assumed many of the responsibilities that were undertaken by the national distributor in Media. As plaintiff points out, purchasers of Toyotas in the five-state area in which appellant operates have only it to look to for important manufacturer’s services, such as warranty claims and service problems that cannot be handled by the dealer. The issue of whether Toyota Motor Sales, U.S.A., Inc. should also be liable is not before us, since no appeal has been taken from the judgment dismissing it. However, we find no error in the trial judge’s conclusion that appellant’s activities were sufficient to expose it to the liability that would normally be imposed on the manufacturer.

FINDING OF A DEFECT

Plaintiff’s first argument in support of his contention that the car contained redhibitory defects is that the design of the oil filter was defective. He presented evidence which reasonably supports his contention that if the gasket had been permanently affixed to the filter, it would not have adhered to the motor mount when the filter was removed. However, the evidence also shows that all of the major manufacturers of oil filters on the market today utilize a design calling for separate gaskets and filters. It is clear that when appropriate precautionary measures are taken to insure that the old gasket is removed and discarded, such filters are reasonably safe. Plaintiff testified that he did not check the discarded filter to see if the old gasket had been removed with it. If he had done so, he would have been alerted to the fact that the gasket was still in place. He could then have simply removed it and avoided the unfortunate consequences of his failure to do so. In view of those facts, we cannot agree that the design of the filter was defective.

Plaintiff’s next argument is that there was a manufacturing defect. He presented evidence establishing that improper lubrication of the gasket or overt-orquing of the filter when it was installed at the factory could have caused the gasket to adhere to the motor mount. However, the evidence also shows that adherence of the gasket commonly occurs even when it is adequately lubricated and the filter is properly installed. Viewing the evidence as a whole, we find that plaintiff failed to show that it was more probable than not that faulty manufacturing techniques caused the adhesion of the gasket to the motor mount. Rey v. Cuccia, supra. Accordingly, we reject his argument that there was a manufacturing defect.

Finally, plaintiff argues that the instructions for changing the engine oil in the Owner’s Manual supplied by the manufacturer were inadequate. The instructions in the Owner’s Manual, which was introduced into evidence, do not warn of the danger presented if the old gasket is not removed. However, they do provide that the mounting surface should be wiped with a clean rag before the new filter is installed so that it will seat well. They also state that after putting in the new oil and filter, a check for leaks should be made while running the engine for three minutes. According to the instructions, the presence of a leak indicates faulty installation. Plaintiff testified that he carefully followed those directions and did not detect any leaks.

All of the experts who testified agreed that because of the rapid buildup of oil pressure that occurs when the engine is run, any leak should become evident within three minutes. Appellant’s expert testified that in addition, the car is equipped with a warning light on the dashboard, which is designed to alert the driver to the dangerous loss of oil pressure that takes place when there is a leak. The wiping of the mounting surface, the three minute check for leaks, and the warning light are all designed to safeguard against the kind of damage that occurred in this case. According to plaintiff, the first two measures were ineffective. There was no evidence showing whether or not the warning light came on, since plaintiff’s wife did not testify. However, it is clear that the likelihood that all three measures will fail is remote. In view of that fact, we believe that the instructions in the Owner’s Manual were adequate.

We conclude that the trial judge’s finding that the car contained redhibitory defects was manifestly erroneous. The judgment appealed by Gulf States Toyota, Inc. must therefore be reversed. Having determined that the judgment must be reversed, we do not reach the third issue raised by appellant.

For the above and foregoing reasons, the judgment of the trial court is reversed and set aside, and judgment is rendered in favor of Gulf States Toyota, Inc., dismissing plaintiff’s suit. All costs of the trial and the appeal are assessed to plaintiff.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    Mary SANDERS, Plaintiff-Appellee, v. Joe PASTERNACK, Jr., Defendant-Appellant.
    No. 7633.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.
    Roy S. Halcomb, Sr., Ferriday, for defendant-appellant.
    Ernest L. Johnson, Baton Rouge, for plaintiff-appellee.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   SWIFT, Judge.

Plaintiff, Mary Sanders, instituted this action to have a foreclosure sale of her property annulled, asserting it was invalid because the price was insufficient to discharge an existing superior mortgage as required by LSA-C.C.P. 2337. Following a hearing, the trial judge decreed the sale a nullity. Defendant, Joe Pasternack, Jr., has perfected this appeal.

On August 24, 1968, plaintiff executed a promissory note in which she agreed to pay the sum of $700 to Joe Pasternack, Jr. To secure the note, she signed an act of mortgage on a portion of Lot 57 in Helena Plantation Subdivision in Concordia Parish which was filed for record December 7, 1971.

Following her default on the note, defendant obtained judgment on February 9, 1973, against Ms. Sanders in the sum of $622.35, plus eight per cent per annum interest from June 4,1970, and 25 per cent of principal and interest as an attorney’s fee. The judgment also ordered that the mortgage securing the note be recognized and maintained. The mortgaged property was seized on April 17, 1973, pursuant to a writ of fi fa. On June 13,1973, it was adjudicated to Mr. Pasternack, the seizing creditor, for the sum of $1,000.00, two thirds of its appraised value. He tendered the sum of $149.00, the costs of the sale, and retained the remainder.

The mortgage certificate obtained by the sheriff in connection with the sale reflected a mortgage was executed by Ms. Sanders on the property in question in favor of the East Louisiana Mortgage Co., Inc., (East Louisiana Company) to secure a promissory note in the sum of $2,310.00, dated July 11, 1968, payable in 47 monthly installments of $48.12 and a final payment of $48.36 beginning August 4, 1968. This mortgage was filed for record July 12, 1968. Thus, it is clear that East Louisiana Company’s mortgage was superior to the mortgage granted the defendant. The latter contends, however, that the superior mortgage had been extinguished by payment of the note secured thereby prior to the date of the judicial sale.

The plaintiff testified that she paid off East Louisiana Company’s mortgage note in 1974. However, she produced receipts from East Louisiana Company which show that on July 6, 1972, she had actually paid this mortgagee sufficient sums to extinguish the indebtedness secured by its mortgage.

The record indicates that Ms. Sanders executed two additional promissory notes to East Louisiana Company in 1970. One note was for $275.00, payable in 11 monthly installments of $25.00 beginning April, 1970. The second note was for $54.00, payable on demand. Neither of the latter notes were secured by a mortgage.

The receipts, which Ms. Sanders produced and said were for payments on her house that was mortgaged to East Louisiana Mortgage Company, do not indicate whether the payments were credited by the company to its 1968 mortgage note or the 1970 unsecured notes. Nevertheless, LSA-C.C. Art. 2166, states that when the receipt bears no imputation

“[T]he payment must be imputed to the debt, which the debtor had at the time most interest in discharging, of those that are equally due; otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable.
“If the debts be of a like nature, the imputation is made to the debt which has been longest due; if all things are equal, it is made proportionally.”

In the present action, since East Louisiana Company’s 1968 note was longest due and was the most burdensome by reason of the mortgage, the first $2,310.00 of the payments received by the company had to be imputed to the mortgage note rather than its 1970 unsecured notes. Consequently, it is clear that such note has been fully paid almost a year before the judicial sale took place on June 13, 1973. Our supreme court has definitively held that after a mortgage note for a specific debt had been paid, the mortgage is extinguished and thereafter the debt burden cannot be increased to the prejudice of junior mortgagees. Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628 (1972).

We therefore conclude that since East Louisiana Company’s superior mortgage had been extinguished prior to the date of the judicial sale, there was no violation of LSA-C.C.P. Art. 2337 and the trial judge erred in nullifying the sale for such reason. Also, our calculations reveal that the total amount due the defendant on his mortgage foreclosure judgment at the time of the judicial sale, plus the costs, exceeded the bid price. Under the circumstances, he was only obliged to pay the sheriff the costs, as he did.

For the foregoing reasons, the judgment of the trial court is reversed insofar as it decreed the sheriff’s sale of June 13, 1973, to Joe Pasternack, Jr., recorded under Document No. 122,257, Concordia Parish, Louisiana, records a nullity, but otherwise it is affirmed. All court costs are assessed to plaintiff-appellee.

REVERSED IN PART AND AFFIRMED IN PART.

      . The article provides: “If the price offered by the highest bidder at the first or subsequent offering is not sufficient to discharge the costs of the sale and the mortgages, liens, and privileges superior to that of the seizing creditor, the property shall not be sold.”


author: CUTRER, Judge.

text:
    Vernon T. DENHAM, et ux., Plaintiffs-Appellants, v. SEARS, ROEBUCK & COMPANY et al., Defendants-Appellees.
    No. 7677.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.
    Scofield, Bergstedt, Gerard, Hackett & Mount, Robert L. Hackett, Lake Charles, for plaintiffs-appellants.
    Stockwell, Sievert, Viccellio, Clements & Shaddock by John S. Bradford, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a tort suit brought by Mr. and Mrs. Vernon T. Denham to recover damages as a result of fire in their home. Named as defendants were Sears, Roebuck & Company (Sears) and Continental Insurance Company (Continental), the comprehensive general liability insurer for the City of West-lake, Louisiana. Trial of the case began before a jury. At the close of plaintiffs’ case, the judge granted Continental’s motion for a directed verdict and dismissed the case. The plaintiffs have appealed.

The issue on appeal is whether the trial court erred in determining that the plaintiffs’ evidence was so insubstantial that the case should have been removed from the jury and a directed verdict rendered by the trial court in favor of Continental.

The record reveals the following undisputed facts: On the evening of June 13, 1978, the Denhams were in their home attempting to clean a paint spill on a large shag rug. After cleaning the rug with gasoline, Mr. Denham began to vacuum the rug. The vacuum cleaner caught fire and before Denham could extinguish the fire, the rug was engulfed in flames. The fire began at approximately 9:15 P.M. Denham went next door to the Don Kelley residence to get help. Mrs. Kelley called the West-lake Volunteer Fire Department. The firemen arrived and extinguished the flames. The firemen left the scene at approximately 11:00 P.M.

Mr. Denham was taken to the hospital to be treated for burns he received. Mrs. Den-ham returned to the home around midnight and observed the damage which was confined to the den. Other rooms sustained some smoke damage. Mrs. Denham did not observe any smoldering embers. She left the house after a short time.

Kelley, the next door neighbor, testified that about 2:15 A.M. he observed flames near the front door in the Denham home. Again the Fire Department was notified. The firemen arrived and attempted to extinguish the flames but their efforts were in vain and the house completely burned.

In both fires the firemen used a fire hydrant located approximately 290 feet from the Denham home. Across the street from the Denham home was a city water tower. The bottom of this tower was enclosed by an eight foot tall fence. Within this enclosure was an apparent fire hydrant. This hydrant was a distance of approximately 40 feet from the Denham property. No attempt was made by the firemen to use this hydrant. The mayor of Westlake testified this hydrant was intended solely for use in flushing out and maintaining the water tower. He stated that the hydrant was not intended to be a part of the fire protection system.

When plaintiffs closed their case, counsel for Continental moved for a directed verdict. The trial judge granted the motion and dismissed the case. In his oral reasons the trial judge, among other things, pointed out that there was absolutely no evidence that the non-use of the hydrant within the water tower enclosure and the use of a fire hydrant some 290 feet away in any way hindered the ability of the firemen to fight the fire competently. The trial court stated as follows:

“. . . I have stated and I repeat that there is no evidence that the use of the second plug contributed to any damages by (sic) the plaintiff.”

Secondly, the trial judge determined that there was no evidence that the second fire had its origin in the first fire. Thus, the trial judge concluded that a directed verdict was proper.

The plaintiffs argue on appeal that the trial judge erred because he, in violation of the standard set out in Campbell v. Mouton, 373 So.2d 237 (La.App.3rd Cir. 1979), did not consider all reasonable inferences most favorable to the plaintiffs. Plaintiffs contend that a reasonable inference could arise that the firemen were hindered because they did not have access to the nearest “fire hydrant.” They also contend that a reasonable inference could arise from the fact that a second fire occurred because the firemen were negligent in extinguishing the first fire.

In Campbell, this court adopted the following standard for directed verdicts:

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

In the present case we agree with the result reached by the trial judge. There is no substantial evidence of quality and weight that might lead to different conclusions by reasonable and fair-minded persons exercising impartial judgment. Not one shred of evidence was introduced that the use of a fire hydrant 290 feet from the Denham residence in any way impaired or delayed the fire fighting capability of the firemen. Simply because an apparent fire hydrant was nearer the residence than the one used does not give rise to a reasonable inference that the plaintiffs suffered damages they would not have otherwise suffered.

Plaintiffs offered no evidence regarding the standard of care or procedure to be used by firemen in extinguishing a fire. Likewise there is no evidence in the record that the firemen breached any standard of care that may be imposed upon them in their extinguishing the first fire. There was no evidence of the procedure or method used by the firemen in extinguishing the first fire. Without such evidence it would be impossible for a jury to reasonably conclude that the firemen were negligent simply because a second fire occurred, especially since no evidence was offered regarding the cause of the second fire. Also, as noted by the trial judge, the second fire originated in the front living room area which, according to Mrs. Denham’s testimony, was not involved in the first fire.

Our review of the record leads us to conclude that fair and reasonable persons exercising impartial judgment could not have reached any conclusion other than that the plaintiffs had utterly failed to present evidence of any failure by the City of West-lake to comply with any duty that may exist in plaintiffs’ favor. The trial judge was entirely correct in rendering a directed verdict.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . At the close of plaintiffs’ case, the counsel for the Denhams informed the court that a settlement had been reached with Sears. Judgment dismissing the suit as to Sears was accordingly rendered, leaving only Continental as defendant.

      . It should be noted that we do not reach the issue of what, if any, duty was owned by the City of Westlake, through its firemen, to the Denhams. We do not, by this opinion, want to leave the impression that we are passing upon whether such a duty is owed and, if so, of what the duty consists.


author: FORET, Judge.

text:
    James A. JEWELL, Plaintiff-Appellant, v. Rickey E. THOMPSON et al., Defendants-Appellees.
    No. 7679.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.

      Camp, Carmouche, Palmer, Barsh <& Hunter, G. Michael Bourgeois, Lake Charles, for plaintiff-appellant.
    Hall, Léstage «fe Lestage, H. 0. Lestage, III, Deridder, for defendants-appellees.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   FORET, Judge.

This matter is before us on an appeal from the granting of a motion for summary judgment by the trial court.

James A. Jewell filed suit against Rickey E. Thompson, Lonnie Blackmon, Blackmon Trucking Company, Inc., Boise Southern Company, Shirley D. Smith, Distributors Oil Company, Inc., Sinclair Oil Corporation, White Motor Corporation, Cummins Engine Company, Inc., and Continental Oil Company, Inc. seeking damages for personal injuries received on October 31, 1978. Lonnie Blackmon, Blackmon Trucking Company, Inc. and Boise Southern Company filed a motion for summary judgment asserting that plaintiff’s suit in tort must fall because movers are the employers of plaintiff and are therefore responsible to plaintiff only for workmen’s compensation benefits under Louisiana’s Workmen’s Compensation Law, specifically, LSA-R.S. 23:1061, et seq.

The record reveals that plaintiff was employed by Rickey Thompson on October 81, 1978, the date of Jewell’s accident. Thompson had, in turn, contracted with Lonnie Blackmon and later Blackmon Trucking Company, Inc. to haul wood products to the Boise plant near DeRidder, Louisiana. Boise had engaged Lonnie Blackmon prior to 1977 to haul wood products. Later, Blackmon formed Blackmon Trucking Company, Inc. The relationship which existed between Blackmon and Thompson was in the nature of contractor-sub-contractor, Boise being the principal.

While en route to pick up a load of wood chips for delivery to Boise, Jewell stopped at the Blackmon Trucking facility located near DeRidder to fill the truck he was driving with diesel. The facility was leased to Blackmon Trucking by W. G. Henderson for $375.00 per month. During the filling operation, an explosion occurred, causing severe burns to Jewell.

The trial court, in ruling on the motion for summary judgment, was confronted with the question of whether or not a genuine issue as to material fact existed as to the contractual relationship between Lonnie Blackmon and/or Blackmon Trucking and Boise. Defendants contend that, although the contracts appear to be executed by Lonnie Blackmon individually and Boise, they were, in reality, executed between Black-mon Trucking and Boise. Defendants have filed in the record the affidavits of Lonnie Blackmon, Rickey Thompson, and Edwin Russell, all of which support defendants’ contention that in truth and in fact Boise contracted with Blackmon Trucking and not Lonnie Blackmon individually. The evidence submitted by defendants is to the effect that prior to August of 1977, Lonnie Blackmon, individually, contracted with Boise, but thereafter Blackmon Trucking was the contracting party. The evidence is also to the effect that Lonnie Blackmon never informed Boise of the incorporation of his business, and therefore the contracts were executed in the name of Lonnie Black-mon individually, as had been done prior to August of 1977. However, funds paid by Boise to Blackmon were deposited into the corporate account of Blackmon Trucking. Thompson was paid by checks drawn on Blackmon Trucking’s corporate account.

Plaintiff asserts that the trial court erred in granting the summary judgment in that there is a genuine issue as to material fact with regard to the contractual status or relationship of movers. We agree.

LSA-C.C.P. Articles 966 and 967 provide:

“Art. 966. Motion for summary judgment; procedure.

The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

“Art. 967. Same; affidavits.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.”

As stated previously, the mover-defendants have filed in the record affidavits supporting their motion. In addition to these affidavits, defendants have filed numerous other documents such as cancelled checks, deposit slips, wood receiving invoices, and requests for admission. Plaintiff has filed no affidavits or other documentary evidence in opposition to defendants’ motion.

Under LSA-C.C.P. Article 967, an adverse party may not rest on the mere allegations or denials of his pleading when a motion for summary judgment is made and supported as provided in Paragraph 1 of the same article. We note that the failure of an adverse party to file counter-affidavits does not automatically entitle one to a summary judgment. Acme Refrigeration of Baton Rouge, Inc. v. Caljoan, Inc., 346 So.2d 743 (La.App. 1 Cir. 1977). The granting of a summary judgment is proper if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to a judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

Affidavits and other documents are not substitutes for findings of fact by a court. This type of evidence must be scrutinized carefully when passing on the question of the granting of a summary judgment.

Summary judgment is not to be used as a substitute for the trial of a controverted fact which bears directly on the decision of a case. LeBlanc v. Landry, 371 So.2d 1276 (La.App. 3 Cir. 1979); Simmons v. City of Lake Charles, 368 So.2d 1167 (La.App. 3 Cir. 1979).

All contracts contained in the record show Lonnie Blackmon as the contracting party. There is a genuine issue as to the status of Lonnie Blackmon and Black-mon Trucking Company, Inc. vis-a-vis Rickey Thompson and Boise. Plaintiff seriously disputes this relationship and should have the opportunity to examine the documents filed and to cross-examine any adverse parties. Summary judgments are not favored and any doubt will be resolved against the granting thereof, even where it may be favored by a preponderance of the evidence. Walker v. Graham, 343 So.2d 1171 (La.App. 3 Cir. 1977), writ denied, 346 So.2d 213 (La.1977).

In view of the above and foregoing, the summary judgment in favor of defendants is annulled and set aside. The matter is remanded for further proceedings; assessment of costs to await disposition of the merits.

ANNULLED, SET ASIDE AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    Leo VASSEUR, et ux., Plaintiffs-Appellees, v. EUNICE SUPERETTE, INC., Defendant-Appellant.
    No. 7690.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.

      Lewis & Lewis, James C. Lopez, Opelou-sas, for defendant-appellant.
    Donald J. Richard, Opelousas, for plaintiffs-appellees.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Mr. and Mrs. Leo Vasseur, instituted a suit for malicious prosecution against the defendant, Eunice Superette. Eunice Superette had filed criminal charges of issuing worthless checks against the Vasseurs, but the charges were dismissed after the Vasseurs paid the Superette what they owed. After trial on the merits of plaintiffs’ malicious prosecution suit, the Judge rendered a decision in favor of plaintiffs “under the abuse of process rule.” The Superette has appealed and argues that the essential elements of a cause of action for abuse of process are absent. It also contends that the plaintiffs’ petition lacks sufficient allegations of fact to support a cause of action for abuse of process. Plaintiffs have answered the appeal seeking an increase in the amount of the judgment. The Vasseurs also are seeking punitive damages under La.C.C. Article 2315.1.

The evidence establishes the following undisputed facts: The Vasseurs were frequent customers of the Eunice Superette grocery store in late 1974 and 1975 (and for several years before, as well). The Vass-eurs customarily “paid” for their groceries by signing a blank counter check drawn on Tri-Parish Bank and Trust Company in Eunice, where the Vasseurs maintained a joint checking account. The rest of the information on the check, such as the amount of the purchase, the date, and the name of the payee, always “Superette”, was supplied by the cashier or some other employee of the Superette.

Between December 13, 1974, and February 24, 1975, nine such checks totalling $344.43 were written by the Vasseurs.

On May 21, .1975, Mr. and Mrs. Vasseur signed a notarized petition for voluntary bankruptcy. This petition was filed on May 30, 1975, in the U.S. District Court. In the petition, the Vasseurs listed Eunice Super-ette as an unsecured creditor in the amount of $437.31.

On May 26, 1975, Mrs. Frances Bertrand, on behalf of Eunice Superette, sent certified letters to Mr. and Mrs. Vasseur requesting payment of the nine checks described in footnote 1. According to the letter, the checks had been run through the bank and were returned to the Eunice Su-perette with an NSF designation. The Vasseurs did not comply with these requests.

The Superette, acting through Mrs. Bertrand, formally filed criminal charges of issuing worthless checks against Mr. and Mrs. Vasseur in August of 1975, in connection with the Vasseurs’ nonpayment of the nine checks described above. All criminal charges were subsequently dismissed or dropped after the Vasseurs paid the Super-ette all sums represented by the nine checks.

While the above facts are not in dispute, there is serious disagreement over whether the “checks” were intended as payment for the goods or were intended merely as evidence of indebtedness.

The Vasseurs contend that Jerome Moore, the owner of the Superette, had agreed years before to allow them to charge their goods and pay for them later when Mr. Vasseur was paid by his employer. They argue that the “checks” were meant only as evidence of the indebtedness and were never intended to be negotiable instruments which could be presented for payment at a bank. The checks, or notes, were to be held by the Superette until they were later redeemed by the Vasseurs, who would at that time pay the aggregate amount of the checks.

On the other hand, Jerome Moore testified that there never was a charge account agreement with the Vasseurs. Rather, their checks were treated no differently from checks of other customers. Consequently, the Vasseurs’ checks were run through Tri-Parish Bank and returned to the Superette with an NSF designation.

Other testimony on behalf of defendant indicated that ordinarily, once a check returned NSF, that customer’s name was put on a “bad check” list, a copy of which was posted on each cash register. These “bad check” customers were telephoned, were told that their checks were returned, and were given an opportunity to pay the amount of the check. If no payment was made, a certified letter was sent to the customer, who was then given ten days to pay the bill before it was turned over for collection. Apparently because they were neighbors (they lived across the street from the Superette) the Vasseurs were treated differently. Their names were never added to the bad check list even though the number of NSF checks issued by them continued to mount. Only after the Vasseurs had ignored repeated telephone requests that they pay their bills did the Superette finally send the Vasseurs certified letters formally requesting payment within ten days.

Thus, the Superette argues that the Vass-eurs’ checks were intended as payment for the goods received and not as “hold” checks. Only because they were neighbors and had been frequent customers of the Superette for years did Mr. Moore allow several months to pass before instructing one of his employees, Prances Bertrand, to institute legal action against the Vasseurs for not paying their NSF checks.

ABUSE OF PROCESS

The entire text of the trial Judge’s reasons for judgment reads:

“Under the broad relief provisions of Code of Civil Procedure Article 1841 and without going into the vexatious problem of malice by implication etc. (there seems to be no personal spite or ill will) I hold plaintiff is entitled to recover under the abuse of process rule. See 72 C.J.S. [Process], pages 1187 et seq., Secs. 119 and 120; 1 Am.Jur.2d, pages 261 et seq., Secs. 14 and 15; Prosser (4th Ed.), pages 856 et seq.; Minitogs, Inc. vs. Young [La. App.], 354 So.2d 1389; Sazdoff vs. Bourgeois [La.App.], 301 So.2d 423 and Cutrer vs. Curtis [La.App.], 341 So.2d 1209.
It was admitted that Mrs. Bertrand was instructed to file criminal charges in order to collect payment. Thus, the ulteri- or motive requirement for this type liability. As to the act not regular in the proceedings, the record shows the charges were dropped upon payment. Though there is little explicit and direct testimonial description of negotiations re payment etc., that other requirement of irregular use of the process is necessarily to be inferred from the sequence between the payment and the dropping of the charges and additionally from the ulterior motive itself.
Damages are fixed at $1,500 for Mrs. Vasseur and $750 for Mr. Vasseur. Plaintiff’s attorney to draft judgment and submit for signature with copy to opposing counsel who will have five days to make objection to form.”

The tort action for abuse of process has long been recognized at common law and several Courts of Appeal in this state (see trial court’s opinion, above, for citations) have had occasion to discuss this heretofore alien action which is kindred to the tort of malicious prosecution. There seems to be no reason not to recognize a plaintiff’s right to recover for damages caused by a defendant’s abuse of process when the facts so warrant.

Unlike malicious prosecution, however, where several elements — including malice and probable cause — must be established for the plaintiff to prevail, there are only two essential elements of abuse of process. These are set forth in Law of Torts, Hornbook Series (3rd Edition), by William A. Prosser, at page 877:

“The essential elements of abuse of process, as the tort has developed, have been stated to be: First, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding.”

The trial judge found both elements of abuse of process satisfactorily proven. The ulterior purpose consisted of the Superette’s desire to collect payment; the improper act was the dismissal of the charges after payment was rendered. We disagree that the elements of abuse of process have been established in this case.

We know of no law which prohibits a holder of an NSF check from filing criminal worthless check charges against the issuer of the check merely because he has as his only objective payment of what is due from the defendant-debtor. La.R.S. 14:71, at the time these criminal charges were brought, simply provided:

“Issuing worthless checks is the issuing, in exchange for anything of value, with intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation.
The offender’s failure to pay such check, draft, or order within ten days after the receipt by him of written notice of its nonpayment upon presentation shall be presumptive evidence of his intent to defraud.”

The statute concluded by establishing penalties imposable upon those convicted of the crime. Nowhere does the statute proscribe the filing of criminal charges when the complainant is prompted by purely selfish motives. It is our opinion that if worthless checks have been issued and criminal charges are properly brought against the issuer, the underlying motive for filing the charges is immaterial.

Nothing in the record, or in the reasons for judgment, indicate that the criminal charges were improperly filed or that the Superette did not have the grounds to file such charges. Indeed, the Superette held nine of the Vasseurs’ checks and each was marked NSF. Additionally, the Vass-eurs did not pay the checks within ten days after receipt of written notice of the nonpayment of the checks so their intent to defraud was presumed under the statute. Therefore the Superette did have the grounds to file the worthless check charges.

Our conclusion that the filing of criminal charges to seek restitution is not the kind of ulterior purpose envisioned by the abuse of process rule is bolstered by the fact that R.S. 14:71 was amended in 1975 to provide that the court may order restitution as part of the sentence of those found guilty of issuing worthless checks. It thus appears that the seeking of restitution is not necessarily an illegal or illegitimate objective in the use of the criminal process. Consequently, the first essential element in proving abuse of process — ulterior or wrongful purpose — is lacking.

The second essential element of abuse of process is also lacking. Dismissal of the criminal charges after voluntary restitution is made does not constitute the kind of improper act or misuse of the criminal process that would warrant a finding of abuse of process. Our understanding of the law is that once criminal charges have been filed, only the District Attorney has the authority to cease prosecution, even though the complainant has changed his mind and wants to drop the charges.

MALICIOUS PROSECUTION

The trial judge’s opinion did not clearly indicate which version of the facts he believed. If he believed the Vasseurs’ testimony that the checks were “hold” checks, then the abuse of process theory would not apply since Jerome Moore would have known the checks were “hold” checks and his institution of criminal proceedings against the Vasseurs would have been wrongful. In that instance, application of the theory of malicious prosecution would be more appropriate since the act complained of would be the wrongful (or malicious) institution of criminal proceedings. If Jerome Moore knew that the checks were “hold” checks, it would be very difficult to conclude that he acted without malice in having criminal charges filed against the Vasseurs. However, one of the few findings of fact that the judge did make is that the Superette (or Jerome Moore) acted without malice. This finding, which we cannot say is clearly wrong after a review of the evidence, and our finding that the Superette had probable cause to institute the proceedings, defeats the Vasseurs’ action for malicious prosecution since malice and probable cause are essential elements of the tort. This is apparently why the judge decided the case on the abuse of process theory.

PUNITIVE DAMAGES

The Vasseurs have asked for punitive damages under La.C.C. Article 2315.1. Since the Superette was guilty of no wrongdoing this request is denied. Even if the trial court judgment was upheld, however, Article 2315.1 is inapplicable here because it deals only with a judgment obtained because of defamation, libel, or slander. It does not apply to suits for malicious prosecution or abuse of process.

DECREE

For the above reasons, the judgment of the District Court is reversed. It is hereby Ordered that there be judgment herein in favor of Eunice Superette, Inc., and against Mr. and Mrs. Leo Vasseur, dismissing the suit filed by the Vasseurs against the corporation. All costs of these proceedings are assessed against Mr. and Mrs. Leo Vasseur.

REVERSED AND RENDERED.

      . Mrs. Vasseur signed checks on December 13, 24, and 28, 1974, and January 10 and 28, 1975, in amounts of $138.07, $42.39, $45.22, $33.31, and $25.06, respectively, for a total of $284.05. Mr. Vasseur signed checks on January 16 and February 4, 11, and 24, 1975, in amounts of $44.73, $4.19, $4.74, and $6.72, respectively, for a total of $60.38.

      . Apparently the certified letters were sent to the Vasseurs before the Superette learned of their intention to file for bankruptcy. The letters were dated May 26 whereas the bankruptcy petition was not filed until May 30.

      . The Supreme Court has recently restated that an action for malicious prosecution lies where there is a concurrence of these elements:
      . . (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff.”

        Hibernia National Bank of New Orleans v. Bolleter, (La.1980) (Docket No. 66157); Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975).

      . Since we find that an abuse of process was not proven in this case, it is unnecessary to consider the Superette’s argument that the Vasseurs’ petition fails to allege acts sufficient to support a cause of action for abuse of process.


author: LABORDE, Judge.

text:
    Floyd W. LOPEZ, Plaintiff-Appellee, v. BLUE CROSS OF LOUISIANA, Defendant-Appellant.
    No. 7702.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.

      Brittain & Williams by Joe Payne Williams, Natchitoches, for defendant-appellant.
    Davis & Simmons, Kenneth N. Simmons, Many, for plaintiff-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

This appeal comes to us from a judgment in favor of plaintiff, awarding him insurance benefits for his wife’s hospitalization, attorney’s fees and penalties.

Plaintiff is a federal employee stationed in Louisiana. The Federal Employees Health Benefits program is established by federal law. The United States Civil Service Commission is given the authority to implement the program by contracting with qualified health insurance carriers. Defendant, through the National Blue Cross Association, contracted with the Civil Service Commission to provide health insurance to federal employees in Louisiana such as plaintiff.

Plaintiff’s wife was admitted to the hospital on her physician's orders on January 16, 1978, was transferred to another hospital on February 13, 1978 and was discharged on February 20, 1978. Defendant paid a small portion of the hospital bills and doctors’ fees leaving a balance of $3,960.86. Defendant refused to pay the aforesaid balance on the ground that the expenses incurred were not “medically necessary” and therefore not payable under the following clause contained in the policy, to-wit:

Basic and Supplemental Benefits are NOT (sic) provided for the following types of hospital admissions or portions of admissions — Not medically necessary.

Plaintiff filed this suit for the remaining $3,960.86 plus penalties and attorney’s fees alleging that defendant was arbitrary and capricious in failing to pay benefits. The trial court rendered judgment for the above sum including a penalty of 100% of the amount due and $3,000 in attorney’s fees.

Appellant urges that we reverse the trial judge’s decision based on three grounds:

1) the insurance contract in question is not subject to Louisiana law;
2) the contract clearly and unambiguously excludes the hospitalization in question;
3) the penalty, if any penalty should be assessed, should be 12% instead of 100%.

Plaintiff answered the appeal and asked for an increase in attorney’s fees.

Appellant’s first argument is that the provisions of the health benefit program supersede any inconsistent State law. Appellant quotes the following language in support of that argument:

“The provisions of a contract under this chapter, which relate to the nature of extent of coverage or benefits (including payment with respect to benefits) shall supersede and preempt any State or Local law, or any regulation issued thereunder, which relates to health insurance or plans to the extent that such law or regulation is inconsistent with such contractual provisions.”

This paragraph was enacted into law by Public Law 95-368, effective September 17, 1978. To affect the contract and hospitalization in question, we would have to determine whether the act should be applied retroactively. However, we do not reach that question since we hold that the Louisiana insurance law is not inconsistent with the provisions of the health benefit program.

The contract is between plaintiff, a Louisiana resident, and defendant, a Louisiana insurer. The federal government is neither the insurer under its contract with Blue Cross nor the insurer of plaintiff’s health benefits. Clearly the contract between the Civil Service Commission and Blue Cross grants Blue Cross the franchise to contract with the federal employees for health insurance. The insurance contract was delivered in Louisiana and is between a Louisiana resident and an insurance company with offices in Louisiana. Based on these factors, we conclude that the Louisiana statute is applicable. Scanlan v. Mutual Benefit Life Insurance Company, 371 So.2d 356 (La. App. 4th Cir. 1979).

Appellant’s second argument is that, under the terms of the policy, benefits were not due. Appellant also argues that it was not arbitrary and capricious in denying benefits if benefits were actually due. These questions are factual in nature and therefore must be reviewed under the standard of review enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973), and Arceneaux v. Dominigue, 365 So.2d 1330 (La. 1978), the factual determinations of the trier of fact should not be disturbed unless clearly wrong. We have carefully reviewed the record in this matter. We find no error in the trial judge’s ruling that the hospitalization was medically necessary.

We do not agree that appellant was arbitrary and capricious. Appellant has limited its liability by the following language:

Basic and Supplemental Benefits are NOT (sic) provided for the following types of hospital admissions or portions of admissions — Not medically necessary — i. e., when in the judgment of the Carrier the medical services did not require the acute hospital bedpatient (overnight) setting, but could have been provided in a physician’s office, the outpatient department of a hospital, or in a lesser facility without adversely affecting the patient’s condition or the quality of medical care rendered.

Appellee argues that this clause is against public policy as giving “the sole authority as to whether or not a particular claim is covered under the policy of insurance would be the insurance company.”

We do not strike the exclusion as contrary to public policy. No argument has been made that it is contrary to public policy to exclude coverage for unnecessary hospital admissions. Our law is clear that an insurer may limit its liability just as any individual may. Oceanonics, Inc. v. Petroleum Distributing Co., 292 So.2d 190 (La. 1974); Livingston Parish School Board v. Fireman’s Fund Am. Ins. Co., 282 So.2d 478 (La.1973); Stacy v. Petty, 362 So.2d 810 (La.App. 3rd Cir. 1978).

The difficulty arises from the stipulation that the “judgment of the Carrier” controls. We interpret that phrase as expressing the practice and policy of all insurers — a claim for coverage will be reviewed and paid if, in the insurer’s opinion, it is a covered occurrence or expense. We hold that, as with other insurers, the review and denial of claims under this exclusion is subject to judicial review by the courts of this state. Therefore, the insurer is not the sole authority.

After careful review of the record, we note that the insurer obtained the medical records of plaintiff’s wife and had them reviewed by its staff. Based on the opinion of its physician-advisor, insurer denied the claim. The insurer was under an obligation to determine by an honest and sincere effort whether plaintiff’s hospitalization was medically necessary. The record reflects that the defendant’s procedure for making that determination was followed in this case. After proper .evaluation of the doer tors’ and hospital records, it concluded that plaintiff’s hospitalization was not medically necessary. The defendant did not make an arbitrary or capricious decision. Therefore, we hold that the trial court was clearly wrong in awarding attorney’s fees and penalties.

Since we reverse the award of attorney’s fees and penalties, we do not reach the issue of what the proper penalty should be.

For the above and foregoing reasons, the judgment of the trial court is reversed so far as it awards attorney’s fees and penalties and is affirmed in all other respects. Costs of this appeal are assessed one-half to appellant, one-half to appellee.

AFFIRMED IN PART, REVERSED IN PART.

GUIDRY, J., concurs in the result.

      . 5 U.S.C. 8902(m)(l)


text:
    Mrs. Edna BOUTTE, Plaintiff-Appellant, v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY, State Farm Mutual Automobile Insurance Company, and American Motors Insurance Company.
    No. 7703.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Rehearing Denied Aug. 22, 1980.
    Voorhies & Labbé by Robert A. Lecky and D. Mark Bienvenu, Lafayette, for plaintiff-appellant.
    Champagne, Colomb & Brumbaugh, Patrick L. Colomb, McBride & Brewster, Norman P. Foret, Davidson, Meaux, Sonnier & Roy, James J. Davidson III, Lafayette, for defendant-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Mrs. Edna Boutte brought this suit to recover damages for personal injuries that she sustained in a fall at the home of her daughter and son-in-law, Mr. and Mrs. William J. Gardiner. Defendants are Pennsylvania Millers Mutual Insurance Company, the Gardiners’ homeowners insurer, and State Farm Mutual Automobile Insurance Company, the Gardiners’ automobile liability insurer. After a trial on the merits, the trial judge found that plaintiff was contrib-utorily negligent and rendered judgment in favor of defendants. Plaintiff appeals.

The relevant facts were succinctly set forth in the trial judge’s written reasons for judgment as follows:

“On Saturday, November 6,1976, plaintiff and her daughter, Marjorie Gardiner, went grocery shopping using the Gard-iners’ 1974 Buick Regal. They returned to the Gardiners’ residence at 310 Kim Drive in Lafayette, Louisiana, to visit together. Mrs. Gardiner parked the automobile next to her home in the two-car carport. She and plaintiff got out of the car and went into the home. Plaintiff placed her perishable groceries in the refrigerator and then she and Mrs. Gard-iner visited with each other for a time.
“After their visit, plaintiff retrieved her groceries, positioned a medium size bag of groceries in one arm, and carried her purse in the other hand. She walked out of the kitchen door onto the adjoining carport and walked around the front of the car to the passenger side. It was at this point that she slipped in an oil spot on the carport, falling hard on her right side. As a result of the fall, plaintiff sustained severe injuries to her right hip and was hospitalized for a period of time.
“Mr. & Mrs. Gardiner testified that the 1974 Buick Regal was always parked next to their house on the carport and that their 1968 Buick Skylark was always parked next to the Regal in the outer lane of the carport. They testified that oil from the Skylark leaked onto the carport at times. Mrs. Gardiner would occasionally put cat litter on the oil spots to clean them up. The Gardiners further testified that every Thursday their housekeeper would hose down or otherwise attempt to remove the oil from the carport. The oil upon which plaintiff slipped was located on that portion of the carport where the Skylark was regularly parked and it is this oil upon which plaintiff apparently slipped. The Skylark was being used by Mr. Gardiner at the time of the accident.
“Plaintiff lived at 400 Kim Drive, which was about one block away from the Gardiners’ home. She testified that she visited at her daughter’s home several times a week. When plaintiff got out of the Regal on the day of the accident she walked right by where the Skylark was usually parked and then went into the Gardiners’ home.
“Plaintiff testified that she had not seen the oil spot prior to her fall. She also testified that she did not look down at the carport as she was walking toward the Regal after her visit and immediately prior to the fall. Plaintiff, now 79 years old, stated that her vision was good at that time. The accident occurred on a clear day.
“Mrs. Gardiner testified that the oil spot was approximately six (6) inches in diameter and that the oil was black. She further stated that the spot could be seen on the concrete carport. She had not told plaintiff that there was an oil spot on the carport.”

The duty owed by a landowner to a guest like plaintiff was set out in the following language from the opinion of this Court in Vidrine v. Missouri Farm Association, 339 So.2d 877 (La.App. 3rd Cir. 1976), writ denied 342 So.2d 216 (La.1977):

“ . . . [T]he landowner owed plaintiff a duty to discover any unreasonably dangerous conditions on the premises and to either correct the condition or warn him of their existence. Shelton v. Aetna Casualty & Surety Company, supra [334 So.2d 406 (La.1976)]; Natal v. Phoenix Assurance Co., 305 So.2d 438 (La.Sup.Ct. 1974); Foggin v. General Guaranty Insur ance Co., 250 La. 347, 195 So.2d 636 (1967).
* # * * * *
In addition, it is well settled that a landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. Shelton v. Aetna Casualty & Surety Company, supra; Alexander v. General Accident Fire and Life Assurance Corp., 98 So.2d 730 (La.App. 1st Cir. 1957); writ denied Feb. 10, 1958.”

339 So.2d at page 879. In Vidrine, the plaintiff brought his suit to recover damages for personal injuries he sustained when he slipped and fell on a muddy boardwalk on his father’s farm. This court concluded that in view of the facts that the plaintiff had visited the farm on several prior occasions, he was familiar with the muddy conditions and had observed the construction and position of the board walk, and yet he had proceeded on, his own negligence was the sole cause of the accident.

In Alexander v. General Accident Fire & Life Assurance Corp., which was cited in the above excerpt from the Vidrine case, our brethren of the First Circuit held that the 76 year old plaintiff, who had fallen because of an unsecured rug in her son-in-law’s home, was contributorily negligent. The court concluded that because she was a frequent visitor in the home and was thoroughly familiar with the condition and position and potential danger of the loose carpet, her own carelessness or forgetfulness had proximately contributed to her injuries.

Applying the sound reasoning of those decisions to the case at hand, we conclude that the trial judge correctly found that plaintiff is barred from recovering by her contributory negligence. Plaintiff testified that although she had not actually seen oil on the carport during her frequent visits, she was aware of the fact that there were oil spots on the carport at times and that the Gardiners’ housekeeper removed them. Nevertheless, she never looked down as she was walking. If she had done so, she could have observed the danger and avoided it.

Guillotte v. Houston General Insurance Company, 368 So.2d 1026 (La.1979), which is relied on by plaintiff, is inapposite. The issue in that case was whether the plaintiff had assumed the risk, not whether she was contributorily negligent. Whether or not a plaintiff has assumed the risk is determined by making a subjective inquiry, while contributory negligence is determined objectively under the reasonable man standard. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); Poe v. State Farm General Insurance Co., 360 So.2d 634 (La.App. 3rd Cir. 1978).

Having found that plaintiff is not entitled to recover, we do not reach the coverage issues raised by the defendant-insurers.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are taxed to the plaintiff-appellant.

AFFIRMED.


text:
    Rodney FONTENOT et al., Plaintiffs-Appellees, v. Margaret K. PETMECKY et al., Defendants-Appellants.
    No. 7732.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1980.
    Rehearing Denied Aug. 22, 1980.

      Donald Soileau, Mamou, for defendants-plaintiffs in-reconvention-appellants.
    Ryder & Deshotels, Errol D. Deshotels, Oberlin, for plaintiffs-appellees.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

This is a suit for injunctive relief, which arises out of a dispute over the right to farm approximately 930 acres of farm land located partly in Allen and partly in Evangeline Parishes. In 1976, plaintiffs, Rodney and Gregory Fontenot, leased this property, which is known as the “Osterland-Knight Farm”. They brought this suit to enjoin the defendant landowners from leasing the property to a new farmer, defendant Robert Spears, alleging in their petition that the 1976 lease had been reconducted for 1977. Defendants answered by way of general denials. In addition to his answer, Robert Spears filed a reconventional demand for any damages that he would sustain as a result of the wrongful issuance of the injunction. Also, certain of the landowners prayed for any damages caused by the wrongful issuance of the injunction. After a hearing, the district court found that the lease had been reconducted and issued a preliminary injunction restraining the defendant landowners and their lessee, Spears, from interfering with plaintiffs’ farming operations during 1977.

The landowners appealed devolutively, and Spears appealed suspensively. This Court reversed the judgment, after finding that the 1976 lease had not been reconduct-ed. Judgment was rendered in favor of the defendants and against the plaintiffs, rejecting plaintiffs’ demands at their costs. The case was remanded to the district court for trial of the issues of damages suffered by defendants by reason of the wrongful issuance of the preliminary injunction.

A trial was held in the district court on October 9, 1979, at which Spears presented evidence for the purpose of establishing the nature and extent of his damages. After taking the matter under advisement, the trial judge rendered judgment in favor of plaintiffs, dismissing Spears’ claim for damages and attorney’s fees. Spears appeals.

The trial judge’s reasons for rejecting Spears’ claim were set forth in his written reasons for judgment as follows:

“The district court trial [of plaintiffs’ demand for the preliminary injunction] was, in effect, on the merits. There was nothing left to be tried. The appellate court dealt with the merits. The parties simply had their day in court on the basic issue between them.
“Article 3608 of the Louisiana Code of Civil Procedure provides as follows:
‘The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.’
“Awarding damages and attorney’s fees appears to be discretionary.
“In this case, had plaintiff’s attorney simply sued for a permanent injunction, the effect would have been the same and there would be no question of damages. This court is of the opinion it would be an abuse of discretion to award damages and attorney’s fees against plaintiff because he elected to use the court to assert a claim.”

Spears argues that the trial judge’s conclusion that awarding him damages would have been an abuse of his discretion was erroneous. He further argues that the trial judge’s refusal to award him damages was an abuse of his discretion. We agree.

Plaintiffs’ liability for damages under LSA-C.C.P. Art. 3608 is not a result of their having elected to litigate a claim. As the trial court correctly observed, plaintiffs could have sued for a permanent injunction, employing the same legal theory and evidence, and they would not have been liable for damages under that article. However, if they had done so, they would not have been allowed to employ summary proceedings. LSA-C.C.P. Art. 2592.

A defendant in an ordinary proceeding is allowed considerably more time to answer, raise exceptions, and prepare his defense than a defendant in a summary proceeding. Presumably, the danger of there being an erroneous decision in favor of the plaintiff is thereby decreased. We believe that this is the reason why LSA-C.C.P. 3608 provides for damages for the wrongful issuance of a temporary restraining order or a preliminary injunction, but it does not provide similar damages for the wrongful issuance of a permanent injunction. A preliminary injunction may be obtained through the use of summary proceedings under LSA-C.C.P. Art. 3602, while ordinary proceedings must be used for obtaining permanent injunctions. The record shows that in the case at hand plaintiffs filed their suit on March 21, 1977. The trial was held on March 25-28, 1977, and the preliminary injunction was issued on April 1, 1977.

Under these circumstances, we cannot agree with the trial judge’s conclusion that it would be unjust or unfair to require plaintiffs to reimburse Spears for the attorney’s fees that he incurred in connection with the dissolution of the wrongfully issued preliminary injunction. However, we do not believe that Spears is entitled to the other damages that he seeks. We know of no authority for allowing damages for mental anguish under LSA-C.C.P. 3608, and the evidence that he presented does not support his claim that he incurred business losses as a result of the issuance of the injunction. The trial judge granted him a suspensive appeal on April 11, 1977, ten days after the injunction was issued. Spears has not shown that he suffered any loss as a result of the restraining of his activities during the interim ten day period.

With regard to the attorney’s fees, Spears’ attorney testified in detail concerning the work that he did and the amount that was involved. According to that testimony, part of his time was spent in defending the rule for the preliminary injunction. There is no statutory authority for allowing attorney’s fees for simply defending a rule for a preliminary injunction. Lighthouse Life Insurance Company, Inc. v. Rich, 343 So.2d 444 (La.App. 3rd Cir. 1977). However, under LSA-C.C.P. Art. 3608, attorney’s fees are allowable in connection with the dissolution of a preliminary injunction. Based on the evidence in the record, we believe that an attorney’s fee of $4,500 would be reasonable.

For the above and foregoing reasons, the judgment appealed by the defendant-appellant, Robert Spears, is reversed. Judgment is rendered in favor of Robert Spears and against the plaintiffs, Rodney Fontenot and Gregory K. Fontenot, in the sum of $4,500. All costs of the trial and this appeal are assessed to the plaintiffs.

REVERSED AND RENDERED.


text:
    Gail Prejean BONDURANT et al., Plaintiffs-Appellants, v. Yelverton BONDURANT, Jr., Defendant-Appellee.
    No. 7725.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1980.
    Rivers & Willson, Thomas R. Willson, Alexandria, for plaintiffs-appellants.
    Lloyd F. Love, Ferriday, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

Plaintiff, Gail Bondurant, filed this tort action, individually and on behalf of her minor children, against her former husband, Yelverton Bondurant, Jr., to recover damages sustained as a result of an automobile accident.

Defendant filed an exception of no right of action alleging that plaintiff had no right of action to bring the suit against defendant because the parties were not divorced at the time of the accident. Defendant also urged, in his exception, that his children had no right of action against their father. The trial judge sustained the exception, dismissing plaintiff’s suit. Plaintiff perfects this appeal from the lower court’s ruling.

The facts are as follows. Gail Bondurant and Yelverton Bondurant, Jr. were legally separated by judgment rendered September 6, 1977. The judgment awarded Gail Bon-durant the custody of the three minor children of the marriage, Troy, Angela, and Shane. On March 4, 1978, defendant, accompanied by his minor children, was proceeding northbound on Louisiana Highway 129 when his vehicle ran off the road causing injuries to the children. On December 11,1978, a judgment of divorce was rendered terminating the marriage of Gail and Yelverton Bondurant. On February 28, 1979, plaintiff instituted the present action.

The issue presented is whether plaintiff and her children have a right to action to institute suit against defendant to recover damages caused as a result of a tort committed by defendant during the existence of the marriage.

INTERSPOUSAL IMMUNITY

LSA-R.S. 9:291, at the time of filing, provided:

As long as the marriage continues and the spouses are not separated judicially a married woman may not sue her husband except for:
1. A separation of property;
2. The restitution and enjoyment of her paraphernal property;
3. A separation from bed and board;
or
4. A divorce.

Clearly, the statute does not prohibit a judicially separated spouse from suing the other spouse for a tort committed after the judicial separation. See Comment (d) to the statute as amended by Act 711 of 1979.

Furthermore, the jurisprudence interpreting the source provision of the present article has held that a divorced spouse may sue the other spouse for a tort committed during the marriage. In Gremillion v. Caffey, 71 So.2d 670 (La.App. 1st Cir. 1954), the ex-wife brought suit against her former husband to recover damages sustained as a result of a battery committed prior to termination of the marriage. The court stated that the wife did not have a right of action during the existence of the marriage but did have a cause of action against her husband. The court held that the termination of the marriage ended the abatement of her right of action which had existed during the marriage, and that the ex-wife was entitled to bring suit, after divorce, for the tort committed during the marriage.

Plaintiff and defendant were judicially separated on September 6,1977. The accident occurred on March 4, 1978. Suit was filed on February 28, 1979. Plaintiff was judicially separated when the cause of action arose and when the suit was filed. Therefore, the trial court erred in dismissing her suit.

PARENTAL IMMUNITY

The trial judge also held that the children had no right of action for damages occasioned by their father’s tort committed during the existence of the marriage.

LSA-R.S. 9:571 provides:

“The child who is not emancipated cannot sue:
(1) Either parent during the continuance of their marriage, when the parents are not judicially separated; or
(2) The parent who is entitled to his custody and control, when the marriage of the parents is dissolved, or the parents are judicially separated. Added Acts 1960, No. 31, § 3.”

The parents of the children were legally separated on September 6, 1977, the accident occurred on March 4,1978, and suit was filed February 28,1979. Therefore, the second paragraph applies. The bar of R.S. 9:571 would apply only to the parent with custody or control. Since by the terms of the judicial separation, Gail Prejean Bondu-rant was awarded custody, there is no procedural bar to the minor children’s suit against their father. We do not reach the issue of whether a child may later sue for a tort committed during the marriage. See Walker v. Milton, 268 So.2d 654 (La.1972). The trial court erred, in the instant action, in dismissing the children’s suit on no right of action.

Accordingly, the judgment of the trial court is reversed and the suit remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed against defendant-appellee.

REVERSED AND REMANDED.


text:
    Paul Dallas JOLIVETTE, Plaintiff-Appellant, v. Priscilla Pitre JOLIVETTE, Defendant-Appellee.
    No. 7761.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1980.
    W. H. Whitaker, Acadiana Legal Services, Lafayette, for plaintiff-appellant.
    Peter C. Piccione, Jr., Lafayette, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   FORET, Judge.

The sole issue for determination in this case is whether or not the district court abused its discretion in refusing to permit the appellant, Paul Dallas Jolivette, the right to prosecute his appeal from the merits of a divorce action in forma pauperis.

We note at the outset that the record does not contain any testimony or salient facts giving rise to this litigation. . Counsel for appellant has designated the contents of the record which contains the following:

(1) the motion and order of appeal dated December 21, 1979;
(2) the affidavit of financial status of appellant;
(3) the affidavit of poverty of Alice Co-meaux and Paul Dallas Jolivette;
(4) the motion and order of appeal dated February 29, 1980; and
(5) the designation of contents of record.

Appellant herein filed an action for divorce against his former wife on June 15, 1979. The divorce was based on the ground of living separate and apart for one year after a judgment of legal separation. Appellant did not file in forma pauperis in the divorce action in that he paid $50.00 in advance court costs. Appellant prayed that his child support obligation of $69.00 as previously fixed by the judgment of separation remain constant. At the time of the divorce proceedings, appellant had two minor children and one child who had attained the age of majority. The defendant-appel-lee, Priscilla Jolivette, filed an answer admitting the allegations of appellant's petition and reconvened for an increase in child support for the two minor children. Appellant’s major daughter, Jewel Jolivette, who is also an appellee herein, intervened, asking that the appellant be ordered to pay her support and maintenance in order for her to continue her education. In opposition to the petition for intervention, appellant filed a peremptory exception of no cause of action. On November 29,1979, the trial court rendered judgment in favor of appellant on the main demand, and in favor of appellee increasing child support to $100.00 per month for the minor children and ordered that appellant pay his major daughter $25.00 per month for the duration of her needs. On December 21, 1979, appellant moved to appeal from the above mentioned judgment in forma pauperis. The trial court granted the motion but denied appellant’s prayer to appeal in forma pauperis. The appellant then filed the present appeal from the trial court’s denial of his pauper status.

The record shows that appellant has a total gross monthly income of $170.00, and expenses of $167.00 per month, which include $69.00 as child support. Also contained in the record is a financial statement and fact sheet concerning the appellant. Appellant has a Vfcth interest in a home, which home is valued at $10,000 to $15,000. He has no telephone and is a self-employed barber. He has no bank account or other assets of any significance. In addition to the $100.00 appellant earns from his barber shop, he earns an additional $70.00 per month from an interest in a pool table and music box.

According to appellant’s brief, appellant suffers from a nervous disorder and is an alcoholic. Both of these conditions allegedly prevent him from earning more than he does.

The privilege of litigating a claim in for-ma pauperis is set out in LSA-C.C.P. Article 5181 which provides:

“An individual who is unable to pay the costs of court, because of his poverty and lack of means, may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance, or as they accrue, or furnishing security therefor.”

This privilege, however is not unfettered. Certain restrictions are placed upon those seeking to proceed in forma pauperis. LSA-C.C.P. Article 5182 provides:

“The privilege granted by this Chapter shall be restricted to litigants who are clearly entitled to it, with due regard to the nature of the proceeding, the court costs which otherwise would have to be paid, and the ability of the litigant to pay them or to furnish security therefor, so that the fomentation of litigation by an indiscriminate resort thereto may be discouraged, without depriving a litigant of its benefits if he is entitled thereto.”

The determination of a litigant’s right to proceed in forma pauperis is largely within the discretion of the trial court. Armont v. Board of Commissioners of Gram- mercy Recreation District, 358 So.2d 358 (La.App. 4 Cir. 1978). Although a trial court has wide discretion in granting or denying application to proceed in forma pauperis, such discretion must be exercised reasonably and is subject to review for abuse. McCoy v. Winn Dixie Louisiana, Inc., 339 So.2d 976 (La.App. 4 Cir. 1976), writ granted 341 So.2d 406 (La. 1977), reversed on other grounds, 345 So.2d 1175 (La. 1977).

In Benjamin v. National Super Markets, Inc., 351 So.2d 138 (La. 1977), Justice Tate stated, at page 141:

“. . . The purpose ascribed to the legislative privilege is to assure that no litigant be deprived of his day in court because of a lack of financial means to pay court costs.
Thus, an individual’s privilege to litigate his claim in our courts is not regarded as a luxury. Rather, it is regarded as a privilege granted him in the interest of individual justice to him, and in the interest of a judicial system designed to provide justice for all. The grant of the privilege to litigate without prepayment of costs is designed to deny depriving any individual of his day in court merely because of his lack of financial means to pay or secure court costs.”
See also Joiner v. Chelette, 377 So.2d 521 (La.App. 3 Cir. 1979).

The statutory privilege for proceeding in forma pauperis provided by our Code of Civil Procedure is to be construed liberally and in favor of giving indigents their day in court. In Roy v. Gulf States Utilities Co., 307 So.2d 758, 760 (La.App. 3 Cir. 1975), we stated:

“The legislative intent, we believe, was for that privilege [to litigate in forma pauperis] to be restricted to those who are clearly entitled to it so that the statute will not be abused, but that a liberal construction should be applied in close or questionable cases to make sure that a litigant who is entitled to such a privilege is not deprived of it.”

In view of the above and foregoing, and based on the record before us, we con-elude that the trial court abused its discretion in denying the appellant, Paul Dallas Jolivette, the right to proceed in forma pauperis. For the above and foregoing reasons, the judgment of the trial court is reversed.

It is therefore ordered that the appellant be allowed to prosecute his appeal to this Court in forma pauperis.

REVERSED.


text:
    Rebecca WALKER et al., Plaintiffs-Appellants, v. NATCHITOCHES LEVEE AND DRAINAGE DISTRICT et al., Defendant-Appellee.
    No. 7768.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1980.

      Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoches, for plaintiffs-appellants.
    Gahagan & Gahagan, H. C. Gahagan, Jr., Natchitoches, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This suit is one of two cases consolidated below and appealed to us. We render a separate decision in Sklar, et ux. v. Natchitoches Levee and Drainage District, et al., 386 So.2d 712 (La.App. 3rd Cir. 1980). Plaintiffs appeal from the dismissal of their suit for compensation due them for land taken for levee construction. The trial court dismissed the action on an exception of no cause of action filed by defendant Natchitoches Levee and Drainage District.

The defendant district argued that plaintiffs failed to include the necessary allegations in their petition, that the law at the time of the appropriation only provided for a gratuity at the discretion of the levee district, and that current law (R.S. 38:281) provides for compensation only in suits filed after or pending on July 10, 1978.

The trial court sustained the exception, holding that the appropriation by resolution of the levee board did not constitute the “suit” mentioned in R.S. 38:281. We agree that no suit was pending, but reverse the action of the trial court and remand the case with instructions that plaintiffs be allowed to amend their petition to allege a cause of action.

Article XVI, Section 6 of the 1921 Constitution provided that:

Lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes, . shall be paid for at a price not to exceed the assessed value of the preceding year

The characterization of the payment in the past as a gratuity, Richardson & Bass v. Board of Levee Commissioners, 77 So.2d 32 (La.1954), does not imply that it is discretionary; on the contrary, the quoted language mandates payment. The payment was said to be a gratuity since an appropriation under the riparian servitude created by C.C. Art. 665

by a Levee Board for levee purposes neither conveys a title to the Board nor does the payment of the assessed value of the owner operate as a transfer of title.

The trial judge held that since plaintiffs had not filed suit prior to July 10, 1978, they did not have a cause of action under R.S. 38:281. A review of the history of R.S. 38:281 and Article XVI, Section 6 of the 1921 Constitution leads us to believe they do have a cause of action.

R.S. 38:281 was amended by Act 314 of 1978, effective July 10, 1978, to add a new subsection B concerning compensation. The fourth paragraph of that subsection prior to the 1979 amendment read:

The compensation defined herein shall apply to all lands and improvements taken, damaged or destroyed for levee and levee drainage purposes after the effective date of this Act, and to the determination of just compensation in any expropriation or appropriation suit pending on July 10, 1978, involving lands and improvements taken, damaged or destroyed for levee and levee drainage purposes.

The statute was amended by Act 676 of 1979 to read as follows:

The compensation defined herein shall apply to all lands and improvements appropriated, used or damaged for levees and levee drainage purposes after the effective date of this Act, and to lands appropriated, used or damaged for levees and levee drainage purposes after July 10, 1978.

The preamble of that Act provided that:

Whereas, the Legislature of Louisiana enacted Act 314 of 1978 which contained provisions which were vague and indefinite particularly with respect to its retroactive application and with respect to lands used or destroyed for levees and levee drainage purposes for which fair market value must be paid; and
Whereas, these provisions should be clarified in order to set forth clearly the intention "of the Legislature of Louisiana in enacting said statute: .

We believe the intent of the Legislature in 1978 was to affect only those appropriations after the effective date of the 1978 act. Regardless, plaintiffs still have a cause of action under Article XVI, Section 6 of the 1921 Constitution which has been carried forward as a statute by authority of Article 14, Section 16 of the 1974 Constitution and therefore it still has the effect of law. Accordingly, we hold that plaintiffs still have a cause of action under the old law.

When a landowner sues for compensation under Art. 16, Section 6 of the 1921 Constitution, the jurisprudence has required an affirmative allegation that the property was assessed the previous year. Lacour v. Red River, Atchafalaya & Bayou Boeuf Levee District, 104 So. 636, 158 La. 737 (La.1925). Plaintiffs petition lacks this allegation. This point was not raised below, but was raised in appellee’s brief. Lacour and similar cases prior to the enactment of the Code of Civil Procedure had sustained the dismissal of actions without the necessary allegation. The Code of Civil Procedure, Art. 934, now provides that plaintiff must be given an opportunity to cure the defect by amendment.

Therefore, we reverse the trial court’s dismissal for no cause of action and remand the case for further proceedings with instructions to allow plaintiffs an opportunity under C.C.P. Art. 934 to cure any defect in their pleadings. Cost of this appeal are taxed to defendant-appellee.

REVERSED AND REMANDED.

      . Richardson & Bass v. Board of Levee Commissioners, supra.


text:
    Louis E. SKLAR et ux., Plaintiffs-Appellants, v. NATCHITOCHES LEVEE AND DRAINAGE DISTRICT et al., Defendant-Appellee.
    No. 7769.
    Court of Appeal of Louisiana, Third Circuit.
    July 22, 1980.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoches, for plaintiffs-appellants.
    Gahagan & Gahagan, H. C. Gahagan, Jr., Natchitoches, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This is the companion case to Walker, et al. v. Natchitoches Levee and Drainage District, et al., 386 So.2d 709 (La.App. 3rd Cir. 1980), decided by us this day.

For the reasons assigned therein, the judgment of the trial court is reversed and the case remanded for further proceedings with instructions that plaintiffs be given the opportunity to cure any defect by amendment. Costs of this appeal are taxed to defendant-appellee.

REVERSED AND REMANDED.


text:
    Jerry BAKER v. STATE of Mississippi.
    No. 51589.
    Supreme Court of Mississippi.
    Dec. 19, 1979.
    Darrell Reeves, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before ROBERTSON, P. J., and LEE and BOWLING, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM and COFER, JJ., concur.

SUGG, J., took no part.


author: LEE, Justice,

text:
    Leona D. CAMPBELL et al. v. Victor DEDEAUX et al.
    No. 51947.
    Supreme Court of Mississippi.
    July 30, 1980.
    Rehearing Denied Aug. 27, 1980.

      Daniel, Coker, Horton, Bell & Dukes, Pete H. Carrubba, Gulfport, for appellants.
    C. Randall Jones, Jr., Pass Christian, for appellees.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

This suit involves a partition proceeding between fifty-seven (57) descendants of John (Bolier) Dedeaux. Victor Dedeaux and Nettie Dedeaux instituted the suit in the Chancery Court of Harrison County seeking a partition of one hundred sixty (160) acres of land in said county, and other heirs at law of John Dedeaux, Jr. filed suit to confirm their title to said lands, claiming by adverse possession. The chancellor held there was no ouster of the cotenants and no adverse possession, and entered a decree ordering a partition sale of the property. The aggrieved parties appeal here.

The sole question to be decided is whether or not the trial court erred in holding that there was no ouster of the cotenants and no adverse possession.

The 160-acre tract of land was patented to John (Bolier) Dedeaux by the United States Government on March 20, 1890. Subsequently, in 1898, he died intestate leaving as sole heirs at law, his widow and six (6) children. All those individuals died intestate and all had children, except Henry, who was crippled and unmarried. One of those children was John Dedeaux, Jr., later known as Uncle Mune. His descendants claim the land through adverse possession. The record indicates the following:

(1) On March 4, 1901, the land was sold for delinquent taxes to the State of Mississippi and redeemed by John Dedeaux on March 24, 1902.

(2) On March 27, 1911, John Dedeaux executed a turpentine lease to Imperial Naval ■Stores.

(3) On February 4, 1920, John Dedeaux executed an oil, gas and mineral lease to Cyrene S. Drennon.

(4) On July 5, 1927, the land, assessed to John Dedeaux, sold to M. B. McCauley for delinquent 1926 taxes and was redeemed by John Dedeaux.

(5) On August 6, 1930, the land, assessed to John Dedeaux, sold to Albert Bradley for delinquent 1929 taxes.

(6) On October 26, 1931, Albert Bradley executed a quitclaim deed to John Dedeaux covering said lands.

(7) On September 19, 1932, the lands, assessed to John Dedeaux, sold to the State of Mississippi for delinquent 1931 taxes and was redeemed by John Dedeaux.

(8) On December 19,1932, tax deeds were executed from the tax collector to Albert Bradley, conveying the said lands.

(9) On July 20, 1934, John Dedeaux and wife executed an oil, gas and mineral lease to the Texas Company covering said lands.

(10) On July 19, 1944, a release of said lease was executed by the Texas Company to John Dedeaux.

(11) On September 20, 1965, said lands, assessed to John Dedeaux, were sold to Edsel E. Stewart for delinquent 1954 taxes and were redeemed by John Dedeaux.

The evidence for appellants indicated that John (Mune) Dedeaux, Jr., exercised use of the land and paid taxes, redeemed the land when sold for taxes, cut timber upon it, grazed cattle, executed oil and gas leases, leased for turpentine extraction and obtained homestead exemptions on said land. No accounting was made to any of the other cotenants for any rents or profits received from said land and without any request for contribution as to taxes or any moneys expended in connection with the property. John (Mune) Dedeaux, Jr., exercised ownership over the property during his lifetime, died in 1958, and his heirs continued to exercise such ownership and to receive benefits and make expenditures in regard to the property.

The evidence is clear that no actual notice was given by John (Mune) Dedeaux, Jr. or his heirs at law to the other cotenants that the land was being claimed adversely to them. The rule is well established that a eotenant in possession of land, or exercising ownership over land, occupies a fiduciary relationship to the other cotenants and that the acts of a cotenant in possession of land are for the benefit of the other cotenants. Such relationship can be overcome only by clear and convincing evidence that those cotenants had actual notice of the adverse claim, or the equivalent thereto, before the statute of limitations will begin to run. Bayless v. Alexander, 245 So.2d 17 (Miss. 1971); Quates v. Griffin, 239 So.2d 803 (Miss.1970).

The case of Hemphill v. Willis, 300 So.2d 458 (Miss.1974) is similar to the case sub judice. There, the Court said:

“It is alleged that sometime before Oc- . tober 3, 1893, one Bob Willis obtained title to the above described eighty (80) acres of land. Bob Willis and his wife died before 1910, leaving several children. Their son, Bob Willis, and his wife, and Dave Willis, a grandson, and his wife remained on the described property. Dave Willis claimed the property as his after his father’s death in 1944. Dave Willis’ widow, Hattie Willis, remained on the property and farmed the property with their son Allen Willis, the cross-complainant. During the time after the death of the original owner, Bob Willis, his grandson Dave Willis, and his wife, Hattie, together with the cross-complainant Allen Willis, had complete control of the land. They farmed the property; they fenced it; they leased it; they paid taxes on the land; and they did all acts consistent with ownership.” 300 So.2d at 459.

The court held in Hemphill, such occupancy did not overcome the presumption that same was for the benefit and use of all cotenants, and that the use by the cotenants in possession was not sufficiently clear and convincing to establish an ouster of the cotenants not in possession. The acts of ownership exercised by John (Mune) De-deaux, Jr. and his heirs at law were not inconsistent with the acts of a cotenant and they do not constitute an ouster of the other cotenants.

We now consider the question of whether or not the tax sale of said land to Albert Bradley on August 6,1930 for delinquent 1929 taxes resulted in an ouster of the other cotenants when Bradley executed a quitclaim deed of the land to John Dedeaux. In Quates v. Griffin, supra, the Court said:

“We are of the opinion that in the interest of . the rule should be and is hereby declared to be, as follows: Where one or more of several contenants convey land by an instrument purporting to vest in the grantee the fee simple title to the entire property, and the grantee is not a cotenant at the time of the execution of the deed . . . . In order for such deed to constitute an ouster as aforesaid, the grantee must have had no interest whatever in the land prior to the execution of the deed, either as a cotenant by deed or as a cotenant by inheritance; nor is a quitclaim deed limiting the estate conveyed to ‘all my right, title and interest’ in the land sufficient to set in motion the statute because it does not purport to convey the entire property.
* * * * * *
. To oust cotenants not joining in the deed these factors must concur, (1) the execution of the deed purporting to convey the entire interest in fee simple to one then a stranger to the title, (2) the recording of the deed, and (3) the entry of the grantee claiming the entire interest in the property.” 239 So.2d at 811, 812.

In Griggs v. Griggs, 218 Miss. 433, 67 So.2d 450 (1953), the Court said:

“The authorities are uniform in affirming the general rule that when one of several co-owners of property acquires a tax title thereto, his purchase amounts merely to a payment of the taxes or a redemption from the sale, and gives him no rights against his associates except in so far as they may fail or refuse to contribute to the expenditure so made. And this rulé prevails whether the tax deed was procured to be executed directly to the tenant or to a third person through whom he claims as grantee, . . .” 218 Miss, at 441, 67 So.2d at 453.

See also Howard v. Wactor, 41 So.2d 259 (Miss.1949); Clausell v. Riley, 188 Miss. 647, 196 So. 245 (1940).

On October 26, 1931, Albert Bradley executed a quitclaim deed to John Dedeaux covering said land. The period for redemption of the land from the tax sale would not have expired until August 6, 1932. Therefore, the quitclaim deed from Albert Bradley simply amounted to a redemption of the land by John Dedeaux, and to Bradley’s conveying unto Dedeaux all his interest in the tax sale, and place John Dedeaux in the same position, as if he had bought the land at the tax sale himself. The fact that the tax collector executed tax deeds to Bradley on December 19, 1932, does not change the situation.

We are of the opinion that the tax sale and deed from Bradley to Dedeaux did not constitute an ouster of the cotenants.

We cannot say that the lower court was manifestly wrong in its finding of fact on the issues discussed and the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.