text:
    Rose SCHIRO v. Mr. and Mrs. Anthony VIOLA.
    No. 14477.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Ron S. Macaluso, Hammond, for plaintiff.
    Louis L. Sherman, Jr., Kentwood, for defendants.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COLE, Judge.

Plaintiff, Rose Sehiro, filed this suit seeking damages for personal injury sustained as the result of a dog bite. Made defendants were Mr. and Mrs. Anthony Viola, whom plaintiff alleged were the owners of the dog. At the close of the evidence presented at trial, the court found plaintiff did not prove defendants were owners of the dog which attacked her and thus rendered judgment in favor of defendants, dismissing plaintiff’s suit. Plaintiff then appealed from the judgment of the trial court. However, since no signed judgment had been obtained, we dismissed the appeal for lack of jurisdiction. Schiro v. Viola, 398 So.2d 1294 (La.App. 1st Cir. 1981). Subsequently, judgment was signed by the trial court, and plaintiff perfected the instant appeal. Plaintiff asserts on appeal, for the first time, that even if defendants were not the owners of the dog, the evidence supports a conclusion they were harboring the dog.

The issues presented are whether or not the trial court erred in finding defendants were not the owners of the dog which attacked plaintiff; and, whether or not the record otherwise supports a conclusion defendants, if not the owners, harbored the dog which attacked plaintiff.

The incident which gave rise to this lawsuit occurred on November 1,1979. At that time, Mrs. Viola was operating a small greenhouse at her home in the evening after her normal working hours. On the day in question, plaintiff, a 71 year old woman, drove unescorted to defendants’ home, hoping to purchase flowers or flower pots.

When plaintiff arrived at approximately 9:00 A.M., she parked her car in defendants’ driveway and proceeded to exit from it. As soon as she got out of the car, she was attacked and bitten on the leg by a dog, which she described as a “blackish” german shepherd. Plaintiff immediately re-entered the car and proceeded to the hospital for treatment of the bite.

The evidence at trial established defendants were the owners of a german shepherd dog. However, plaintiff was unable to identify it as the one that bit her.

Charles Ragúsa, Jr. testified he gave the dog to the defendants. During the time Ragusa owned it the dog barked at people and chased cars. Ragusa stated he advised Mr. Sehiro the dog would probably develop a mean temperament. On occasion, Ragusa walked or jogged by defendants’ house. He was not bothered by the dog and observed it chained at the back of the house.

Sam Fred Anzalone testified defendants’ dog had acted in a vicious manner on several occasions, which occurred several months before the biting incident at issue. He stated he had complained to Mr. Viola about these incidents which took place as he jogged by the defendants’ house. Anzalone also stated that on many occasions when he passed the defendants’ house, the dog was chained. Mr. Viola explained that on the occasions of which Anzalone complained, his dog had broken loose from the chain with which he kept it restrained. He testified, after those occurrences, he had bought a thicker link chain to keep the dog tied to a large utility pole which he had acquired. Mr. Viola stated, subsequent to the purchase of the new chain, his dog had not gotten loose. Ronald M. Evans, the employer of Mr. Viola, and Joseph F. Pizzalot-ta, a former co-worker of Mr. Viola, both testified they visited the defendants frequently. They stated that upon the occasion of their many visits the dog was never running loose but was always chained to a post in the back yard.

On the day of the incident, Mr. and Mrs. Viola left for work early in the morning. Before leaving, according to Mr. Viola’s testimony, he fed his dog and, at that time, the dog was securely fastened to the pole. Mrs. Viola also testified the dog was chained to the pole when she left for work. Upon learning of the biting incident, Mr. Viola returned home with the intent of shooting his dog if it had bitten plaintiff. However, Mr. Viola stated, the dog was still securely restrained when he got home to check on it. The evidence clearly established if defendants’ dog was chained to the pole, as Mr. Viola testified it was, it would have been physically impossible for it to have bitten plaintiff. Plaintiff testified the dog which bit her had approached her from behind her car, i.e., in the direction of the street, rather than from the back yard where defendants’ dog was ordinarily kept chained. Mr. Schi-ro related there were at times other dogs in the vicinity of his house because of a dump in the area.

Evidence which supports defendants’ ownership of the dog in question includes the testimony of plaintiff and Ragusa that the defendants owned the only german shepherd in the neighborhood. Moreover, plaintiff’s daughter-in-law, Mrs. Joan Schi-ro, testified Mr. Viola admitted to her on the day of the incident his dog had gotten loose and he had to rechain it.

The issues of whether or not the court erred in finding defendants were not the owners of the dog which attacked plaintiff is strictly factual and, as such, is subject to the manifest error rule explained in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

It is well established that to recover in strict liability for harm caused by a domestic animal, plaintiff must prove, among other things, that defendant is master or owner of the animal. Holland v. Buckley, 305 So.2d 113 (La.1974); Alfonso v. Market Facilities of Houston, Inc., 356 So.2d 86 (La.App. 1st Cir. 1978), writ denied, 357 So.2d 1169.

A very careful reading of the entire record establishes the finding of the trial court is not clearly wrong. This is not to say that we, or another trial judge, may not have reasonably decided this case to the contrary. A strong inference, tending to prove the defendants’ ownership of the dog, arises from the undisputed facts. The defendants owned the only german shepherd dog known to be in the neighborhood. The description of the attacking dog, as given by plaintiff, was similar to that of the defendants’ dog. The attack took place on defendants’ property, a place where their dog would normally be located. And, the defendants’ dog was known to have exhibited dangerous propensities. The inference of ownership to be drawn from these facts must, however, be considered as only one part of the total evidence adduced and may reasonably be held not to be decisive. Of course, to be added to the inference is the assertion of plaintiff’s daughter-in-law, Mrs. Joan Schiro, that Mr. Viola admitted the dog was not chained when he returned home after the attack.

There is substantial evidence opposing the probative value of the inference to be drawn from the above undisputed facts as well as opposing the validity of Joan Schi-ro’s assertion. There is the testimony of both Mr. and Mrs. Viola to the effect the dog was securely chained to the pole before they left for work the morning of the incident. The chain, collar and pole used to secure the dog were more than adequate for that purpose. There is the testimony of several persons that for a considerable period of time prior to the incident the dog was always chained to the pole at the rear of the house. It was established there had been no incidents with the dog for a period of several months following the purchase and use of the larger, stronger chain. Finally, there is the testimony of Mr. Viola that when the attack upon plaintiff was reported to him, he immediately returned home and found the dog still chained to the pole. There is, of course, an inference favorable to defendants to be drawn from all of this evidence.

We recognize the direct testimonial conflict between Mr. Viola and Joan Schiro as regards whether or not the dog was found to be still chained following the attack upon plaintiff. It is obvious the trial court had to resolve this conflict and, at least in part, did so upon the basis of credibility. Such judgment is entitled to great weight by a reviewing court for the many reasons repeatedly set forth in our jurisprudence.

We must not only give great weight to the assessment of credibility on the part of the trial court but, likewise, all factual conclusions of the trier of fact are entitled to great weight. This is true even though the assessment of credibility was not a factor in reaching a particular determination. In this ease, we have opposing facts, opposing inferences, and the direct conflict in testimony given by Mr. Viola and Joan Schiro. Accordingly, we are constrained to adhere to the admonition that “where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). It is our view that the total evidence adduced in this case upholds the reasonableness of the trial court’s determinations even though adverse determinations may have been just as reasonable.

Plaintiff argues alternatively that even if defendants were not the owners of the dog, it was harbored by them. Without attempting to articulate distinctions of liability, if any, among those who may variously own, have custody of, or harbor an animal which injures someone, we find absolutely no evidence in the record to support plaintiff’s contention.

The judgment of the trial court is affirmed. Plaintiff is cast for all costs of court.

AFFIRMED.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Creasie Mae SMITH v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, GREENWELL SPRINGS HOSPITAL.
    No. 14480.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Julius F. Harrell, Baton Rouge, for appellant.
    Sidney Hall, Staff Atty., Dept, of Health & Human Resources, Baton Rouge, for ap-pellee.
    Laura Denson Holmes, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner Director of the Dept, of State Civil Service.
    Before COVINGTON, CHIASSON and COLE, JJ.
   CHIASSON, Judge.

By letter dated March 27,1980, appellant, Creasie Mae Smith, was terminated from her position as a Food Service Worker III at Greenwell Springs Hospital. Subsequently, appellant appealed her dismissal to the Louisiana Civil Service Commission. On October 8, 1980, a hearing was held before an appeal referee. In due course, the Commission issued a decision affirming appellant’s dismissal. Appellant then appealed to this court, seeking judicial review of the Commission’s decision.

On March 14, 1980, appellant was employed by the Department of Health and Human Resources (DHHR) as a Food Service Worker III at Greenwell Springs Hospital. Pursuant to her employment, appellant worked in the dining-kitchen area of the hospital. This area was comprised of two rooms, the kitchen and the dining room, separated by two doors.

On March 14,1980, at about 6:00 a. m., an argument occurred between appellant and a fellow kitchen employee, Mabel Clark. The argument began in the dining room, when appellant intervened in a conversation that Ms. Clark was having and chastised her for knowing everybody’s business. After appellant’s intrusion, Ms. Clark began walking to the kitchen. Appellant followed her and appellant and Ms. Clark continued arguing.

After reaching the kitchen appellant asked Ms. Clark if she wanted to “whip her ass” as an invitation to a physical confrontation. Ms. Clark accepted the invitation, proceeding to push appellant to the floor and pin her there. After approximately two minutes Ms. Clark released appellant and began to walk away from their encounter.

Then appellant clutched a small kitchen knife from an adjacent table and began menacingly to pursue Ms. Clark around the table. At one point during her chase, appellant threw a can at Ms. Clark. Ms. Clark picked up a pitcher and threatened to throw it at appellant. This threat seemed to unnerve appellant and the incident came to an end without harm to either party.

Approximately two weeks later, DHHR sent a letter to appellant confirming an orally imposed two-week suspension and notifying her of her termination, effective at the end of her suspension. Appellant’s previously-described encounter combined with numerous earlier reprimands were given as reasons for her termination. Disciplinary action against Ms. Clark was limited to a two-week suspension.

The Civil Service Commission affirmed this action on appeal, finding Ms. Clark to have been guilty of the conduct described above.

Appellant contends the facts do not show a sufficiently grave offense to warrant her dismissal, and that as Ms. Clark was merely suspended, the same less severe punishment should have been meted out to her.

Review of the Civil Service Commission’s findings is the same as in any other civil case, i.e., whether or not a review of the entire record reveals any manifest error. Albert v. Louisiana State Penitentiary, 396 So.2d 340 (La.App. 1st Cir. 1981); and Brown v. L.H.H.R.A., 346 So.2d 758 (La. App. 1st Cir. 1977). Appellant does not seem to question the findings of the Civil Service Commission, and, in the instant case, the findings of fact contained in the Commission’s opinion are eminently supported by the record.

Appellant’s primary contention is that the incident was so minor as not to warrant her dismissal. Appellant also’ contends that, even if the matter was serious, she should not have been terminated, since Ms. Clark was not terminated.

The record hardly supports appellant’s contention that the incident was minor. On the contrary, pursuing a fellow employee while armed with a knife would seem to be a most serious offense. This court has held that an employee is discharged for cause if his conduct impaired the efficiency of a public service and bore a real and substantial relationship to the efficient and orderly operation of that public service. Sanders v. Department of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir. 1980), writ denied 399 So.2d 602 (1981). Appellant’s behavior in the instant case certainly seems to meet those criteria.

While the pertinence of the disciplinary treatment to this case is highly questionable, the variance in punishments can be easily reconciled. The obvious distinction between the actions of appellant and Ms. Clark is that appellant chose to arm herself with a dangerous weapon, while Ms. Clark did not.

A second reason for the higher degree of punishment meted out to appellant is probably her past record of occupational conduct. It is well established that, while any of several minor charges against an employee, when viewed in isolation, might not justify his dismissal, the aggregation of those charges could be sufficient cause for his termination. Albert v. Louisiana State Penitentiary, supra; and Stiles v. Department of Public Safety, Drivers’ License Division, 361 So.2d 267 (La.App. 1st Cir. 1978). Hence, even if appellant’s culpability in the most recent incident had been equivalent to that of Ms. Clark’s misconduct, her past record in itself calls for the difference in treatment.

Hence, the ruling of the Civil Service Commission is affirmed, at appellant’s cost.

AFFIRMED.

      . Appellant denies that she held the knife while chasing Ms. Clark; however, all other witnesses with personal knowledge of the incident contradicted her testimony in that respect.

      . Ms. Smith’s past disciplinary record, the accuracy and fairness of which Ms. Smith does not challenge, which we take from the letter of termination addressed to her by the Department of Health and Human Resources, is as follows:
      “(1) 3-3-80 Oral reprimand — Eating lunch without paying
      (2) 2-13-80 Failure to report for duty and failure to notify supervisor
      (3) 1-18-80 Oral reprimand — time and attendance
      (4) 10-5-79 Oral counseling a) not following proper sign-in procedure b) cursing in the kitchen
      (5) 9-18-79 Oral counseling in appropriate behavior
      (6) 6-27-79 Written reprimand — tardiness
      (7) 5-23-70 Written reprimand for: late taking (food) serving cart to ward
      (8) 5-16-79 Oral reprimand — not following diet menu
      (9) 2-1-79 Suspension — 3 days — failure to report for duty and failure to notify supervisor”


author: COLE, Judge.

text:
    Stacy STEWART v. Danny VIDRINE.
    No. 14482.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      David Price, Baton Rouge, for plaintiff/appellee.
    Bryan E. Bush, Jr., Baton Rouge, for defendant/appellant.
    Before COVINGTON, CHIASSON and COLE, JJ.
   COLE, Judge.

Plaintiff, Stacy Stewart, filed this suit seeking damages for personal injury and mental anguish allegedly sustained as a result of a battery committed upon her by defendant, Danny Vidrine. Defendant answered, denying the battery, and reconvened, demanding damages for battery and for the alleged wrongful towing of his automobile. Subsequently, the trial court issued written reasons for judgment, finding in favor of plaintiff on the main demand and awarding her $500 in damages. The trial court implicitly rejected defendant’s recon-ventional demand. Prom the judgment of the trial court, defendant appeals. Plaintiff answered the appeal seeking an increase in quantum. We affirm.

The following issues are raised by defendant’s appeal and plaintiff’s answer to the. appeal:

1. Did the trial court err in finding defendant, rather than plaintiff, was the aggressor;
2. Did the trial court err in concluding defendant used excessive force in defending himself; and
3. Is the $500 award to plaintiff manifestly inadequate or excessive?

The events which led to this lawsuit occurred early on the morning of September 23, 1979. At the time of the occurrence, plaintiff was working as night manager of the Stop-N-Go on Bob Petit Street in Baton Rouge. In performing these duties, she was the only employee on duty at the store on the morning in question.

The testimony given by plaintiff and defendant concerning the alleged battery is sharply contradicting. The only other person to testify concerning the circumstances of the incident was Holly Myers, a friend of defendant’s.

Plaintiff testified the Stop-N-Go store at which she worked is located in close proximity to several bars. On many occasions, patrons of the bars would park in the lot provided for customers of the store. Stop-N-Go had a policy of having these vehicles towed from the parking lot. In order to have these cars towed, the employee of Stop-N-Go would contact Lewis Wrecker Service. When the owners of the cars returned, they were given a phone number to call to reclaim their cars.

On the morning in 'question, the employee who had been running the store prior to plaintiff’s arrival had called the wrecker service to pick up six or seven cars parked in the store’s lot. The wrecker did not arrive until after plaintiff had begun her duties. Plaintiff signed the slips required by the wrecker, and those cars were towed away. Plaintiff testified she made certain none of the cars belonged to any customer of the store.

Plaintiff further testified that about 1:00 A.M. or 1:30 A.M. defendant entered the store to find out what had happened to his car. He was very abusive and used vulgar language at this time. Plaintiff testified he seemed to be intoxicated. Plaintiff stated defendant continued to curse her and began banging on the customer counter behind which plaintiff worked. Plaintiff testified she finally became fed up with defendant’s abuse and attempted to slap him. She stated he avoided her attempt to hit him by grabbing her arm. She said he then grabbed the back of her head and began slamming it against the counter.

Plaintiff further testified she suffered a headache and neck pain as a result of the incident. The next day, which was a Monday, she consulted Dr. Kenneth Cranor for treatment of her injuries.

Defendant’s version of the incident varied sharply from that of plaintiff. He testified he had been at a bar, which was adjacent to the Stop-N-Go store, called Faps. He stated he had only drunk one beer while at Faps. He testified that, before going into Faps, he had parked his car across the street at an apartment complex. He stated he and a friend left Faps at approximately 12:00 midnight and crossed Bob Petit Street to get his car. He then drove back across the street and parked in the Stop-N-Go lot. He testified he and his friend went into the store to buy two soft drinks. Defendant stated they stopped at the magazine rack for a while, before paying for the drinks and departing the store. According to defendant, he and his friend were in the store for 10 to 15 minutes.

Defendant further testified that, when he and his friend left the store, they proceeded to sit on a car in the parking lot for about 5 minutes while consuming their soft drinks. At that point, another friend of defendant, Holly Myers, asked him to bring her home. Defendant then went to where he had parked his car and found it was not there.

Defendant stated that, at this point, he went back into the store and confronted plaintiff as to the whereabouts of his car. Defendant admits he was upset and began to curse plaintiff. He stated plaintiff then . hit him on the left side of his face, resulting in a cut on the inside of his mouth. Defendant testified he then grabbed plaintiff’s shoulder to prevent her from hitting him again. He testified he then released her and left the store.

Holly Myers testified on defendant’s behalf. She confirmed defendant’s story about her asking for a ride home. She testified she saw plaintiff strike defendant on the face. At that point she was afforded a ride home, and left without observing anything further.

In his first two specifications of error, defendant contends the trial court erred in finding he was the aggressor in the incident and that he used excessive force in defending himself. Each of these issues are factual in nature, Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1st Cir. 1977), and, as such, the trial court’s findings should not be. reversed unless they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The trial court issued written reasons for judgment in which it found defendant was the aggressor in the confrontation with plaintiff and he used unreasonable and unnecessary force in attempting to find out the whereabouts of his vehicle. A determination of whether or not a defendant used excessive force is not material unless or until it is found the plaintiff was the aggressor. Andrepont v. Naquin, supra. The trial court’s reasons make clear its decision is posited on a finding that plaintiff was not the aggressor; and therefore, the physical force used by defendant was not justified. See Sherwood v. Sepulvado, 362 So.2d 1161 (La.App.2d Cir. 1978); Skains v. Tidwell, 359 So.2d 247 (La.App. 2d Cir. 1978). Hence, defendant’s contention that the trial court erred in finding he used excessive force lacks relevancy.

A determination concerning which party was the aggressor in the instant case hinges upon an evaluation of the respective credibility of plaintiff and defendant. If defendant’s story is true, then plaintiff was obviously the aggressor. He testified plaintiff struck him first and he then grabbed her in self-defense. Ms. Myers, to some extent, corroborated defendant’s story. However, the testimony of both defendant and Myers is highly improbable in many respects. It is particularly unusual that defendant could remain in the store for 10 or 15 minutes without noticing his car was being towed from the lot. His testimony also does not give any indication of how plaintiff sustained the injury to her head.

Plaintiff’s testimony, on the other hand, seems more believable. She testified defendant had not been in the store at the time his car was towed. This appears much more plausible than defendant’s story that he was at a bar next door to the store, then crossed the street to get his car, and drove it back across the street to go to the store. Moreover, the doctor’s report concerning the injuries sustained by plaintiff coincides perfectly with the type of attack that defendant allegedly made upon her.

The trier of fact has great discretion in evaluating credibility of witnesses, and its reasonable evaluations should not be reversed on appeal. Pisciotta v. Allstate Ins. Co., 385 So.2d 1176 (La.1979); Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La. App. 1st Cir. 1981). We find the trial court’s evaluations in the instant case were reasonable and therefore warrant the conclusion defendant was the aggressor.

Were we to disagree with the trial court’s finding that defendant was the aggressor, our conclusion would not negate defendant’s liability. Assuming plaintiff first slapped defendant, causing him to defend himself, and disregarding as we must his highly provocative words, the evidence amply supports the trial court’s additional finding of unreasonable and unnecessary force employed by defendant. Where a person responds to an aggressive act or seeks to defend himself from real or apparent attacks by others but uses more force than is reasonably necessary to repel the aggression or apparent aggression, the use of force in excess of what is necessary results in liability for injuries caused by the employment of such unnecessary force. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969); Freeman v. Bell, 366 So.2d 197 (La.App. 2d Cir. 1978), writ refused, 1979; Andrepont v. Naquin, supra.

The remaining issue is that of quantum. Both parties object to the trial court’s award of $500 to plaintiff. An award made by the trial court must not be altered unless the court clearly abused its discretion. Unless an abuse of discretion is found initially, the award in other cases are not pertinent. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

The trial court found plaintiff’s injuries were not serious. This conclusion is supported by Dr. Cranor’s report, which states in part:

“It is my impression that this patient sustained a cervical sprain at the time of the above noted incident as well as a contusion and hematoma to the left side of her forehead. I expect that both will clear within three weeks time without any permanent anatomical physical impairment.”

Also, plaintiff candidly admitted the pain she experienced from her injuries terminated within three to five days of the altercation. Under the strictures of Reck and Coco, the $500 award to plaintiff cannot be considered an abuse of discretion.

Affirming the judgment of the trial court, we assess all costs against the defendant.

AFFIRMED.


text:
    BLUE RIDGE INSURANCE COMPANY v. BELLE ALLIANCE HOMES, INC., et al.
    No. 14490.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Cary J. Guglielmo, Baton Rouge, for plaintiff-appellee Blue Ridge Ins. Company.
    George Anding, Jr., Baton Rouge, for defendant-appellant Langlois Elec. Co., Inc.
    Calvin E. Hardin, Baton Rouge, for defendant-appellant Belle Alliance Homes, Inc.

      Before COVINGTON, EDWARDS and COLE, JJ.
   COLE, Judge.

The issue presented is whether or not the plaintiff proved by a preponderance of the evidence its insured’s home was destroyed by fire due to the fault of the defendants. Because we find the plaintiff has failed in this burden of proof, we reverse the judgment of the trial court.

The facts giving rise to this litigation are as follows. Plaintiff’s insured, Yvonne Lewis Day, purchased a home from defendant Belle Alliance Homes, Inc. (herein referred to as Belle Alliance) on April 12, 1977, and had occupied the home since April 1, 1977. Belle Alliance had built the home as a “spec house” and had subcontracted all electrical work to Langlois Electric Company, Inc. (herein referred to as Langlois).

On the morning of February 28,1978, Ms. Day awoke to find the house afire. Almost all of the structure and the entire contents were destroyed. Her insurer, Blue Ridge Insurance Company (Blue Ridge) paid a total of $59,550 under its policy provisions. Exercising its subrogation rights, Blue Ridge then filed suit for this amount against Belle Alliance and Langlois, alleging the fire was caused by defects in the electrical system, particularly in the circuit breaker panel and/or the disconnect switch box. They specifically alleged both parties were negligent for failing to properly wire the house and in using defective electrical materials.

Belle Alliance made a third party demand against Langlois and later Belle Alliance and Langlois both made third party demands against I.T.E. Imperial Corporation, the manufacturer of the circuit breaker and all circuit protection equipment used in Ms. Day’s home. However, the demands against I.T.E. were apparently not pursued as a part of this litigation in that the record shows I.T.E. did not answer the demands nor did they participate in the trial.

After hearing the testimony and examining the various photographs of the burned house, the trial court rendered judgment in favor of the plaintiff and against the two defendants in solido. The court further held in favor of Belle Alliance on its third party demand against Langlois. Both defendants have appealed.

In order to understand our decision to reverse the trial court it is necessary we discuss the evidence brought forth at trial. To assist in this discussion we have prepared from the evidence adduced a diagram which is attached to and made part of this opinion. The house, as set forth in the diagram, was a four-bedroom home with the bedrooms located on the west side, the family room at the center, and the living room, kitchen and breakfast room located on the east side. Photographs show the most extensive damage was to the carport, the kitchen and the family room.

Ms. Day testified extensively as to the conditions she found upon waking that morning. Her electric clock read 6:15 although it was later discovered the time was actually about 7:45. When she first awoke she heard a strange noise coming from the family room so proceeded to investigate. When she entered the family room she noticed flames in the area marked “A” on the diagram. She walked on to the kitchen, thinking she could put the fire out with water. In the kitchen she looked up at the ceiling and saw smoke coming through the sheetrock “like a sieve.” She then realized the severity of the situation and exited from her house, using the door located in the area marked “C” on the diagram. She stated she did not observe any flames or smoke near the door or in the area marked “B” on the diagram.

Ms. Day then went through the carport to her neighbor’s house in order to call the fire department. When she glanced back toward her house she noticed flames and smoke near the ceiling of the carport and also on the vinyl roof of her car. The fire department responded promptly to her call but was unable to save the house from-almost total destruction.

Ms. Day testified that in the eleven months she had occupied the house she had experienced several minor electrical problems such as two “dead” outlets and trouble with the central air conditioning unit. The air conditioning problem was remedied by an electrician sent out by Belle Alliance but the problem with the outlets was never solved.

Ms. Day also testified she did not use the heater or air conditioner the night before the fire and was almost certain she had left no lights on. The attorney for Langlois impeached Ms. Day’s testimony concerning the light by introducing a written statement signed by her the day of the fire in which she indicated she had left on a swag lamp in the area of the family room marked “A” on the diagram. At trial she stated neither she, nor her housekeeper, nor her visitor of the night before smoked cigarettes. She further stated she had done no cooking, washing or ironing the night before the fire. The evidence discloses the swag lamp was connected with an electrical cord to an outlet. It was not part of the original house, but was purchased from a retail store.

Two experts testified as to the possible causes of the fire. Plaintiff called Dr. Leonard Adams, professor of electrical engineering at Louisiana State University, and the court accepted him as an expert in the cause and origin of electrical fires. He stated he had visited the burned site twice in the weeks following the fire. He removed both circuit boxes from the home and examined them. He concluded the fire was electrical in nature and probably started in the breaker box located in the wall between the utility room and the family room, in the area marked “B” on the diagram. Dr. Adams could not point to any specific defect in the breaker box because the box was so badly damaged by the fire. Nor was he able to show specifically that the box or the general wiring of the house had been installed improperly. His conclusion as to the origin of the fire was based upon the fact that the heaviest area of damage was in the utility room and that the areas adjacent to the utility room were more severely burned than the rooms in other areas of the house. He theorized the fire started in the wall and traveled up into the attic, thus explaining why Ms. Day noticed smoke seeping through the ceiling of the kitchen and later saw smoke and flames at the carport ceiling.

Dr. Adams could not explain why Ms. Day was able to exit the house through the back door (marked as “C” on the diagram) which was located adjacent to the place he believed the fire to have started. His only hypothesis was that there may have been flames up at the ceiling level but Ms. Day may have been too excited to notice. He stated that since the breaker box was located in the wall between the utility and family rooms, it was possible for the two layers of sheetrock to act as a chimney, carrying the flames up to the attic level without actually burning through the wall down below.

When asked to explain why Ms. Day observed flames in the area marked “A” on the diagram, Dr. Adams offered several theories. One was that the fire had traveled from the utility room wall up into the attic, burned across the cathedral ceiling of the family room and then descended into the area marked “A.” Another is that the fire spread horizontally from the breaker box along the rear wall of the family room, over to area “A.” (This statement was made in a deposition offered into evidence.) He admitted that in the latter situation the door used by Ms. Day would have been burning or would have already burned at the time she exited the house.

Defendant Belle Alliance called as an expert Mr. Robert Nethken, associate professor of electrical engineering and construction at Louisiana State University. He was accepted by the court as an expert in electrical construction, including electrical wiring and the causes of electrical fires. Mr. Nethken did not visit the scene of the fire but based his conclusion on various photographs, the statements and testimony of Ms. Day, and the deposition of Dr. Adams. He too examined the breaker boxes.

Mr. Nethken stated he did not believe the fire started in the utility room because the burn pattern indicated to him the fire entered the utility room from the south (the kitchen area) and from the north (the carport area). He theorized the fire started in the area marked “A” where Ms. Day first saw the flames and where the swag lamp was located. He stated there could have been a malfunction in the cord of the lamp or in the fixture itself. He explained a piece of molten copper could have dropped from the lamp and ignited the carpet below. He admitted he could not state this caused the fire with even a 50% probability, but he could rule out certain causes, like the breaker box, as being the source of the fire.

On cross examination it was pointed out the photographs taken of the outside rear portion of the house showed the area immediately to the right of the area marked “A” was not burned nearly as severely as the other side (the eastern side) of the house where the breaker box was' located. ’ Neth-ken theorized the fire had not spread in a westerly direction because the cathedral ceiling in the family room may have slowed its progress. He also noted the wall between the family room and the bathroom contained a built-in bookcase and that books are very difficult to burn. Therefore, he explained, the fire may have been impeded from spreading in a westerly direction for this reason also.

Mr. Nethken further noted the wind was out of the southwest at seven knots an hour on the morning of the fire. He concluded it was possible the wind entered the house (which faced south) through the western gables in the attic and caused the fire to spread toward the eastern side of the house, thus explaining why the eastern side was more damaged than the western side.

Ultimately Mr. Nethken stated the problem was probably electrical in origin although he could not say it was caused by a malfunctioning electrical appliance rather than the wiring. When asked why the area around the breaker box was so severely burned he stated that when the fire reached the utility room the box caught on fire, causing a chain of electrical faults to occur. According to Nethken, a great deal of damage is to be expected anytime a breaker box is involved in a fire. In his opinion, if the fire had started at the breaker box it would have been impossible for Ms. Day to have used the back door to leave the house.

Nethken explained the clock stopping at 6:15 (about an hour and a half before Ms. Day discovered the fire) by the fact that the flames had already gone up to the attic level where the “romex” would be triggered and would cause the breaker box to kick off. He stated that even though the fire may have started at area “A,” the flames Ms. Day observed there were certainly not the original flames. The fire had obviously been burning awhile as evidenced by the smoke seeping through the ceiling from the attic.

Mr. N. R. Langlois, of Langlois Electric, Inc., testified although he did not personally perform the wiring on the house, he made daily inspections of the work done by his employees and found all work to meet code requirements. The city building inspectors examined the house twice, once before the walls were closed up and once at the end of the construction. They found all electrical work to be satisfactory.

Mr. Joseph Grisaffe, president of Belle Alliance, stated he checked the breaker box during construction of Ms. Day’s home. He made sure the switches in the box were not loose.

In written reasons for judgment the trial court stated:

“Dr. Adams’ explanation of the burn pattern and location of the breaker box with respect to the destroyed area, when considered in light of the testimony of Mrs. Day and the photographs of the burning house, was sufficient to prove the breaker box was the origin of the fire.”

The court then stated the applicable standard of proof, even in cases involving circumstantial evidence, is that when taken as a whole, the evidence must show the fact or causation sought to be proved is more probable than not, citing Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). The court found this burden to be met. The court further stated if the circumstantial proof excludes other reasonable hypotheses with a fair amount of certainty, so that it is more probable than not that the harm was caused by the tortious conduct of the defendant, then plaintiff should recover, citing Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963), rehearing denied 1963.

We realize the trial court has a great deal of discretion in the fact finding process. But after carefully examining the record we conclude the court was clearly wrong in accepting the evidence as proving (more probably than not) the breaker box was the cause of the fire. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), rehearing denied 1979. We reach this conclusion because we find plaintiff has not excluded other reasonable hypotheses (particularly the swag lamp theory) with a fair amount of certainty.

The record reflects clearly both experts agree the fire was probably electrical in origin and both admit it is impossible to determine the actual cause of the fire from the evidence. Both experts simply offered their theories, based on the available evidence, as to how the fire occurred.

On the one hand, although Dr. Adams’ breaker box theory is entirely reasonable, it contains gaps which weaken it. His theory is damaged by the fact Ms. Day was able to exit the house through the back door located only a few feet away from the source of the fire which had been burning for over an hour. She noticed neither smoke nor flames in this area of the room. Any suggestion Ms. Day was too “excited” to notice the flames is refuted by reading her testimony in the record. She testified in explicit detail as to every event surrounding the fire, including such minutia as the fact a child’s sweater was draped over the sofa in the family room and her neighbor held a garment in her hand when Ms. Day went next door to use the phone. We are convinced Ms. Day was keenly aware of the conditions existing in the room at that time and we are confident if she did not observe smoke or flames coming from area “B” or “C,” then none were there.

On the other hand, Mr. Nethken’s swag lamp theory is also reasonable and hasn’t been excluded with a fair amount of certainty. The trial court seemed to place some significance in the fact the swag lamp was fairly new (ten months) and had worked properly. However, the breaker box was also fairly new (eleven months) and it too had worked properly up until the time of the fire. Further, the swag lamp was located in area “A” where Ms. Day first observed the flames. If the fire originated in that corner of the room it is understandable how she was able to exit through the door located in area “C.”

Certainly we are not deciding here which theory is the more credible, but are simply noting both theories are reasonable and the evidence put forth by plaintiff does not exclude defendants’ theory with a fair amount of certainty. (Obviously, if the fire had originated because of a defect in the swag lamp, the builder and electrician would have no liability whatsoever.) The evidence as a whole shows the house was so badly damaged it is impossible to determine what caused the fire. We cannot say plaintiff has met his burden of proof as to the origin of the fire.

After concluding the evidence was sufficient to establish the fire started in the breaker box, the trial court was then faced with the decision of whether or not there also was sufficient evidence that defendants were negligent. We note the record reflects neither expert could say the box had been improperly installed or the house improperly wired, so there was no evidence defendants acted negligently. The trial court solved this problem by applying the doctrine of res ipsa loquitur, thereby concluding that although there was no showing of any specific acts of negligence, this type damage usually would not occur without negligence. Therefore, the two defendants were held to be responsible for the fire.

The court reasoned as follows:

“In this case the facts suggest negligence of the defendants as the most plausable (sic) explanation for the fire. There is no other explanation for the breaker box to malfunction than a defect in its construction and/or installation. Once the surrounding circumstances justify the inference of negligence, as they do here, it is up to the defendants to overcome this inference. Hake v. Air Reduction Sales Co., 210 La. 810, 28 So.2d 441 (La.1946).”

Even if we agreed with the trial court that plaintiff had proved the breaker box to be the cause of the fire, we would decline to apply the doctrine of res ipsa loquitur to the present case.

There are three basic conditions necessary for the application of the doctrine. One, the circumstances must be such as to create an inference of negligence on defendant’s part. Two, the control and management of the instrumentality causing the damage must have been in the exclusive control of the defendant. Three, plaintiff must not have been in a position to know the particular circumstances which caused the instrumentality to operate to plaintiff’s injury, whereas, the facts are such that defendant is presumed to possess superior knowledge in this regard. Alexander v. St. Paul Fire & Marine Insurance Co., 312 So.2d 139 (La.App. 1st Cir. 1975), writ refused 1975.

Without even considering the other two requirements we reject the application of this doctrine because we find the circumstances do not create an inference of negligence on the defendants’ part. Both experts admitted they could not find any evidence of improper wiring or improper installation of the breaker box. Mr. Grisaffe testified he checked the box for loose switches. Mr. Langlois testified he checked the wiring daily and that the city inspectors had examined it twice. This record discloses there was not one iota of evidence showing defendants to have acted negligently.

It must be noted the trial court concluded there was no explanation for the fire other than a defect in the “construction and/or installation” of the breaker box. We concede since both experts testified the fire was probably electrical in origin it is possible the breaker box was defectively constructed. However, we know of no authority stating a home builder or his subcontractor is responsible for a properly installed electrical component which performs satisfactorily for eleven months before failing with resultant damages due to the manifestation of a manufacturing defect. In any event, and assuming, arguendo, the defendants may be considered a “manufacturer,” plaintiff has the burden of proving by a preponderance .of the evidence a defect in the breaker box caused its loss. Weber v. Fidelity & Casualty Company of New York, 259 La. 599, 250 So.2d 754 (1971); Hartford Fire Insurance Company v. Maytag Company, 374 So.2d 1269 (La.App. 3d Cir. 1979). Here, no evidence of any defect was presented and a defect cannot be inferred solely from the fact the fire occurred. See, e.g., John Robert Broussard and Patsy L. Broussard, Individually, etc. v. Pennsylvania Millers Mutual Insurance Company, et al., 406 So.2d 574 (La.1981).

Our brethern on the Third Circuit recently considered a case factually similar to the present one. In Western Cas. & Sur. Co. v. Adams, 381 So.2d 923 (La.App. 3d Cir. 1980), the new home of plaintiff’s insured was destroyed by fire only four weeks after it was occupied. Plaintiff sued the general contractor, the electrical subcontractor and the manufacturer of the central heating unit. The expert utilized stated the fire was caused by some unknown defect in the heating unit but found no evidence of faulty wiring or installation. The trial court dismissed the case, stating no negligence had been proven, nor were other hypotheses excluded with “a fair amount of certainty.” The appellate court affirmed. Plaintiff contended on appeal the doctrine of res ipsa loquitur should apply to infer the existence of a defect in the design and/or manufacture of the house or of the heating unit. The court refused to do so, noting:

“The circumstances of this case are not such that in the absence of an explanation by defendants the only fair and reasonable conclusion is that the fire was caused by some omission of defendants’ duty. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).”

We too feel the circumstances of the present case do not cause us to conclude there has been some omission of defendants’ duties. We note in the case just cited the manufacturer was a defendant yet the court still refused to find an inference of negligence. Certainly the present case, involving only the builder and the electrician, is an even stronger one for refusing to find an inference of negligence.

For the foregoing reasons, the judgment of the trial court is reversed. Costs are to be paid by appellee Blue Ridge.

REVERSED.

      . The other circuit box was located in the storage room on the other side of the carport and does not seem to have been involved in the fire.

      . For purposes of this part of the opinion we are assuming there was sufficient evidence showing the breaker box was the cause of the fire.

      . Regardless of whether Belle Alliance be considered a “manufacturer” or be considered a “seller,” it is the burden of plaintiff to establish by a reasonable preponderance of the evidence that a defect was in fact present in the breaker box.


text:
    In the Matter of The Succession of Minnie Seale DUNLAP.
    No. 14491.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Delos R. Johnson, Jr., of Johnson & Kuhn, Franklinton, for Patrick Joey Crain.
    Robert J. Black, of Seal, Lee, Branch & Brown, Bogalusa, for Cullen A. Seal.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Appellant, Patrick Joey Crain, appeals a trial court judgment declaring the will of his great aunt, Minnie Seale Dunlap, invalid for want of form. Cullen A. Seal, the son of Mrs. Dunlap and appellee herein, contested the validity of the nuncupative will by public act on the ground that it was not written or typed by the Notary who allegedly prepared the purported testament. It is not questioned that the will was valid on its face and complied with all other requisites of the statute.

The trial court, basing its decision on the testimony of one of the subscribing witnesses, held that the will was not typed by the Notary himself, and therefore, under the case of the Succession of Killingsworth, 292 So.2d 536 (La.1973), on rehearing, March 25, 1974, the will must be ruled invalid for want of form.

In the Killingsworth case, on rehearing, the Supreme Court stated:

“In Succession of Beattie, 163 La. 831, 112 So. 802 (1927) and Talton v. Todd, 233 La. 146, 96 So.2d 327 (1957), we established the requirements necessary to overcome the presumption of validity where the testimony of subscribing witnesses is contrary to the recitals in the testament. In Beattie, as subsequently quoted in Taitón, we held:
‘Testimony of subscribing witnesses which is adduced on the contest of the will and which, in effect, impeaches the solemn statements contained in the instrument which by their signatures they have attested as correct, is not in itself sufficient to overcome the presumption of validity arising from their presence and signatures and the official certificate of a public officer fortified by his oath/ Their testimony must be corroborated by independent facts or reasonable inferences. * * * ’ ”
The will in this case recites:
“This last will and testament of Minnie Seal Dunlap was dictated by her to me, Notary, in the presence and hearing of the three aforesaid and undersigned competent witnesses, and the same was reduced to writing by me, Notary, as dictated by said testator.”

At the hearing, only one witness was called. That witness, Mrs. Frances Greer, was not only a witness to the making of the will, but she was also the legal secretary of the Notary who purportedly prepared the will.

Mrs. Greer testified that she did not know whether she had typed that particular will, but assumed that she did; that she could not swear that the Notary typed the will himself because she did not know; and that she could not recall the events of seventeen years ago, but she did not recall the Notary ever having to type a will or anything else.

Appellant contends, and we agree, that although parol evidence is admissible to attack the validity of a nuncupative will by public act, the testimony of a subscribing witness to a nuncupative will by public act contradicting the solemn recitals in the testament is entitled to little weight and is insufficient to overcome the presumption of validity in the absence of sufficient independent facts or reasonable inferences to overcome the presumption. Succession of Killingsworth, supra; Talton v. Todd, 233 La. 146, 96 So.2d 327 (1957); Bernard v. Francez, 166 La. 487, 117 So. 565 (1928); Succession of Beattie, 163 La. 831, 112 So. 802 (1927).

There exist no independent facts or reasonable inferences to overcome the presumption of validity in this case and the trial court erred in declaring the will null and void based solely upon the testimony of one of the subscribing witnesses.

Taken as a whole, we can only conclude that Mrs. Greer’s testimony merely established she was unable to recall the events surrounding the making of the testament. Even if she could have positively stated that she had typed the will, that testimony, uncorroborated by independent facts or reasonable inferences, would not be sufficient to overcome the presumption of validity. Killingsworth, supra.

For these reasons the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with the opinion expressed herein. All costs of these proceedings are to be paid by appellee.

REVERSED AND REMANDED.

      . The pleadings erroneously refer to the will as a nuncupative will by private act.

      . Louisiana Civil Code Article 1578 prescribes the requisite formalities:
      “Art. 1578. The nuncupative testaments by public act must be received by a notary public, in presence of three witnesses residing in the place where the will is executed, or of five witnesses not residing in the place.
      “This testament must be dictated by the testator, and written by the notary as it is dictated. “It must then be read to the testator in presence of the witnesses.
      “Express mention is made of the whole, observing that all those formalities must be fulfilled at one time, without interruption, and without turning aside to other acts.”


author: LEAR, Judge.

text:
    Gaston GERALD v. The LOUISIANA STATE SENATE; Michael O’Keefe, President of the Senate, et al.
    No. 14740.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.

      Bryan E. Bush, Jr., Baton Rouge, for plaintiff-appellant Gaston Gerald.
    William J. Guste, Jr., Atty. Gen., Kenneth C. Dejean, Asst. Atty. Gen., Baton Rouge, for defendants-appellees State of La., Hon. David C. Treen, Governor, and State of La., Hon. James “Jim” Brown, Secretary of State.
    Camille F. Gravel, Jr., and Anna E. Dow, Baton Rouge, for defendant-appellee The La. State Senate and Michael H. O’Keefe.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

Plaintiff, Gaston Gerald, was a Louisiana state senator representing the Fourteenth Senatorial District. On January 3, 1979, plaintiff was indicted by a federal grand jury for violations of federal laws, including the Hobbs Act (18 U.S.C. § 1951). Plaintiff was later convicted of attempted extortion under the federal Hobbs Act and on August 21, 1979, plaintiff was sentenced to serve five years at the Federal Correctional Institute, Fort Worth, Texas, and to pay a fine of $10,000.00. Following his conviction and pending his appeal, plaintiff was reelected to the state senate in December, 1979, for a new term of office beginning in 1980. He later took the oath of office and was seated in the senate. On October 21, 1980, plaintiff’s conviction was upheld by the United States Fifth Circuit Court of Appeal and his application for a writ of certiorari was denied by the U.S. Supreme Court on February 23, 1981. Due to his imprisonment, plaintiff was unable to take his seat in the state senate when the 1981 regular session began on April 20, 1981.

The Louisiana State Senate then began disciplinary proceedings and, on April 28, 1981, Resolution Number 6 was passed to provide rules and procedures for any disciplinary or expulsion procedure against any member of the senate. That resolution also created the Select Committee on Discipline and Expulsion. On April 27, 1981, three resolutions were presented in the senate, calling for the expulsion of plaintiff. At that time, a meeting of the select committee was called for May 28, 1981, and on April 29, 1981, these documents and notice of the May 28th hearing were served on plaintiff in Fort Worth, Texas.

The select committee, which was made up of the senate as a whole, met on May 28, 1981. At that time, the senate voted to defer action on two of the three resolutions and the select committee reported Resolution Number 12 out of committee without action. The senate itself then reconvened to act upon the resolution, and thereafter voted to approve Resolution Number 12 and expel plaintiff by a vote of 33-3, which was more than the two-thirds vote required for passage. The senate then notified the governor that plaintiff had been expelled from the senate and that a vacancy therefore existed.

On May 29, 1981, plaintiff filed suit seeking a judgment declaring that his expulsion from the Louisiana State Senate was null and void and ordering his reinstatement. Plaintiff further sought a temporary restraining order and an injunction prohibiting the president of the senate from sending notice to the governor and further enjoining the governor from ordering a special election. The district court did not issue a temporary restraining order, but set a hearing for June 3, 1981. The governor was notified of the expulsion and vacancy and on June 2, 1981, a proclamation was issued by the governor calling for a special election to replace plaintiff.

In response to plaintiff’s suit, a peremptory exception of lack of jurisdiction ratione materi and an exception of no cause or right of action was filed on behalf of the defendants, the Louisiana State Senate and Michael H. O’Keefe, President of the Senate. A peremptory exception of no cause or right of action was also filed by defendants, State of Louisiana, and James H. “Jim” Brown, Secretary of State. By stipulation, the parties agreed to submit evidence on the declaratory judgment aspect of the suit and that all issues defined by the pleadings, including the exceptions, should be adjudicated by the court.

On June 15,1981, the trial court rendered judgment dismissing plaintiff’s suit, and a formal judgment to this effect was signed by the trial court on June 19, 1981. Plaintiff then perfected this appeal.

On appeal, plaintiff contends that he was denied due process in the expulsion proceeding, and that, based on this denial of due process, the trial court erred in affirming his expulsion from the Louisiana State Senate. Plaintiff further contends that the trial court erred in failing to hold that the senate was estopped from expelling him based on his lack of qualifications, because the senate had previously judged his qualifications to serve and had seated him on March 18, 1980. As the trial court stated, because of the reasons hereinafter expressed, plaintiff’s estoppel argument is not relevant and will not be discussed.

In forming its written reasons for judgment, the trial court did extensive research and cited considerable authority in support of its judgment. In its lengthy and well-reasoned opinion, which we adopt in part, the trial court held as follows:

“Two constitutional articles are germane and controlling in this case. Article III, Section 7(A) of the Louisiana Constitution of 1974 provides:

“ ‘Each house shall be the judge of the qualifications and elections of its members; shall determine its rules of procedure, not inconsistent with the provisions of this constitution; may punish its members for disorderly conduct or contempt; and may expel a member with concurrence of two-thirds of its elected members. Expulsion creates a vacancy in the office.’

“This article grants to the Legislature the exclusive authority to decide the qualifications and removal of its members. Article II of the Louisiana Constitution of 1974 declares:

“1. The powers of government of the state are divided into three separate branches: Legislative, executive, and judicial.
“2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.

“The latter article preserves the separation of powers that exist between the three branches of the government. Therefore, the judicial branch should exercise extreme restraint in exercising its power with reference to the internal affairs of the legislative body, particularly with reference to its make-up and discipline of its membership.

“In Lee v. Lancaster, 262 So.2d 124, (La.App. 4th Cir. 1972), the court held that where the constitutional article providing that each House shall be the judge of the qualifications of its own members is applicable, as in the case of general election contest, the courts have no jurisdiction. The overwhelming weight of opinion as expressed by not only the courts of this State, but the opinion of the courts of our sister states is that the discipline and removal of a legislator is within the sole province of the body in which he serves as a member. French v. Senate of State of California, [146 Cal. 604,] 80 Pac. 1031 (1905); State ex rel. Rigby v. Junkin, [146 Fla. 347,] 1 So.2d 177 (1941) and English v. Bryant, 152 So.2d 167 (Fla.1963); Raney v. Stovall, 361 S.W.2d 518 (Ky.1962); Wixon v. Green, 521 P.2d 817 (Okl.1974) and Reaves v. Jones, 515 S.W.2d 201 (Ark.1974). Further, in In re Opinion of the Justices, 47 So.2d 586 (Ala.1960) the Alabama Supreme Court declared that there was nothing in its Constitution which conferred either original or appellate jurisdiction on the Supreme Court or any other court to determine questions relating to the procedure for removing a state senator from office or declaring the office vacant. Likewise, there is nothing in the Louisiana Constitution which furnishes such a grant of review to the courts of this state. It appears that the only limited exception to this rule is where the legislative body clearly violates some express constitutional requirement, such as the requirement of due process mandated by Article XIV of the United States Constitution and, specifically in the case of Louisiana, Article I, Section 2 of the Louisiana Constitution of 1974. In McCarley v. Sanders, 309 F.Supp. 8, M.D.Ala.N.D. (1970) a federal court, in examining the question of whether it could inquire into the expulsion of a „tate senator from the Alabama Senate, held that a person may not be discharged or expelled from a state public office upon a ground involving criminal guilt, infamy, disgrace, or other grave injury to the individual until after such notice and hearing as is requisite for due process of law.

“In conclusion, the court concludes that it does not have jurisdiction of the subject matter and may not invade the determination made by the Senate regarding grounds for the removal of Gaston Gerald, and unless it is demonstrated by him that the Senate failed to grant him the essential rudiments of due process, such as notice, a hearing, an opportunity to be present, right to counsel, and right to cross-examine, his cause must fail.

“Now in this regard, the record, including the documents submitted and the testimony of the witnesses, reflect that following the denial of Gerald’s application for writs of certiorari by the United States Supreme Court, the Senate began disciplinary proceedings against him. On April 28, 1981, Senate Resolution No. 6 was passed to provide rules of procedure for any disciplinary or expulsion procedure against any member of the Senate. This resolution created the Select Committee on Discipline and Expulsion. These rules provided that notice be given to the accused senator, for the appointment of an attorney to represent him if he did not have one, and provided for a public hearing, the opportunity to call witnesses, and the right to confront and cross-examine all witnesses called by the committee.

“On April 27,1981, three resolutions were presented in the Senate calling for the removal of Mr. Gerald as a member of that body. A meeting of the Select Committee was fixed for May 28, 1981, by Senator O’Keefe, President of the Senate. Copies of all three resolutions calling for the senator’s expulsion, together with copies of the rules were served on Mr. Gerald at the Federal Penitentiary in Fort Worth, Texas on April 29, 1981.

“On May 22,1981, Mr. Bryan Bush, attorney for Gerald in this proceeding requested that the Senate petition the federal prison authorities to allow Gerald to attend the hearing of the Select Committee on the issue of Mr. Gerald’s expulsion. Pursuant to this request, the Senate passed Resolution No. 23, being a formal request to the United States Bureau of Prisons to implement the appearance of Gerald at the hearing on May 25, 1981. By subsequent communication, both Gerald and Bush were advised that they had the right to subpoena any witness which they may choose for the hearing. Apparently, Gerald chose to subpoena only Mr. James McPherson, his attorney in the criminal proceeding. This subpoena was duly served on Mr. McPherson and he appeared and testified at the hearing held on May 28, 1981 by the Select Committee. In addition, Mr. Bush was present at the meeting of the Select Committee and represented Mr. Gerald. The record reflects that Mr. Gerald advised not only his attorney, but Senator Nat Kiefer, that he did not wish to attend the meeting. Thereafter, the Select Committee reported Resolution No. 12 out of the committee without action. The Senate, after considerable argument, voted on the matter, and approved Resolution No. 12 calling for the expulsion of Senator Gerald by more than the two-thirds vote required for his removal.

“Petitioner’s capable attorney argues that the rules of procedure were changed on him which constitutes an ex post facto law in violation of Article I, Section 9 of the United States Constitution and Article I, Section 23 of the Louisiana Constitution of 1974. Generally, the prohibition announced in these Constitutional provisions regarding ex post facto laws have been held to relate to substantive laws and not procedural laws and rules. State v. Carter, 362 So.2d 510 (La.1978).

“Petitioner further argues that as the Louisiana State Senate did not compel his appearance at the expulsion hearings, petitioner’s right of confrontation and his right to compulsory process were violated. The record is replete with evidence showing that the Senate did everything within its power to obtain Gerald’s presence at the hearing without avail. The Senate, similar to courts of this state, is unable to compel the appearance of a witness outside of its borders. Gerald’s own counsel admitted to the Select Committee that his client did not wish to attend the meeting. However, the Court is of the opinion in any event, that the right of confrontation and compulsory process are only constitutionally mandated in criminal trials. In support of this conclusion, this court finds that the Supreme Court has held that an action seeking to enforce contempt adjudications made by the State Senate or House of Representatives is civil, not criminal, since it is one to enforce a prior adjudication analogous to a judgment rendered by a court of proper jurisdiction of the state. House of Representatives v. Bernard, 373 So.2d 188 (La.1979).

“Finally, Gerald’s counsel submits that there was certain documentary evidence which was filed in the record which constitutes hearsay and thus violates Gerald’s right of cross-examination. It should be pointed out that the admission of hearsay evidence in administrative hearings is commonplace and its use does not infringe on any Constitutional principles. Michael [Michel] v. Dept. of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 ([La.] App. 1st Cir. 1976). But in any event, under Article III, Section 7(A), the Senate of course, is granted the authority and privilege to promulgate its own rules of procedure for the conduct of its affairs.

“In the final analysis, this Court is satisfied that a conscientious effort was made by the Senate to ensure that the petitioner was afforded every right available, including the holding of a fair hearing. While the Senate’s efforts may not have met the sanction of appellate review in a criminal trial, it was more than adequate to conform to the basic requirements of due process in the particular forum and under the specific circumstances before it.”

For the foregoing reasons, the judgment of the trial court is affirmed, plaintiff-appellant to pay all costs, both at trial and on appeal.

AFFIRMED.

      . We note that Mr. James McPherson, the attorney who represented plaintiff during his criminal trial in federal court, was called as a witness during the senate’s expulsion hearing. Mr. McPherson, testifying under oath, stated that his testimony with regard to identifying the federal criminal indictment “would not be a violation of the attorney-client privilege. This document is a public record.” Mr. McPherson further testified that plaintiff was convicted of the federal charge and was sentenced to five years imprisonment and a fine of $10,000.00. He also testified that plaintiff’s conviction was affirmed on appeal to the United States Fifth Circuit Court of Appeal and that the United States Supreme Court denied the plaintiff’s application for writs. Plaintiff’s attorney at the senate hearing, Mr. Bryan Bush, was afforded an opportunity to cross-examine Mr. McPherson concerning the truth and correctness of the federal indictment and plaintiffs subsequent conviction and sentence. In fact, Mr. Bush himself admitted that the information as to plaintiff’s conviction and sentence contained in the objected to documents was accurate. Plaintiff had ample opportunity, through cross-examination, to contest the truth and accuracy of the objected to documents, and the testimony and statements of plaintiff’s attorneys itself dispels any question as to the accuracy of these documents. This testimony was competent evidence, properly received by the senate.


author: COVINGTON, Judge.

text:
    Joseph G. WENZEL, Jr. v. LOUISIANA STATE UNIVERSITY & MECHANICAL & AGRICULTURAL COLLEGE, et al.
    No. 14493.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Harold Savoie, Lafayette, for plaintiff-appellant.
    W. S. McKenzie, Baton Rouge, for defendant-appellee, Louisiana State University & Agr. & Mechanical College.
    Before COVINGTON, EDWARDS and COLE, JJ.
   COVINGTON, Judge.

This is a devolutive appeal from a judgment of the district court dismissing the suit of plaintiff, Joseph G. Wenzel, Jr., with prejudice, and in effect maintaining the defendants’ exception of no cause of action.

The suit was filed by Mr. Wenzel, in proper person, by petition labelled “Petition for Admission to the School of Veterinary Medicine at L.S.U. & Rule to Show Cause Why Plaintiff Should Not Be Eligible for Admission,” on December 11,1980. Named as defendants were “(1) L.S.U. under its legal corporate name (2) Dean Everett D. Besch and (3) The Faculty Committee on Admissions to the School of Veterinary Medicine, Baton Rouge, La. (4) Agents and employees of LSU.” The petition is so inar-tistically drawn that it is difficult to ascertain whether a cause of action is stated. Nevertheless, we can draw from the pleading that, the plaintiff claims to have been denied admission (or “readmission”) to “Veterinary Medicine” due to purported discriminatory practices of the defendants. It also appears that the plaintiff is seeking some kind of injunctive relief and/or damages. A show cause order was signed by the trial judge, setting the matter for a hearing on January 30, 1981.

The defendant answered, asserting that the true corporate defendant was “Board of Supervisors of Louisiana State University and Agricultural and Mechanical College;” that the plaintiff had applied for admission to L.S.U. School of Veterinary Medicine in 1973 and again in 1977, but was not accepted; that the plaintiff did not meet the minimum requirements for admission to the school; and that plaintiff has not applied for admission in the 1981 entering class. The pleading further averred that the plaintiff’s petition failed to state a cause of action and that plaintiff’s suit had prescribed by the lapse of one year from the denial of admission to him.

Thereafter, the matter came on for hearing on January 30, 1981, with the plaintiff represented by counsel, who had enrolled that morning as counsel for Wenzel. At the hearing on the rule, Dean Besch (who was named as a defendant) did not appear , and the defendants presented only documentary evidence. The plaintiff offered the testimony of the plaintiff Wenzel, and under cross-examination, the testimony of the acting dean of the school of veterinary medicine, John B. Tasker, and that of the head of the department of veterinary anatomy at L.S.U., Charles W. Titkemeyer.

At the close of the hearing the judge assigned the following oral reasons for judgment:

“This matter comes before the court on a petition filed by Mr. Wenzel against LSU, et al, wherein he is seeking an injunction to prohibit defendants from refusing him admittance to LSU. Among other things, alleging that he has been discriminated against and among other things, seeking a nominal amount of five hundred thousand dollars as damages, together with the rule nisi that was issued requesting defendants to show cause why Mr. Wenzel should not be admitted to the school of veterinary medicine for the fall of 1981.
“With regards to the rule nisi issued herein, the court will recall that rule inasmuch as the evidence is that Mr. Wenzel has not even made application for the fall of 1981, which is a prerequisite before one can be admitted.
“Further, with regards to the suit for damages, the court will sustain an exception of no cause of action, inasmuch as he has not made application for admission to 1981. The court is somewhat surprised that Mr. Wenzel would come into court with such a claim when he has not even attempted to comply with the rules applicable to the LSU School of Veterinary [Medicine], requiring the application to be filed for admittance.
“Mr. Wenzel put on no evidence whatsoever to show the court why he should be singled out as an individual who must not comply with the requirements to get into the School of Veterinary Medicine. The fact that he feels that he has been in graduate school, therefore, it would belittle him to have to go to undergraduate school to take necessary courses is foolishness.
“This court certainly sits for the purpose of administering justice to make sure that there is no discrimination against anyone to participate, not only in education but any other avenues of services that are available. However, it is obvious to the court that on this petition, and from the testimony, there has been no discrimination whatsoever against Mr. Wenzel but merely a petition, in my opinion, filed whereby he seeks favor or special privileges over others. I will not, certainly, consider that as an instance where a person is seeking legal redress in court.
“For the oral reasons given, the court does recall the rule nisi and dismisses his suit — exception of no cause of action. “Judgment will be signed, accordingly.”

On February 3, 1981, the district court signed the following judgment:

“This matter came on for hearing on the rule to show cause of plaintiff, and the Court having found that the rule is without merit and that plaintiff’s petition fails to state a cause of action, the law and the evidence being in favor thereof, for oral reasons assigned:
“IT IS ORDERED, ADJUDGED AND DECREED that the rule to show cause issued herein to defendants, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and Everett D. Besch, is hereby recalled and dismissed.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there is judgment herein in favor of defendant, Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and Everett D. Besch, and against plaintiff, Joseph G. Wenzel, Jr., dismissing plaintiff’s suit, with prejudice, at plaintiff’s cost.
“JUDGMENT RENDERED in Open Court at Baton Rouge, Louisiana, on the 30th day of January, 1981.
“JUDGMENT READ AND SIGNED in Baton Rouge on the 3rd day of February, 1981.”

The trial judge, thus, had the effect of dismissing Wenzel’s petition on an exception of no cause of action, in addition to denying plaintiff’s rule. We affirm.

Plaintiff does not state a cause of action because he does not allege that he was an applicant for the 1981 class. Plaintiff fails to set forth any legal or factual basis for challenging the admission requirements of L.S.U. There are no factual allegations which would qualify as “well pleaded” allegations. The petition basically sets forth conclusions of law and facts and evidentiary facts, which allegations are not sufficient inasmuch as it is material facts set forth in the petition upon which a cause of action must be based. LSA-C.C.P. art. 891; Farrell v. Farrell, 275 So.2d 489 (La.App. 1 Cir. 1973).

Under LSA-C.C.P. art. 934, the trial court must permit an amendment if the grounds of the objection may be removed by the amendment. However, if the grounds cannot be removed, the action shall be dismissed. The right to amend is not so absolute as to permit the same when such amendment would constitute a vain and useless act. Perkins v. Desrochers, 359 So.2d 323 (La.App. 4 Cir. 1978). In the instant case, there is no way for the appellant to correct the deficiency.

Therefore, for the foregoing reasons, the judgment is affirmed at appellant’s cost.

AFFIRMED.

      . The judgment also recalled and dismissed the plaintiffs rule to show cause.

      . Dean Besch was out of the state on sabbatical leave.


text:
    In re Widless Joseph BRUNET and Aline Kahl Brunet Applying for Adoption of Alison Aline Moneyhon.
    No. 14504.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    Rehearing Granted Feb. 10, 1982.

      Edward T. Diaz, Diaz & Cheramie, Golden Meadow, for petitioners-appellees Widless Joseph Brunet and Aline Kahl Brunet.
    Larry P. Boudreaux, Thibodaux, Eddie N. Pullaro and Robert P. Cuccia, Houma, for petitioners-appellants David S. Moneyhon and Margaret Smith Moneyhon.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Appellant, David Stewart Moneyhon, Jr., appeals the interlocutory decree of adoption rendered by the Juvenile Court of La-fourche Parish which granted the temporary custody of his minor child, Alison Aline Moneyhon, to appellees, Widless Joseph Brunet and Aline Kahl Brunet.

The adoption suit was filed by the appel-lees pursuant to La.R.S. 9:422.1, based on the legal custody of the mother, Dorothy Brunet Moneyhon, her consent to the adoption, and the failure of the father, David Moneyhon, Jr., to support the child for a period of one year. Appellant filed peremptory exceptions of no right and no cause of action, because custody of the child had never been awarded to the grandparents by court judgment as required by La. R.S. 9:422.1(1), and that he had not given his consent to the adoption. The district court overruled the exceptions “as the pleadings and the law afford an opportunity to the Grandparents to adopt under the provisions of R.S. 9:422.1 * * *.” In a previous appeal from the overruling of the exceptions, we held the ruling on the exceptions to be interlocutory in nature and not appealable. In re Brunet, 393 So.2d 222 (La.App. 1st Cir. 1980). Thereafter, the case was tried on the merits and the court rendered judgment granting temporary custody of the child to Mr. and Mrs. Brunet. This appeal is from that judgment and appellant contends that the trial court committed error in overruling the exceptions of no right and no cause of action.

La.R.S. 9:422.1, at the time of the filing of the petition, provided:

“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.” (Emphasis added).

Prior to the enactment of this statute, the law required the consent of the living legitimate parents for the adoption of their child or children.

In Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966), the Louisiana Supreme Court stated:

“ * * * The Natural rights flowing from this relationship (parent and child) form the basis for the legislative requirement in former statutes and jurisprudence that both parents must consent before a child can be adopted under the proceedings authorized by our law-making body. It was not until the passage of R.S. 9:422.1 by Act 501 of 1958 that the consent of both parents was dispensed with under the limited circumstances there set out; and it was not until Act 268 of 1960, amending R.S. 9:422.1, that this rule was extended to include grandparents. These statutes, being in derogation of the natural right of the parents to the child, and the right of the child to its parents, have consistently been strictly construed in the jurisprudence in favor of the parents. Green v. Paul, supra; [212 La. 337, 31 So.2d 819 (1947)] In re Ackenhausen, supra; [244 La. 730, 154 So.2d 380 (1963)] In re LaFitte, 247 La. 856, 174 So.2d 804; and In re Hughes, supra. [176 So.2d 158 (La.App. 4th Cir. 1965)].” (Footnote Omitted).

In the present case, the legitimate parents were divorced by a judgment of Harris County Court of Domestic Relations, Texas, and custody of the minor was therein granted to the mother.

No judgment of court has ever transferred the custody of the minor from the mother to the petitioners-grandparents in this case.

Although appellees have not favored us with a brief, their contention apparently is that the consent of the legitimate father is not necessary because the nonresident father has failed to support the child for more than one year and the Texas court’s custody order in favor of the mother of the minor fulfills condition Number (1) of La.R.S. 9:422.1.

The appellant contends, and we agree, that since the petitioners-grandparents have not been awarded custody of the minor child by an order of a court of competent jurisdiction, the grandparents have no cause to apply for the adoption of the minor child, Alison. The exception of no cause of action should have been sustained by the trial court.

The requirement of a prior award of custody to the petitioners-grandparents in an adoption suit required by the statute as interpreted by the Supreme Court in the ease of Roy v. Speer, supra, is dispositive of the issue presented herein. In Roy, the custodial parent attempted to vest the required custody of the child in the petitioners-grandparents by a notarial act without a court hearing or order. The court concluded that the grandparents must have been granted custody of the child as a prerequisite to instituting the adoption proceeding. The court went on to further point out that this requirement cannot be fulfilled by allegedly transferring custody of a minor child by the mere execution of a notarial act.

In our case, a prior award of custody to the grandparents has not been shown and the requirement of condition Number (1) of La.R.S. 9:422.1 has not been met. The trial court therefore erred in decreeing an interlocutory order of adoption without the consent of the other legitimate parent.

For the reasons assigned, the judgment of the trial court is reversed and judgment is rendered herein sustaining appellant’s exception of no cause of action and dismissing the petition of Widless Joseph Brunet and Aline Kahl Brunet.

All costs of these proceedings are to be paid by appellees.

REVERSED AND RENDERED.

      . Although this statute has now been amended by Acts 1980, No. 462, § 1, it would not have any effect on this decision.


author: EDWARDS, Judge.

text:
    Jerald W. GRAY v. MARGOT INC., Robert H. Cane, Michael R. Gray, et al.
    No. 14506.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    L. D. Sledge and Robert E. Goodwin, Baton Rouge, for plaintiff-appellant, Jerald W. Gray.
    W. Arthur Abercrombie, Jr., Baton Rouge, for defendant-appellee, Travelers Ins. Co.
    Felix R. Weill, Baton Rouge, for defendant-appellee, Robert H. Cane.
    Arthur H. Andrews, Baton Rouge, for defendant-appellee, Aetna Cas. & Sur.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

This case raises the issue of whether a fellow employee, who is immune from suit by virtue of the Workmen’s Compensation Statute, is an uninsured motorist within the meaning of the Louisiana Uninsured Motorist Statute.

Plaintiff, Jerald W. Gray, an employee of Ambulance Service Company of Baton Rouge, Inc., was riding as a medic in an ambulance driven by Michael R. Gray, a co-employee, when it was involved in a collision with another vehicle. At the time of the accident Jerald and Michael Gray were acting within the course and scope of their employment.

Jerald Gray filed suit against a number of defendants, seeking to recover damages for injuries which he sustained in the accident. Among the named defendants was the Travelers Insurance Co., plaintiff’s uninsured motorist carrier. Plaintiff’s petition alleged that Michael Gray was an uninsured motorist and that Travelers was bound to pay all sums for which the uninsured motorist was liable.

Travelers filed a motion for summary judgment, contending that the uninsured motorist provision of plaintiff’s insurance policy was not operative because plaintiff was not “legally entitled to recover damages” from Michael Gray. The trial court granted Travelers’ motion for summary judgment and dismissed plaintiff’s suit against Travelers on the basis that the Workmen’s Compensation Law prohibited plaintiff from recovering damages from Michael Gray, his co-employee. Therefore, the trial court held that Michael Gray was not an uninsured motorist under plaintiff’s policy since plaintiff was not legally entitled to recover damages from Michael Gray, as required by the Uninsured Motorist Statute and the insurance policy.

Plaintiff appeals. We affirm.

LSA-R.S. 22:1406 D, the Uninsured Motorist Statute, provides in pertinent part, as follows:

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
(l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits.” (Emphasis added.)

Plaintiff’s insurance policy with Travelers provides, in pertinent part, as follows:

“The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle. . . . ” (Emphasis added.)

Thus, in order for Jerald Gray to recover under the uninsured motorist provision of the policy, he must be “legally entitled to recover” damages from Michael Gray.

LSA-R.S. 23:1032 provides that the immunity from tort liability afforded an employer applies as well to the fellow employees of an injured worker:

“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.”

This provision means that Jerald Gray is not legally entitled to recover damages from Michael Gray, his co-employee. Thus, Jerald Gray is not entitled to recover under the uninsured motorist provisions of his insurance policy with Travelers.

Appellant asserts that the workmen’s compensation tort immunity enjoyed by a fellow employee is a procedural defense which may not be asserted by an insurer. He relies on the decision in Gremillion v. State Farm Automobile Insurance Co., 302 So.2d 712 (La.App. 3 Cir. 1974). In Gremil-lion a wife brought suit against her husband’s uninsured motorist carrier. The insurer asserted that it was not liable because the husband was legally immune to suit by his wife. The court denied the insurer’s defense, stating that the “innocent victim of an uninsured motorist is entitled to recover against the insurer even though the tortfeasor might have a procedural defense

Interspousal immunity, considered in Gremillion, is easily distinguishable from fellow employee tort immunity. Inter-spousal immunity is a personal defense which merely cuts off a right of action. Deshotel v. Travelers Indemnity Company, 257 La. 567, 243 So.2d 259 (1971). Conversely, the tort immunity provided under Louisiana’s workmen’s compensation scheme denies the plaintiff a cause of action. Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (1919); Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1st Cir. 1979). Unlike interspousal immunity, the defense of no liability in tort by virtue of the exclusive remedy of LSA-R.S. 23:1032 is not personal to an employer and may be invoked by his insurer. Green v. Liberty Mutual Insurance Co., 352 So.2d 366 (La.App. 4th Cir. 1977.)

In the recent case of Carlisle v. State, Department of Transportation and Development, 400 So.2d 284 (La.App. 3rd Cir. 1981), the Third Circuit Court of Appeal considered the identical issue raised here. In that case, the plaintiff, Carlisle, had been injured in an automobile collision while riding with a fellow employee, Beeson. Both were acting within the course and scope of their employment at the time of the accident. With regard to Carlisle’s claim against his own uninsured motorist carrier, the court held:

“This same reasoning applies to Car-lisle’s claim against his uninsured motorist carriers, U.S.F. & G. and Hartford. Uninsured motorist coverage is contingent upon there being liability by an uninsured or underinsured motorist. Since Carlisle has no cause of action in tort against Mrs. Beeson, no liability by Mrs. Beeson could arise. Thus, no cause of action exists against Carlisle’s uninsured or underinsured motorist carriers, U.S.F. & G. and Hartford.”

We agree with the holding of the Third Circuit in Carlisle. An uninsured motorist carrier is liable only for the damages which an insured is “legally entitled to recover” from owners or operators of uninsured motor vehicles. The Workmen’s Compensation Statute provides that a fellow employee is immune from suit by another employee when he sustains an injury which is compensable by Workmen’s Compensation benefits. Thus, an employee injured while working within the course and scope of his employment is not “legally entitled” to collect damages from a fellow employee and, therefore, may not recover from his uninsured motorist insurer.

For the foregoing reasons, the judgment of the trial court, granting defendant’s motion for summary judgment and dismissing plaintiff’s suit, is affirmed. Costs of this appeal are assessed against plaintiff-appellant, Jerald W. Gray.

AFFIRMED.