text:
    Robert I. DANIEL, Plaintiff-Appellee, v. ST. FRANCIS CABRINI HOSPITAL OF ALEXANDRIA, INC., Defendant-Appellant.
    No. 8794.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Gist, Methvin, Hughes & Munsterman, Steven W. Cook, Alexandria, for defendant-appellant.
    Edward A. Kaplan, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

Robert I. Daniel (decedent) brought this tort action to recover damages for personal injury he suffered while he was a patient at defendant, St. Francis Cabrini Hospital of Alexandria, Inc. Decedent’s wife, Violet Morgan Daniel, and his son, Robert Lee Daniel, (plaintiffs) were substituted as parties-plaintiff upon his death. Defendant brought a third party demand against Mrs. Daniel.

Trial of this action resulted in a judgment in favor of plaintiffs for $111.50 in special damages and $3,500.00 in general damages.

Defendant appeals suspensively from the trial court’s judgment and raises the following issues:

(1) Whether the trial court committed manifest error in finding that defendant had breached its duty of care owed to decedent;
(2) Whether the trial court committed manifest error in finding no negligence on the part of Mrs. Daniel; and
(3) Whether the trial court’s award of $3,500 in general damages to plaintiffs is excessive and constitutes a clear abuse of that court’s “much discretion”.

Plaintiffs have answered the appeal seeking an increase in the trial court’s general damages award.

FACTS

Decedent was admitted to the defendant-hospital on February 29, 1980, at which time he was suffering from prostatic cancer with probable contiguous spread and metastatic disease, diabetes mellitus, and chronic organic dementia. He was 77 years old, had one arm missing, and was subject to spells of dizziness and weakness. At approximately 12:30 A.M. on March 16, 1980, decedent got out of his hospital bed and walked to the nurses station, demanding that he be given an enema. Gerald Wayne Morgan, R.N. (Morgan), was on duty at the time and he acceded to decedent’s demands. The enema was administered and decedent ordered Morgan to leave the bathroom while he expelled the enema and the contents of his bowels. Morgan returned to the nurses station.

Mrs. Daniel was in the room at this time. Decedent called out to her for help as he began to get dizzy and weak. She entered the bathroom and decedent told her to get help to put him back in bed. Mrs. Daniel believed that the buzzer in the bathroom wasn’t working and she went to an intercom located near the bed to call the nurses station for help. She then returned to the bathroom. However, as she reached the bathroom door, decedent fell off the commode, lacerating the skin of his penis. Help arrived soon thereafter and decedent was taken to the emergency room where the wound was cleaned and sutured. Decedent was then taken back to his hospital room and was eventually discharged on March 27, 1980. The wound healed uneventfully.

Decedent instituted this action alleging that defendant had negligently failed to provide him with proper care, attention, and treatment made necessary by his physical and mental condition, which was well known to defendant and its employees. Defendant answered the original petition denying most of the allegations contained therein, and plead the affirmative defense of contributory negligence in bar of any recovery, should the trial court decide that it was negligent.

Decedent filed a supplemental and amending petition in which he further alleged that he had suffered an injury to his scrotum in the accident. Defendant answered, denying this. Plaintiffs filed a second supplemental and amending petition, after decedent’s death, alleging their right to be substituted as parties-plaintiff to this action. Defendant then filed an amended answer and third party demand, naming Mrs. Daniel as third party defendant, alleging that she was guilty of negligence which was the sole, proximate cause of the accident and/or an independent and intervening cause thereof.

Plaintiffs filed a third supplemental and amending petition alleging that defendant was negligent for failing to provide a workable, effective and non-defective emergency assistance device in the bathroom where the accident occurred. Defendant answered, denying this. Defendant then filed a first supplemental and amending answer alleging that, in the event it was found to have been negligent in causing the accident, Mrs. Daniel was contributorily negligent: in that she was in the room with her husband at all times pertinent; in that she knew or should have known exactly what his physical and mental condition was at the time of the accident; and, in that she was in the best position of any party at the time to assist her husband and to prevent the injuries in question by such assistance, and that her failure to do so and her fault in this regard was a direct cause-in-fact of the accident.

DEFENDANT’S ALLEGED NEGLIGENCE

Defendant contends that the trial court committed manifest error in holding it liable for the injuries suffered by decedent, when it made no finding concerning the negligence of Morgan, defendant’s employee. The trial court found that: “The hospital breached its duty of care to the patient”. The duty owed to decedent by defendant, which the trial court found that defendant had breached, was stated in Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974), on page 747, as follows:

“A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.”

A review of Hunt clearly shows that this standard is applicable in cases where a hospital, itself, is alleged to have been negligent. In Hunt, the defendant-hospital was held liable for failing to provide a post-operative, sixty-five-year-old patient with a hospital bed having full guard rails. In the action before us, the evidence reveals no act of omission or commission, such as to constitute actionable negligence on the part of defendant, in caring for decedent. Thus, unless its employee, Morgan, was negligent in caring for decedent, there is no liability on defendant’s part for the injuries suffered by decedent. A review of the trial court’s reasons for judgment shows that it made no specific finding regarding negligence, or the absence thereof, on Morgan’s part.

It is the settled jurisprudence of this State that a hospital is responsible for the negligence of its employees including, inter alia, nurses and attendants, under the doctrine of respondeat superior. Norton v. Argonaut Insurance Co., 144 So.2d 249 (La.App. 1 Cir. 1962); Cornell v. United States Fidelity & Guaranty Co., 8 So.2d 364 (La.App. 2 Cir. 1942), writ denied (La.1942).

The crucial issue is whether Morgan was guilty of negligence such that his employer, defendant, should be held liable for the injuries suffered by decedent.

A determination of Morgan’s negligence must be based on an analysis of the facts under the provisions of LSA-C.C. Articles 2315 and 2316. The first inquiry in making a determination of liability under these articles is whether any causal relationship exists between the harm suffered by decedent and Morgan’s alleged negligent conduct. Thus, if plaintiffs can show that decedent probably would not have suffered the injuries complained of but for Morgan’s conduct, they have carried their burden of proof relative to cause-in-fact. See Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Head v. St. Paul Fire & Marine Ins. Co., 408 So.2d 1174 (La.App. 3 Cir. 1982), writ denied, 412 So.2d 99 (La.1982); Wattigny v. Lambert, 408 So.2d 1126 (La.App. 3 Cir. 1981), writ denied, 410 So.2d 760 (La.1981).

Morgan admitted that he left decedent alone in the bathroom and returned to the nurses station after administering the enema. Mrs. Daniel testified that decedent called out to her when he began to feel himself getting weak and dizzy. The evidence shows that decedent was taking a number of drugs at the time of the accident, including narcotics and tranquilizers, which could cause him to feel dizzy and weak. In addition, decedent’s left arm had been amputated. Decedent lacerated his penis when he fell off the commode after receiving the enema.

We conclude that it is more probable than not that decedent would not have suffered the injuries complained of but for Morgan’s conduct, i.e., leaving the room and returning to the nurses station.

A finding that Morgan’s conduct was a cause-in-fact of decedent’s injuries, however, does not establish liability. In addition, we are required to ascertain whether Morgan breached a legal duty imposed to protect against the particular risks involved. In making this determination, the following inquiries must be made:

(1) What, if any, duty was owed to decedent by Morgan?
(2) Was there a breach of this duty?
(3) Was the risk and harm caused within the scope of protection afforded by the duty breached?

See Shelton v. Aetna Casualty & Surety Co., supra; Hill v. Lundin & Associates, Inc., supra; Head v. St. Paul Fire & Marine Ins. Co., supra; and Wattigny v. Lambert, supra.

I. DUTY OWED.

Defendant contends that plaintiffs failed to meet their burden of proving the duty owed by Morgan to decedent, i.e., the duty of a registered nurse to possess the degree of knowledge or skill possessed by, or to exercise the degree of care ordinarily exercised by, registered nurses licensed to practice in the State of Louisiana and actively practicing in a similar community or locale and under similar conditions.

Under the reasoning of Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331 (La.1978), we have serious doubts as to whether any “locality rule” is applicable to registered nurses. Morgan’s duty, owed to decedent, was identical to that owed by the defendant-hospital to any patient, i.e., to exercise the requisite amount of care toward a patient that the particular patient’s condition may require and to protect the patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within its control.

II. BREACH OF THE DUTY.

As noted above, decedent was taking certain drugs that may produce adverse reactions such as dizziness and weakness. Decedent was suffering from organic brain syndrome, which would cause him to become confused and belligerent at times. Decedent was also suffering from diabetes melli-tus, which would sometimes cause him to experience a generalized weak feeling. Morgan testified that he knew that decedent was hospitalized for weakness and vertigo as these conditions were noted on his medical chart. However, in spite of this knowledge, Morgan left plaintiff sitting on the commode in the bathroom alone and returned to the nurses station. By his own admission, Morgan had left decedent’s hospital suite for some five to ten minutes before he received Mrs. Daniel’s call for help.

We find that Morgan breached the duty he owed to decedent. Defendant argues that Morgan was ordered to leave the bathroom by decedent and that Morgan had seen decedent walk to the nurses station to demand an enema. However, it would have been very simple for Morgan to remain in the hospital room just outside the bathroom. Had he done so, he would have been able to immediately respond to decedent’s call for help and to render assistance to him, thus, avoiding the accident.

III.SCOPE OF PROTECTION AFFORDED BY DUTY BREACHED.

It is obvious that the scope of protection afforded by the duty breached encompasses the risk encountered by decedent. Decedent’s physical and mental incapacities required that he receive almost constant care when sitting or standing, and Morgan had a duty to see that he received that care. He failed to provide this kind of care to decedent and was liable for the injuries resulting from that failure.

We find that Morgan was guilty of negligence, which resulted in the injuries suffered by decedent, and that under the doctrine of respondeat superior, defendant is liable to plaintiffs for damages sustained as a result of those injuries. On this basis, we agree with the trial court’s finding that defendant is liable to plaintiffs.

MRS. DANIEL’S ALLEGED NEGLIGENCE

Defendant contends that the trial court committed manifest error in finding no negligence on the part of Mrs. Daniel. Defendant argues that Mrs. Daniel was in decedent’s hospital suite at the time of the accident, and was fully aware of his physical and mental condition. It is defendant’s position that Mrs. Daniel was negligent for having left decedent on the commode and going to the intercom located near his bed to call the nurses station for help, once decedent had indicated to her that he was feeling weak.

Mrs. Daniel testified that decedent told her to get help to assist in putting him back in the bed. The evidence shows that he weighed approximately 160 pounds, at this time, and that Mrs. Daniel was unable to assist him in walking when he got dizzy. Mrs. Daniel pulled on the chain connected to the emergency assistance device in the bathroom, but got no response. Decedent told her that the device was not working properly as he had used it the night before to no avail. It was only then that she left his side and went to the intercom. Defendant argues that there was nothing wrong with the emergency assistance device and introduced evidence from its maintenance supervisor to that effect. However, we note that defendant does not dispute the evidence showing that Morgan responded to Mrs. Daniel’s call for help over the intercom, rather than any signal from the emergency assistance device.

Our review of the record establishes that the trial court’s finding of no negligence on the part of Mrs. Daniel is not clearly wrong.

QUANTUM

Defendant contends that the trial court’s award of $3,500.00 in general damages to plaintiffs is excessive and that such an award constitutes an abuse of that court’s much discretion in making such awards. Plaintiffs have answered the appeal seeking an increase in the amount awarded.

The evidence shows that decedent was suffering from much pain prior to the accident as a result of the cancer which had spread throughout his body. He was receiving potent narcotics (Dilaudid, Tylenol # 3 and Merpergan Fortis) in an attempt to relieve this pain, and his physician, Dr. Zack T. Buckalew, testified that no significant change was made in the types and amounts of pain medication he was receiving after the injury.

Plaintiffs attempted to show, at the trial of this action, that decedent had also suffered an injury to his scrotum in the accident. However, the evidence indicates that this injury did not appear until some seven months after the accident, when decedent re-entered the hospital for his worsening condition brought on by the cancer. The evidence further indicates that the cancer was the cause of decedent’s problem with his scrotum.

We find that the trial court’s award of $3,500.00 in general damages to plaintiffs does not constitute an abuse of that court’s “much discretion” in making such awards.

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

All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . LSA-C.C. Article 176 provides:
      Art. 176. Master’s liability for offenses or quasi-offenses of servant
      Art. 176. The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.

      LSA-C.C. Article 2320 provides:
      Art. 2320. Acts of servants, students or apprentices
      Art. 2320. Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
      Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
      In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.

      . See Harris v. State, Through Huey P. Long Memorial Hospital, 371 So.2d 1221 (La.App. 3 Cir. 1979), affirmed, 378 So.2d 383 (La.1979), and Butler v. La. State Board of Education, 331 So.2d 192 (La.App. 3 Cir. 1976), writ denied, 334 So.2d 230 (La.1976), as authority for the proposition that nurses and medical technicians who undertake to perform medical services are subject to the same rules relating to the duty of care and liability as are physicians in the performance of professional services. See also LSA-R.S. 9:2794 setting forth a plaintiff’s burden of proof in a malpractice case brought against a physician.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    LOUISIANA SAVINGS ASSOCIATION, Plaintiff & Appellee, v. Gregory D. TRAHAN, et al., Defendants & Appellants.
    No. 8793.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    L. Daniel Bishop, Jr., DeQuincy, for defendant-appellant.
    C. Thomas Tolbert, Sulphur, Caskey & Pizzolatto, Nick Pizzolatto, Jr., Lake Charles, for defendant-appellee-appellant.
    Leithead, Scott, Boudreau, Myrick & Richard, Randall E. Roach, Lake Charles, Sanders, Downing, Jean & Cazedessus, R. Gordon Kean, Jr., Baton Rouge, for plaintiff-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   CULPEPPER, Judge.

This case involves the so-called “due-on-sale” clause in a savings and loan association mortgage. The district judge upheld enforcement of the clause and ordered seizure and sale of the property to satisfy plaintiff’s mortgage. Defendants appealed. We affirm.

The issues are: (1) Are the clause and LSA-R.S. 6:837 A, its statutory authority, unconstitutional? (2) Is the plaintiff association estopped from enforcing the clause in the present case by its prior practice of consenting to sales and assumptions? (3) Does defendants’ failure to read or plaintiff’s failure to explain the “due-on-sale” clause prevent enforcement? (4) Is the clause odious or against public policy?

FACTS

The facts are that on July 18, 1974 the defendants, Gregory Duane Trahan and his wife, Bobbie Lee Trahan, purchased a home which they financed by a mortgage to Cal-casieu Savings & Loan Association, now Louisiana Savings Association. The mortgage and promissory note which it secures are in the sum of $22,800 payable in 300 equal consecutive monthly installments of $183.47, bearing interest at the rate of 9% per annum. The pertinent provisions of the mortgage are as follows:

“8. The mortgagor further agrees and binds himself to the following:
* * * * * *
D. Not to sell or transfer the said property without the written consent of the Association, and then only if the transferee shall specifically assume by authentic act all of the obligations of the mortgagor herein, including the mortgage herein granted.
******
“13. In the event the mortgagor should violate any of the conditions imposed upon him under this act . .. the Association, may at its option and without notice, demand, or putting in default, at once declare all of the mortgagor’s obligations hereunder and the mortgage note immediately due and exigible; . . .. ”

It was stipulated that the Trahans did not read the above quoted provisions of the mortgage, and that there was no discussion between the Trahans and plaintiff Association concerning the clause in question at the time the mortgage was executed.

In' September of 1980, the Trahans agreed to sell the property to Mrs. Edna Mills Willrich, under an agreement whereby Mrs. Willrich would assume the mortgage. The notary who was preparing the sale and assumption contacted the plaintiff to inquire as to the procedure. The notary was advised by the plaintiff that it could not permit assumption of the mortgage. Nevertheless, on September 26, 1980 the Trahans sold the property to Mrs. Willrich by an act entitled “Sale With Assumption,” under the terms of which Mrs. Willrich assumed the mortgage payments.

Plaintiff has refused to accept any payments by Mrs. Willrich on the loan. Instead, it filed the present suit accelerating the installments, praying for the balance due on the note and mortgage in the sum of $21,569.91, asking that its vendor’s lien and mortgage be recognized, and that the property be seized and sold according to law.

CONSTITUTIONAL ISSUE

LSA-R.S. 6.837 A reads as follows:

“§ 837. Conveyance of property securing loan
A. Whenever property is subject to a vendor’s privilege or mortgage in favor of an association and, without the written consent of the latter, the property is sold or transferred, by contract, either with or without the assumption of the association loan, the loan and obligation held by the association shall at the option of the association immediately mature and become at once subject to enforcement according to law and to the terms of the loan contract. In all such cases where the loan was assumed by the purchaser even without the consent of the association, the purchaser will be and remain liable in solido with the original borrower on the loan.

We find only two Louisiana appellate cases which have considered the “due-on-sale” clause in a savings and loan association mortgage. In Taliancich v. Union Savings & Loan Association, 142 So.2d 626 (La.App. 4th Cir. 1962), the Association had sold a home to a veteran using a mortgage and vendor’s lien containing the usual “due-on-sale” clause. The loan was guaranteed by the Veterans Administration, which had a regulation that conveyance of the property by the veteran would not accelerate maturity of the mortgage. The veteran sold the property to the plaintiff, Taliancich, under a sale and assumption. Later the plaintiff agreed to sell the property to Gau-thier, using another sale and assumption. The defendant Association refused to consent to the sale and assumption by plaintiff to Gauthier. Taliancich sued the Association for damages for breach of contract. The court held that the Veterans Administration regulation applied only to the veteran and not to the veteran’s transferees who assumed the mortgage. Moreover, the court held the Association’s refusal to consent to the sale and assumption by plaintiff to Gauthier was a “valid exercise of its contractual and statutory right.”

In the recent case of Rayford v. Louisiana Savings Association, 380 So.2d 1232 (La.App. 3rd Cir. 1980), the court held the “due-on-sale” clause in the mortgage and LSA-R.S. 6:837 A were inapplicable to the sale between co-owners/co-mortgagors. The court stated that the statute and the clause in question clearly contemplate a sale to someone who was not an original borrower. The opinion expressly does not rule on the applicability of the statute or the clause in question to a third party.

Apparently, the present case is the first to reach the Louisiana Courts of Appeal attacking the constitutionality of LSA-R.S. 6:837 A and the “due-on-sale” clause. Plaintiffs argue the statute violates Louisiana Constitution of 1974, Article 1, Section 3 which provides in pertinent part that: “No person shall be denied the equal protection of the laws.” It is argued by plaintiffs that the statute in question is special interest legislation designed and implemented for the sole benefit of savings and loan associations. Plaintiffs also argue the statute violates the Fourteenth Amendment to the United States Constitution which requires uniform treatment of all persons standing in the same relation to government action questioned or challenged. The argument is that the statute operates to the disadvantage of defendants and all persons in the same class.

The Association contends the statute and the “due-on-sale” clause which it authorizes are constitutional, and that to hold it unconstitutional would unconstitutionally impair the obligations of contracts.

The Association introduced the testimony of its officers to explain the reasons for the “due-on-sale” clause. This testimony is to the effect that because of the sharp increase in interest rates in recent months the “due-on-sale” clause has become a major concern to savings and loan associations. Prior to this sharp increase in interest rates, lendors did not always know or care whether loans were assumed, because interest rates fluctuated gradually. However, in recent years the continued inflation in our economy has created an imbalance between loan demand and money supply, which has dramatically increased interest rates in all money markets. This has in turn increased the cost of money borrowed by savings and loan associations far above the interest rates on their old loans. The plaintiff’s officials testified it presently has approximately 290 million dollars on loan to borrowers, and that most of these loans were made at rates of 10% or less. At the time the Trahans secured their loan, the average interest rate paid by the Association to its depositors was 6.25%. In order to generate a reasonable profit at that time, the Association charged to the Trahans an interest rate of 9%. However, by September 30, 1980, the date of the sale and assumption by the Trahans to Mrs. Willrich, the Association was paying an average of 8.6% to its depositors and other lenders. During the six years, 1974 to 1980, its profit margin on a 9% loan decreased from 2.75% to .54%. The officials stated this loan experience is typical of the decrease in the profit margin of its entire loan portfolio.

As a result of this situation, the Association has had to start enforcing the “due-on-sale” clause in its mortgages. If, as a result of this enforcement, a loan is paid in full, the Association can lend this money or invest it at a rate which reflects the current cost of money. The Association argues these facts make it clear that the contractual and statutory “due-on-sale” clause questioned in this case are reasonable and relevant to valid and desirable state purposes, and are constitutional.

In answer to the argument that “due-on-sale” clauses constitute an unreasonable restraint on the alienation of property, the Association points out that the clause does not prevent the Trahans from selling their property to whomever they may desire, so long as the Association does not have to continue the loan to an owner with whom it did not originally contract. The Association argues the “due-on-sale” clause is no more restrictive on the alienation of property than building restrictions, the validity of which has been upheld. Queensborough Land Company v. Cazeaux, 136 La. 724, 67 So. 641 (La.1915).

The Association cites many cases from other jurisdictions rejecting the argument that “due-on-sale” clauses are unconstitutional or constitute an unreasonable restraint on alienation of property. For instance, in Malouff v. Midland Federal Savings & Loan Association, 181 Colo. 294, 509 P.2d 1240 (1973), the Colorado Supreme Court gave the following reasons for upholding the validity of a “due-on-sale” clause:

“We do not consider the motive of Midland in seeking to protect itself and the borrower from the effects of inflationary or deflationary conditions in the money market to be improper or unlawful. Both parties have the benefit of their original bargain during their continued creditor-debtor relationship. However, when the property is sold to a purchaser who desires to assume the existing loan, economic consideration may reasonably justify the lender in raising the interest rate to or approaching one equal to the current market rate. We view the condition imposed for the non-exercise of the acceleration clause under such circumstances to be a reasonable protection of a justifiable interest and the operative affect of the clause does not therefore constitute an invalid restraint on alienation.” (Emphasis added).

See also Baker v. Loves Park Savings and Loan Association, 61 Ill.2d 119, 333 N.E.2d 1 (1975); Gunther v. White, 489 S.W.2d 529 (Tenn.1973); Mutual Federal Savings & Loan Association v. American Medical Service, Inc., 66 Wis. 210, 223 N.W.2d 921 (1974); Mutual Federal Savings and Loan Association v. Wisconsin Wire Works, 58 Wis.2d 99, 205 N.W.2d 762 (1973); Tierce v. APS Co. and Campus Apartments Co., 382 So.2d 485 (Ala.1980); Tidwell v. Whittmeier, 150 Ala. 253, 43 So. 782 (1907); First Southern Federal Savings & Loan Association of Mobile v. Britton, 345 So.2d 300 (Ala.Civ.App.1977); Occidental Savings & Loan Assn. v. Venco Partnership, 206 Neb. 469, 293 N.W.2d 843 (Neb.1980); Mutual Fed. Sav. & Loan Assn. v. Wisconsin Wire Works, 71 Wis.2d 531, 239 N.W.2d 20 (1976); People’s Savings Assn. v. Standard Ind. Corp., Inc., 22 Ohio App.2d 35, 257 N.E.2d 406 (1970); Stith v. Hudson City Savings Institution, 63 Misc.2d 863, 313 N.Y.S.2d 804 (Sup.Ct.1970); Century Federal Savings & Loan Assn. v. Van Glahn, 144 N.J.Super. 48, 364 A.2d 558 (1976); Crockett v. First Federal Savings & Loan Assn., 289 N.C. 620, 224 S.E.2d 580 (1976); First Commercial Title, Inc., v. Holmes, 92 Nev. 363, 550 P.2d 1271 (1976); Mutual Real Estate Investment Trust v. Buffalo Savings Bank, 90 Misc.2d 675, 395 N.Y.S.2d 583 (1977); Miller v. Pacific First Federal Savings & Loan Assn., 86 Wash.2d 401, 545 P.2d 546 (1976).

We conclude that neither the statute nor the “due-on-sale” clause which it authorizes for savings and loan associations unconstitutionally deprives the defendants of due process of law or equal protection of the law of this State or of the United States.

ASSOCIATION’S PRIOR CONSENT TO ASSUMPTIONS

Defendants contend the Association’s prior practice of permitting sale and assumptions constitutes a “custom” within the contemplation of LSA-C.C. Article 3 and therefore prevents the enforcement of the “due-on-sale” clause in this mortgage. Jurisprudence construing Civil Code Article 3 has established the rule that neither “custom” nor “usage” nor “practice” may prevent the enforcement of an express statutory provision. Clement v. South Atlantic SS Line, 128 La. 399, 54 So. 920 (1911); Wray-Dickinson Company v. Commercial Credit Company, 192 So. 769 (La.App. 2d Cir. 1940). In the present case, we have an express statute and an express contractual provision. Clearly, neither custom, usage nor practice can prevent the enforcement of the statute or the contract which it authorizes.

FAILURE OF DEFENDANTS TO READ AND EXPLAIN DUE-ON-SALE CLAUSE

The defendants argue they did not read the “due-on-sale” clause, that plaintiff did not explain it, and thus they were not aware of it. Jurisprudence has established the rule that a party may not avoid the provisions of a contract which he signs but fails to read or have explained to him. Watson v. The Planters Bank of Tennessee, 22 La.Ann. 14 (1870); Lama v. Manale, 218 La. 511, 50 So.2d 15 (1950); Leny v. Friedman, 372 So.2d 721 (La.App. 4th Cir. 1979).

DUE-ON-SALE CLAUSE NOT AGAINST PUBLIC POLICY

The Trahans argue that LSA-R.S. 6:837 A and the “due-on-sale” clause which it authorizes are “odious” and against public policy. LSA-C.C. Article 20. For essentially the same reasons stated above in upholding the constitutionality of the statute and the contract, we conclude they are not void as being odious or against public policy.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.

      . The recent case of Wood v. LaFleur, 408 So.2d 37 (La.App. 3rd Cir. 1981) involved a due-on-sale clause in a mortgage to an individual, and the clause was upheld.


author: DOMENGEAUX, Judge.

text:
    Junius DEROUEN, Plaintiff-Appellant, v. CITY OF NEW IBERIA, et al., Defendants-Appellees.
    No. 8797.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      J. Michael Placer, Lafayette, for plaintiff-appellant.
    Roy, Forrest & Lopresto, L. Albert Forrest, Armentor & Wattigny, Minos H. Ar-mentor, New Iberia, for defendants-appel-lees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   DOMENGEAUX, Judge.

This case was instituted by plaintiff-appellant, Junius Derouen, against defendants-appellees, City of New Iberia (New Iberia), Evelyn M. Jean-Louis (Jean-Louis), and her liability insurer State Farm Mutual Automobile Insurance Company (State Farm), for personal injuries and property damage allegedly resulting from an automobile accident which occurred at the intersection of Robertson and Corinne Streets in the City of New Iberia. Thereafter, New Iberia filed a third party claim against defendants Jean-Louis and State Farm, who in turn reconvened against it. After plaintiff rested, the trial judge granted a motion for a directed verdict moved for by Jean-Louis and State Farm dismissing those defendants from the lawsuit. Following trial, judgment was rendered in favor of New Iberia against the plaintiff, dismissing plaintiff’s suit at his cost. Plaintiff has appealed against all defendants. We reverse, remand in part, and render.

On August 31, 1978, an electric semaphore traffic signal, which was owned and operated by the City of New Iberia and controlled traffic at the intersection of Robertson and Corinne Streets in that City, was malfunctioning. Plaintiff entered that intersection while traveling west on Robertson Street and before he cleared the intersection his vehicle was struck on the right rear side by defendant Jean-Louis’ vehicle which was traveling south on Corinne Street. Both drivers contend that they had a green light and proceeded accordingly. The trial judge held that the traffic signal in question was malfunctioning at the time of the accident, indicating green for defendant Jean-Louis, and failing to indicate any signal at all for plaintiff.

The issues presented on appeal are:

(1) Whether or not the trial judge committed manifest error in concluding that plaintiff was faced with no signal and defendant Jean-Louis was faced with a green signal;

(2) Whether or not the trial judge should have granted the motion for a directed verdict of State Farm and Jean-Louis; and

(3) Quantum.

TRIAL JUDGE’S FINDING OF FACT

The trial judge in reasons orally assigned concluded that the light controlling the intersection of Robertson and Corinne Streets showed a green light favoring southbound traffic on Corinne Street and no signal for the traffic traveling west on Robertson Street. In so holding he relied completely on the testimony offered by Charles Lacy, the investigating officer of the accident. For reasons hereinafter stated, we feel that the trial judge committed manifest error in so holding.

Upon completion of his investigation of the accident, Officer Lacy prepared an accident report representing his findings. This report states that: “Officer noted light at that intersection was not functioning and that on some cycles it stayed green on west and south side. On other cycles it would not show a red signal.” Officer Lacy explained this statement by testifying that the light was malfunctioning, and that the manner in which it was malfunctioning was that on some cycles the light stayed green on the west side (for plaintiff’s vehicle), and on some cycles the red signal did not show on the south (for defendant Jean-Louis’ vehicle). On questioning by the Court, the officer repeated that same testimony. He stated that he was certain that he was standing on the southwest corner of the intersection, the corner that would be between the two drivers as they approached the intersection, and that on some cycles the light stayed green on the west and on other cycles it showed no red on the south. Nevertheless, he also admitted in response to questions from counsel for the City of New Iberia that he had also testified in deposition that the red light was not functioning on Robertson Street and that a green light was showing on the southerly direction.

On questioning by counsel for plaintiff, the police officer again testified that the statement in his report did not mean that the light was green on both sides but that the light on some cycles stayed green on the west side and showed no red signal on the south side. He further testified in response to questions by the Court that south would be Corinne Street and west would be Robertson Street. He reiterated that testimony with great tenacity in response to further questions from the court and from counsel for plaintiff. He testified that this was in accordance with his report, and that he prepared his report immediately after the accident. Officer Lacy also admitted that his memory was better when he prepared the accident report than when he gave his deposition (which was taken approximately one month prior to trial). On cross-examination by counsel for defendants Jean-Louis and State Farm, Officer Lacy changed his testimony to say that the Corinne Street side was green and there was no light visible on the Robertson Street side. Officer Lacy continued by claiming that his independent recollection of the malfunctioning of the light was better at trial than on the day of the accident when he made his report. He claims this even though he had just testified that when he gave his deposition he could not remember the events which took place on the date of the accident, it being almost three years since the preparation of his report.

An appellate court may not substitute its own version of the facts, however reasonable it may be, for that found by the trial court, unless such court committed manifest error in finding facts not reasonably supported by credible evidence in the record. The only consistency in Officer Lacy’s testimony was to the effect that the traffic light was malfunctioning. With regard to the manner in which it was malfunctioning he gave two different versions: (1) In his report, his deposition, and in the preponderance of his testimony at trial he claimed that when the light was malfunctioning plaintiff had a green light and defendant Jean-Louis had no light at all; conversely, also in his deposition and in response to cross-examination based on that isolated statement in his deposition, he said that when the light malfunctioned defendant Jean-Louis had a green light and plaintiff had no light at all. Under these circumstances, we feel that it was manifestly erroneous for the trial court to accept the last version given by this witness, which version is not reasonably supported by credible evidence in the record, and proceed to base its entire judgment thereon.

It seems obvious, especially in light of the complete vacillation of Officer Lacy’s testimony, that he had no independent recollection of the manner in which the light was malfunctioning on the date of the accident. The most credible version of his findings concerning the light’s operation is found in Officer Lacy’s report prepared the date of the accident, which, according to Officer Lacy, states that on some cycles plaintiff’s signal showed green and defendant’s signal showed no color at all. Therefore, we find that the evidence preponderates in favor of plaintiff who claims to have had the right-of-way as he proceeded into the intersection.

The evidence establishes that a defect in the traffic signal caused it to malfunction thereby creating an unreasonable risk of injury to motorists who traversed the intersection. The evidence equally supports the conclusion that it was the light’s malfunctioning which caused, or at least substantially contributed to, the accident. Recent jurisprudence indicates that where delictual responsibility is based not on negligence but on legal fault, under La.C.C. Article 2317, a public body’s knowledge of the existence of the danger is irrelevant. Liability is a consequence of the fact of ownership and custody in itself, not the breach of a duty. Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980). Under the facts as we have interpreted them, we find defendant City to be strictly liable, and we fail to discern any fault on the part of plaintiff which would bar his recovery against defendant City. Consequently, we feel that the trial court erred in finding plaintiff negligent (or at fault), thereby barring his recovery against the City of New Iberia.

DIRECTED VERDICT

As aforementioned, the evidence at the close of plaintiff’s case against defendants Jean-Louis and State Farm preponderates in favor of plaintiff who claims to have had the green signal through the intersection. As such, the trial court erred in granting defendants Jean-Louis’ and State Farm’s motion for a directed verdict below. Accordingly, we shall reverse the judgment of the district court granting the directed verdict in Jean-Louis’ and State Farm’s favor, and remand said proceedings to allow those defendants to introduce evidence in their defense in order to determine whether or not they are solidarily liable with defendant City.

QUANTUM

Doctor Sutton, plaintiff’s treating physician, testified by deposition concerning plaintiff’s injuries. According to Doctor Sutton, plaintiff’s injuries consisted of a fractured radius of his left arm, abrasions, and small lacerations of his left arm. Doctor Sutton’s diagnosis is undisputed. Plaintiff was initially hospitalized for three days during which his arm was set. Subsequently, plaintiff had to be readmitted for treatment which involved open surgery on his left arm to reduce the fracture internally, insert a metal plate (with six screws), and conduct a bone graft. The bone graft involved surgically removing bone from plaintiff’s right arm and implanting it in his left arm. Doctor Sutton estimated plaintiff’s residual disability to be approximately fifteen percent. At the time of the accident plaintiff was 65 years old, and was a carpenter by trade. Since the accident plaintiff claimed that his work week had been reduced from forty hours per week to about thirty hours per week. He attributes this decline to both age and his inability to work long hours because of his injury. We have reviewed our jurisprudence dealing with similar cases, and under the circumstances presented before us, we feel that an award to plaintiff in the amount of $25,000.00 representing general damages is appropriate. Additionally, plaintiff proved and is entitled to $9,280.00 of special damages representing $5,720.00 for lost wages, $2,725.00 for hospital and medical bills, and $835.00 for property damage.

DECREE

For the above and foregoing reasons the judgment of the district court is reversed, remanded in part, and recast as follows:

It is hereby Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiff, Junius Derouen, and against defendant, City of New Iberia, in the amount of $34,280.00 with legal interest thereon from date of judicial demand until paid.

It is further Ordered, Adjudged, and Decreed that the judgment of the district court granting defendants, Jean-Louis’ and State Farm’s motion for directed verdict is reversed and remanded to the district court for further proceedings consistent with this opinion.

All costs at trial are assessed against the City of New Iberia, reserving unto it the right of contribution of costs on remand if appropriate. All costs on appeal are assessed one-half (V2) against the defendants, Jean-Louis and State Farm, and one-half (V2) against defendant, City of New Iberia.

REVERSED IN PART, REMANDED IN PART, AND RENDERED.

      . Although those defendants moved for a directed verdict and same was granted by the trial judge, under La.C.C.P. Art. 1810(B) said motion is more properly entitled in non-jury cases as a motion for judgment of dismissal.


text:
    Joseph T. NIGREVILLE, Plaintiff & Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, Defendant & Appellant.
    No. 8804.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for defendant & appellant.
    Davis & Murchison, James D. Davis, Alexandria, for plaintiff & appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   CULPEPPER, Judge.

The defendant appeals a judgment awarding plaintiff $1500 damages for false arrest. We reverse.

The issue is whether the arresting officer had probable cause to arrest plaintiff for committing in the officer’s presence the misdemeanor of interfering with the officer’s investigation of a traffic accident.

On the night in question, there were two automobile accidents at the intersection of Louisiana State Highway 1, a four-lane thoroughfare running north and south, and Powell Lane, a two-lane highway running east and west. After the first accident, which was major and involved serious personal injuries, one of the involved automobiles was blocking one of the north bound lanes of Highway 1. Two state troopers and a deputy sheriff were present investigating that accident when the plaintiff, proceeding west on Powell Lane, approached the intersection. Lt. Stephens was standing in the intersection directing traffic. Nigreville stopped at the intersection in obedience to Stephens’ signal. Then Stephens motioned a vehicle, driven by Miss Cason, to proceed in a northerly direction on Highway 1. Nigreville mistakenly understood the trooper’s motion was for him to proceed into the intersection. Nigreville pulled out into the intersection, colliding with the Cason vehicle.

In his petition, plaintiff sought damages for the cost of repairs to his automobile, on the grounds that the state police caused the accident. However, the trial judge found that plaintiff caused the accident by his failure to obey the trooper’s signal directing him to stop. On appeal, plaintiff does not argue the trial judge erred in finding it was plaintiff’s negligence, not that of the state trooper, which caused the accident.

Regarding plaintiff’s demands for damages for false arrest, he admits that after the accident he was “upset” because he felt the state trooper who was directing traffic caused the accident by giving plaintiff a signal to move forward into the intersection. However, plaintiff contends he cooperated with the officers during their investigation of the accident, that he did not refuse to obey their instructions, did not curse them, did not threaten to strike them, nor did he interfere in any way with their investigation of the accident. It is the plaintiff’s position that Tpr. Mark Harper became angry and arrested plaintiff after plaintiff pointed his finger at Harper and said “You’ll pay for this.” In his brief, plaintiff states it is obvious this “young trooper thinks that a citizen who says ‘you’ll pay for this’ can be arrested solely for that. He has confused his rights as a police officer in a democratic society with those rights of the secret police in Russia or Iran.”

In direct conflict with plaintiff’s testimony as to the events leading up to his arrest, the defendant presented the testimony of Lt. Stephens, Tpr. Harper, Tpr. Wagner, Dy. Sheriff Baden and Miss Cason. All five of these witnesses testified generally to the effect that following the accident in which plaintiff was involved he became very belligerent, cursed the officers, appeared to be intoxicated, threatened to attack the officers, and interfered with their investigation to the extent that they finally had to arrest him in order to complete their investigation.

The evidence shows that after the accident in which plaintiff was involved, Lt. Stephens radioed Tpr. Harper and Tpr. Wagner to come to the scene to investigate the Nigreville accident. There was much confusion at the scene. It was raining and Lt. Stephens, assisted by Tpr. Rushing and Dy. Sheriff Baden were investigating the first accident and directing traffic on the four-lane highway.

When Tpr. Harper arrived, Nigreville was standing near the Cason vehicle, which was in the north bound lane some distance north of the intersection. Tpr. Harper testified that Miss Cason looked as though Nigreville was “intimidating” her. Miss Cason testified she was afraid of Mr. Nigre-ville and thought that he was intoxicated because of the way he was cursing and screaming at the officers.

Tpr. Harper first asked plaintiff to move away from Miss Cason’s automobile, at which time plaintiff turned on him and accused him of causing the accident. Of course, Harper was not present when the accident occurred, and he tried to explain this to plaintiff and to get him to calm down. Nigreville did calm down for awhile, and then Lt. Stephens walked up and plaintiff pointed at him and angrily accused Stephens of causing the accident. Harper and Stephens managed to calm Nigreville down after this outburst, but then he cursed Stephens in a belligerent manner, saying “Goddamn you.” On this outburst, the troopers thought Nigreville must be intoxicated, so they gave him a field sobriety test, but found he was not intoxicated.

After Tpr. Harper finally obtained Nigre-ville’s driver’s license, he and Wagner were sitting in their police car calling on the radio to check on Nigreville’s license. It started to rain at that point and Wagner suggested they put plaintiff in the back of the police car to get him out of the rain. Harper, who was senior to Wagner, did not want to put plaintiff in the back seat of the police car because he was afraid of a physical attack by plaintiff. They decided to instruct Nigreville to sit in his own vehicle, after first searching it for weapons. Tpr. Wagner got out of the police car and was asking Nigreville to go sit in his own vehicle when Nigreville suddenly turned, moved toward Harper, pointed his finger at him in a threatening manner and yelled “You will pay for this.” At this point, Tpr. Harper, assisted by Wagner, placed plaintiff under arrest for interfering with the investigation of the accident.

Since we are reversing the trial judge on a question of fact, we will quote at some length from the three state troopers, one deputy sheriff and Miss Cason, who gave testimony in conflict with that of plaintiff. Lt. Stephens testified as follows:

“A Well, uh, after Troopers Harper and Wagner arrived and I explained things as I, as I understood ‘em, they went over to interview him. I, I assume that’s why they went over there. And I was back out — ‘cause traffic was beginning to get a little, a little heavier, as I recall. And, you know, the road was still blocked. So I went back out in the same location I had been in to see that traffic was flowing, you know, smoothly. Within a, I don’t know, a few minutes, I don’t know — have any idea how long — my attention was directed to where they were, and there was a, seemed to be a rather loud or heated discussion of some sort going on. So I went over there to see what the problem was. And, uh, I’d say Mr. Nigreville was in a very excitable state. He was shouting very loudly, some profanity. He even said that some trooper directed him to pull out into the path of this other vehicle. And so I said, I, I said I’m the one who was — who was directing traffic. I said, I believe you’re mistaken, but we’re not going to, you know, argue about that right now. I said, these troopers are investigating the accident, let’s, let’s get that taken care of and, you know, we’ll take care of the other problem. He, you know, at one — he would, uh, you know, calm down briefly, then he would, uh, he’d, you know become very agitated again. And, and this happened two or three times while I was there the first time. I kept telling him to please calm down, we had to — we had to investigate the accident, the trooper needed to ask him certain information. After two or three minutes of this, I, I don’t recall how long, he — I don’t know what he was trying to do, but he ran into me, pushed into me. I don’t know if he was trying to push me out of the way or what. I grabbed him by the arm, more or less pinned him up against the car, told him to either calm down or I would place him under arrest. At that point he did. He, he settled down. I told him to talk to these officers and answer their questions. I thought everything was under control. Then I walked back out to the intersection. Within a minute I looked back and Trooper Harper and Wagner were putting the handcuffs on him. So I went over there to see what, you know.”

Tpr. Wagner testified as follows:

“Q Exactly what did he do to interfer with you — or—or Trooper Harper?
A He was in (Interrupted)
Q Other than to say, “You’re going to pay for this.”
A He made it almost impossible for us to maintain the — Mr. Nigreville’s safety and well-being. And we got a little worried about possibly our safety, too, ‘cause we weren’t quite sure about the way he was acting. He, he would, uh, his actions were real erratic. Okay, he seemed real hostile and he’d cool down. He seemed real hostile again. And then when he moved on Trooper Harper, that was the last straw. We had tried three times to calm him down, okay.
Q You say he walked toward Trooper Harper?
A I say he moved toward Trooper Harper.”

Tpr. Harper testified:

“A At that moment. Every — everything had — we had gotten Mr. Nigreville calmed down. He was — at that point prior to his whirling on me he was not doing anything, just standing there.
Q Okay. And you were in the ear doing what?
A I was talking on the microphone to the Troop.
Q Okay. And — you said he stepped toward you and he said this in what type of voice — that you were going to pay for this?
A It was a loud, belligerent voice as though he was, he was angry and, uh, he had decided and he had come to the conclusion that there was one way to settle that and that was to get to me.
Q Okay. And what did you do at that point?
A Okay. I put the mike down. I stepped out of my car. I asked him what he said. He was still coming toward me, and he told me, he said, “You’re going to pay for this.” All right. Due to the fact that he was coming toward me; due to the fact that so far I had been unable to get information on the vehicle; at that point in time I was unable to investigate the accident with Mr. Nigreville advancing on me. I walked up and placed him under arrest — told him he was under arrest.”

Deputy Sheriff Baden testified as follows:

“Q And after the, the Nigreville accident Mr. Nigreville became very belligerent; isn’t that correct?
A That’s correct, sir.
Q He became difficult to deal with for the troopers?
A Yes, sir. Yeah, he was.
Q Okay. Did it become difficult for the troopers to continue with their investigation of the second accident because of Mr. Nigreville?
A Yes, sir, it was.
Q Did you see any state trooper direct Mr. Nigreville into the lane of traffic?
A No, sir, I did not.
Q If it had been a state trooper directing him out you were in a position to have seen it; is that correct?
A That’s correct, sir.
Q And it’s your testimony that you heard Mr. Nigreville shouting or cursing or making some type of disturbance; is that correct, after the accident?
A Shouting, yes, sir.”

Miss Cason testified:

‘Q After he talked to you, the policemen came over and then what occurred?
A Then they left and went to the front of my car, and then I just saw, you know, I know that he was upset and cursing, and I remember one of the cops asked him to just settle down for a minute, you know, and they tried to talk to him.
Q And did they try and talk to him?
A Yes, they did.
Q And how did Mr. Nigreville respond?
A I just heard cursing.
Q And what occurred next?
A Uh — I remember him being handcuffed and put into the car.
Q Do you remember his manner of voice as, as he was talking to the officers?
A He was screaming at 'em.
Q Do you remember if he — anything else he said beside cursing at 'em?
A I cannot tell what words—
Q Do you remember if he made any movements toward ‘em?
A I felt like he made movement toward the policemen one time. I thought that he was fixing to jump on one of the policemen, and, and that’s why I thought he was handcuffed.
Q And after he did this, he was handcuffed?
A Yes.
Q Could you hear the policemen as they were talking with Mr. Nigreville?
A The only thing I can remember hearing was when one of the policemen asked him to just settle down and talk to him. And then, all I heard was him screaming.
******
Q How did you feel — how did you feel once the officers restrained Mr. Nigre-ville? Did it make you feel any different?
A I was relieved.
Q Why were you relieved?
A Well, it wasn’t that I was really scared that he was going to do anything to me, I guess, it was just — I was just afraid because of all of the hollering and the shouting. And after the hollering and the shouting quit, well I calmed down.
Q Did it appear to you that the officers were, were hurting Mr. Nigreville as they handcuffed him and put him in the car?
A No, sir, it didn’t.
Q Did one of the troopers eventually talk to you and ask you what happened?
A Yes.
Q Were they able to carry on the investigation while Mr. Nigreville was yelling at them?
A No, sir.”

Troopers Harper and Wagner testified that after the accident plaintiff telephoned his sister, Mrs. Britt, who arrived at the scene after the officers had placed Nigre-ville under arrest. These officers testified Mrs. Britt tried to get them to release the plaintiff, stating that while in the Navy he received a head injury in a motorcycle accident, had a plate in his head and was under medication for frequent outbursts of temper and loss of touch with reality. Mrs. Britt denied making these statements to the officers, but she admitted, after being ordered by the judge to answer the question, that plaintiff did have a head injury while in the Navy.

The trial judge gave no findings of fact. He merely concluded the officers falsely arrested plaintiff. Under the testimony described above, we conclude the trial judge was clearly wrong if he accepted plaintiff’s version of the facts preceding his arrest instead of the version given by the officers and Miss Cason. After carefully reviewing the entire record, we conclude the facts are substantially those testified to by defendant’s witnesses.

LSA-Code of Criminal Procedure Article 213 provides in pertinent part:

“Art. 213. Arrest by officer without warrant; when lawful A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence, and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;”

The misdemeanor of interference with state police in the discharge of their duties is set forth in LSA-R.S. 40:1390 as follows:

“§ 1390. Resisting arrest and interference with officers; penalty
Any person who resists arrest by any officer or agent of the division or who interferes with or obstructs the head of the division or any officer or agent thereof in the lawful performance of any duty imposed on him by this Sub-part or any duty assigned to him under authority of this Sub-part shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned for not less than thirty days nor more than six months, or both.”

Jurisprudence construing Article 213 holds that in a suit for damages for false arrest for a misdemeanor the officer cannot be found liable so long as he has probable cause to believe the misdemeanor has been committed in his presence. Meyers v. Ed wards, 256 So.2d 337 (La.App. 1st Cir. 1971); Wells v. Gaspard, 129 So.2d 245 (La.App. 3rd Cir. 1961).

Under the version of the facts given by defendant’s witnesses and found by us to be correct, Tpr. Harper clearly had probable cause to believe that plaintiff had committed in his presence the misdemeanor of interfering with an officer.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the defendant dismissing plaintiff’s suit at his cost. All costs in the trial and appellate courts are assessed against the plaintiff-ap-pellee.

REVERSED AND RENDERED.


author: SWIFT, Judge.

text:
    DELTA SECURITY BANK & TRUST COMPANY, Plaintiff-Appellant, v. Lee T. BYRNES, Defendant-Appellee.
    No. 8812.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Lyman S. Gore of Gore & Shields, Vida-lia, for plaintiff-appellant.
    Lloyd F. Love, Ferriday, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

Delta Security Bank & Trust Company instituted this suit against Lee T. Byrnes for the amount due on a promissory note executed by the defendant and for judgment recognizing and maintaining a mortgage which secured the note. From a judgment in favor of the plaintiff against the defendant for the balance owed on the promissory note but which sustained the defendant’s plea of prescription for failure to timely reinscribe the mortgage and ordered that it be canceled and erased from the mortgage records of Concordia Parish, the plaintiff has appealed.

The facts are not in dispute. Plaintiff is the holder of the defendant’s note which was executed on November 5, 1964, and is paraphed for identification with the mortgage affecting property in Concordia Parish. The mortgage is also dated November 5,1964, and it was recorded originally in the mortgage records of that parish on November 9, 1964. It was not reinscribed until September 1, 1976. In the meantime, on February 26, 1965, the defendant conveyed the property to a third party. The latter was not joined as a defendant and he has not intervened in this suit.

The defendant has neither appealed nor answered plaintiff’s appeal. Therefore, the sole issue before this court is whether the trial court erred in determining that the mortgage was unenforceable and ordering its cancellation and erasure from the mortgage records.

Under La.Civil Code Article 3369 the “effect of the registry” of mortgages “ceases in all cases, even against the contracting parties, if the inscriptions have not been renewed within ...” ten years in the present ease.

In Brookshire v. Broussard, 326 So.2d 893 (La.App. 3 Cir. 1976), this court applied the article in a somewhat similar situation. In that case the plaintiff instituted suit against the heirs of Thurman Broussard, deceased, for amounts allegedly due him on two promissory notes executed by the decedent and for judgment recognizing a special mortgage securing the note. The defendants filed an exception of peremption alleging the special mortgage had perempted and was no longer enforceable because of plaintiff’s failure to reinscribe it timely. The mortgage was recorded originally in the mortgage records on October 17, 1961, and reinscribed on September 4, 1974. A third party, Lormand Construction Co., had purchased the property under warranty deed on July 1, 1974. Lormand intervened in the suit and also filed an exception of peremption, based substantially on the same grounds as urged by the defendants. This Court said:

“We agree with the trial court that the effect of the registry of this mortgage ceased, even against the contracting parties, on October 16, 1971, because of the failure of plaintiff to renew the inscription of that mortgage within ten years, as provided by LSA-C.C. art. 3369. For that reason we find no error in that part of the judgment of the trial court which orders that the original inscription of the mortgage on October 17, 1961, and the reinscription of that mortgage on September 4, 1974, be cancelled and erased from the mortgage records of Vermilion Parish.”

Brookshire differs from the situation presently before the court in that the third party purchaser there acquired the property after the mortgage had perempted. However, we do not believe this difference is of any significance. While the subject mortgage was recorded and in effect when the defendant sold the property on February 26,1961, under codal article 3369 the effect of the registry ceased as to this third party purchaser when the plaintiff failed to renew the inscription within ten years from the date of the obligation.

In discussing the failure to reinscribe a mortgage in accordance with article 3369, Professor Ralph Slovenko says at page 881 in his Treatise on Creditor’s Rights under Louisiana Civil Law:

“The article provides that the effect of the registry ceases, even against the contracting parties, if the inscriptions have not been renewed within the prescribed time periods. Since the effect of registry is notice to third parties, it would follow that the right of the mortgagee to follow the property into the hands of a third person would thus cease. This right of pursuit is one of the major characteristics of the mortgage as a security device; thus, failure to reinscribe might be considered a practical, if not legal extinction of the mortgage. However, the mortgagee, in the absence of a competing third party, would still have the right of the relatively convenient method of execution provided by the device of mortgage.”

For the foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

      . The defendant expressly waived prescription as to the promissory note on April 30, 1973.


author: CUTRER, Judge.

text:
    Johnny R. ALEXANDER, Plaintiff-Appellant, v. RAPIDES PARISH POLICE JURY, Defendant-Appellee.
    No. 8815.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Ralph W. Kennedy of Kennedy & Yeager, Alexandria, for plaintiff-appellant.
    Trimble, Randow, Percy, Smith, Wilson & Foote, Lon P. Wilson, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

This appeal arises from a suit seeking damages for personal injuries received as a result of a garbage dumpster accident.

The facts presented in this suit are:

At approximately 7:00 P.M., May 6, 1979, Johnny Ray Alexander (Plaintiff), his son, Johnny, Jr., and Thomas Conley drove to the Kincaid Lake dumping area which was maintained by the Rapides Parish Police Jury (Police Jury) to dispose of a sizeable amount of garbage which had accumulated around the Alexander home for a period of approximately one month.

The dump site consisted of a several-acre clearing, a large dumpster, and an earthen ramp which had been overlaid with concrete leading up to the top of the container. The container was 7 to 8 feet wide, 7 to 8 feet in height and approximately 25 feet long. The ramp was perpendicular to the dumpster (the ramp would form the leg of a “T” with the dumpster as the crossbar) and was wide enough for two automobiles. It was elevated about one foot higher than the top of the dumpster. The Parish of Rapides maintained 24 such dump sites throughout the parish. As the dumpsters were filled, the contents would be transported to the parish landfill.

Johnny, Jr., backed the family pickup to the end of the ramp. He, plaintiff and Conley exited the truck. Johnny, Jr., walked from the passenger’s side to the driver’s side of the truck. He climbed into the bed to begin unloading the garbage. Plaintiff also climbed into the bed of the truck to supervise the unloading;. Conley stood beside the pick-up, observing. As Johnny, Jr., was pitching the bags of garbage into the dumpster, flames shot out of the top of the container singeing his hair, eyebrows and eye lashes. The sudden burst startled him and he fell in the bed of the truck. Plaintiff fell from the bed of the truck and rolled down the ramp, sustaining alleged injuries.

Plaintiff states that he heard a spewing noise, a “blast” and then saw a flare-up of flames which caused his fall. Several witnesses testified as seeing smoke coming from the container after plaintiff was lying on the ground; but, no one except plaintiff remembered hearing an explosion. Johnny, Jr., did not recall any explosion.

The plaintiff and Johnny, Jr., both testified that they did not see any flames or smoldering in the container before the flare-up of flames.

Plaintiff filed suit against the Police Jury seeking recovery for injuries suffered in the accident. After trial on the merits, the trial court rendered judgment in favor of the Police Jury dismissing plaintiff’s suit. Plaintiff appealed.

Upon appeal, plaintiff alleges two issues:

(1) Is the Police Jury liable for damages due to its negligence, LSA-C.C. art. 2315; and
(2) Did the trial court err in failing to find the Police Jury liable under LSA-C.C. art. 2317 for plaintiff’s injuries.

NEGLIGENCE: LSA-C.C. ARTICLE 2315

On appeal, plaintiff argues that the Police Jury was negligent in maintaining the garbage dumpster and, thus, is responsible for his injuries. We disagree. LSA-C.C. art. 2315 provides, in pertinent part:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. ...”

This court, in Williams v. Louisiana Machinery Co., Inc., 387 So.2d 8, 11 (La.App.3rd Cir. 1980), set out the basis for recovery under art. 2315:

“This article is the basis for tort liability in Louisiana. For a plaintiff to recover in Louisiana for damages, the damages must have been caused by the ‘fault’ of another. There must be a duty owed by the defendant, or by someone for whom the defendant is answerable, to the plaintiff; a breach of this duty; and this duty must be the cause-in-fact of the damages suffered by the plaintiff....
“‘Fault’ as used in Article 2315 encompasses more than negligence. It is the breach of a duty owed by one party to another under particular facts and circumstances of a given case.... ‘Fault’ is a broad concept embracing all conduct falling below a proper standard. ... ” (Citations omitted.)

We have reviewed our prior decision of Provost v. City of Loreauville, 352 So.2d 789 (La.App. 3rd Cir. 1977), writ den., 354 So.2d 1050 (La.1978), and find it applicable to the resolution of the issue before us. In that case, the City of Loreauville and the Iberia Parish Police Jury jointly operated a dump. At one end fires were used to reduce the amount of flammable material present, whereas the other end was available for the safe disposal of trash. The court concluded that the Police Jury and the City were not negligent in maintaining the dump.

The court in Provost, supra, found res ipsa loquitur to be inapplicable as the plaintiff could not determine whether something already at the dump exploded or if something he threw on the fire caused the explosion. The Provost court also found that the defendants were not negligent in failing to have a guard present to sort through the garbage in search of combustibles. Also, there had been no reported explosions at the dump in the prior two years. The dismissal of plaintiff’s suit was affirmed.

In looking at the Provost decision and our case sub judice, we find the conclusion to be the same. At the time of the flare-up or “blast” no guard was on duty at the dump site. The evidence reflects that guards had been on duty previously but were discontinued for monetary reasons. The previous guards were there to keep people from putting dead animals or tree limbs into the container. They were not instructed to sort through the garbage of each person to ascertain whether the garbage contained a volatile substance.

Fire Marshall Charles Patton testified that he had searched his records for the past two years and found that, among the 24 dump sites in the parish, 19 fires had been reported and extinguished by the fire district. Some of these fires had been at the dump site in question. He further stated that he had not received any report of explosions during this time. He explained that a fire at a dump site or in a dumpster could be caused by spontaneous combustion.

The record does not indicate as to what may have caused the flare-up or “blast” in question. It is not shown as to whether it was caused by material deposited by plaintiff or whether it was placed there by someone else. Further, the evidence does not show that the Police Jury could have taken any reasonable steps to guard against such an incident. To hold that the Police Jury must have a guard on duty to sift through each item of garbage dumped would be completely unreasonable. We hold that the Police Jury has breached no duty to the plaintiff. We find the Police Jury free of negligence under art. 2315.

LIABILITY: LSA-C.C. ARTICLE 2317

Plaintiff also argues that the Police Jury is liable to him under a strict liability theory espoused by LSA-C.C. art. 2317:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of things which we have in our custody.... ”

Generally, this article imposes liability on a custodian of a defective thing which creates an unreasonable risk of harm to others.

Plaintiff contends that the dumpster is defective in this case due to the fact that fires have previously occurred in the dumpster and, the possibility that an explosion may occur when someone may dispose of garbage therein, creates an unreasonable risk of harm. We disagree.

There is no contention nor any evidence that the container, in and of itself, was defective in design or construction. Plaintiff and Johnny, Jr., both testified that no fire or smoldering was present when they started dumping. There is no evidence as to what may have caused the incident, whether it was a material that came from plaintiff’s garbage or that of someone else.

To hold that the Police Jury is the custodian and is responsible for damages caused by each piece of material in garbage that may possess some volatile propensities could have the effect of stifling the important duty of garbage disposal as a necessary function of the Police Jury to protect the public health.

Also, regardless of the method of collection, garbage is very susceptible of generating heat and fire by spontaneous combustion. The record contains no evidence that this can reasonably be prevented by the public bodies which are charged with this duty.

“... In both negligence and strict liability cases, the probability and magnitude of the risk are to be balanced against the utility of the thing. ...”

Hunt v. City Stores, Inc., 387 So.2d 585, 588 (La.1980).

In the case at hand, the facts reflect that the probability of harm from explosions in a garbage disposal is remote. No explosion had been reported during the two years that the dumpster had been in service. Thus, as we balance the risk (probability) of harm against the utility of the dumpster system and the function it serves, we conclude that the dumpster does not create an unreasonable risk of harm. Therefore, liability under art. 2317 does not attach. The trial court judgment will be affirmed.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Hugh MARCEAUX, Plaintiff-Appellant, v. TOWN OF LAKE ARTHUR, et al., Defendants-Appellees.
    No. 8817.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Donald R. Jory, Jennings, for plaintiff-appellant.
    Bennett LaPoint, Lake Arthur, James B. Frederick, Baton Rouge, for defendants-ap-pellees.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   DOMENGEAUX, Judge.

This is a suit for damages resulting from an alleged unjust enrichment. Plaintiff-appellant, Hugh Marceaux, is the twenty year owner and operator of Price’s Fish Market located on the shore of Lake Arthur, in Lake Arthur, Louisiana. The defendants-appellees are the Town of Lake Arthur and the Department of Transportation and Development of the State of Louisiana.

We ascertain the facts to be as follows:

Plaintiff owned and equipped the building housing his fish market, but leased the location from the Town of Lake Arthur. In the mid-1960s a project was initiated to develop the existing lakefront in the Town of Lake Arthur into a recreational beach and park. The development, which was jointly administered by defendants, was to proceed in three phases. Plaintiff’s business, with its shoreside location, was within the development zone of phase three of this project.

Plaintiff contends that defendants, at the project’s beginning and continuously throughout, encouraged him to remain in business at that location; and that defendants promised plaintiff reimbursement and compensation for the loss of his building and businesses upon relocation. Conversely, defendants contend that plaintiff was never encouraged to stay at his shoreside location, nor was he ever promised that he would be reimbursed for losses and the cost of relocating. After trial on the merits the district court dismissed plaintiff’s unjust enrichment claim at plaintiff’s costs. We affirm.

Plaintiff appeals contending that the trial court erred in:

(1) finding there was no unjust enrichment thereby dismissing his claim; and,

(2) failing to admit parol evidence.

By addressing plaintiff’s first assignment of error we find it unnecessary to specifically address his second.

In order to establish a claim for unjust enrichment plaintiff must prove:

“1. An enrichment.
2. An impoverishment.
3. A connection between the enrichment and the impoverishment.
4. An absence of justification for the enrichment or impoverishment.
5. The absence of any other remedy at law.”

Daspit v. City of Alexandria, 342 So.2d 683 (La.App. 3rd Cir. 1977); writ refused 344 So.2d 1056 (La.1977); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

La. R.S. 33:762 provides that all contracts involving expenditures of money by municipalities must be by approval of the Mayor and Board of Aldermen.

As we view the evidence, plaintiff has failed to show any connection between defendants’ alleged enrichment and plaintiff’s alleged impoverishment. Even accepting as true all of the hearsay evidence, which was excluded by the trial judge and ultimately offered by proffer, we still find that plaintiff failed to prove any claim based on unjust enrichment. At best the evidence shows that members of the Lake Arthur Town Council and its former Mayor hoped to secure funds from the State to compensate relocated enterprises along the lake. Although this was the intent of the town authorities, the record reflects that no one ever promised plaintiff reimbursement or encouraged him not to relocate. All of the parties acknowledge that no formal resolution, as required under R.S. 33:762, supra, was ever adopted by the Town Council. Additionally, several witnesses admitted that the Town lacked funds to take on such an endeavor, and if any compensation was to be granted for reimbursement, the funds would have to come from an alternative source. No funds were allocated by the State for such use, consequently, plaintiff was not reimbursed.

As aforementioned, the record is void of any proof tending to establish that plaintiff was wrongfully coerced by authorities, Town or State, to remain on the leased premises until phase three of the project development, or that he was ever officially promised reimbursement for resulting losses and relocation. Unfortunately, it appears that plaintiff misinterpreted everyone’s expectations, i.e. the obtaining of state funding for reimbursement to the lakeside merchants, as meaning guaranteed revenues for such use. Although we sympathize with his position, we fail to see where plaintiff has any actionable claim against either defendants. Accordingly, we find that plaintiff failed to prove a connection between defendant’s alleged enrichment and his alleged impoverishment, and we therefore affirm the trial court’s judgment dismissing plaintiff’s action at his costs.

For the above and foregoing reasons the judgment of the trial court is affirmed. Costs on appeal are assessed against plaintiff.

AFFIRMED.

      . This case was previously before us on appeal at 392 So.2d 783, in which we reversed the trial court’s granting of defendant’s motion of no cause of action, and remanded the action to the trial court for further proceedings.

      . Although we do not specifically address this issue, the evidence tends to indicate that plaintiff falls short of proving the first two elements of his cause of action as well.


text:
    STATE of Louisiana, Through the DIVISION OF ADMINISTRATION, Plaintiff-Appellant, v. ALGERNON BLAIR, INC., et al., Defendant-Appellee.
    No. 8819.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Hawley & Schexnayder, Ltd., W. Paul Hawley, II, Lafayette, Thomas McFerrin and John R. Sheppard, Baton Rouge, for plaintiff-appellant.
    Breazeale, Sachse & Wilson, Frank P. Si-moneaux, Baton Rouge, for defendant-ap-pellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

The State of Louisiana, through the Division of Administration, (State) filed suit against Algernon Blair, Inc., (Blair) and its surety for damages resulting from alleged breaches of contract for the construction of the University Medical Center in Lafayette. Blair timely removed the suit to federal court and filed there in its answer a motion to dismiss for failure to arbitrate and also a motion to stay the proceedings and compel arbitration. Subsequently, the case was remanded to the state court because of the federal court’s lack of jurisdiction. The plaintiff then filed a motion to terminate arbitration proceedings previously initiated by the defendant, which involved various claims of the defendant and its subcontractors against the state, and to consolidate those claims in the present proceeding. The defendant filed a rule to show cause why this suit should not be stayed pending arbitration. The district court ordered the proceeding stayed and the State has appealed. We affirm.

The only issue presented by this appeal is whether the trial court erred in staying the proceedings pending arbitration.

The contract with which we are concerned, dated July 7, 1977, contains the following provision:

“7.10 ARBITRATION
“7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subpara-graph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subpara-graphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.”

The Louisiana Arbitration Law, LSA-R.S. 9:4201 et seq., “reflects a legislative policy favoring arbitration as a tool for speedy resolution of contract disputes” and states that provisions for arbitration “in valid contracts shall be irrevocable.” Willis-Knighton Med. Ctr. v. So. Builders, Inc., 392 So.2d 505 (La.App. 2 Cir. 1980).

Section 4201 of Title 9 provides:

“A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” [Emphasis added.]

Section 4202 mandates the trial court to grant a stay in any proceeding brought in violation of an arbitration agreement. It says:

“If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.”

Relying upon the exception contained in Section 4201, that an arbitration provision is not valid and enforceable if a ground exists for the revocation of the contract, plaintiff argues that since Blair failed to comply with its contractual obligations due to poor workmanship, time overruns and its subsequent abandonment of the project, the State has the right to dissolve the entire contract, including the arbitration provision therein. We disagree.

In Bodman, Murrell & Webb v. Acacia Found. of L. S. U., 246 So.2d 323 (La.App. 1 Cir. 1971), writ denied 258 La. 766, 247 So.2d 864 (1971), the court was confronted with a somewhat similar situation and contention. An architect sought arbitration under the arbitration provisions of the contract to resolve a dispute over the owner’s right to terminate his contract because of the alleged failure of the architect to meet his time schedule and budget limitations. The contract provided that “all questions in dispute under this agreement shall be submitted to arbitration...” The owner argued that if the contract containing the arbitration provision is breached in its entirety, then the arbitration provision falls with the remainder of the contract and cannot be enforced by the offending party. In rejecting this contention the court reasoned:

“We are also of the opinion that the question of a total breach of the contract is arbitrable under both the act and the specific arbitration provision in this case. It cannot be argued that language such as ‘All questions in dispute under this agreement’ or ‘a controversy thereafter arising out of the contract’ does not include a failure to perform thereunder.”

In George Engine Co., Inc., v. Southern Shipbuilding Corp., 350 So.2d 881 (La.1977), our supreme court distinguished Bodman, saying, “the Bodman case involved a factual issue of contract performance, whereas the case at bar involves the legal issue of the validity in its inception of the contract itself, based on the alleged lack of valid consent.” Thus, the exception in Section 4201 emphasized above is confined to grounds involving consent that would vitiate the contract ab initio.

No such contention is made in this case. The state does not question the validity of the agreement at its inception. It is simply claiming damages for Blair’s alleged failure to perform according to its provisions. As the supreme court said in Stone v. Stone, 292 So.2d 686, 692 (La.1974):

“A party cannot evade his agreement to arbitrate performance under the contract by instead filing a suit to annul the contract itself based on this factual issue of nontimely performance, a factual issue of contract performance within the intended scope of the arbitration clause. See Domke on Commercial Arbitration, Section 9.04 (1968).”

Section 4201, of course, expressly states that a controversy arising from “the refusal to perform the whole or any part” of the contract is an issue that may be included in the irrevocable arbitration clause.

We also cannot agree with the plaintiff’s position that LSA-C.C. Art. 2765 is applicable in this situation. The state has never attempted to cancel the contract. The petition simply alleges breaches and abandonment thereof by Blair for which damages should be awarded.

Nor do we find any merit in the plaintiff’s contention that Blair waived its right to arbitration by the failure to raise the issue through a dilatory exception filed prior to answer.

The failure of a party to arbitrate in accordance with the terms of an agreement may be raised either through a dilatory exception of prematurity demanding dismissal of the suit or by a motion to stay the proceedings pending arbitration. LSA-R.S. 9:4202; and LSA-C.C.P. Art. 926.

As previously mentioned, in the federal court the defendant filed a pleading requesting dismissal of the suit for failure to arbitrate and, reserving its rights in that regard, answered the allegations of the petition. Simultaneously, it also filed in that court a separate motion to stay the proceedings pending arbitration. After the case was remanded Blair filed in the district court a rule to show cause why the suit should not be stayed pending arbitration. Under these circumstances the defendant did not waive its right to have the proceedings stayed pursuant to La.R.S. 9:4202.

Finally, since there exists a valid arbitration agreement with respect to the controversies involved in the case, the parties must proceed with arbitration in accordance with their agreement. Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La.1974).

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs which are fixed at $626.57.

AFFIRMED.


author: STOKER, Judge.

text:
    Clarence BOURQUE, et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 8823.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Roger C. Sellers and Jan F. Rowe, Abbe-ville, for plaintiffs-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara and Richard J. Petre, Jr., McBride & Foret, Glynn Rozas, Lafayette, Funderburk & Conque, J. Isaac Funderburk, Abbeville, William P. Comeaux, Erath, for defendants-appellees.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

In this tort action plaintiff, Mary Penn Bourque, individually and as natural tutrix of her six year old son, Louis Bourque, seeks to recover damages sustained by her son in an auto-pedestrian collision. Plaintiff named Patricia Bellaire, driver of the automobile, and her insurer, Allstate Insur-anee Company, as defendants in the original petition. State Farm Mutual Automobile Insurance Company intervened to recover medical payments made for Louis Bo-urque’s injuries. In a supplemental and amending petition, plaintiff alleged that she was covered by uninsured motorist insurance issued by State Farm Mutual Automobile Insurance Company, and she named State Farm as an additional defendant. At trial counsel for plaintiff moved to dismiss Patricia Bellaire from the lawsuit as a party defendant, but reserved all rights against Allstate Insurance Company and State Farm Mutual Automobile Insurance Company. After trial on the merits the jury rendered judgment for the defendants. Plaintiff has appealed, urging that the jury manifestly erred in its conclusion that the defendant driver, Patricia Bellaire, was free of any negligence.

FACTS

On Saturday, January 13, 1979, at approximately 6:15 PM on a dark, cloudy night, an automobile driven by Patricia Bel-laire struck Louis Bourque as he attempted to cross Charity Street near its intersection with Lamar Street in Abbeville, Louisiana.

Charity Street runs east and west. It is four lanes in width, two lanes in each direction, without any median. From curb to curb, Charity Street measures 41 feet. At the time of the accident the defendant was heading west on Charity Street in the lane of traffic nearest to the curb. Louis Bo-urque attempted to cross Charity Street from the south side to reach Guilbeau’s Store located on the northwest comer of the intersection. He had crossed three lanes of the street when the impact occurred. The accident report placed the point of impact eighteen feet north of the centerline of Charity Street and forty-five feet west of the centerline of Lamar Street.

Plaintiff testified that she was traveling at a speed of 25 to 30 miles per hour in a 35 miles per hour speed zone; that the child ran in front of her automobile, from left to right; and that she immediately applied her brakes upon becoming aware of the child. She swerved to avoid him but was unable to stop in time.

Two witnesses who saw the accident testified at the trial. Hazel Turner was at the laundromat on the south side of Charity Street located immediately opposite of Guil-beau’s store. The evidence indicated that there was no street lighting on the laundromat side of Charity Street by the Lamar Street intersection. Hazel Turner testified that as she was leaving the laundromat in her car, she noticed Louis Bourque in her headlights standing next to a sign pole in front of the laundromat. The side of the street in front of the laundromat was dark and there was a three foot high hedge between the sign pole and a telephone pole along the street. Hazel Turner testified that upon leaving the laundromat in her car, she entered the outside lane near the laundromat and proceeded in an easterly direction. Hazel Turner was therefore traveling in the opposite direction from Patricia Bellaire who was traveling in a westerly direction. After passing Louis, Hazel Turner observed him in her rearview mirror running across the street and remarked to her mother that the young boy was going to be hit by an automobile. She did not see the actual impact but saw Louis fall down.

Kip Sonnier, who was in front of Guil-beau’s store at the time of the accident, testified that he heard defendant apply her brakes and turned to see her swerve to avoid hitting Louis Bourque. He also said that Louis was running “real hard” across the street from the dark side of the street across from the store. Kip Sonnier did not see the car hit Louis, but he did see Louis fall into the store’s parking lot close to the car.

STANDARD OF CARE

Plaintiff argues that under the standard set forth in Baumgartner v. State Farm Mutual Auto. Ins. Co., 356 So.2d 400 (La.1978), Patricia Bellaire was negligent for failing to see Louis Bourque in a position of peril when she should have seen him. The court in Baumgartner stated:

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

In the Baumgartner case, the court found that a motorist who hit a pedestrian should have seen the pedestrian from a distance of at least 200 feet since the view was unobstructed.

Plaintiff also argues that the facts of the case of Pea v. Smith, 224 So.2d 37 (La.App. 1st Cir. 1969), writ denied, 254 La. 795, 226 So.2d 923 (La.1969), are similar to the facts in the instant case, and that the ruling should therefore be the same in both cases. In Pea, the court found a driver negligent for striking a five year old child who darted across the road. The evidence in that case indicated that the child was standing on the shoulder of the road in broad open daylight before he ran across the road, and that he was in plain view for a considerable period before the accident.

In Baumgartner and Pea, the courts found that the drivers should have discovered the presence of the pedestrians in a position of peril in time to have taken actions to avoid injuring the pedestrians. The evidence in both cases was that the pedestrians were visible for considerable periods of time before the drivers actually saw them. In the case before us, however, the evidence indicates that Louis Bourque ran quickly and suddenly from the dark side of the road and from a position that may have been further obscured from the driver’s view by tall hedges. Patricia Bellaire testified that she did not see Louis Bourque until he was directly in front of the car where he was illuminated by her headlights. Therefore, we cannot say that the jury was clearly wrong in finding that Patricia Bel-laire was not negligent in that there was ample evidence adduced at trial that she neither saw nor should have been Louis Bourque in time to avoid striking him.

This Court in Keel v. Thompson, 392 So.2d 713 (La.App. 3rd Cir. 1980) gave the following standard to be applied in cases of accidents between vehicles and small children:

“While the law imposes a high degree of care upon a motorist operating a vehicle on streets and highways in the vicinity of small children, a driver is not the insurer of the safety of children playing near or along a street or highway. If a motorist is proceeding at a lawful and reasonable rate of speed, maintaining a proper lookout, and otherwise obeying the rules of the road, he will not be held liable for injuries to a child who suddenly darts or dashes into the path of his vehicle from a concealed position in such a way that an accident cannot be avoided. When a driver has employed all reasonable precautions to avoid an accident and a sudden act of a child creates an emergency rendering it impossible for the motorist to avoid striking the child, the accident is considered unavoidable and the motorist is not liable.
. .. Also see Bruno v. Daniels, 328 So.2d 739 (La.App. 4 Cir. 1976), where the Court said that the duty to exercise greater than ordinary care to avoid injury to a child arises only upon the motorist becoming aware of the child or under circumstances where he should have been aware of the child. In other words, unless the motorist knows or has reason to know that a child is in the vicinity of the street, his duty is to use ordinary care and caution in the operation of his vehicle.”

The evidence in this case indicates that the defendant was proceeding at a safe speed, below the speed limit, and that she was otherwise in the exercise of reasonable care in the operation of her vehicle, when Louis Bourque suddenly ran from a concealed position into the path of her vehicle in such a way that she could not avoid hitting him. Furthermore, defendant was unaware of Louis’s presence before he ran in front of her car and there were no circumstances at the time of the accident which should have alerted defendant of the possibility of a small child suddenly dashing across the busy street after dark. Therefore, we cannot say that the jury was clearly wrong in failing to find negligence on the part of Patricia Bellaire. For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . Mary Penn Bourque was substituted as proper party plaintiff in this suit upon the death of her husband, Clarence J. Bourque.