text:
    Linda Nell Johnston LEROUX, a/k/a Linda Nell Johnston King v. Charles F. JOHNSTON, Jr., et al.
    No. 66632.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Linda Nell Johnston Leroux, applying for writ of certiorari and review. Parish of Webster. No. 38,456.

Writ granted. The order of the district judge granting the quashing of the subpoena duces tecum is overruled.

SUMMERS, C. J.,

dissents from the grant. No good cause has been shown to compel production of documents.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. STATE of Louisiana.
    No. 66766.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Garrett Decatur Richardson, applying for remedial writs. Parish of Orleans. No. 267-196.

Writ granted. Defendant is permitted to act as co-counsel for his appeal.


text:
    STATE of Louisiana v. Samuel Eugene HEBERT.
    No. 66789.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Samuel Eugene Hebert, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Grant. No. 34,613.

Granted. The ruling of the trial court is reversed. The state is required to divulge names of owners of cows, the animals’ value, and the site of each shooting.

SUMMERS, C. J., dissents.


text:
    STATE of Louisiana ex rel. Edward COLLINS v. Honorable Israel M. AUGUSTINE, Judge, Orleans Parish Criminal Judicial District Court.
    No. 65596.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Edward Collins, applying for writ of mandamus. Parish of Orleans. Number unknown.

Denied; moot.


text:
    STATE of Louisiana ex rel. Wilson GAGE v. CLERK OF COURT, ORLEANS INDIGENT DEFENDER PROGRAM, et al., PARISH OF ORLEANS.
    No. 65629.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Wilson Gage, applying for writ of mandamus. Parish of Orleans. No. 251-488 and No. 251-489.

Denied as moot; the appeal has been reinstated.


text:
    STATE of Louisiana ex rel. Robert LEE v. Honorable Frank MARULLO, Judge, Orleans Parish Criminal Judicial District Court.
    No. 65885.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Robert Lee, applying for remedial writs. Parish of Orleans. Number unknown.

Denied. The district judge has ordered a hearing on relator’s motion, and his production in court, on February 22,1980, and the issue is moot.


text:
    STATE of Louisiana ex rel. Raymond MORGAN v. Honorable Frank MARULLO, Judge, Orleans Parish Criminal Judicial District Court.
    No. 65944.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Raymond Morgan, applying for writ of mandamus. Parish of Orleans. Nos. 208-567 and 208-568.

Writ denied. Application is moot. The district court has acted.


text:
    STATE of Louisiana ex rel. Maurice G. SMITH v. CLERK OF COURT, CRIMINAL JUDICIAL DISTRICT COURT, ORLEANS PARISH.
    No. 66088.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Maurice G. Smith, applying for supervisory writs. Parish of Orleans. No. 267-354.

Writ denied.


text:
    STATE of Louisiana v. Steven B. FONTENOT.
    No. 66116.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Steven B. Fontenot, applying for supervisory writs. Parish of Evangeline. No. 15,902.

Denied.


text:
    STATE of Louisiana ex rel. Charles E. WHITTINGTON, II v. Frank BLACKBURN, Warden.
    No. 66124.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Charles E. Whittington, II, applying for writ of habeas corpus. Parish of Lafayette. Nos. 42031; 41166; 41514.

Denied.


text:
    STATE of Louisiana ex rel. Hayman DOURESSEAU v. EUNICE CITY POLICE.
    No. 66178.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Hayman Douresseau, applying for remedial writs. Parish of St. Landry. No. 32,304.

Denied.


text:
    STATE of Louisiana ex rel. Willie TURNER v. Warden Roger AUCOIN, East Baton Rouge Parish Prison.
    No. 66245.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Willie Turner, applying for writ of habeas corpus. Parish of East Baton Rouge. Number unknown.

Writ denied. Application is moot.


text:
    STATE of Louisiana ex rel. Willie TURNER v. Warden AUCOIN.
    No. 66246.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Willie Turner, applying for writ of mandamus. Parish of East Baton Rouge. No. 1-80-204.

Denied; moot.


text:
    STATE of Louisiana ex rel. Leslie W. CLARK v. J. Evans RINEHART, Warden, Orleans House of Detention.
    No. 66280.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Leslie W. Clark, applying for remedial writs. Parish of Orleans, First Municipal Court. Nos. 485107; 218705.

Denied; moot.


text:
    STATE of Louisiana v. Michael FOSTER.
    No. 66305.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Michael Foster, applying for remedial writs. Parish of Orleans. Number unknown. Municipal Court.

Denied. Relator must first seek relief in the trial court.


text:
    STATE of Louisiana ex rel. Preston BROWN v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66244.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Preston Brown, applying for writ of mandamus and certiorari. Parish of Jefferson. No. 82-819.

Granted; the case is remanded to the trial court to give the petitioner credit for time served from arrest to conviction.


text:
    Adam DUFRENE v. DIXIE AUTO INSURANCE et al.
    No. 66407.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Adam Dufrene et al., applying for rehearing of denial .of writs of certiorari on January 18, 1980. Court of Appeal, Fourth Circuit. Parish of St. Charles. No. 9487.

Not considered. Rule 9, Sec. 6.


text:
    BENGLIS SASH & DOOR COMPANY v. A. P. LEONARDS, d/b/a Chennault 2-10 Properties and Benny King.
    No. 66427.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Benglis Sash & Door Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 378 So.2d 992.

Granted.

WATSON, J., recused.


text:
    STATE of Louisiana v. Lester Glenn PASTER.
    No. 66471.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Lester Glenn Paster, applying for writ of review. Parish of Ouachita. No. 38,148.

Granted. Relator’s application is ordered docketed as an appeal.


text:
    STATE of Louisiana v. Alvin “Coffee” WASHINGTON.
    No. 66582.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re State of Louisiana, through the District Attorney, Leonard K. Knapp, applying for remedial write. Parish of Calca-sieu. No. 1555-75A.

Granted.


text:
    STATE of Louisiana v. Alvin “Coffee” WASHINGTON.
    No. 66581.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re State of Louisiana, applying for remedial writs. Parish of Calcasieu. No. 1554-75-A.

Granted.


text:
    Clarence J. MAHL, Jr. v. BOARD OF TRUSTEES OF the FIRE FIGHTERS PENSION AND RELIEF FUND FOR the CITY OF NEW ORLEANS.
    No. 66068.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Clarence J. Mahl, Jr., applying for reconsideration of writ denial of November 30, 1979, Court of Appeal, Fourth Circuit. No. 10298. Parish of Orleans.

Reconsideration of writ denied.


text:
    STATE of Louisiana v. Clarence L. ROBERTS.
    No. 66323.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Clarence L. Roberts, applying for remedial writs. Parish of Ouachita. Number unknown.

Not considered. Relator must first apply to the district court.


text:
    STATE of Louisiana v. Glenn CONSTANTINE.
    No. 66458.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Glenn Constantine applying for remedial writs. Parish of Orleans. No. 262-845.

Denied.


text:
    Edward K. SANDERS v. HERCULES SHEET METAL, INC., ABC Insurance Company and DEF Insurance Company.
    No. 66596.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Hercules Sheet Metal, Inc., et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 486.

Granted.


text:
    Arnet Ruth PRADIA v. ST. PATRICK HOSPITAL OF LAKE CHARLES et al.
    No. 66592.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re St. Patrick Hospital of Lake Charles et al., applying for certiorari, or Writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 378 So.2d 576.

Writ denied.


text:
    WHITE PROPERTIES, INC., Gilbert T. White and Robert W. Sullivan v. Dr. and Mrs. Santo J. LoCOCO.
    No. 66598.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re White Properties, Inc., Gilbert T. White and Robert W. Sullivan, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 474.

Denied.


text:
    Anthony P. ABRAHAM v. LAKE FOREST, INC., and NEI Corporation.
    No. 66599.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Lake Forest, Inc., and NEI Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 465.

Denied.

SUMMERS, C. J., and MARCUS, J., would grant the writ.


text:
    ABBADIE’S IGA SUPERMARKET, INC., et al. v. J. Andrus BAROUSSE et al.
    No. 66600.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Abbadie’s IGA Supermarket, Inc., and Donald J. Abbadie, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia. 378 So.2d 591.

Denied.


text:
    Stephen M. MYERS v. Michael SUDO.
    No. 66604.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Michael Sudo, applying for certiora-ri, or writ of review, to Court of Appeal, Fourth Circuit. Parish of Jefferson. 377 So.2d 482.

Denied.

CALOGERO and MARCUS, JJ., would grant the writ.


text:
    Anthony P. ABRAHAM v. LAKE FOREST, INC., and NEI Corporation.
    No. 66605.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Anthony P. Abraham, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 465.

Denied.

SUMMERS, C. J., and CALOGERO and BLANCHE, JJ., would grant the writ.


text:
    William GOBLE v. E. S. UPTON PRINTING COMPANY, INC.
    No. 66606.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re E. S. Upton Printing Company, Inc., applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Orleans Parish. 377 So.2d 461.

Denied.

SUMMERS, C. J., and DIXON and CA-LOGERO, JJ., would grant the writ.


text:
    In re James R. DABOVAL, III, Applying for the Adoption of Ryan Michael Perez.
    No. 66607.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Clifton J. Perez, Jr., applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 377 So.2d 459.

Denied.

SUMMERS, C. J., would grant the writ.


text:
    Byron F. LEMOINE v. EMPLOYERS CASUALTY COMPANY and Peter Kiewit Son’s Company.
    No. 66615.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Employers Casualty Co., and Peter Kiewit Son’s Company, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 378 So.2d 594.

Denied.

SUMMERS, C. J., would grant to reconcile the differences in the Circuits.


text:
    The POLO CORPORATION v. MEDCO MANAGEMENT CORP. and Robert Harvey.
    No. 66617.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Medco Management Corp. and Robert Harvey, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 484.

Denied.


text:
    Carl PAUL v. Mrs. Sam (Addie) CLOUD.
    No. 66633.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Carl Paul, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Allen. 378 So.2d 586.

Denied. The result is correct.


author: SUMMERS, C. J.,

text:
    Floyd P. BEARD v. BEAUREGARD PARISH POLICE JURY.
    No. 66634.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Floyd P. Beard, applying for certio-rari, or writ of review to the Court of Appeal, Third Circuit. Parish of Beauregard. 378 So.2d 625.

Writ denied.

SUMMERS, C. J.,

would grant. The facts of this case do not warrant constituting this road a public way.


text:
    Roger V. PAILET v. OFFICE OF HEALTH SERVICES AND ENVIRONMENTAL QUALITY DEPARTMENT OF HEALTH AND HUMAN RESOURCES of the State of Louisiana.
    No. 66670.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Office of Health Services et al., applying for certiorari, or writ of review to the Court of Appeal, First Circuit. State of Louisiana Civil Service Commission. 379 So.2d 266.

Writ denied.


text:
    Nathan PHILLIPS v. Lawrence E. ABNEY et al.
    No. 66671.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Nathan Phillips, applying for certio-rari, .or writ of review to the Court of Appeal, First Circuit. Parish of St. Tammany. 377 So.2d 1314.

Denied.

MARCUS, J., would grant the writ.


text:
    J. Pat SMITH et ux. v. Irl D. “Cote” ANDREPONT, Jr., etc.
    No. 66679.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Irl D. “Cote” Andrepont, Jr., etc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 378 So.2d 479.

Denied. Result is correct.

MARCUS, J., would grant as to assignment of Error No. 3.


text:
    STATE of Louisiana v. Ricky GRAY.
    No. 66857.
    Supreme Court of Louisiana.
    Feb. 18, 1980.
   In re State of Louisiana, applying for writs of certiorari. Parish of Lincoln. Number unknown.

Writ granted. The ruling of the trial court that the witness, Larance Gray, may not be placed before the jury and examined is modified as follows: The witness may be asked in the presence of the jury whether he intends to refuse to answer every question posed in- spite of the grant of immunity. If he indicates that he will so refuse, the court should excuse him without further examination.

WATSON, J., would deny the writ.


text:
    STATE of Louisiana v. Mitchell G. VARNADO.
    No. 66694.
    Supreme Court of Louisiana.
    Feb. 21, 1980.
   In re Mitchell G. Varnado, applying for remedial writs. Parish of Jefferson. No. 78-1216.

Writ granted.


text:
    STATE of Louisiana v. Charles COLE.
    No. 66793.
    Supreme Court of Louisiana.
    Feb. 21, 1980.
   In re Charles Cole applying for supervisory writs. Parish of St. Tammany. No. 62,919.

Writ granted.


text:
    STATE of Louisiana v. Vonda L. TAYLOR.
    No. 66805.
    Supreme Court of Louisiana.
    Feb. 21, 1980.
   In re Vonda L. Taylor, applying for writ of certiorari. Parish of Livingston. Number unknown.

Denied.


text:
    In the Interest of Wade TRAHANT et al.
    No. 66812.
    Supreme Court of Louisiana.
    Feb. 21, 1980.
   In re Mr. and Mrs. Douglas Hendler, applying for remedial writs. Parish of Orleans, Juvenile Division. No. 186-460A.

Writ denied.

CALOGERO and DENNIS, JJ., would grant the writ.


author: EDWARDS, Judge.

text:
    Eva Landry AGUILLARD v. Marcie J. AGUILLARD.
    No. 12811.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Carey J. Guglielmo, Baton Rouge, of counsel for plaintiff-appellant Eva Landry Aguillard.
    Stephen C. Riedlinger, Baton Rouge, of counsel for defendant-appellee Marcie J. Aguillard.
    Before EDWARDS, PONDER, LEAR, COLE and SARTAIN, JJ.
   EDWARDS, Judge.

Eva Landry Aguillard, plaintiff-appellant, was granted a judgment of separation from her husband, Marcie J. Aguillard, by the Family Court of East Baton Rouge Parish. Alimony pendente lite in the sum of $1,000.00 monthly was awarded to her. Mrs. Aguillard appeals the trial court’s specific determination that mutual fault of the parties brought about the separation. In addition, Mr. Aguillard seeks a reduction of alimony to $500.00 per month while Mrs. Aguillard urges an increase. We affirm.

The relevant codal provision in this case is LSA-C.C. Art. 141:

“A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such instances, alimony pendente lite may be allowed but permanent alimony shall not be allowed thereafter following divorce.”

Mrs. Aguillard claims that the facts do not support a finding of mutual fault. We disagree.

Testimony established that there was virtually no communication between husband and wife (T 60, 64, 95). Mrs. Aguillard occasionally spoke to her daughter, Christy, as an intermediary rather than communicate with Mr. Aguillard (T 63). The Aguil-lards cursed, shouted and screamed at one another (T 60, 61).

Mrs. Aguillard testified that sexual relations were very infrequent and that she moved into her daughter’s room because she felt “ugly when I did have relations . .” (T 107). Mr. Aguillard stated that the move created a very poor atmosphere for sex and that requesting relations was extremely difficult (T 89).

Mrs. Aguillard complained that while she was given $1,550.00 per month to run the house, relations gradually deteriorated and her husband treated her as if she weren’t even there (T 108-111). She objected to the fact that he had a Lincoln Continental while she was relegated to a Ford Torino (T 111). She especially disliked Mr. Aguil-lard’s habit of conducting financial matters without informing her. On one particular occasion she felt “betrayed completely” (T 119-122). These conditions led to her grandstand request that Mr. Aguillard give her $25,000.00 (T 117).

Mr. Aguillard characterized his home life as “Very unpleasant. Very irritating” (T 87). He related that in addition to Mrs. Aguillard’s final leaving without notice (T 77), she had previously absented herself from home several times without his knowledge (T 87).

Mr. Aguillard’s analysis of his wife’s homemaking was most critical. The food was poor and

“there were very few times in the past three or four years that I had a decent supper to eat.” (T 87).
“The meals were served to me over cold rice and a piece of dry meal. The next day probably chicken cooked the same way with this same cold dry rice, over and over and over.” (T 88).

Mr. Aguillard, admitted by his wife to be a cured alcoholic (T 106, 107), claimed that his hospitalization eight years before for treatment of depression was brought on by Mrs. Aguillard’s refusal to care for him at home when he was ill (T 91-93).

Mrs. Aguillard evidently considered conditions unbearable. Having no intention of returning (T 125), she abandoned the family home and filed suit.

A careful review of the record leads us inexorably to the conclusion that this separation was properly found to be based on mutual fault.

Verbal jabs, sexual estrangement and general domestic hostility brought down this tottering marriage of twenty-seven years. The record is replete with indignities heaped by each spouse on the other. However, we do note that Mr. Aguillard, as head and master of the community, had clear authority to manage the family finances alone. LSA-C.C. 2404.

A trial court’s finding of fact on the issue of fault will not be disturbed on appeal unless manifestly erroneous. Pearce v. Pearce, 348 So.2d 75 (La.1977). From our extensive examination of the facts in this ease, we find no error.

For the foregoing reasons, the trial court judgment is affirmed. All costs of this appeal are to be paid by Eva Landry Aguil-lard.

AFFIRMED.

COLE, J., respectfully dissents believing that the alimony award should be increased to $1,500 per month and that the wife is without fault.


text:
    Mrs. Candice Lee CLEVELAND et al. v. The STATE of Louisiana et al.
    No. 12964.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      L. Wayne Paxton, Baton Rouge, counsel for plaintiff-appellant Mrs. Candice Lee Cleveland, Indiv., Etc.
    William J. Guste, Jr., Atty. Gen., John DiGuilio, Staff Atty., Baton Rouge, counsel for defendants-appellees State of Louisiana thru Department of Corrections, and Kal-iste Saloom, Jr.
    William H. Whitaker, Lafayette, counsel for defendant-appellee Dalton Prejean.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   EDWARDS, Judge.

Mrs. Candice Lee Cleveland, plaintiff-appellant, filed suit against the State of Louisiana through the Department of Corrections, Judge Kaliste J. Saloom, Jr., and Dalton Prejean, Jr. She sought damages for the wrongful death of her husband, a Louisiana State Police Trooper who was murdered by Prejean, a former inmate of the Louisiana Training Institute. Exceptions of no cause of action were maintained in favor of the State and Judge Saloom and the suit was dismissed as to them. Mrs. Cleveland appeals the dismissal. We affirm.

Mrs. Cleveland alleged that Dalton Preje-an, an admitted murderer, was released from the Louisiana Training Institute by Judge Saloom pursuant to an improper and predetermined plan which was totally beyond his jurisdiction. She claimed that both Judge Saloom and the Department of Corrections knew of Prejean’s murderous tendencies and that he should not have been released. She urges that both Judge Sa-loom and the Department of Corrections were negligent and should be cast in judgment. We cannot agree with these contentions.

Judge Saloom is protected from liability by the doctrine of judicial immunity which holds that a judge may not be cast in damages for his errors unless he has acted outside his judicial capacity. Killeen v. Boland Gschwind Co., 157 La. 566, 102 So. 672 (1924). Even when the judge has technically acted outside his jurisdiction and contrary to law, he will remain protected unless his actions were based on malice or corruption. Conques v. Hardy, 337 So.2d 627 (La.App.3rd Cir. 1976); Berry v. Bass, 157 La. 81, 102 So. 76 (1924); State ex rel. Duffard v. Whitaker, 45 La.Ann. 1299, 14 So. 66 (1893).

The Louisiana jurisprudence on judicial immunity mirrors a federal doctrine of similar breadth. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

LSA-C.J.P. Art. 86 provides in part:

“A. The court should impose the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.”

See also former LSA-R.S. 13:1580.

Thus, the Louisiana legislature has given trial judges the widest possible discretion in dealings with juveniles. Predetermined results may be wise or unwise choices but they are certainly within the trial court’s jurisdiction. We find that the trial court properly found no cause of action against Judge Saloom.

LSA-R.S. 15:906 provides in part that:

“The Department of Corrections may recommend to the committing court the release of any juvenile committed to its care, who, in the opinion of the department, is ready to be returned to his own home, or to a substitute home. Such juvenile may be discharged by the court without' supervision or may be placed under supervision until further orders of the court.
It is hereby declared to be the public policy of this state that commitment of a juvenile to the care of the Department of Corrections is not punitive nor in anywise to be construed as a penal sentence, but as a step in the total treatment process toward rehabilitation of the juvenile and that, therefore, the recommendations of the department should be given careful consideration by the court in determining what is to the best interest of the juvenile.” (Emphasis added).

This statute does not give the Department of Corrections any authority over the disposition of cases involving juveniles. It merely permits the Department to make recommendations and states that if such recommendations have been made, the juvenile court should carefully consider them. Full dispositional authority is retained by the court. LSA-C.J.P. Arts. 83-86; former LSA-R.S. 13:1580.

Therefore, the Department of Corrections had no authority over the release of Dalton Prejean, Jr., and cannot be held legally accountable for his actions. The trial court properly found no cause of action against the State through the Department of Corrections.

Even if we were to find a cause of action against the defendants, plaintiff could not hope to recover. Dalton Prejean was released from custody six months prior to his July 2,1977, murder of Donald Cleveland. This remoteness in time precludes finding any causal connection between the acts of Judge Saloom and the Department of Corrections and the offense of Prejean. Frank v. Pitre, 353 So.2d 1293 (La.App.1977).

For the foregoing reasons, the trial court judgment will be affirmed.

All costs of these proceedings, both trial and appellate, are to be paid by Mrs. Candice Lee Cleveland.

AFFIRMED.


text:
    GAR REAL ESTATE AND INSURANCE AGENCY v. N. T. MITCHELL, d/b/a C & A Grocery.
    No. 12971.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Ray W. Breland, Jr., Bogalusa, for plaintiff.
    H. Gregory Briese, of Seal, Lee, Branch & Brown, Bogalusa, for defendant.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   EDWARDS, Judge.

Gar Real Estate and Insurance Agency (Gar), plaintiff-appellant herein, appeals a trial court judgment rejecting its demands against N. T. Mitchell, d/b/a C & A Grocery. We affirm.

Gar sued Mitchell for $596.00, attorney’s fees, interest and costs on the basis that Mitchell had purchased an insurance policy from Gar and owed for past coverage.

Initially, we note that Mitchell, defendant-appellee herein, immediately objected at trial to the admission of evidence tending to prove that Mitchell had purchased the insurance policy in question from the Cutrer Insurance Agency.

Since the pleadings were never amended by Gar and since the original petition made no allegation that Mitchell had purchased a policy from the Cutrer Insurance Agency, Mitchell’s objection was proper and the trial court was in error to allow further testimony without requiring Gar to amend the pleadings. LSA-C.C.P. Art. 1154.

Timely objection coupled with the failure to move for an amendment of the pleadings is fatal to an issue not raised by the pleadings. Wanda Petroleum Company v. Mac Drilling Inc., 353 So.2d 474 (La.App. 3rd Cir. 1977), writ denied 355 So.2d 258 (1978); Bosworth v. New Orleans Federal Savings & Loan Association, 258 So.2d 191 (La.App. 4th Cir. 1972).

All evidence other than that relating to a sale of insurance from Gar to Mitchell was inadmissible and for this reason alone the trial court judgment would be affirmed.

In addition, however, even if Gar had properly amended the pleadings, a loss on the merits would be inevitable.

Inadmissible evidence considered by the trial court was stipulated to in narrative form for appellate purposes. The facts show that Mitchell, in January of 1977, had purchased a fire, liability and workmen’s' cbmpensation policy from Thelma S. Cutrer, d/b/a the Cutrer Insurance Agency. The original policy was delivered to the Parish National Bank, Mitchell’s mortgagee. Mitchell received a copy of the policy. In March of 1977, Mitchell decided his insurance premiums were too high. He met with Thelma Cutrer, told her he did not want the policy at that price and returned his copy of the policy to her.

While written reasons for judgment were not filed, the trial court apparently found that Mitchell had cancelled his policy by returning it. On appeal, Gar claimed that the law and jurisprudence do not permit an insured to either cancel his policy by mere physical return or to terminate the rights of a beneficiary by cancellation. While the trial court need not have decided these questions due to the inadmissibility of the relevant evidence, we find his decision of law to be proper and find no merit to Gar’s contentions.

Cancellation of an insurance policy by the insured is covered by LSA-R.S. 22:637, which reads in part:

“A. Cancellation by the insured of any policy which by its terms is cancella-ble at the insured’s option or of any binder based on such policy may be effected by written notice thereof to the insurer
C. The surrender of a policy to the insurer for any cause by any person named therein as having an interest insured thereunder shall create a presumption that such surrender is concurred in by all persons so named.
D. This Section shall not apply to life insurance policies . . . .”

Paragraph A uses the permissive “may” rather than the mandatory “shall” when stating how a policy can be cancelled by the insured. Thus, the physical tender of a policy is simply an additional valid mode of cancellation.

The evidence considered showed that Mitchell told Thelma Cutrer he no longer wanted the policy. That, together with the physical tender, clearly manifests a valid cancellation. Melvin Cormier, Inc. v. American Employers Insurance Co., 280 So.2d 355 (La.App. 3rd Cir. 1973).

Finally, we observe that unlike the case of Breard v. New York Life Ins. Co., 138 La. 774, 70 So. 799 (1916), in which the insured, who had purchased a life insurance policy which did not include the right to change beneficiaries, was not permitted to cancel the policy and deprive the named beneficiary whose rights vested immediately on the policy’s purchase, the present case involves only the rights of a third party loss payee whose interest is merely conditional and who has no vested rights. In this case, the contract of insurance remained one between Mitchell and the insurer and since the Parish National Bank was only a conditional payee, the bank had no power to prevent Mitchell’s cancellation of the policy. Eicher-Woodland Co. v. Buffalo Ins. Co. of New York, 198 La. 38, 3 So.2d 268 (1941).

For the foregoing reasons, the judgment of the trial court will be affirmed.

All costs, both trial and appellate, are to be paid by Gar Real Estate and Insurance Agency.

AFFIRMED.


text:
    Rodney James BORDELON v. Marlene Taylor BORDELON.
    No. 12975.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Walton J. Barnes, Baton Rouge, for defendant-appellant Marlene Taylor Bordelon.

      Máxime LaBranche, Baton Rouge, for plaintiff-appellee Rodney James Bordelon.
    Rodney James Bordelon, in pro. per.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   EDWARDS, Judge.

Marlene Taylor Bordelon sought to have past due child support fixed and made exec-utory. Her former husband, Rodney James Bordelon, was cast in judgment for $1,145.00 in arrearages, subject to a credit of $250.00. Mrs. Bordelon appeals that part of the judgment allowing the credit. We disallow the credit and affirm as amended.

I.FACTS

Four children, three of whom were involved in this case, were born of the marriage between Mr. and Mrs. Bordelon. When they first separated, Mrs. Bordelon took custody of the two daughters and child support was fixed at $300.00 per month.

In July of 1976, David Bordelon, then sixteen years old, moved in with Mrs. Bor-delon.

On November 9, 1976, Mrs. Bordelon won a judgment of separation from bed and board. She received custody of the two daughters and David. Child support was fixed at $350.00 per month commencing November 15, 1976.

Mr. Bordelon filed for divorce on November 3, 1977. He also sought a reduction in child support to $300.00 per month. On December 16, 1977, the divorce was granted, custody of the children was maintained in the mother, and Mr. Bordelon was again condemned to pay $350.00 per month in child support.

On July 26, 1978, Mr. Bordelon filed a rule to decrease child support. A reduction to $325.00 per month was granted as of September 1, 1978, on the basis that one child had reached majority (David turned eighteen on August 7, 1978).

In summary, Mr. Bordelon owed child support in three different amounts:

1. $300.00 per month for the two girls through November 14, 1976;
2. $350.00 per month for the two girls and David from November 15, 1976, through August 31, 1978;
3. $325.00 per month for the two girls beginning September 1, 1978.

On December 13, 1978, Mrs. Bordelon filed a rule to make past due child support executory. The judgment signed on February 20, 1979, fixed arrearages at $1,145.00 but allowed the $250.00 credit which Mrs. Bordelon has appealed.

II. THE $250.00 CREDIT

The trial court allowed Mr. Bordelon a $250.00 credit based on a finding that Mrs. Bordelon had agreed, despite having legal custody, to let David live with his father. We find this determination manifestly erroneous.

David Bordelon was evidently a troubled child. Prior to moving in with his mother in July of 1976, David was not, in fact, with his father, who had custody at that time, but lived with a barmaid. Mrs. Bordelon brought him to her home in July of 1976, four months prior to gaining legal custody. By December of 1976, David was disagreeing with his mother and decided he would return to his father. In June of 1977, once again having problems, David returned to his mother. He left for an apartment in November of 1977 and became a major on August 7, 1978.

On trial of the rule to fix accrued child support, Mr. Bordelon testified that Mrs. Bordelon had sought David’s move back to his father in January of 1977. (T-59). Mr. Bordelon testified repeatedly that he warned Mrs. Bordelon he would reduce her child support by $50.00 per month (T — 59, 61, 64).

Mrs. Bordelon testified that David had moved to his father’s against her wishes (T-47, 70). She also testified that there was no agreement between herself and Mr. Bordelon about child support (T-69, 70), and that she wanted the child support paid as ordered (T-71).

The trial court found that:

“although there was no specific agreement that child support payments would be suspended that there was an agreement, either specific or implied, that for the period of five months involved the child was to live with his father.”

Reading the record carefully, we find absolutely no agreement on the part of Mrs. Bordelon that David was to live with his father. Mrs. Bordelon expressly testified that the move was against her will. That Mrs. Bordelon did not take immediate action to enforce her custody of David in no way implies an agreement to a change of custody with its possible loss of child support. Basically, David was having problems with both parents and simply moved back and forth as it suited him. Losing the vested property right of past due child support cannot be predicated on the passing whim of a seventeen year old child.

Past due alimony is the property of him in whose favor it has been given. The right to receive such alimony in a lump sum is not waived by plaintiff’s failure to make periodic demands on the defendant. Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954). The father’s obligation to pay child support is only satisfied by making payments to the mother and the only way a father can relieve himself of the obligation of child support is by proceeding to have the judgment amended, suspended or terminated. LSA-C.C. Art. 232; Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir. 1974), application denied 293 So.2d 187 (La.1974).

There are two exceptions to this general requirement for alimony termination. Alimony is revoked by operation of law when a wife remarries. LSA-C.C. Art. 160. And, the party in whose favor the judgment was rendered may make arrangements with the party liable for payment of alimony or child support in a way other than direct payments or may waive rights under the judgment. Seifert v. Seifert, 374 So.2d 157 (La.App. 1st Cir. 1979).

Unfortunately for Mr. Bordelon, the facts of this case do not amount to a waiver of child support.

In Henson v. Henson, 350 So.2d 979 (La.App. 2d Cir. 1977), the mother brought the children to the father and requested that he care for them. A credit was therefor allowed the father for funds expended on the children’s behalf.

In Caraway v. Caraway, 321 So.2d 405 (La.App. 2d Cir. 1975), application denied 323 So.2d 479 (La.1975), the custodial mother voluntarily left the children with the father for one year. Credit on past due child support was therefore allowed.

See also Silas v. Silas, 300 So.2d 522 (La.App. 2d Cir. 1974), writs refused 303 So.2d 177 (La.1974).

These cases involved clear and express surrenders by a custodial mother. No such surrender existed in the present case. Rather, Mrs. Bordelon opposed any change of custody, in law or in fact.

There is a second ground for denying the $250.00 credit, even assuming Mrs. Bordelon had agreed to the change of custody in fact.

All three support awards were made in globo, with no amount designated for each child. Thus, when child support was increased from $300.00 per month to $350.00 per month, due to David’s living with his mother, the $350.00 was for all three children’s support, not $300.00 for the two girls and $50.00 for David.

Where an award in globo has been made for two or more minors, the fact that one child is no longer eligible, even as a matter of law, for child support, is not a ground for the husband to unilaterally reduce the child support payments proportionately because, after a contradictory hearing, the remaining minors might be found due an increase to offset the unilateral reduction. Halcomb v. Halcomb, 352 So.2d 1013 (1977); Wisdom v. Wisdom, 356 So.2d 1111 (La.App. 2d Cir. 1978).

This principle holds in the present ease. Rather than assuming each child was due one-third of the $350.00 monthly, the trial court evidently assumed that since the award was increased $50.00 per month when Mrs. Bordelon won custody of David, that any custodial reversion to Mr. Bordelon would allow a $50.00 per month retroactive reduction. Halcomb v. Halcomb, supra, does not permit this and requires a judicial determination prior to reduction. Mr. Bor-delon sought no reduction as required by LSA-C.C. art. 232 and therefore he is due none.

Finally, we note that even though Mr. Bordelon unilaterally lowered his child support payments for the alleged reason that he had custody in fact, when David returned to his mother the $50.00 per month payment was never resumed.

Since Mrs. Bordelon never agreed to any change of custody and since, absent a judicial determination, no reduction of an in globo award is proper, no such reduction should have been allowed.

For the foregoing reasons the judgment of the trial court is amended and the $250.00 credit is disallowed.

All costs are to be paid by the defendant in rule, Rodney James Bordelon.

AFFIRMED AS AMENDED.


author: LEAR, Judge.

text:
    Odis ROBERTS v. Thomas A. HEATH et al.
    No. 12963.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Writ Refused April 18, 1980.
    Paul H. Dué, Maurice J. Wilson, Jr., Baton Rouge, for plaintiff-appellant Odis Roberts.
    William Luther Wilson, Baton Rouge, for defendant-appellee Austin Bridgeforth, III.
    Charles A. O’Brien, III, Baton Rouge, for intervenor-appellant Great American Insurance Company, Inc.
    John I. Moore, Baton Rouge, for defendants-appellees Thomas A. Heath and Great American Insurance Company and Maury Simpson.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   LEAR, Judge.

This matter arose as a suit by an employee against the executive officers of plaintiff’s employer, Bulk Transport, Inc. .

The evidence shows that appellant was driving a tractor-trailer in the early morning hours of October 11, 1973, when he was involved in a head-on collision with an automobile which had swerved into plaintiff’s traffic lane. The driver of the automobile was killed and plaintiff suffered severe and permanently disabling injuries.

The basis of the claim is that the executive officers permitted the front bumper of the tractor to be shortened, which resulted in an exposure of the front wheels of the tractor. The left front wheel of the tractor was .separated from the chassis as a result of the collision, causing the driver to lose control of the vehicle.

The trial judge, in a well reasoned opinion, held as follows:

“Plaintiff’s suit is based on the alleged breach of statutory and non-statutory duties owed him by the defendants. Specifically, plaintiff was assigned an eighteen-wheeler, tractor-trailer rig to drive in the course of his employment. In the early morning hours of October 11, 1973 he was traveling west on U.S. Highway 190 at the same time a 1966 Pontiac driven by Joseph Jules Fontenot was traveling in an easterly direction. That portion of the highway, at the time, was only two lanes because of bridge construction. At a point approximately eight-tenths mile east of Krotz Springs, the Fontenot vehicle pulled into the westbound lane, approximately into the middle of the lane, causing a head-on collision. The front of the Fontenot automobile struck the left front of the truck causing the left front wheel of the truck to separate. The Fontenot vehicle came to rest on the south shoulder about twenty-five feet from the point of collision. The truck traveled approximately two hundred thirty feet down an embankment to a point southwest of the point of collision. The tractor and trailer were separated and both were badly twisted and mangled. Investigating officers commented that this was the most extensively damaged tractor-trailer they had ever seen. Fontenot was killed as a result of the accident and Plaintiff Odis Roberts suffered serious and permanently disabling injuries.
“The basis of liability urged by the plaintiff is that these Defendants had removed each end of the front bumper that extended beyond the frame of the tractor so as to leave exposed the two front wheels. Plaintiff urges that the absence of the bumper in front of the left front wheel was the cause of the wheel being knocked off. Plaintiff alleges that the truck overturned as a result of the missing wheel, which in turn caused plaintiff’s injuries or, at least, caused them to be much more serious than they would otherwise have been.
“Plaintiff’s counsel presents an extensive review of the jurisprudence establishing executive officer liability and urges that these defendants should be held liable for plaintiff’s injuries because of an affirmative statutory duty to furnish employees a safe place to work with safe equipment (R.S. 23:13). Plaintiff further urges that the cutting of the front bumper was in violation of R.S. 32:53 which provides in pertinent part as follows:
“ ‘A. No person shall drive or move, nor cause or knowingly permit any vehicle owned or controlled by him to be driven or moved, on any highway of this state, at any time, any vehicle of combination of vehicles which is in such unsafe condition as to endanger any person or property, or which does not contain those parts or is not at all times equipped with such lamps and other equipment, in proper condition and adjustment, as required in this Chapter, or which is constructed or equipped in any manner in violation of this Chapter, and no person shall do any act forbidden or fail to perform any act required under this Chapter.’
“Plaintiff’s employer, Bulk Transport, Inc., had been designated as a motor vehicle inspection station by the Department of Public Safety for the purpose of inspecting its own vehicles. Prior to this accident all inspection stations including Bulk Transport, Inc., had recieved (sic) a bulletin identified as MVI Advisory Sheet No. 10, which instructed inspectors to reject vehicles if:
“ ‘5. Bumper(s) removed from vehicles originally equipped with bumper(s)
“ ‘6. Rebuilt or modified bumper(s) not equivalent or original bumper(s).’
“These same instructions were contained in the official inspection manual furnished Bulk and were likewise contained as items 2 and 3 on an official inspection proceedure (sic) chart printed on a poster which was displayed on the wall at the Port Allen terminal of Bulk at all pertinent times.
“Plaintiff also asserts that the defendant should be liable under the doctrine of Loescher vs. Parr 324 So.2d 441. The Court finds the doctrine of Loescher inapplicable to these facts. Therefore, discussion of the remaining reasons for liability is indicated.
“In all of the jurisprudence reviewed by the Court, executive officer liability was founded on accidents resulting from unsafe equipment or conditions where the executive officer either knew or should have known that the conditions or equipment were unsafe and failed to correct them. The conduct of these defendants must be judged by what they knew or should have known at the time the bumpers were cut, which was several months prior to the accident. Mr. Heath, the safety manager, made a recommendation to Mr. Bridgewater, the terminal manager, to cut the bumper. He. had both heard and read of accidents which were believed to have been caused by full length bumpers being bent against the front wheels, causing drivers to be unable to control the truck after collision.
“Plaintiff faults the defendants for not investigating more extensively. It is true that the defendants did not seek an outside professional opinion nor research the matter extensively. Evidence indicates to the Court that such an investigation would have revealed nothing that the defendants did not already know and in good faith believe, namely, .that the shorter bumpers were safer. What an investigation would have revealed was the beginning of a controversy in the trucking industry as to the merits and demerits of short bumpers versus long bumpers. Mr. Heath is an active member of several state and national safety associations and testified that the controversy still exists and that the subject had been placed on the agenda of a meeting to be held in Kansas City.
“Significantly, there was no evidence offered that shortened bumpers had caused or contributed to any other accidents? The plaintiff did offer evidence that the short bumpers which can be ordered from the factory are not quite as short as the bumper in this case and are more substantial. The evidence is equally convincing that there is no bumper designed for highway use which could, with any degree of certainty, protect a driver in a head-on collision with a combined speed of approximately eighty miles per hour.
“Therefore, the Court finds that the decision made to cut the bumpers was a correct decision and one which these defendants had no reasons to believe would not further insure the safety of the drivers.
“No violation of R.S. 32:53 is found because of the fact that the bumpers are not found to be unsafe, per se, and because of the further fact that the Court finds no requirement in Title 32 that trucks be equipped with any bumper. The regulation of the Department of Public Safety is not violated for the reason that the bumpers after being cut were at least equivalent to or superior to the factory installed ones.
“The Court was unable to determine what the enforcement goal of the Department of Public Safety was, except to prevent any alteration or modification whatsoever. As an example of this rather pointless enforcement, Mr. Jack Lewis who was with the Vehicle Inspection Division from 1971 to 1975 in the New Orleans area, was asked what he would do when faced with one truck with a short bumper installed by the factory and another truck with a short bumper that had been cut off by the owner. His reply was that he would pass the one which came from the factory and reject the one cut off by the owner. He further testified rejections were automatic in all cases where there had been an alteration. Obviously this is not what the regulation prohibits. The key word is ‘equivalent.’ There is no prohibition against alterations or modification so long as the altered or modified bumper is at least equivalent to the original. Plaintiffs have*- not sustained the burden of showing that these cut-off bumpers were not equivalent. If indeed the evidence preponderates, it does so in favor of the fact that the cut-off bumpers are generally safer.
“Assuming, arguendo, that the Court is in error with regard to its findings and that the defendants are guilty of a violation of a statutory or non-statutory duty to the plaintiff, the issue of causation has not been proved by a preponderance of the evidence. The plaintiff in this ease has the burden of showing not only that the shortened bumper rendered the damage to the truck more severe, but also that this shortened bumper was the proximate cause of plaintiff’s injuries. A finding of causation as to either of these matters involves rather obvious speculation and a ‘hindsight’ reconstruction to arrive at a version of the facts which is not supported by the evidence. The Court does not feel that an extensive review of the evidence as to causation is necessary. However, one example of the difficulty involved relative to the causation factor is the evidence which indicates that since the truck bumper is considerably higher than the automobile bumper, that automobiles almost always go under trucks in head-on collisions. The expert testimony was further to the effect that the automobile bumper probably came in contact with the inside of the left front wheel of the truck at about the same time that the truck bumper came in contact with the soft metal portions of the front of the automobile. It is difficult to conclude that a bumper of any length would have prevented a significant force against the front wheel of the truck. Compounding the difficulties involved in the issue of causation from the plaintiff’s standpoint is the testimony that all of plaintiff’s injuries except probably the arm injury were suffered on initial impact and that, in accidents of this type, the entire contact between the vehicles takes place within a split second.
“The Court therefore concludes that the sole legal cause of this tragic accident was the negligence of Mr. Fontenot.”

The trial judge rendered judgment in favor of defendants and against plaintiff, dismissing plaintiff’s petition at plaintiff’s costs.

A careful reading of the record does not indicate manifest error or an abuse of discretion by the court.

Therefore, the judgment of the trial court is affirmed, appellant to pay all costs.

AFFIRMED.


text:
    Jay B. JONES v. DEPARTMENT OF CULTURE, RECREATION AND TOURISM and Director, Department of Civil Service.
    No. 12978.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Edward J. Walters, Baton Rouge, for appellant.
    Annette R. Seng, R. Gray Sexton, Baton Rouge, for appellees.
    Before EDWARDS, SARTAIN and LEAR, JJ.
   LEAR, Judge.

This case arises out of an appeal taken by plaintiff-appellant, Jay B. Jones, to the ruling of the Civil Service Commission granting motions for summary dismissal filed on behalf of the State Department of Civil Service and the Department of Culture, Recreation and Tourism. We reverse.

Pursuant to civil service rules and regulations, appellant filed an appeal with the Commission regarding the procedures employed and appointment made in filling the position of Historic Site Manager I of the State Exhibit Museum in Shreveport, Louisiana.

In his letter of appeal which is well pleaded, appellant alleged several violations of civil service rules and regulations including but not limited to competitive examinations, public notice, qualifications for examinations, appointment of eligibles and appointment of unclassified employees. These violations, it is alleged, were particularly injurious to appellant because he had sought to be considered for essentially the same position, but that his rights were violated.

Motions for summary disposition or dismissal are peremptory in nature and closely analogous to the peremptory exception of no cause of action. It is academic that such exceptions must be determined on the face of the pleading, and all well pleaded facts be deemed as admitted. Lunkin v. Triangle Farms, Inc., 24 So.2d 213 (La.App. 1st Cir. 1945); Willis v. State, 212 So.2d 555 (La.App. 1st Cir. 1968).

Appellant has clearly alleged violations injurious to him which are cognizable under the civil service rules and regulations. He must be accorded the opportunity to be heard on the merits.

REVERSED AND REMANDED.

      . Appellant alleged in his appeal below that he had requested to be considered for the position of Historic Site Administrator I, or such other title as the Department of Culture, Recreation and Tourism might designate. The Department chose the initial title of Historic Site Manager I — II, but later settled on the title of Historic Site Manager I.


text:
    Gary WADDALL et al. v. BLUE CROSS OF LOUISIANA.
    No. 12991.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    James E. Kuhn, Leu Anne Lester, Den-ham Springs, for plaintiffs.
    Tom H. Matheny and Charles G. Walker, Hammond, for defendant.
    Before EDWARDS, LEAR and SAR-TAIN, JJ. '
   LEAR, Judge.

This dispute arises out of an insurance claim under a policy issued by Louisiana Health Service and Indemnity Company (Blue Cross) covering hospital and surgical expenses.

It was stipulated below that Blue Cross was liable for plaintiff’s claim, which had been timely filed but not paid within sixty days. The trial court awarded penalties and attorney fees.

The issues presented on appeal are whether penalties and attorney fees should have been assessed and, if so, whether the penalties should be assessed under R.S. 22:657 or R.S. 22:658.

The trial judge in awarding penalties and attorney fees found that defendant had failed to act as reasonable and prudent business people. An examination of the evidence reveals that plaintiff had been treated for kidney stones shortly before the policy date. The policy excluded a known pre-existing injury. There was some confusion regarding whether the claim presented shortly after the policy date was based upon a pre-existing condition. At that stage of the claim, Blue Cross concluded that it was not covered.

Plaintiff instituted suit alleging the denial to be in breach of policy, but also alleged that his illness was one of kidney stones. The pre-trial order and stipulation of the parties at trial also refers to kidney stones. Plaintiff’s testimony indicated that he was unsure whether he was treated for kidney stones or a liver problem.

The stipulation was amended during trial, based upon a medical report, to show that plaintiff was admitted to the hospital for a liver function test.

It is, therefore, apparent from the record that confusion existed concerning the illness suffered by plaintiff, and we cannot say that defendant’s failure to pay the claim was unreasonable, arbitrary or capricious. Headrick v. Pennsylvania Millers Mutual Ins. Co., 257 La. 1101, 245 So.2d 324 (1971).

The judgment of the trial court is amended to exclude penalties and attorney fees and, as amended, affirmed at appellee’s costs.

AMENDED AND AFFIRMED.


author: SARTAIN, Judge.

text:
    Clementine APPLEWHITE, Plaintiff-Appellee, v. CITY OF BATON ROUGE et al., Defendants-Appellants.
    No. 12965.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Robert C. Williams, Robert Judge Eames, Baton Rouge, for plaintiff-appellee Clementine Applewhite.
    Walter G. Monsour, Jr., Parish Atty., Charles E. Pilcher, Charles N. Malone, Asst. Parish Attys., Baton Rouge, for defendant-appellant City of Baton Rouge.
    Ben E. Atkins, John B. Noland, Baton Rouge, for defendants-appellants Frank Still and Milton D. Crowe.
    Emile C. Rolfs, III, Baton Rouge, for defendant-appellee American Home Assurance Co.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   SARTAIN, Judge.

This is an appeal in a suit for damages resulting from an alleged sexual assault upon the plaintiff-appellee by two persons.

The basic allegations are that on April 26, 1971, Clementine Applewhite, a black female, then 19 years old, was forced to engage in sexual acts against her will by Milton D. Crowe, then a Baton Rouge City Police officer, and Frank J. Still, Jr., a corrections officer employed by the State of Louisiana.

On that evening, at approximately 10:00 P.M., she and two adult female companions were walking on Scenic Highway in Baton Rouge, Louisiana, when they were approached by Crowe, who was in uniform, on duty, and traveling in a police K-9 unit. Still was an authorized passenger in that vehicle and was wearing a khaki uniform.

The women were told by Crowe that they would be arrested for vagrancy if they were not off the street shortly. They explained that they were walking to a friend’s house several blocks away and they attempted to comply with his order by hurriedly proceeding toward their destination.

They traveled for a few blocks more when they were again stopped by Crowe and Still and, this time, were told that Crowe would flip a coin to see which one of the three would go to jail. This was done, the plaintiff lost, and her two companions, her sister, Clovotine Applewhite, and Carolyn Phagans, were allowed to depart.

She was then ordered to get into the K-9 unit to be taken to jail and was told to keep her head down as they traveled. Crowe then drove to the Memorial Stadium area where she was forced to engage in oral copulation with him and in sexual intercourse with both Crowe and Still.

They then released her and, during the early morning hours of August 27, she made her .way to the Baton Rouge City Police department and reported the incident. In the meantime, the two women who were with her made contact with other police units and were also at their headquarters.

An investigation was initiated and, later that day, a police lineup was held and Crowe was positively identified by the victim and Carolyn Phagans. Shortly thereafter, he resigned from the police force.

Criminal charges followed and Crowe only was convicted of malfeasance in office. In this litigation, Crowe, Still, and the City of Baton Rouge were the original defendants. American Home Assurance Company (American Home), the liability insurer of the police department, was later made a third party defendant. It declined coverage for the acts alleged and refused to provide a defense for the City and Crowe. After trial, judgment was rendered in favor of the plaintiff and against Crowe and his employer, the City of Baton Rouge, and against Still individually in the amount of $6000.00. All demands against American Home were dismissed.

Appeals were taken by those cast in judgment. No answer to any appeal has been filed. We conclude that the judgment of the district court should be affirmed in part and reversed in part.

Various defenses are asserted here by the appellants. Crowe and Still argue that the plaintiff’s proof was insufficient to support a judgment in her favor and Crowe and the City of Baton Rouge seek indemnity and defense and other costs from American Home. The City also maintains that it should not be liable for the actions of Crowe because they were not within the course and scope of his employment as a police officer.

The district court’s detailed written reasons for judgment are a part of this record and we are in accord with its factual findings. We are convinced that the events, as related by the plaintiff and her two companions, are essentially correct and that Crowe and Still did, under the authority of the position held by Crowe, take Clementine Applewhite into custody and forced her to commit the alleged acts against her will, all of which amounted to a willful violation of a penal statute and an abuse of the public trust placed in them.

Much evidence supports that conclusion. Officer Ike Stubbs, also a K-9 officer on duty that night, came upon Crowe at Memorial Stadium during the hours when these events transpired. Still was not to be seen in Crowe’s unit at the time. Crowe asked Stubbs to leave the area because Still was engaging in sexual intercourse at the time and he (Crowe) had just done the same.

Within a few hours after these deplorable events, Crowe was positively identified in a police lineup by the victim and Carolyn Phagans. Later that day, Crowe admitted to police captain Andrew Andrepont that all of the above happened as the plaintiff had said that it did and he did not deny that statement when this matter was tried. He voluntarily resigned later that day.

The appellants primarily rely on two items of evidence in their defense. The plaintiff related that when Crowe had finished his forceable acts, that he gave her a towel that she used to clean herself. That towel was supposedly found in his vehicle on the morning of the investigation and an analysis by the state crime laboratory proved negative for semen.

They also argue that in the criminal trials of Crowe and Still, the plaintiff was unable to clearly identify either of them as her assailants.

We find that the trial judge correctly resolved both of these issues in the plaintiff’s favor.

The towel was not offered into evidence and there was no proof that the one which was analyzed was the one given to the appellee. We note additionally that the plaintiff did not have an opportunity to cross-examine the person who apparently performed the test, as she was not called to testify at the trial. Therefore, this evidence does not greatly strengthen the defendants’ case.

As for the problems of identity previously mentioned, the testimony plainly shows that Clementine Applewhite was a very reluctant witness who wanted to withdraw from all public confrontations with these persons, and understandably so. The emotional impact that these events hg.d upon her is well documented in the record and her fear of Crowe and Still was to be expected. As we have previously noted, the involvement of these defendants in this abduction was well established in the hours immediately following their actions.

We believe the plaintiff’s testimony in this case to be credible and that the evidence preponderates in her favor. We also find that the City of Baton Rouge, as the employer of Crowe, is responsible for his actions on that evening.

The City maintains that the actions of Crowe are far removed from the course and scope of his employment and that it should not be vicariously responsible' for sexual abuses committed by its officers. Due to the particular facts of this case, that argument has no merit.

We particularly note that Officer Crowe was on duty in uniform and armed, and was operating a police unit at the time of this incident. He was able to separate the plaintiff from her companions because of the force and authority of the position which he held. He took her into police custody and then committed the sexual abuses upon her in the vehicle provided for his use by his employer.

A police officer is a public servant given considerable public trust and authority. Our review of the jurisprudence indicates that, almost uniformly, where excesses are committed by such officers, their employers are held to be responsible for their actions even though those actions may be somewhat removed from their usual duties. This is unquestionably the case because of the position of such officers in our society.

In Cheatham v. Lee, 277 So.2d 513 (La.App. 1st Cir. 1973), we found that the City of Baton Rouge was responsible for the unnecessary actions of a member of its police force who was in uniform and armed but who was off duty and was chaperoning a private party outside of the city limits of Baton Rouge.

Similarly, in Bourque v. Lohr, 248 So.2d 901 (La.App. 1st Cir. 1971), the liability insurer of the City of New Iberia was cast in judgment for certain torts committed by an off duty, uniformed police officer using his private vehicle.

In short, as noted by the district court in its excellent analysis of this problem, where it is found that a law enforcement officer has abused the “apparent authority” given such persons to act in the public interest, their employers have been required to respond in damages. This is particularly true where, as here, the officer is on duty.

As noted in LeBrane v. Lewis, 292 So.2d 216 (1974):

“In Louisiana, as elsewhere, an employer (master) is liable for a tort committed by his employee (servant) if, at the time, the servant is acting within the scope of his employment — acting, as our Civil Code Article 2320 phrases it, ‘in the exercise of the functions in which . . . employed.’ Article 2320; Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968); Comment, 33 La.L.Rev. 110 (1972).”

Accordingly, we find that the City of Baton Rouge is responsible for the actions of Crowe in this case.

We now turn to the possible liability of American Home Assurance Company for either the judgment rendered against Crowe and the City or for its failure to provide a defense.

The district court found that, by the terms of its policy of insurance, American Home provided no coverage for the actions of Crowe. That finding was based upon the following exclusionary clause:

“(b) To damages arising out of the willful violation of a penal statute or ordinance committed by or with the knowledge or consent of any insured, or claims or injury arising out of acts of fraud committed by or at the direction of the insured with affirmative dishonesty or actual intent to deceive or defraud; . . ”

It is clear that Officer Crowe violated several penal statutes during the course of this incident and was convicted of one criminal charge. The acts for which the plaintiff is being compensated were willful violations of penal statutes. We conclude that this insurer did not assume a risk involving criminal intent on the part of an insured and that the above quoted provisions are sufficient to exclude coverage. Therefore, American Home is not liable for the damages assessed against Crowe and the City.

We do find, however, that American Home owed a defense to Crowe and the City of Baton Rouge. An insurer’s duty to defend is set out in American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969) as follows:

“Generally the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Benoit v. Fuselier, 195 So.2d 679 (La.App.1967).
Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured. Benoit v. Fuselier, ibid.”

American Home’s policy provided coverage for personal injuries inflicted by an insured, which was defined as:

“ ‘[Pjersonal injury’ means false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, libel, slander, defamation of character, violation of property rights and, if committed while making or attempting to make an arrest or while resisting an overt attempt to escape by a person under arrest before such person has been or could have been brought before a magistrate or like official authorized to hold a preliminary hearing, assault and battery, provided that no act shall be deemed to be or result in personal injury unless committed in the regular course of duty by the insured.”

The plaintiff’s petition and amended and supplemental petition contain allegations for which coverage is provided by the policy in question. We note particularly paragraph “6” of the amended and supplemental petition, to wit:

“6.
‘At all times material herein, petitioner was put in fear of great bodily harm and did in fact suffer great pain and humiliation on being assaulted, battered, falsely arrested, falsely imprisoned, libelled, slandered, her character defamed, and on being forced to submit to such loathesome and despicable acts and under such conditions.’ ”

If those allegations were true, there would be coverage under the policy and liability to the plaintiff. Therefore, those appellants are entitled to be paid defense costs by American Home. However, the overriding facts for which the plaintiff was eventually compensated were not those alleged in paragraph 6 above, but were the willful violations of a penal statute, previously described, which were thus excluded from coverage.

The record contains no evidence as to the amount of defense costs, the time spent by counsel, or of counsel’s general hourly rate. However, this court, in its discretion, can award reasonable attorney’s fees based upon our evaluation of the work performed. See Continental Automobile Association, Inc. v. Hansen, 334 So.2d 437 (La.App. 4th Cir. 1976) and authorities cited therein. Considering the complexity of this matter, the length of the trial and the preparation and research which was obviously done, we find that an award of $2000.00 each to counsel for Crowe and the City of Baton Rouge is in order and will be paid by American Home Assurance Company.

For the above reasons, the judgment of the district court is affirmed insofar as it (1) awarded judgment on the principal demand in favor of Clementine Applewhite and against Milton D. Crowe, Frank J. Still, Jr. and the City of Baton Rouge, jointly and in solido, in the sum of $6000.00, together with legal interest thereon from date of judicial demand, until paid, and for all costs of this suit, (2) rejected Clementine Apple-white’s demands against American Home Assurance Company, and (3) rejected the third party demands of the City of Baton Rouge, Milton D. Crowe and Frank J. Still, Jr., against American Home Assurance Company insofar as liability coverage on the plaintiff’s principal demand. The judgment of the district court is reversed insofar as it denied the City of Baton Rouge and Milton D. Crowe’s third party demands for defense and judgment is rendered herein in favor of the City of Baton Rouge and Milton D. Crowe and against American Home Assurance Company in the sum of $2000.00 each, together with legal interest thereon from date of judicial demand, until paid.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


text:
    Daryl SHIELDS, Plaintiff-Appellant, v. STATE of Louisiana Through the DEPARTMENT OF CORRECTIONS et al., Defendant-Appellee.
    No. 12980.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Garic Kenneth Barranger, Covington, for plaintiff-appellant Daryl Shields.
    John Digiulio, Baton Rouge, for defendant-appellee State of Louisiana, thru Department of Corrections.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   SARTAIN, Judge.

This is a personal injury suit brought by an inmate at the Louisiana State Penitentiary at Angola.

On March 16, 1975, Daryl Shields, a seventeen year old prisoner, was approached by another inmate, one Hewitt Molex, who wanted to enter into a homosexual relationship with Shields. Molex had made similar advances on previous occasions but the plaintiff had declined those attempts and did so again at that time. He and Molex had argued at times concerning this relationship, but their conduct toward each other had not been violent.

On that evening, the plaintiff was in his cell watching television. Molex, who was allowed to leave his cell for a shower, approached the plaintiff, spoke to him briefly, and then threw a cup of acid or other caustic chemical, through the bars of Shields’ cell and onto the plaintiff’s face and upper body.

Shields tried to wash the chemical off in his lavatory bowl but the water had apparently been cut off for plumbing repairs. He then got what water he could from the toilet in his cell and washed himself until the guards got to his location and removed him to the prison hospital.

He remained at that facility for approximately six weeks during which time the burns were routinely treated. As they healed, however, extensive scarring of Shields’ arms and upper chest took place. Large, unsightly keloid formations developed over the burn areas which caused considerable disfigurement and some restriction of movement.

A course of dermatological care was entered into over a period of months which consisted primarily of steroid injections into the scar tissue. This treatment had a positive effect on the involved areas and considerable improvement was noted in the plaintiff’s condition. Despite that, however, Shields was left with scarring of tragic proportions which will apparently be permanent.

This suit seeks damages against the State of Louisiana through the Department of Corrections for the actions of Molex, who is now deceased, and for the alleged improper medical care given Shields by the State subsequent to the attack. After trial on the merits, judgment was rendered in favor of the State and the plaintiff has appealed. We affirm.

As noted by the district court, the responsibility of a penal institution to protect prisoners from attack by fellow inmates is not absolute in this state. In Davis v. State, Through Department of Corrections, 356 So.2d 452 (La.App. 1st Cir. 1977), we reviewed the applicable law as follows:

“The first question for our determination is what test of negligence is to be applied. The rule in cases of this type has often been stated as follows:
‘A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of a reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm.’ Parker v. State, 282 So.2d 483, 486 (La.1973).
In the case of Breaux v. State, 314 So.2d 449 (La.App. 1st Cir. 1975) a five judge panel of this circuit, while not rejecting the test of Parker, developed a separate test for determining the liability of the state. The court held that ‘the State is obligated to provide facilities and environments reasonably calculated to protect such persons from the danger of armed attack by fellow inmates.’ Breaux, supra, at 457. .When such facilities are not provided and the-lack thereof causes injury to an inmate the state must respond in damages. On appeal the Supreme Court affirmed. Breaux v. State, 326 So.2d 481 (La.1976). However, the decision there was based on the Parker test; consideration of the test developed in Breaux was pretermitted.
Plaintiff urges that we should apply the broader test of Breaux in reaching our decision. Recently, however, our circuit has rejected Breaux and returned to the test of the earlier jurisprudence. Williams v. State, Through Department of Corrections, 351 So.2d 1273 (La.App. 1st Cir. 1977); Jones v. State, Through Department of Institutions, 346 So.2d 807 (La.App. 1st Cir. 1977) writ refused, 350 So.2d 671 (La.1977); Walker v. State, Through Department of Corrections, 346 So.2d 794 (La.App. 1st Cir. 1977) writ refused Sept. 21, 1977, 349 So.2d 879 (La.1977). We likewise reject the intermediate decision in Breaux, a decision which stands alone in the jurisprudence, and reaffirm the more recent jurisprudence of this circuit.”

The record in this case clearly establishes that the prison authorities had no warning that Shields was in danger and no reason to anticipate that Molex might attack him. Shields related that he did not tell anyone of problems with his assailant and that the attack came as a surprise to him. Earl Wayne Huffman, a former cellmate of Shields, testified that he also did not know of prison personnel being told of their conflicts and that the conversations that took place between the two were quiet. He also stated that Molex was not considered to be dangerous by the other prisoners. We find no basis on which the Department of Corrections could be charged with failure to adequately protect the plaintiff.

The appellant also contends that the defendant is negligent because Molex was able to obtain a dangerous caustic chemical. He relies on the ruling of this court in Hampton v. State, Through Department of Corrections, 361 So.2d 257 (La.App. 1st Cir. 1978) when that case was originally before us. There, the plaintiff received acid burns under facts very similar to this case. At issue here was a highly controversial stipulation entered into by the parties concerning the source of the chemical. In remanding for further proof in regard to that stipulation, we noted that if the employees of the state distributed the acid to prisoners without close supervision of its use, that the defendant would be guilty of negligence. See also the opinion of this court in Hampton v. State of Louisiana, et al., 376 So.2d 980 (La.App. 1st Cir. 1979).

The record in this case is not beneficial to the plaintiff in that regard. No proof whatsoever was offered as to what the chemical was, its source, or how it came to be in the possession of Molex. As in Hampton, it is theorized that this was plumber’s acid which was distributed to the inmates for the maintenance of the toilets; however, no evidence was introduced which confirmed that supposition.

A wide range of contraband items invariably fall into the hands of prison inmates from untraceable sources. Here we know only that Molex had a dangerous chemical in his possession. Additional facts sufficient to prove fault on the part of the Department of Corrections, which are not present here, would be necessary to establish their liability. Possession of the acid, alone, does not make out a prima facie case of negligence against the defendant. As noted in the Parker decision previously referred to herein:

“Tragically, plaintiff’s injury was the product of an environment in which violent, disturbed, and sexually abnormal men are crowded into a single prison unit under conditions that are far less than ideal. As the record shows, no degree of caution can altogether prevent such occurrences.”

We also conclude that the plaintiff has failed to prove that he was given inadequate medical treatment by the prison authorities after his injury. Dr. Harry M. Katz, a staff physician at the prison hospital, testified concerning the care which was immediately administered upon Shields’ admission and in the weeks that followed. We find that the record indicates that there was considerable concern for the plight of Shields and that extra efforts were made to relieve his condition.

He was eventually cared for by Dr. James Clinton Jones, a dermatologist, who performed the successful steroid injections. At page 8 of his deposition is found the following:

“Q Doctor, is it your feeling that he would have gotten an even better result if he had been treated earlier with this series of injections?
A There’s no way to say. He got an excellent result as it were and I can’t say he would have gotten a better result had he been treated earlier or not.”

The record contains absolutely no proof of improper medical treatment on the part of the defendant. The judgment of the district court is, therefore, affirmed at appellant’s cost.

AFFIRMED.


text:
    Russell CHANEY, Plaintiff-Appellee, v. BRUMFIELD WRECKER SERVICE, INC. and Noel Brumfield, Defendants-Appellants.
    No. 12984.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Charles R. Moore, Baton Rouge, of counsel, for plaintiff-appellee Russell Chaney.
    William Hawk Daniels, Baton Rouge, of counsel, for defendants-appellants Brum-field Wrecker Service, Inc. and Noel Brum-field.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   SARTAIN, Judge.

This suit seeks the recovery of certain items of damages allegedly sustained by the plaintiff while his automobile was in the possession of the defendants who were in the towing and wrecker service business.

On or about September 18, 1977, Russell Chaney had mechanical difficulties with a 1978 Plymouth Duster while driving in Baton Rouge, Louisiana. He drove his vehicle into the parking lot of the Crillion Apartments located at 1050 North Foster Drive which was nearby, and parked it in one of their spaces. Chaney related that he tried to find the apartment manager at that time to inform him of his difficulty but was unable to locate him.

According to his testimony, he left the vehicle there that night and again tried to contact the apartment manager the next day but was also unsuccessful at that time. On September 20, the vehicle was removed by Brumfield Wrecker Service, Inc., at the request of the Crillion Apartments.

Chaney then contacted the wrecker service in an effort to obtain his vehicle but he did not have the money to pay the charges at that time. A few weeks later, he found that the vehicle had been transferred to another wrecking yard and had been “stripped” of many of its parts.

This suit followed and claims are made herein for damages to the plaintiff’s vehicle while in the possession of these defendants, the loss of the value of its use and for the loss of certain books and personal items.

At the trial, it was learned for the first time that Chaney’s wife was the actual owner of the automobile and that it was brought into the marriage by her as her paraphernal property. An exception of no right of action was then raised by counsel for the defendants and that exception was sustained by the district court as to any claim for damages to the vehicle.

Testimony was allowed as to the value of the loss of use of the vehicle and as to the personal items which disappeared while the wrecker service had the car. Judgment was thereafter rendered in favor of the plaintiff in the amount of $200.00 for loss of the use of the car for four weeks; the claim for the plaintiff’s personal items was rejected.

Brumfield Wrecker Service, Inc. appealed that judgment. The plaintiff has answered that appeal and maintains that the defendants’ exception of no right of action should be overruled and the case remanded for the taking of evidence as to the damages to the vehicle. We find those contentions to be correct.

As previously noted, the basis for the exception of no right of action was that the automobile in question was actually the separate property of the wife of plaintiff; she is not a party in this litigation. It is well settled, however, that the proper exception in such instances is the dilatory exception of lack of procedural capacity as provided for in C.C.P. Article 926. That issue was raised in Polk v. New York Fire & Marine Underwriters, Inc., 192 So.2d 667 (La.App. 3d Cir. 1966) in which the Court observed:

“The jury awarded the plaintiff husband $250.00 special damages in his capacity as head and master of the marital community existing between Mr. and Mrs. Polk. A portion of this sum consisted of the damages to the 1958 Plymouth driven by Mrs. Polk at the time of the accident. The defendant contends that the jury erred in awarding damages for the repair of the Polk automobile to Mr. Polk because the automobile is the separate property of the wife and she alone could sue for their recovery.
The petition of Mr. and Mrs. Polk alleges the automobile is community property for the repair of which the husband is entitled to recover as head and master of the community. LSA-C.C.P. 686. There is no pleading by the defendant questioning the husband’s capacity to sue for this item of damages. This is a matter which must be urged in limine litis by means of the dilatory exception of lack of procedural capacity under Articles 855 and 926 of the Code of Civil Procedure. Gebbia v. City of New Orleans, 249 La. 409, 187 So.2d 423 (1966). Hence the objection in this case is waived.”

Similarly, in American Indemnity Company v. Leon Godchaux Clothing Company, Ltd., 294 So.2d 623 (La.App. 4th Cir. 1974), exceptions of no right of action made against claims by husbands for the recovery of the separate property of their wives were overruled. There, the court said:

“Civil Code Article 2384 provides that the wife has the right to administer personally her paraphernal property without the assistance of her husband. However, this article does not preclude the husband from administering the paraphernal property of the wife, and Article 2385 of the Civil Code provides that the paraphernal property, which is not administered by the wife separately and alone, is considered to be under the management of the husband. Our courts have long and consistently held that the paraphernal property is presumed to be under the husband’s management, and further that he is competent to administer her property as mandatary, and without any formal power of attorney. In re Leeds & Co., 49 La.Ann. 501, 21 So. 617 (1897). This presumption of administration by the husband is presumed to continue until the contrary be shown, and in all cases the burden of proof to the contrary is on those who have an interest to contest it. Breaux v. LeBlanc, 16 La.Ann. 145 (1961) (sic).”

This case will be remanded to the district court for two limited purposes. Since there was no plea of lack of procedural capacity by the defendant, that exception was waived and evidence concerning the damages to the Chaney vehicle was admissible.

We note also that a motion for a new trial was filed on behalf of Brumfield Wrecker Service, Inc., on the ground that new evidence was available concerning funds at the plaintiff’s disposal in the time period following the confiscation of the vehicle. That motion was denied. In view of the additional evidence to be taken in regard to the plaintiff’s claim, the defendant will also be allowed to offer the proof suggested in its motion for new trial.

For the above reasons, the judgment of the district court is reversed and this matter is remanded for further proceedings consistent with the views hereinabove expressed. All costs of this appeal are to be borne equally between the parties. The assessment of all other costs is to await a final determination on the merits.

REVERSED AND REMANDED.


text:
    Retha M. STAFFORD, Plaintiff-Appellant, v. DIVISION OF ADMINISTRATION, Defendant-Appellee.
    No. 12990.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Retha M. Stafford, in pro. per.
    Donald J. Wall, Baton Rouge, for appel-lee.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   SARTAIN, Judge.

Retha M. Stafford appeals from the summary disposition on the grounds of prescription of her appeal to the State Civil Service Commission (Commission). For reasons hereinafter stated, we reverse and remand.

This cause arises out of a previous dispute between the Division of Administration (Division) and the Department of State Civil Service relative to whether the rank and file employees of the former are in the “classified service of the state.” The facts are not in dispute.

Mrs. Stafford originally obtained a'probational appointment in March of 1975 to the Department of State Civil Service, Division of Family Services, as a Dictating Machine Operator I. In June of 1975, she voluntarily left Family Services to accept a probational appointment with the Division in its purchasing department as a Typist Clerk III in the Pineville, Louisiana office. In that capacity she received salary increases on three subsequent occasions.

In February (14) of 1977, this court rendered its decision in In Re Division of Administration, 343 So.2d 277, wherein it was held that the Division of Administration is part of the “Office of the Governor” and its employees were not in the classified service of the state or within the jurisdiction of the Department of Civil Service and the Commission. On May 11, 1977, the Supreme Court of this state denied writs. Investigation of Possible Violation of the Civil Service Law et al., 345 So.2d 504 (La.1977). In obedience to these decisions, the Commission adopted pertinent resolutions to the effect that members of the Division were not in the classified service of the State and would not be subject to or eligible for adjudication under the rules and regulations of the Department. By letter dated June 14, 1977, the director of the State Department of Civil Service advised all employees of the Division of Administration of the aforementioned resolutions.

On September 15, 1977, Mrs. Stafford was advised that the Pineville office would be closed and her job with the Division would be terminated as of September 30, 1977. She was not offered other employment within that unit.

Through her own efforts, Mrs. Stafford obtained a classified position with the Department of Health and Human Resources as a Dictating Machine Operator II at the State Hospital in Pineville, Louisiana. The effective date of this employment was April 18, 1978.

On September 5,1978, the Supreme Court of this state rendered its opinion in Smith v. Division of Administration, 362 So.2d 1101 (La.1978), rehearing denied October 5, 1978, which overruled In Re Division of Administration, above, and declared in part that with the exception of its appointed head and those persons declared unclassified by Civil Service Law, all employees of the Division of Administration were classified employees of the State of Louisiana.

Following an exchange of correspondence between herself and the office of the Director of Civil Service, Mrs. Stafford filed an appeal with the Commission on October 13, 1978, complaining of her dismissal from the Division in September of 1977, without the offer of a transfer to another department of the State and her reemployment in April of 1978 to a lower grade position.

At the hearing conducted by the Commission, the Division filed a motion for summary disposition of Mrs. Stafford’s appeal on the grounds that by virtue of her unclassified position with it in 1977, she had no legal right to appeal and that the Commission was without jurisdiction in the premises.

The Commission in its written reasons for judgment noted in part the pertinent facts recited above, including the aforementioned decisions, and rejected the Division of Administration’s motion concluding that by virtue of the language in Smith v. Division of Administration, above, the employees of the Division have at all times since 1948 remained in the classified service of the State. However, the Commission noted, ex proprio motu, that Mrs. Stafford had lost her right of appeal by the lapse of twelve months under its Rule 13.12(c). In doing so, we hold that the Commission erred as a matter of law.

Our courts have long recognized that in certain limited situations designated prescriptive periods are suspended where, from the facts presented, one could not bring his suit to redress wrong within the designated period. The impediment usually has resulted from the deliberate and willful deceptive conduct on the part of the offender. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970); City of Shreveport v. Thomas, 353 So.2d 1076 (La.App. 2nd Cir. 1977); Brown v. State, Through Department of Correction, 354 So.2d 633 (La.App. 1st Cir. 1977).

In the instant cause there was, of course, no willful or deceitful conduct on the part of any of the parties. To the contrary, the Commission in the proper conduct of its affairs contested quite strenuously the position taken by the Division of Administration in the first suit. Having failed to prevail, it notified all of the employees of the Division of Administration that they were no longer considered “classified” and could not avail themselves of any of the benefits provided by the rules and regulations of the Department of Civil Service. This was indeed the prevailing law at the time of Mrs. Stafford’s discharge in September of 1977. While her plight was not the result of any willful conduct or deception on the part of anyone, any cause of action that she might have sought to assert was nonetheless effectively denied her. Within days of the finality of the decision in Smith v. Division of Administration, above, she filed the instant appeal with the Commission.

Under the above facts we hold that the prescriptive period of one year under the Commission’s Rule 13.12(c) did not commence to run against Mrs. Stafford until October 5, 1978, the effective date of Smith v. Division of Administration, above.

For these reasons, the decision of the Civil Service Commission is reversed and set aside and this matter is remanded for further proceedings.

REVERSED AND REMANDED.


author: ELLIS, Judge.

text:
    Lana Hymel BOURGOYNE et al. v. CITY OF BATON ROUGE et al.
    No. 12907.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    George R. Covert, Baton Rouge, of counsel, for plaintiffs-appellants, Lana Hymel Bourgoyne, Indiv., etc.
    Asst. Parish Atty., Frank J. Gremillion, Baton Rouge, of counsel, for defendants-ap-pellees, City of Baton Rouge, et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a tort suit brought by Lana Himel Bourgoyne, individually and as natural tu-trix of the minor Karl Kristopher Bour-goyne, for the wrongful death of her husband, Karl F. Bourgoyne. Defendants are the City of Baton Rouge, Howard Kidder and Donald Chaney. Trial was held before a jury, but, after plaintiffs had rested their case, defendants moved for and were granted a directed verdict. From the judgment dismissing their suit, plaintiffs have appealed.

Karl F. Bourgoyne was employed as a police officer by the City of Baton Rouge. Howard Kidder was the Chief of Police of Baton Rouge and Donald Chaney was a major in the Baton Rouge Police Department and was Officer Bourgoyne’s supervisor. Officer Bourgoyne was a motorcycle patrolman, and, at the time of the accident hereinafter discussed, was using a 1977 Harley Davidson motorcycle, designated as No. 71, which was admittedly not equipped with a siren.

On July 14, 1977, Officer Burgoyne was pursuing a speeding motorist on East Brookstown Drive in Baton Rouge. The emergency flashers on his motorcycle were operating. He attempted to pass two slower moving vehicles, and, as he did so, the vehicle in front began a left turn into a side street. Officer Bourgoyne struck the left rear of the vehicle and was thrown from his motorcycle. He subsequently died as a result of the injuries received.

It is conceded that the cause of action alleged herein falls within the purview of R.S. 23:1032, which provides, in part, as follows:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof. “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”

Plaintiffs argue that the provisions of R.S. 32:318A require that emergency vehicles be equipped with a siren, whistle or bell, and that defendants’ failure to do so is an “intentional act” under R.S. 23:1032, supra.

We cannot agree. In Guidry v. Aetna Cas. & Sur. Co., 359 So.2d 637 (La.App. 1st Cir. 1978), writ den. La., 362 So.2d 578, we said:

“To constitute the requisite intent to result in civil liability, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow.”

There is no evidence in the record to indicate that either of those requirements have been met.

The judgment appealed from is affirmed, at plaintiffs’ cost.

AFFIRMED.