author: GUIDRY, Judge.

text:
    Gilbert L. DOZIER, Commissioner Louisiana Department of Agriculture ex rel. LOUISIANA SWEET POTATO ADVERTISING COMMISSION, Plaintiff-Appellee, v. Louis BURLEIGH, Defendant-Appellant.
    No. 7403.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    See also, 380 So.2d 201.

      Donald Soileau, Mamou, for defendant-appellant.
    Wilbur W. Sasser, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   GUIDRY, Judge.

Defendant-appellant, Louis Burleigh, appeals from a default judgment holding him liable for delinquent taxes and a 20% penalty thereon, said judgment being in the total sum of $696.64.

The record reveals that the Commissioner of the Louisiana Department of Agriculture filed suit on July 5, 1978, against defendant to recover taxes assessed against defendant during the period of :'975 to 1976 in the amount of $577.20. The Commissioner additionally sought to recover a 20% delinquency penalty on said amount as provided by LSA-R.S. 3:458. Defendant failed to file an answer or any other pleadings in response to the suit. On April 30, 1979, a preliminary default was entered against defendant.- On June 25, 1979, the preliminary default was confirmed and judgment rendered against defendant. From this judgment defendant perfected a suspensive appeal.

This case was consolidated for appeal with the matter entitled Gilbert Dozier, Commissioner, Louisiana Department of Agriculture ex rel., Louisiana Sweet Potato Advertising Commission versus Ira Bur-leigh, our docket number 7404. Except for the amount of judgment; the period for which taxes were assessed; and, the date on which a preliminary judgment of default was entered the cases are similar and present for consideration identical issues. Although we render separate decrees we will discuss both cases in this opinion.

Defendants contend the judgments should be reversed on three grounds:

1. The judgments should be annulled because the Department of Agriculture misled them, through their counsel, to believe that the suit was going to be settled;
2. The judgments should be reversed because they are not subject to the tax imposed under R.S. 3:455; and,
3. The judgments should be reversed because they were rendered on the basis of insufficient evidence.

Defendants’ contention that the judgments should be annulled on appeal because of alleged misleading conduct or ill practices on the part of plaintiff is without merit.

We find no evidence in the trial records to support defendants’ contention of misleading conduct or ill practice by plaintiff’s attorneys. We cannot speculate on facts asserted in brief which are not properly a matter of record and are not therefore properly before us.

It is well established in our jurisprudence that the case presented on appeal from a default judgment is the case that was heard and decided by the trial court and which is contained in the record. State v. Sommerville, 112 La. 1091, 36 So. 864 (1904); Young v. Warner, 283 So.2d 547 (La.App. 1st Cir. 1973).

Counsel for defendants apparently fail to take into account the distinction between a default judgment which may be erroneous as a matter of law, because of an insufficiency of evidence or other illegality apparent on the face of the record; and, one obtained by fraud, ill practice, or misrepresentation of which the record is void. Appellate review can cure the former case, whereas the remedy of the latter lies solely in an action to annul as provided by LSA— C.C.P. Article 2004. See State v. Sommerville, supra; Walsh v. Walsh, 215 La. 1099, 42 So.2d 860 (1949), cert. denied, 339 U.S. 914, 70 S.Ct. 575, 94 L.Ed. 1340 (1950); Johnson v. Jones-Journet, 320 So.2d 533 (La.1975).

Likewise, we find defendants’ second contention without merit. The gravamen of this contention is to question the constitutionality of the application of LSA-R.S. 3:455 to a producer shipping his own sweet potatoes. Defendants in this regard principally rely on Article 7 Section 21(C)(11) of the Louisiana Constitution of 1974 and the case of Stanford v. Louisiana Sweet Potato Advertisement and Development Commission, 255 La. 96, 229 So.2d 712 (La.1969).

Defendants failed to raise this constitutional issue and/or produce evidence in support thereof in the trial court and thus we cannot legally consider such issue. In Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (La.1971) our Supreme Court stated:

“Although severa] exceptions have been recognized, the general rule prevails that a litigant cannot raise the constitutionality of a statute or ordinance unless its unconstitutionality is specially pleaded and the grounds particularized, (citations omitted)
As a corollary of the above rule, it is also well accepted that a litigant who fails to plead the unconstitutionality of a statute cannot legally raise the constitutional issue in the appellate court. Maher v. City of New Orleans, 256 La. 131, 235 So.2d 402 ...”

Although in Summerell, supra, it was recognized that an appellate court is empowered under LSA-C.C.P. Article 2164 to remand a case to the trial court to afford a party the opportunity to amend his pleadings to plead the unconstitutionality of a statute, we decline to do so in the instant case for the following reasons. Under LSA-R.S. 3:456 the tax imposed and levied by Section 455 is collectible by the Louisiana Department of Agriculture from the shipper or processor, without regard to whether or not he is the grower or producer. The tax imposed by the cited statute has been declared by our Supreme Court to be a license tax as opposed to a tax on property. Louisiana State Department of Agriculture v. Sibille, 207 La. 877, 22 So.2d 202 (La.1945); Stanford v. Louisiana Sweet Potato Advertising & Development Commission et al., 255 La. 96, 229 So.2d 712 (La.1969). When the cited cases were decided the Louisiana Constitution of 1921 was in effect and Article 10 Section 8 thereof specifically prohibited the imposition of a tax on the privilege or right to pursue the occupation or pursuit of farming. Thus having found the tax imposed by LSA-R.S. 3:455 and its forerunner to be a license tax, the court in the cited cases declared the act violative of the constitution insofar as said act levied a tax on sweet potatoes shipped or transported by the grower himself.

The provisions of Article 10 Section 8 of the 1921 Constitution were not carried over in the Louisiana Constitution of 1974, and so far as we have been able to determine there is no provision in the latter which prohibits the imposition of a tax on the privilege or right to pursue the occupation or pursuit of farming. Therefore since the tax at issue is a license tax and the 1974 Louisiana Constitution contains no provision prohibiting the legislature from imposing a tax on the right to pursue the occupation of farming, R.S. 3:455 is now applicable to shippers and processors without regard to their status as producers or growers.

Further, we find appellants reliance on Article 7 Section 21(C)(11) of the 1974 Constitution misplaced. The cited section proscribes the imposition of ad valorem taxes on agricultural products while owned by the producer. As previously demonstrated the tax sought to be levied in the instant cases is not a tax on property.

Finally, defendants contend there was insufficient evidence to support the default judgment. The requirements for confirming a default judgment are set forth in LSA-C.C.P. Article 1702, which provides:

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.”

In confirming a default, the plaintiff has the burden of proving by competent evidence, sufficient to establish a prima fa-cie case, the essential elements of his claim as fully as if each of the allegations had been specifically denied. Holbrook v. Palermo, 352 So.2d 419 (La.App. 3rd Cir. 1977).

In this case, plaintiff presented testimony of two witnesses and documentary evidence at confirmation to prove that the defendant owed the amount of taxes as alleged in plaintiff’s petition.

Louis Duplechain, the Executive Director of the Louisiana Sweet Potato Commission charged' with responsibility for collection of the taxes, testified that the defendants had failed to pay the taxes imposed on sweet potato shippers. Sweet Potato Dealers Certificates were introduced into evidence, with proper foundation, which showed the amount of taxes owed to the Department of Agriculture by defendants. Mr. Fontenot, an employee of the Department whose duties included the collection of taxes, testified that when a shipper required an inspection of his produce, an inspector would be sent to inspect the potatoes. After inspecting the produce, the inspector would complete the sweet potato dealer’s certificate and give a copy to the shipper. The name of the shipper, the amount of produce shipped, and the amount of tax imposed were listed on the certificate.

The certificates, considered with the testimony of Mr. Fontenot and Mr. Duple-chain, establish a prima facie case sufficient to support the judgment by default.

Accordingly, for the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . The taxes were assessed pursuant to LSA-R.S. 3:455, which provides as follows:
      “There is imposed and levied a tax at the rate of four cents per bushel of fifty pounds or fraction thereof on all Louisiana sweet potatoes inspected for shipment to fresh market outlets and to processing plants, and on sweet potatoes produced out-of-state and moved into Louisiana; except that a ten percent discount will be allowed on all processing stock to compensate for waste.”

      . LSA-R.S. 3:458 provides:
      “Any handler, processor, or shipper of sweet potatoes who willfully evades the payment of the tax provided for in R.S. 3:455, or who violates any other provisions of this Part, shall be fined not more than five hundred dollars. If any shipper or processor fails to pay any tax due under the provisions of this Part within thirty days after the tax payment is due, he shall be liable to a penalty of twenty percent thereof, and the attorney general shall enforce payment of the tax and penalty by civil action against the shipper or processor for the amount of the tax and penalty.”

      . A preliminary judgment of default was entered in the suit which bears our docket number 7404 on February 21, 1979 and resulted in a judgment in favor of plaintiff in the sum of $5470.32, representing delinquent taxes and the penalty thereon, assessed for the period 1975 through 1977.


source: Caselaw Access Project

license: Public Domain

text:
    Gilbert L. DOZIER, Commissioner, Louisiana Department of Agriculture ex rel. LOUISIANA SWEET POTATO ADVERTISING COMMISSION, Plaintiff-Appellee, v. Ira BURLEIGH, Defendant-Appellant.
    No. 7404.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Donald Soileau, Mamou, for defendant-appellant.
    Wilbur W. Sasser, Baton Rouge, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   GUIDRY, Judge.

This is a companion case to the matter entitled Gilbert Dozier, Commissioner of Department of Agriculture v. Louis Burleigh, 380 So.2d 197.

For the reasons assigned therein, the judgment in favor of plaintiff and against defendant is affirmed at appellant-defendant’s cost.

AFFIRMED.


author: CUTRER, Judge.

text:
    Randall Paul GASPARD, Plaintiff-Appellee, v. Weston J. STUTES et al., State of Louisiana, Department of Transportation, City of Abbeville, Defendants-Appellants.
    No. 7409.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      John W. King, Baton Rouge, for defendants-appellants.
    Voorhies & Labbe, E. Greg Voorhies, Lafayette, Caffery, Duhe, Oubre & Gibbens, John Blackwell, New Iberia, Cooper & Son-nier, Calvin W. Woodr-ff, Abbeville, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This is a tort suit arising from an inter-sectional collision. Randall Paul Gaspard and his insurer, Southern Farm Bureau Casualty Insurance Company (Southern Farm Bureau), seek to recover property damages and medical expenses from Weston Stutes, the City of Abbeville, and the State of Louisiana through the Department of Transportation and Development (Department). The trial court awarded judgment in favor of Gaspard and Southern Farm Bureau, and against the Department for the sum of $1,755.88. Gaspard’s demands against the City of Abbeville and Stutes were dismissed. The Department appeals.

The issues raised on appeal are:

(1) Was the Department negligent in failing to notify the Abbeville Police Department of a malfunctioning light so that traffic could be directed by the police at the intersection where the collision occurred;

(2) Was Weston J. Stutes negligent in proceeding into the intersection; and

(3) Was Theresa Gaspard, the driver of the Gaspard vehicle, guilty of negligence.

The accident giving rise to the suit occurred on January 9,1977, at approximately 4:07 P. M., in Abbeville, Louisiana. Immediately prior to the accident, Stutes was proceeding in his pickup truck in an easterly direction on St. Victor Street, a two lane, two-way street. At approximately the same time, Mrs. Gaspard, plaintiff’s wife, was proceeding in a northerly direction on St. Charles Street, a two lane, one-way street. The accident occurred when the vehicles collided at the intersection of St. Victor and St. Charles Streets.

Traffic at the intersection was controlled by three semaphore traffic signals. A four-way traffic signal was located above the center of the intersection, which signaled traffic approaching on both St. Charles and St. Victor. A two-way signal (in the northeast quadrant of the intersection) signaled northbound traffic on St. Charles Street and eastbound traffic on St. Victor. The undisputed facts reveal, however, that this latter two-way signal, for some unknown reason, had been turned 90 degrees clockwise prior to the accident and, in its new position, signaled eastbound traffic on St. Victor, but no signal appeared for northbound traffic on St. Charles. In this position, northbound traffic on St. Charles would get no signal from this two-way light as such traffic would be facing the back side of the signal which was blank. Such traffic on St. Charles would be signaled only by the four-way signal.

This misalignment of the two-way light produced the following effects on the drivers in this suit. As Mrs. Gaspard approached the intersection, the only signal she could see would be the four-way signal near the middle of the intersection. If the four-way light showed green for Mrs. Gas-pard on St. Charles, the two-way light, at the same time, would also show green for Stutes on St. Victor. The four-way light, at that time, however, would be reflecting a red light for eastbound traffic (Stutes) on St. Victor.

Prior to the accident, at (either 3:00 or) 3:27 P.M., the Lafayette District Office of the Department was notified that a traffic signal at the intersection of St. Victor and St. Charles Streets in Abbeville was malfunctioning. A repair crew was dispatched from Lafayette to investigate and repair the problem. The repair crew arrived at the intersection in Abbeville at 4:21 P.M., several minutes after thr accident, and repaired the light which had rotated out of position. At no time following its receipt of information regarding the malfunctioning signal did the Department office in Lafayette make any attempt to inform the Abbeville Police Department of the problem.

The trial judge found that the Department’s failure to notify the Abbeville Police Department of the problem was negligence and such negligence was the proximate cause of the accident. He therefore found only the Department liable to the plaintiffs and judgment was rendered accordingly.

THE DUTY OF THE DEPARTMENT

We first consider whether the Department is liable for damages. The Department takes the position that its duty is to repair, with dispatch malfunctioning traffic signals upon actual or constructive notice. The Department argues that its duty does not extend to the notifying of local police authorities as it cannot compel such authorities to respond to such notice. We disagree with this position.

It is well settled that a governmental authority that undertakes to control traffic at an intersection must exercise a high degree of care for the safety of the motoring public. Lochbaum v. Bowman, 353 So.2d 379 (La.App. 4th Cir. 1978), writs den., 354 So.2d 1380 (La.1978); McDaniel v. Welsh, 234 So.2d 833 (La.App. 1st Cir. 1970).

In the case of Lochbaum v. Bowman, supra, an accident occurred at an intersection controlled by a malfunctioning traffic signal. The court concluded that the Department of Highways, which was responsible for the maintenance of the traffic signal, was negligent in failing to alert the local police authorities so that traffic could be directed manually until repairs could be made.

We agree with the position taken in Lochbaum that it is the duty of the Department to notify local police authorities of a malfunctioning traffic signal at an intersection in order that traffic at the intersection can be manually directed until the repairs can be made. This is consistent with the legal duty to exercise a high degree of care in maintaining traffic signal devices under its control. Furthermore, Francis Wyble, Assistant District Maintenance Engineer, testified that it was the policy of the Department to notify local police authorities of any serious malfunction of a traffic signal.

Sergeant Earl LeBlanc, a member of the Abbeville Police Department, testified that two units were on patrol at the time of the accident. He received a call reporting the accident at 4:07 P.M. and he arrived at the scene four minutes later to investigate and to direct traffic. He also stated that, as a matter of policy, when the Abbeville City Police receives a report of a malfunctioning light, an officer is immediately dispatched to the intersection of the malfunctioning light. Such officer turns the light off at the switch box and directs traffic manually until the malfunction is remedied. No such call from the Department was received by the Abbeville Police Department before the accident in question.

From this testimony, we conclude that had the Department notified the Abbe-ville Police Department of the malfunction problem when they received a report of same, an officer could have been timely dispatched to the scene to manually direct traffic. The effect of the misalignment of the light would have been alleviated. The failure of the Department to notify the Abbeville, Police Department of the’problem was a cause-in-fact of the accident. The risk created, under the circumstances presented, was within the scope of the duty owed by the Department. The Department created a liability to plaintiffs for the breach of such duty.

ALLEGED NEGLIGENCE OF THE DRIVERS

The Department argues that both drivers should have exercised greater care in entering the intersection.

Stutes testified that he had gone through this intersection around noon of that day as he left his work nearby. He had noticed no malfunction at that time. He stated that as he approached the intersection, just prior to the accident, he was traveling in his right lane, looking at the two-way light which was straight ahead of him, and reflecting a red signal. He brought his vehicle to a stop very close to the intersection. In order for him to see to his right along St. Charles, it was necessary to stop close to the intersection to be able to see around an obstruction located on that corner. The two-way signal, straight ahead of him, turned green and he started into the intersection where he collided with Mrs. Gaspard’s vehicle. Stutes testified that he did not see Mrs. Gaspard entering the intersection until it was too late to avoid the accident. He stated that he did not observe the four-way light above and to his left as he stopped at the intersection. The first Stutes knew of a conflict between the four-way and the two-way signals was after the accident when he and the police began checking the signals and found the misalignment of the two-way signal.

Mrs. Gaspard testified that as she approached the intersection, the four-way signal was the only signal reflecting a light to control her movement. As she approached the intersection, this four-way light was reflecting green. She proceeded into the intersection where the collision occurred. She did not see Stutes entering the intersection until it was too late to avoid the accident. She was not aware of the misalignment of the two-way light until after the accident.

The law requiring a motorist’s duty when approaching an intersection controlled by a semaphore signal, who is favored by a green light, has been recently set forth as follows in the case of Champagne v. McDonald, 355 So.2d 1335 (La.App. 3rd Cir. 1978):

“A motorist approaching an intersection controlled by semaphore signals, who is favored by a green light, is entitled to assume that traffic approaching the intersection from either side on a red light will comply with the red light and respect his right-of-way. Bourgeois v. Francois. 245 La. 875, 161 So.2d 750 (La.1964); Carter v. New Orleans Public Service. Inc.. 305 So.2d 481 (La.1974). The favored motorist is not obligated to look to his left or right before entering the intersection. Correge v. Webb. 284 So.2d 355 (La.App. 4th Cir. 1973, writ refused); Bradley v. Allstate Insurance Co., 307 So.2d 132, supra; Keyser v. Triplett. 322 So.2d 294 (La.App. 1st Cir. 1975, writ refused); Welton v. Falcon. 341 So.2d 564 (La.App. 4th Cir. 1976, writs refused), and will be held accountable only if he could have avoided the accident with the exercise of the slightest degree of care and fails to do so. Bradley v. Allstate Insurance Co., supra; Bourgeois v. Francois, supra. All that is required is that the favored motorist maintain a general observation of the controlled intersection. Jordan v. Great American Insurance Company. 248 So.2d 363 (La.App. 4th Cir. 1971); Modica v. Manchester Insurance & Indemnity Co., 284 So.2d 791 (La.App. 4th Cir. 1973).”

Under the particular and unusual circumstances presented herein, where both drivers were proceeding into the intersection on a green light, with neither driver having any reason to know that a misalignment of signal lights existed, and with both drivers believing that the other driver had a red light and would stop, we conclude that the trial judge correctly determined that both drivers were free of negligence upon entering the intersection. The record does not support the Department’s position that the drivers failed to exercise the degree of care required of them by the law as set forth above.

The Department also argues that Stutes had knowledge of facts which would put him on notice that the signal would rotate out of position. The Department contends that Stutes was negligent by proceeding into the intersection with such' knowledge.

The record simply does not support the Department’s argument that Stutes had knowledge of any facts which would put him on notice that the two-way light may have rotated out of position. The fact that Stutes had been previously told that the two-way light had wires placed upon it to keep it from being affected by wind did not put Stutes on notice that the ‘light would rotate out of position, causing a misalignment as that existing at the time of the accident.

The case of Bourgeois v. State, Through the Dept. of Highways, 255 So.2d 861 (La.App. 4th Cir. 1972), cited by the Department’s counsel, is not applicable. In that case, the driver, only hours before the accident, had been through the same intersection and was aware of the malfunctioning light prior to her accident. No evidence appears in this record that Stutes knew or should have known that the traffic signal was misaligned as he entered the intersection.

For the reasons assigned, the judgment of the trial court is affirmed. Costs are assessed to the defendant-appellant.

AFFIRMED.

      . A one-way signal controlled the westbound traffic on St. Victor. This signal, however, does not enter into the issues of this suit.

      . The court, however, found that under the circumstances of Lochbaum, the negligence of the Department of Highways was not a legal cause of the accident. In that case, the light facing one of the drivers continuously reflected green while the other light facing the other driver continuously reflected red. The court found that the breach of duty by the Department did not create an unreasonable risk of harm that one driver would not use care in entering the intersection when faced with a light which was continuously on red.


author: DOMENGEAUX, Judge.

text:
    John W. HUMBLE, Sr. et al., Plaintiffs-Appellees, v. JOHN W. NUGIER REAL ESTATE & INSURANCE AGENCY, INC. et al., Defendant-Appellant.
    No. 7410.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Writ Refused March 21, 1980.
    Privat & Regan, Kenneth O. Privat, Crowley, for defendant-appellant.
    Aaron, Aaron & Chambers, Noble M. Chambers, Crowley, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   DOMENGEAUX, Judge.

This suit for a partition in kind was instituted by plaintiffs who seek to be vested with the full, perfect ownership of a determinable piece of property in which they own an undivided one-half interest.

The facts reveal that the plaintiffs, John W. Humble, Sr., John W. Humble, Jr., and Richard Wynn Humble, are the owners of an undivided one-half interest in approximately 320 acres of land which consists of three separate parcels. The other undivided one-half ownership interest is owned in naked ownership by defendant John W. Nu-gier Real Estate & Insurance Agency, Inc., subject to a usufruct owned by the other defendant, Mary Ellen Abshire.

In due course, after suit was filed, plaintiffs filed a motion for summary judgment in the trial court. They introduced affidavits clearly evidencing that the property was divisible in kind. They also introduced the deposition of John W. Nugier, the president of the defendant family owned corporation. No opposing affidavits or other evidence was submitted by the defendants. The trial court granted the motion for summary judgment and ordered the partition. We affirm.

Only the defendant John W. Nugier Real estate & Insurance Agency, Inc. has appealed.

The facts in this case are uncontested. The sole issue is, a legal question, whether the trial court erred in granting the partition in kind as requested by the plaintiffs.

The pertinent Civil Code Article, cited by both parties for their respective positions, is Article 543, which reads as follows:

“A coowner whether or not he is also a usufructuary of an undivided part of a thing may demand its partition in kind to the extent necessary to enable him to obtain the perfect ownership of a determined part. Partition by licitation is not allowed even though there is a person who is both a usufructuary and an owner.” (Acts 1976, No. 103, § 1, eff. Jan. 1, 1977).

The official comments listed under the article are significant. Comment (a), applicable in our present case, states:

“(a) The first sentence of this article allows partition of the property in kind, that is, free of the usufruct, at the demand of a person to the extent that he holds undivided interests in usufruct and in ownership. There is no contrary holding in Louisiana jurisprudence. In the leading ease of Nelson v. Smith, 121 La. 170, 171, 46 So. 200, 201 (1908), the question was left open: ‘We may remark, in conclusion, that, it having been conceded that the property here in question is not susceptible of division in kind, we have not felt called upon to express an opinion upon the question.’ In France, commentators and jurisprudence are in agreement that property susceptible of division in kind may be so partitioned, when the same person holds undivided interests in usufruct and in ownership. As a result of such a partition, the person holding undivided interests in both usufruct and ownership may acquire perfect ownership over certain individually determined things. See 3 Planiol et Ripert, Traité pratique de droit civil franpais 758 (2d ed. Picard 1952). This question has been resolved in favor of the availability of partition in kind in appropriate circumstances.” (Emphasis added).

This stated policy, in favor of partition in appropriate circumstances, is supported by Civil Code Article 1289, which says:

“No one can be compelled to hold property with another, unless the contrary has been agreed upon; any one has a right to demand the division of a thing held in common, by the action of partition.”

Appellant argues that partition in kind is inappropriate in this case based on Comment (c) to Civil Code Article 543, which says:

“(c) In the absence of elements held in common, partition in kind or by licitation among naked owners and usufructuaries is excluded. Smith v. Nelson, 121 La. 170, 46 So. 200 (1908); 2 Aubry et Rau, Droit civil franpais 639 (7th ed. Esmein 1961). These persons do not hold the same type of interest by undivided shares, i. e., they do not possess rights of the same nature over the same object. Partition upon demand of the usufructu-ary would constitute, in effect, denial of ultimate perfect ownership; partition upon demand of the naked owner would result in termination of the usufruct or in its transfer to the proceeds of the sale of the property.”

Defendant-appellant argues that the plaintiffs cannot seek a partition as they do not hold any element in common with the defendants. This is based on plaintiffs owning the perfect ownership of a one-half undivided interest while one defendant-appellant owns an undivided one-half naked ownership subject to the other defendant’s ownership of the usufruct.

This argument must fall for two reasons. First, plaintiffs do hold the same elements held by all the defendants. Plaintiffs, as the perfect owners of an undivided one-half, have the three constituent elements of civil law ownership, namely, the usus, fruc-tus, and abusus, (rights to use, enjoy and dispose). Defendant-appellant, John W. Nugier Real Estate & Insurance Agency, Inc., as naked owner of the undivided one-half interest, has the right of abusus. Defendant, Mary Ellen Abshire, as the usu-fructuary of an undivided one-half interest, has the usus and the fructus. Thus the plaintiffs do hold the same elements in common when compared to both defendants.

The second reason defendant-appellant’s argument must fall is based on Civil Code Article 1289, supra. The strong statement of policy in that article makes it clear that partitions are favored in the law, and no one should be required to hold property in indivision with another. According to defendant-appellant’s reasoning, a party could easily prohibit a co-owner in indivision from the valued right of partition. All that the party would need to do is separate the elements of ownership by the granting of a usufruct. In this situation all of the elements would not be held in common by the same parties and partition would be unavailable. The stated policy favoring partition should not be so easily circumvented.

In accordance with the foregoing, the judgment of the trial court ordering the partition is affirmed. All costs of this appeal are taxed to the defendant-appellant.

AFFIRMED.

      . Defendant Nugier, Inc. also filed a motion for summary judgment claiming that a partition, either in kind or by licitation, is not, as a matter of law, allowed herein inasmuch as the plaintiffs and one defendant are naked owners and the other defendant is a usufructuary. They claim that the different elements of perfect ownership are not held in common, thereby precluding partition. The District Judge denied defendant’s motion.

      . For a challenging discussion of the component parts of ownership, see case note “Civil Law Property — Partition of Land Subject to a Usufruct,” XXIV Louisiana Law Review 885.

      . We deem it noteworthy to make reference to a recent case, Devillier v. Devillier, 371 So.2d 1230 (La.App. 3rd Cir. 1979). Although that case had to do with a partition by licitation, making it factually different from the case at bar, it nevertheless involves some of the same legal issues. We cite the Devillier case to show its consistent holding in cases involving partition by licitation, vis-a-vis our holding herein granting a partition in kind.


author:
CULPEPPER, Judge.
      STOKER, Judge,

text:
    Kay Renee Maytorena Bordelon JUNEAU, Plaintiff & Appellee, v. Holland BORDELON and Virginia Guillot Bordelon, Defendants & Appellants.
    No. 7411.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      Harold J. Brouillette, Marksville, for defendants and appellants.
    Nelson M. Lee, Bunkie, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   CULPEPPER, Judge.

This is one of three consolidated cases involving the custody and tutorship of a six year old child, Michael Frank Bordelon, Jr. The present suit is by the natural mother, Kay Renee Maytorena Bordelon Juneau, against the paternal grandparents, Holland Bordelon and Virginia Guillot Bordelon, seeking a writ of habeas corpus ordering defendants to deliver custody to the plaintiff. The second suit, entitled “Michael F. Bordelon v. Kay Maytorena Bordelon”, 380 So.2d 213 (3rd Cir. 1980), is a suit in which a judgment was rendered on August 19, 1975 granting the husband a divorce and awarding to him the permanent custody of the child. In that suit the mother filed a rule in 1979 alleging that the father had been killed in an accident and seeking permanent custody of the child, who was alleged to be in the physical custody of the paternal grandparents. In the third case, entitled “(Tutorship of Michael Frank Bordelon, Jr., a Minor), Kay Renee Maytorena Bordelon Juneau v. Holland Bordelon and Virginia Guillot Bordelon”, 380 So.2d 214 (3rd Cir. 1980), the mother alleges that the father is deceased, and she seeks to be appointed natural tutrix. The three cases were consolidated for trial. The district judge awarded both custody and tutorship to the mother, hereafter Kay. The paternal grandparents appealed. Separate judgments are being rendered by us this date in each case.

The decisive issue is whether the trial judge erred in concluding that the child’s best interests will be better served by awarding custody to the mother instead of to the paternal grandparents.

The facts are that at the age of 16 Kay married Michael F. Bordelon on October 4, 1972. The child at issue was born of this marriage on August 7, 1973. On November 26,1974, Michael and Kay were legally separated and custody was awarded to Kay. On December 9, 1974, Kay gave physical custody to the paternal grandparents through Judge Earl Edwards. On August 19, 1975, Michael was awarded a divorce and custody. Kay married her present husband, Jerry Juneau, on October 29, 1976. On March 9, 1979, Michael was killed in an accident. On March 14, 1979, Kay filed the present suit against the paternal grandparents for a writ of habeas corpus, and on the same date she filed the suit to be appointed natural tutrix. The trial was on March 27, 1979.

In determining the issues of custody and tutorship, the trial judge applied the principles recently enumerated by this Court in the case of Tolar v. Cunningham, 368 So.2d 1188 (3rd Cir. 1979) wherein the Court stated:

“ . . . when parents compete with non-parents for custody of a child, ‘the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights.’ [and] the non-parent had the heavy burden of showing the disqualification and unfitness of the parent. Hence, it can be seen that, without lessening the effect and force of the ‘beot interests of the child’ test in a custody contest between a parent and non-parents, the Supreme Court recognizes a rebuttable presumption that the child’s best interests are better served by awarding custody to the parent.
******
“[1,2] A parent has a paramount right to custody of his or her children. Wood v. Beard, 290 So.2d 675, supra; In Re State in Interest of Thoman, 253 La. 496, 218 So.2d 571 (1969). From this parent right, the above mentioned presumption in favor of a parent in a custody contest with a non-parent arises. As noted earlier, this presumption in favor of the parent can be overcome only if the non-parent shows that the parent is unable to provide a home for the child, is unfit for custody or has abandoned the child. Wood v. Beard, supra.

The trial court also applied LSA-C.C. Article 250, which provides:

Art. 250. Persons entitled to tutorship
Art. 250. Upon the death of either parent, the tutorship of minor children belongs of right to the other. Upon divorce or judicial separation from bed and board of parents, the tutorship of each minor child belongs of right to the parent under whose care he or she has been placed or to whose care he or she has been entrusted.
All those cases are called tutorship by nature.

In excellent reasons for judgment, the trial judge gave the following analysis of these rules, in light of the facts of this case:

“First, the Court addresses itself to the ability of Kay Maytorena Bordelon Juneau to provide a home for Michael Frank Bordelon, Jr. The evidence adduced would indicate that she does have that ability. The home seems to have all the modern conveniences. Mr. and Mrs. Juneau, Kay’s in-laws live next door. Jerry Juneau, Kay’s husband, since 1976, makes $300, more or less, clear every week. They pay no rent, since the home that they live in belongs to Jerry’s parents. Jerry Juneau testified that he is very interested in making a home for Kay’s child, Michael and would most probably adopt him.
“Second, the Court must look at the fitness of Kay Maytorena Bordelon Juneau. This probably is the most disputed issue brought out in the trial. Kay was born with a low I.Q. (Dr. Dyker, a clinical psychologist, testified that from his tests, Kay’s I.Q. appeared to be approximately 75). The testimony seemed to indicate that she is a ‘slow learner’, slightly above ‘mildly mentally retarded’ on the intelligence scale. This was just one of her problems. She was also raised by a mother who, by her own testimony was an alcoholic. She also married very young and her marriage became very unhappy and ended in a divorce. During the time when she was separated from her husband, she attempted suicide by taking an overdose of a prescribed drug. She was admitted to Central Louisiana Hospital on March 7, 1975, and was released on March 26, 1975. After her release, she attended the Mental Health Clinic in Pineville, Louisiana.
“After a careful review of her hospital records, together with two letters from Dr. Charles L. Saint, Psychiatrist, (one written on June 10, 1975 and one written February 9, 1977) and after hearing the testimony of Dr. Dyker, a clinical psychologist, the Court feels that Kay Maytorena Bordelon Juneau has made remarkable emotional progress since March of 1975. A supportive husband and a good marriage seems to have made a big difference in her emotional stability. The Court was able to view Kay under what is usually a stressful situation for most people, that is on the witness stand, um der oath, and under cross-examination. The Court feels that she handled that situation with no trouble. The testimony also brought out another stressful situation. Her child born of her marriage with Jerry Juneau, was born with a very serious heart problem. The child had to have open heart surgery at the age of 2 months. The testimony indicated that she handled that stressful situation with no apparent difficulty. She also has to administer medicine to her baby twice a day and she seems able to manage that. From a physical, psychological and emotional standpoint, the Court feels that, Kay Maytorena Bordelon Juneau is fit for custody.
“There was testimony given by two witnesses, Colleen and Thomas LaCombe. Thomas testified that he had once purchased three lids of marijuana from Jerry Juneau. Colleen testified that she was present at a trailer belonging to Donnie LaBorde and Richard Scallan, when Jerry and Kay came in. Jerry then sold Richard Scallan a gram of POP. Colleen testified that she had seen Kay at Kyrle’s Club one time and her eyes were red and she appeared to have been smoking Marijuana. These are allegations of a criminal nature and certainly Jerry Juneau has the right to be presumed innocent of these allegations and he also has the right to remain silent. However, it is the welfare of the child, Michael Frank Bordelon, Jr., that the Court must consider. Their testimony is certainly worrisome to the Court. It is a proven fact that in homes where parents use drugs, children usually get neglected. There was no real evidence, however to show that either Jerry or Kay used drugs.
“The Court also feels that Jerry Juneau does not seem to fit the mold of a drug pusher. He gets up early every morning and drives to Lafayette, Louisiana, and works 8 hours a day as a carpenter and he has been doing that for over two years. After careful consideration and, with some reservation, the Court feels that Kay Maytorena Bordelon Juneau is morally fit for custody.
“This, the Court must consider, whether or not Kay Maytorena Bordelon Juneau has abandoned the child. It is true that on December 9,1974, Kay voluntarily surrendered the child, Michael Frank Borde-lon, Jr., to then Judge Earl Edwards who granted custody to defendants, Virginia and Holland Bordelon. At the time, this, action was probably the best thing that could have happened to Michael Frank Bordelon, Jr. Kay was very young, just legally separated, and living with an alcoholic mother. The hospital records which were admitted into evidence shows that Kay voiced her feeling about wanting her child back many times. The two letters from Dr. Saint were written because of requests made by then Judge Earl Edwards. The Court feels that both letters were direct results of Kay Maytorena Bordelon Juneau asking Judge Earl Edwards for custody of her son, Michael Frank Bordelon, Jr. While the Court was not privileged to the conversations between Judge Edwards and Kay, it assumes that Judge Edwards advised Kay not to try to regain custody until she was mentally and emotionally fit. The Court feels that her actions through the years from 1974 until the present time certainly do not indicate an intent to abandon the child, Michael Frank Bordelon, Jr.”

On appeal, the paternal grandparents make serious and respectable arguments that the mother is unfit. They contend (1) that she filed these suits for custody and tutorship immediately after the father’s death for the sole purpose of obtaining administration of the workmen’s compensation benefits, social security benefits and any damages recoverable by the child, (2) that the mother abandoned the child in 1974 to the father and the paternal grandparents and then found employment as a bar maid and while so employed met and started living with and later married her present husband, Jerry Juneau, (3) that the mother attempted suicide by an overdose of pills, (4) that the mother was hospitalized and treated for emotional problems, (5) that both the mother and her present husband used and/or sold marijuana and a drug named “PCP”, popularly known as “Angels Dust”. The above quoted portion of the trial judge’s written reasons shows that he carefully weighed the evidence on all of these contentions. Jurisprudence has established the rule that on pppellate review of custody cases the findings of the trial judge are entitled to great weight. We rely on this rule in the present case.

For the reasons assigned, the judgment appealed in the present case is affirmed. All costs of this appeal are assessed against the appellants.

Affirmed.

STOKER, J., concurs and will assign written reasons.

STOKER, Judge,

concurring.

I concur in the majority opinion in this case and in the two cases with which it was consolidated. Nevertheless, I concur with reluctance and deep reservations. Indeed, the trial court also indicated that it decided this custody case with some reservations. The majority opinion quotes the reasons for judgment of the trial court. Those reasons discuss the very serious charges by two witnesses who accuse Jerry Juneau of dealing in drugs. One of these drugs, PCP commonly referred to as “Angel’s Dust,” raises a most alarming spectre. Jerry Juneau is the present husband of Kay Renee Maytorena Bordelon Juneau, the mother of six year old Michael Frank Bordelon, Jr. By the action of the trial court, and our affirmance of the trial court, this six year old son may be placed in the custody of a mother whose husband deals in illegal drugs. The fact that no evidence indicates that neither the mother nor Jerry Juneau are themselves users of drugs does not lessen my concern.

The trial judge who heard and observed the witnesses, who was, therefore, in a better position than we are to assess the character of Kay Juneau and her husband, Jerry Juneau, resolved this matter in favor of the Juneaus. Despite my reluctance to do so, I feel that I have no course here other than to accept the trial court’s judgment in the matter.

It is unfortunate that this custody issue comes before us in the context of an adversary proceeding between the two sides seeking custody. No independent agency is involved. Certainly Kay Juneau has the right to have these cases decided in adversary proceedings. Nevertheless, the facts are such as to recommend the continued scrutiny of the matter by the trial court and all agencies and authorities concerned with child welfare.

Inasmuch as I am filing this separate concurring opinion applicable to this case, I feel impelled to comment on the case of Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir. 1979), cited and quoted in the majority opinion. As author of the Tolar case, I feel especially called upon to say that, while Tolar correctly states the law, the principles reiterated in Tolar should not, in my opinion, override the facts and circumstances in every case. The facts and circumstances of the Tolar case bear no resemblance to those before us here. Without reviewing the facts of the Tolar case, it may be simply said that the rule applied in Tolar was properly applied considering the facts of that case.

The portion from Tolar quoted by the majority was based on the decision of the Louisiana Supreme Court in the case of Wood v. Beard, 290 So.2d 675 (La.1974) and In re State in the Interest of Thoman, 253 La. 496, 218 So.2d 571 (1969). In the Wood case the Supreme Court found that a mother who had been sentenced to a one-year jail term in California for the crime of assault was not, by that fact alone, to be considered an unfit mother. More important, however, is the fact that the Supreme Court made it clear that the courts may, and should, inquire into the fitness of a parent seeking custody where physical custody is in non-parents. From Wood v. Beard itself, it is clear that in contests between parents and non-parents over the custody of a child the courts are not inexorably required to award custody to the parent regardless of the parent’s fitness. The Supreme Court in Wood said:

The district court may do more than inquire into the parentage of the child in a habeas corpus action, but should order the child “placed in the custody of a proper person.” C.C.P. 3830. To order a child placed in the custody of a parent who is not “a proper person” would be to ignore the welfare of the child. The welfare of the child, and not simply the enforcement of a parental right to the possession of the child, is of primary concern to the court. It is consequently appropriate that the district court inquire, when the issue is raised, whether the parent is unfit or unable to care for the child.

In Tolar we said of Wood that “the Supreme Court recognizes a rebuttable presumption that the child’s best interests are better served by awarding custody to the parent.” It should be emphasized that the presumption is rebuttable.

My feelings are that the accusations against Jerry Juneau are so serious that, if believed, they conceivably could justify a decision different from that which was made by the district court. The distribution of the “Angel’s Dust” was made in Kay Juneau’s presence according to the witness who testified. However, in support of the district judge, it should be noted that the accusing witnesses do not themselves have impeccable records. Both had been involved with drugs. One was on probation from a sentence for possession of marijuana, and the other had undergone treatment for drug abuse twice at Central Louisiana State Hospital. In addition, one witness was the nephew of the paternal grandmother, Virginia Bordelon, and the other was dating Michael Bordelon when he was killed. Consequently, the credibility evaluation made by the trial judge was not without basis. There is no justification for reversing his decision on this issue of fact. Canter v. Koerhing Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, despite my doubts or reservations, we must defer to the district court which resolved these three cases in favor of Kay Maytorena Bordelon Juneau, especially since the trial court itself considered this particular issue and gave strong written reasons for its decision.

      . Originally, when custody was given to Kay Juneau on November 22, 1974, custody was granted to her with the stipulation among others, that she exercise her custody under observation of a social welfare worker.


author: CULPEPPER, Judge. STOKER, Judge,

text:
    Michael F. BORDELON, Plaintiff, v. Kay Maytorena BORDELON, Defendant.
    No. 7412.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Harold J. Brouillette, Marksville, for defendant and appellant.
    Nelson M. Lee, Bunkie, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   CULPEPPER, Judge.

For the reasons assigned in companion case No. 7411 entitled “Kay Renee Maytore-na Bordelon Juneau v. Holland Bordelon and Virginia Guillot Bordelon”, 380 So.2d 208, in which a separate judgment is being rendered by us this date, the judgment appealed in the present case is affirmed. All costs of this appeal are assessed against the appellants.

AFFIRMED.

STOKER, J., concurs.

STOKER, Judge,

concurring.

I concur for the reasons given in the majority opinion in the companion case, Number 7411 entitled “Kay Renee Maytorena Bordelon Juneau v. Holland Bordelon and Virginia Guillot Bordelon”, 380 So.2d 208.


text:
    (Tutorship of Michael Frank Bordelon, Jr., Minor) Kay Renee Maytorena Bordelon JUNEAU, Plaintiff-Appellee, v. Holland BORDELON and Virginia Guillot Bordelon, Defendants-Appellants.
    No. 7413.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Harold J. Brouillette, Marksville, for defendants-appellants.'
    Nelson M. Lee, Bunkie, for plaintiff-ap-pellee.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   CULPEPPER, Judge.

For the reasons assigned in companion case No. 7411 entitled “Kay Renee Maytorena Bordelon Juneau v. Holland Bordelon and Virginia Guillot Bordelon”, 380 So.2d 208, in which a separate judgment is being rendered by us this date, the judgment appealed in the present case is affirmed. All costs of this appeal are assessed against the appellants.

AFFIRMED.

STOKER, J., concurs.

STOKER, Judge,

concurring.

I concur for the reasons given in the majority opinion in the companion case, Number 7411 entitled “Kay Renee Maytore-na Bordelon Juneau v. Holland Bordelon and Virginia Guillot Bordelon”, 380 So.2d 208.


author: STOKER, Judge.

text:
    Gary WILEY, Plaintiff-Appellant, v. SOUTHERN CASUALTY INSURANCE COMPANY et al., Defendants-Appellees-Appellants.
    No. 7414.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      Führer & Flournoy, George A. Flournoy, Alexandria, for plaintiff-appellant.
    Knoll & Knoll, J. Eddie Knoll, Marksville, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   STOKER, Judge.

This is a workmen’s compensation ease in which plaintiff, Gary Wiley, claims injuries as a result of a tree falling on him on August 30, 1978. Prior to the accident, plaintiff had no back trouble. The injury caused a condition of spondylolisthesis in the lumbosacral area to become symptomatic. The trial court found plaintiff to be totally and permanently disabled. Compensation was awarded to plaintiff at the rate of $130 per week, but the trial court denied plaintiff’s claim for penalties and attorney’s fees. Plaintiff appealed from the judgment insofar as it did not award penalties and attorney’s fees. The defendants, Southern Casualty Insurance' Company and Vernico, Inc., answered the appeal. In the answer to the appeal defendants-appellees-appellants seek (1) a reversal of the holding that plaintiff-appellant is permanently totally disabled and (2) additionally, they seek damages for frivolous appeal.

The issues before this Court of Appeal are as follows:

(1) Is plaintiff-appellant, Gary Wiley, only temporarily totally disabled rather than permanently totally disabled, as the trial court found?

(2) Did the trial court err in failing to award penalties and attorney’s fees?

(3) Are defendants-appellants entitled to damages for frivolous appeal?

FACTS

There is no dispute over the fact that plaintiff sustained a work-related accident or that his compensation rate is $130 weekly. At the time of trial all compensation due plaintiff had been paid to him. (As will be related later, plaintiff was taken off of compensation for a certain period and put back on after suit was filed.) Just prior to the time of trial, plaintiff had been operated on by Dr. T. E. Banks, and it was clear that the medical expenses incurred in connection with the operation would be paid.

The disputes arise from the following facts. Mr. Riley was first seen by Dr. Bernard Kaplan and was hospitalized at Rap-ides General Hospital in Alexandria, Louisiana. Dr. D. M. Kingsley, an orthopaedist, saw plaintiff on September 23, 1978, and several times thereafter. The doctor-patient rapport broke down, and plaintiff elected to switch to Dr. Douglas Gamburg, an orthopaedist, who first saw plaintiff on October 10, 1978. Dr. Gamburg found that plaintiff was suffering pain and felt that plaintiff’s injury had aggravated a pre-ex-isting spondylosis and spondylolisthesis at the lumbosacral level. This caused a forward slippage of L-5 vertebra on S — 1.

' Dr. Gamburg was of the opinion that plaintiff’s condition was pre-existent but not necessarily congenital. He felt plaintiff would recover with time and support. Therefore, he elected to treat plaintiff conservatively. In Dr. Gamburg’s opinion plaintiff’s pain was from the soft tissues around the defect (the spondylolisthesis) and capsules in the joints of the lower back. Plaintiff was advised to wear a corset for back support. Dr. Gamburg continued to see plaintiff and follow his case. On November 3, 1978, Dr. Gamburg felt there had been improvement in plaintiff’s condition. At the time Dr. Gamburg advised plaintiff to try and return to work but to wear his corset and take aspirin as needed for pain. Plaintiff followed this advice, but according to plaintiff’s testimony he could barely make it through one short day of work.

On December 15, 1978, because of plaintiff’s protracted symptomatology, Dr. Gam-burg recommended that plaintiff be readmitted to the hospital for further evaluation. Plaintiff was admitted to Rapides General Hospital on January 2, 1979. Dr. Gamburg had in mind a surgical stabilization on the lumbosacral spine and performed a myelogram before recommending surgery. The results of the myelogram were negative.

Although plaintiff’s myelogram was negative and no muscle spasms were found and all clinical tests failed to disclose positive findings, Dr. Gamburg recommended a surgical fusion because of the continued complaints of pain. This would result in stabilization of the lumbosacral joint at L-5 and S-l. The surgery was scheduled. At this point plaintiff’s wife intervened. She became so upset and distraught at the prospect of plaintiff undergoing surgery that plaintiff declined to go through with the surgery. Plaintiff was discharged from the hospital January 4, 1979. On January 16, 1979, Dr. Gamburg submitted a written report to the defendant compensation carrier, Southern Casualty Insurance Company. The letter reads as follows:

January 16, 1979
SOUTHERN CASUALTY
P. 0. Box 5756
Alexandria, LA 71301
Re: Gary Wiley
Gentlemen:
I re-evaluated Gary Wiley on December 15, 1978, at which time he had continued complaints of lower back pain aggravated by bending, stooping, and prolonged standing. He had been unable to return to work because of this pain and stated that he had been faithful in wearing his support.
Mechanical and neurologic examination was within normal limits.
A repeat lateral radiograph of the lumbo-sacral spine revealed a three millimeter spondylolisthesis which had been previously noted. There had been no apparent change over radiographs taken in October.
Because of this patient’s protracted sym-tomatology I recommended that he be admitted for further evaluation and consideration of lumbosacral stabilization.
He was admitted to Rapides General Hospital on January 2, 1979, and underwent lumbar myelography on the same date. His myelogram was entirely within normal limits.
Surgical stabilization of the L-5/S-1 segment had been scheduled but the patient, after discussion with his wife, decided to decline surgical treatment. He was discharged on January 4, 1979, in satisfactory condition. I have nothing to offer Mr. Wiley in the way of further treatment. If I can furnish you with additional information, please advise.
Yours truly,
s/ D. Gamburg, M. D.
Douglas L. Gamburg, M. D.
DLG/ly

It was stipulated by the parties that the statement in paragraph one of Dr. Gam-burg’s report to the effect that “He had been unable to work because of his pain . ” was a report of plaintiff’s statement to Dr. Gamburg and not a finding of Dr. Gamburg. (Tr. 114)

The January 16, 1979, report of Dr. Gam-burg was received by Clyde P. Roy, Claims Representative of Southern Casualty Insurance Company. Mr. Roy sought some elaboration and interpretation and called Dr. Gamburg on receipt of the report on January 17, 1979. After conferring with Dr. Gamburg by telephone, Mr. Roy made a memorandum of the conversation in typewritten form which is in evidence. (D-2) It reads as follows:

January 17, 1979
Memo: Gary Wiley
Called Dr. Gamburg and spoke to him personally regarding Gary Wiley. Dr. Gamburg’s report dated January 16, 1979 stated that the myelogram was negative and that surgical stabilization was scheduled but that Wiley declined surgical treatment. Dr. Gamburg advised me that according to the examinations performed on Mr. Wiley, he personally felt that there was nothing wrong in regards to Wiley’s complaints and of course, believed this to be absolutely correct when Wiley declined surgical treatment. Dr. Gamburg also stated that he felt if Wiley was really hurt that he would have had the surgical stabilization performed. Based on Dr. Gamburg’s report and his opinion of the current status of Gary Wiley, we are holding compensation benefits today.
CPR/ks

Based upon Dr. Gamburg’s report of January 16, 1979, and Mr. Roy’s conversation with Dr. Gamburg, compensation was cut off as of January 16, 1979. It was not resumed until April 6, 1979. Mr. Roy testified that at no time did Dr. Gamburg testify that plaintiff was able to return to work. He further testified that he never asked Dr. Gamburg if plaintiff was able to return to work. The failure of the compensation carrier to have an unequivocal statement from Dr. Gamburg is the principal basis for plaintiff’s claim for penalties and attorney’s fees. Mr. Roy testified that, on the basis of the letter and conference with Dr. Gam-burg, he felt he was justified in cutting off compensation. Dr. Gamburg remembered having the conversation but could not recall the specific substance of the telephone conversation.

After discharging plaintiff on January 14, 1979, Dr. Gamburg did not see plaintiff again. Plaintiff testified he was able to quiet his wife’s fears and decided to go ahead with the surgery. On January 23, 1979, plaintiff’s attorney took the matter up with Dr. Gamburg. The latter testified doubt had arisen in his mind concerning the psychological maturity and sincerity of plaintiff. Because plaintiff had declined surgery in early January, Dr. Gamburg had reservations and suggested that plaintiff be evaluated by a clinical psychologist. This was done. Dr. Gamburg scheduled an appointment with Clinical Psychology Associates for February 12, 1979. Dr. James W. Quillan examined Mr. Wiley and administered certain tests to him. A report by Dr. Quillan dated February 13, 1979, was furnished to Dr. Gamburg, and he then declined to perform surgery for plaintiff.

Dr. T. E. Banks, an orthopaedist, examined plaintiff on March 5, 1979, and submitted a medical report to plaintiff’s attorney dated March 8, 1979. (P-8 and D — 1) In a report dated March 8, 1979, Dr. Banks confirmed the fact that plaintiff had a symptomatic spondylolisthesis and suggested a special fusion.

Dr. Banks performed the surgical procedure for the spinal fusion on April 1, 1979. This case went to trial on April 23, 1979. Although the compensation carrier had cut off compensation as of January 16, it refused to resume compensation upon being furnished a copy of Dr. Banks’ initial report of March 8, 1979. However, it did indicate that it would pay for the surgery if plaintiff had Dr. Banks perform it. (Tr. 74) After the surgery was performed by Dr. Banks, all compensation was immediately brought up to date and was being paid currently at the time of trial.

There is some difference of opinion as to the time which would be required for plaintiff to recover or be able to attempt work in his former occupation as a logger. Dr. Banks indicated that one can be reasonably optimistic at about four months, but he felt that eight months to a year should elapse before one can be certain the fusion is successful. Dr. Banks thought it would be a minimum of eight months before plaintiff could safely return to work, and he would rather plaintiff wait a year. Dr. Gamburg testified that a determination can be made in three to four months, but he would not advise anyone to go back to work after such time without wearing some type of support. Dr. Banks testified as to the chances for a successful fusion. He stated that a one joint fusion had a rate of success of around 92%. Dr. Banks estimated that with a successful fusion he would expect that plaintiff would not have over a 20% disability of the back. There is no loss of any functional degree of motion, but there will be scar tissue; there is a potential for pain on stretching the scar tissue, and there may be some possible permanent loss of full muscle strength.

At the trial Clyde P. Roy was cross-examined concerning the reason for the compensation carrier’s willingness to pay for Dr. Banks’ operation and to resume compensation if plaintiff went ahead with the surgery. ■ In explaining his reasons for not resuming compensation upon receipt of Dr. Banks’ report, Mr. Roy stated that as plaintiff had refused surgery once before, his company did not know whether or not plaintiff would decline again. He admitted that his company took the position that it was not going to pay weekly compensation until and unless plaintiff underwent surgery.

DURATION OF PLAINTIFF’S DISABILITY

The trial court found plaintiff to be totally and permanently disabled. At the time of trial plaintiff was up from surgery performed approximately two weeks before trial. The success of the operation could not be known for some months. Certainty of success could not be known under Dr. Banks’ testimony for eight months, at least, and probably not for a year. Chances of success were 92%. Under the circumstances, there was ample justification for the trial judge’s finding that the plaintiff’s disability was permanent as well as total.

Our Louisiana Supreme Court has stated the general rule relative to temporary and permanent total disability cases in Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La.1976). It was stated there as follows: “A judgment for total permanent disability should be awarded when the claimant is shown to be totally disabled at the time of trial and the duration of such disability is indefinite or the evidence does not clearly indicate its duration.” In the Walker case the plaintiff underwent a laminectomy to remove a herniated disc sustained in a work-related accident. Months later he was still suffering disabling pain residual to the surgery. To rectify this condition further surgery by fusion was required.

A panel of this court recently considered a question of whether temporary or permanent total disability should be found in Breaux v. Marine Electric and Reliance Insurance Company, 369 So.2d 196 (La.App. 3rd Cir. 1979), writ refused 371 So.2d 1344 (La.1979). There this court reversed a trial court finding of permanent total disability and held it was only temporary. The Breaux case is distinguishable on its facts from the one before us.

In Breaux, the plaintiff underwent surgery for a ruptured disc. His surgeon testified that a final estimate of disability could not be made until six months after surgery, but he should have only 5% residual disability of the body as a whole. When the trial took place five months had elapsed since the surgery. Although it was too soon after surgery for the surgeon to express an opinion as to whether Breaux could return to hard manual labor which he was performing at the time of trial, thfe surgeon felt Breaux would be able to return to gainful employment. On the other hand, Breaux was recovering normally from the surgery. Under the circumstances this court felt Breaux’s disability was temporary rather than permanent.

As distinguished from the Breaux case, plaintiff, Gary Wiley, in the opinion of his treating physician and surgeon, cannot be determined to have had a successful spinal fusion for 8 to 12 months. There is an 8% chance he will not. After sufficient time elapses to validly evaluate the success of Wiley’s surgery, if it is found to be successful, he will have a predictable disability of between 15 and 20% of the back. Under the circumstances we are of the opinion that the rule announced in Walker v. Gaines P. Wilson & Son, Inc., supra, should be applied here. Thus, we will affirm so much of the trial court’s holding which held plaintiff Wiley to be permanently totally disabled.

As noted in Breaux, the matter makes little practical difference. Under LSA — R.S. 23:1331 the judgment is subject to modification after six months on the application of either party to show that the disability had subsequently diminished or increased.

PENALTIES AND ATTORNEY’S FEES

The trial court found that the compensation carrier’s actions were neither arbitrary nor capricious, and that it did not act without probable cause. This is the sole holding from which plaintiff-appellant appeals. He urges the carrier was arbitrary and capricious in several respects: (1) in forcing plaintiff into dangerous surgery as a condition of resuming payment of compensation benefits, (2) terminating benefits on the basis of Dr. Gamburg’s medical report of January 16, 1979, and telephone conversation which did not in fact advise that plaintiff was physically able to return to work and (3) failing to resume payments upon the receipt of Dr. Banks’ report of March 8, 1979.

In this case the termination of benefits as of January 16,1979, was an ex parte action taken by the carrier without judicial sanction. Suit was filed by plaintiff on February 1, 1979. Compensation payments were not then resumed. Not until plaintiff underwent surgery by Dr. Banks was compensation resumed and brought up to date.

The medical testimony establishes that a person may have a condition of spondylolis-thesis without experiencing any symptoma-tology at all. The person may be totally without pain or discomfort, yet x-ray will indicate the presence of the condition. A spondylolisthesis which becomes symptomatic is one that produces pain. The normal course of treatment where the condition becomes symptomatic is to rely first on conservative measures, applying support such as a corset or brace. If conservative treatment does not alleviate the pain, the only recourse is to resort to surgical stabilization or the patient must change occupations.

Dr. Gamburg testified in his deposition concerning his medical report of January 16, 1979. His statement that he had “nothing to offer Mr. Wiley in the way of further treatment” meant simply that, since Mr. Wiley had rejected the surgery at the time of his January 2-4 hospitalization, there was nothing more in the way of medical treatment which he could offer. In Mr. Roy’s typewritten notes of his January 17 telephone conference with Dr. Gamburg, Mr. Roy writes as though he got the impression that plaintiff was not really suffering enough pain to have a true symptomatic spondylolisthesis. However clearly that implication may shine through Mr. Roy’s version of the report, Dr. Gamburg never said so unequivocally. Not even in his deposition did Dr. Gamburg say he thought plaintiff’s condition was not symptomatic. Unquestionably he had his doubts, but he did not go so far as to recall his original diagnosis.

On the basis of Dr. Gamburg’s initial examination the compensation carrier accepted the conclusion that plaintiff was suffering from a symptomatic spondylolis'the-sis. Compensation payments were begun on the basis that the pain resulted from the work-related accident. The payments should have been continued beyond January 16, 1979, regardless of whether the employee underwent or refused surgery. Dr. Gamburg never testified that plaintiff was able to return to work as of January 16, 1979. Irrespective of any doubts which may have developed in Dr. Gamburg’s mind when plaintiff refused to go ahead with the surgery, he could hardly then make an unequivocal diagnosis that plaintiff was not suffering pain and was able to return to work.

The fact that injured employees may not be cut off of compensation on the basis of inconclusive medical reports is well established. Horn v. Vancouver Plywood Company, 322 So.2d 816 (La.App. 3rd Cir. 1975) and Norris v. Southern Casualty Insurance Company, 342 So.2d 874 (La.App. 3rd Cir. 1977). Also it is incumbent upon the insurer to make a reasonable effort to ascertain a plaintiff’s exact condition at the time which compensation benefits are terminated. Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3rd Cir. 1976).

For the foregoing reasons we deem that under the jurisprudence of this state the action of Southern Casualty Insurance Company in terminating plaintiff’s compensation on January 16, 1979, was arbitrary and capricious within the meaning of LSA-R.S. 22:658 and requires the imposition of penalties and attorney’s fees. Moreover, it was arbitrary and capricious to terminate plaintiff’s compensation for the purpose of forcing him to undergo surgery. Bass v. Service Pipe Trucking Company, Inc., 289 So.2d 78 (La.1974). In Bass it was held that the reasonableness of an employee’s refusal to undergo surgery was a legal rather than a medical question. The right to a legal determination carries through the appellate review stage. Consequently, it was arbitrary and capricious for the defendant carrier to terminate plaintiff’s compensation because he refused surgery.

Among plaintiff’s contentions is the assertion that in any event, when Dr. Banks’ report of March 8, 1979, was received, defendants were put on notice of plaintiff’s continuing suffering because of symptomatic spondylolisthesis. Plaintiff cites Walker v. Gaines P. Wilson & Son, Inc., supra, as requiring resumption of payment of compensation upon receipt of such a report. While there is point to the argument, we deem the actions previously discussed as fully justifying penalties and attorney fees. In addition, by the time of trial, April 23, compensation had been brought up to date, and we do not know when it was actually brought up to date. Hence, we do not find it necessary to pitch our holding on this point.

It is our holding that plaintiff is entitled to the statutory penalty of twelve percent as damages on all workmen’s compensation which accrued to plaintiff after January 16, 1979, until it was brought up to date. It was stipulated at trial that plaintiff had been brought up to date and defendants were current with their payments. In this respect we reverse the trial court. In our opinion plaintiff should be awarded attorney’s fees in the amount of $2,500.00.

The judgment for penalties and attorney’s fees should run against Southern Casualty Insurance Company only. The employer Vernico, Inc., being insured by Southern Casualty Insurance Company, cannot be liable for penalties and attorney’s fees. Brock v. Tidewater Construction Company, 318 So.2d 100 (La.App. 3rd Cir. 1975).

FRIVOLOUS APPEAL

From the foregoing it is obvious that we do not deem the appeal in this matter prosecuted by plaintiff to have been frivolous. Damages in this regard sought by defendants-appellees-appellants are denied.

DECREE

For the reasons assigned, the judgment appealed is reversed insofar as it denies penalties and attorney’s fees, and it is now ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Gary Wiley, and against Southern Casualty Insurance Company for penalties as provided in LSA-R.S. 22:658 in the amount of 12% of the total amount of compensation payment due from January 16, 1979, until the date such compensation was brought up to date. It is further ordered, adjudged and decreed that there be judgment in favor of plaintiff and against Southern Casualty Insurance Company in the sum of $2,500 as attorney’s fees. The judgment appealed is amended to give defendant credit for all workmen’s compensation benefits paid. In all other respects, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellees-appellants, Vernico, Inc. and Southern Casualty Insurance Company in solidó.

REVERSED IN PART, AMENDED AND AFFIRMED IN PART.

      . In Dr. Quillan’s deposition he states he concluded plaintiff was a truthful and sincere young man. Dr. Gamburg did not elaborate in his deposition on why he declined to perform the surgery.

      . Dr. Banks’ March 8, 1979, report reads in part as follows:
      I will not go into details of the injury and previous care.
      At the present time he is wearing a corset and he states that this helps relieve some of the pain. He tried to cut timber using the corset and he could not. He tried to go back to work at a grocery store, but stated that prolonged standing on his feet was painful. He feels rather marked stiffness in the back in the mornings and neck flexion pulls his low back. This is much better by noon. Pain is centralized in the low back region and he does not have any tingling sensation in his legs or any pain.
      Myelography has been reported as normal at Rapides General Hospital.
      On examination, the patient has no true muscle spasm in his back. He has pain in the lumbosacral region on hyperextension of the lumbar spines and some restriction of full forward flexion. He has no tenderness in either sciatic notch and tenderness is well localized in the lumbosacral area in the mid-line.
      Examination of the lower extremities reveals straight leg raising to 80% bilaterally, this being productive of back pain, but not sciatic pain. Reflexes and sensation are normal in both lower extremities and there is no atrophy present.
      X-rays were reviewed and X-rays revealed a spondylolisthesis with bilateral pars inter-articularis defect at the lumbosacral area with forward slipping of not more than about three millimeters.
      I feel this young man does have a symptomatic spondylolisthesis. The question of spinal fusion has been brought up to him previously. I think when he understands the magnitude of the procedure and the time it takes to recover and the percentage of recovery, surgery can be done.
      The patient seems to have a desire to get well and apparently he will follow the recommendation for spinal fusion. If this is true, arrangements can be made for this to be done either by this operator or somebody else. If you desire any further information, please advise.
      Very truly yours,
      s/ T. E. Banks, M.D. T. E. BANKS, M. D.

      . Defendants in their brief refer to the testimony of Dr. Daniel Kingsley to bolster the termination of plaintiffs compensation following the incident of January 16, 1979. Dr. Kingsley disagreed with Doctors Gamburg and Banks and emphatically asserted that there was no spondylolisthesis at L-5 and S-l. He found defects at L — i and L-5. Dr. Kingsley apparently disbelieved plaintiff and was of the opinion that he had no disability. Nevertheless, when plaintiff switched to Dr. Gamburg and the latter became plaintiffs treating physician, defendants were bound by his findings. Therefore, unless Dr. Gamburg had reported that plaintiff was able to return to work, plaintiffs compensation could not justifiably be terminated, and Dr. Kingsley’s opinions had no bearing on the issues.

      . The applicable law concerning sanction to be applied where an injured worker refuses reasonable surgical treatment was stated in the Bass case as follows:
      In our workmen’s compensation act, the legislature did not require an employee to submit to surgery as a condition for his receiving compensation benefits due him, except in the case of a hernia, see La.R.S. 23:1221(4)(q). Nevertheless, as the decisions cited below show, the courts have established the equitable doctrine that while, they may not require an injured employee to submit to surgery, they may order his compensation payments withheld or suspended when he unreasonably refuses to submit to simply surgery which will remove his disability.


text:
    Gene F. GLESSNER, Plaintiff-Appellee, v. Freddie HYATT, Defendant-Appellant.
    No. 7423.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      Greg D. Lyons, Lake Charles, for defendant-appellant.
    Louis D. Bishop, Jr., DeQuincy, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This suit was filed by Gene Glessner against Freddie Hyatt to recover $4,340.32, the value of services allegedly rendered to defendant by plaintiff for the training of several race horses.

Pursuant to the Louisiana Long Arm Statute, citation and service of process were made on defendant, a non-resident. After defendant failed to answer or make an appearance, a preliminary default was entered against him on April 30, 1979. A final judgment of default was entered on May 25, 1979, in plaintiff’s favor. From this judgment, defendant appeals.

The issue presented on appeal is whether the trial court erred in granting a final judgment by default for the reason that the proper time delays for the entering of a preliminary default were not observed.

LSA-R.S. 13:3205 provides, in part, that:

“No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who . ' . . :
(a) mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; . . . ”

The words “default judgment,” as used in this statute, mean preliminary default rather than confirmation of default. In the case of Bickford v. Lutz, 339 So.2d 1268 (La.App. 1st Cir. 1976), the court observed as follows:

“The reporter’s comment (e) indicates that ‘default judgment’ as used in § 3205 is intended to have the same meaning attributed to it by La.C.C.P. art. 1701, and in the professional vernacular to mean ‘preliminary default’ rather than ‘confirmation of a default.’ ”

According to LSA-R.S. 13:3205, a “default judgment” may not be validly entered until thirty days have elapsed after the filing in the record of the affidavit of service. The record reveals that the affidavit required by R.S. 13:3205 was filed in the record on April 18, 1979. The preliminary default was entered on April 30, 1979. Since the thirty day period required by R.S. 13:3205 had not elapsed, the preliminary default entered against defendant was premature. It is well settled by the jurisprudence that any final judgment of default obtained without a valid preliminary default is an absolute nullity. Bickford v. Lutz, supra, and Welch v. Welch, 169 So.2d 713 (La.App. 4th Cir. 1964). Since the preliminary default of April 30,1979 was invalid, being premature, the final judgment of default of May 25, 1979 was a nullity.

For the above and foregoing reasons, the judgment of the trial court is vacated and set aside. This case is remanded to the trial court for further proceedings. The costs of this appeal are assessed against plaintiff-appellee.

JUDGMENT VACATED; SET ASIDE AND REMANDED.


author: DOUCET, Judge.

text:
    Clarence J. EZERNACK, Plaintiff-Appellee, v. LOUISIANA HOSPITAL SERVICE, INC., Defendant-Appellant.
    No. 7450.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-appellant.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Clarence J. Ezernack brought this suit to recover the costs of the hospitalization and medical treatment of his wife, Clara Ezer-nack, pursuant to the provisions of a hospitalization insurance policy issued to him by defendant, Louisiana Hospital Services, Inc. From a judgment awarding plaintiff the sum of $1,986.35, defendant appeals. We affirm.

The undisputed facts are that Clara Ezer-nack was hospitalized in the Natchitoches Parish Hospital from June 13,1978, through June 26, 1978. According to the discharge summary of the treating physician, Dr. Roy Cook, “She had her gallbladder removed, her common duct explored and stones removed and her appendix taken out.”

Defendant issued a hospitalization insurance policy to plaintiff which provided coverage for his wife. Coverage under the policy began on March 1,1978. At the trial, it was stipulated by the parties that if recovery is proper under the facts of this case, the amount of the expenses covered by the policy is $1,986.35.

Defendant argues, however, that the language of the policy excludes coverage in this case. It relies specifically on .the language of a policy exclusion contained in Article VIII, 4(a) at page 8 of the policy, which provides:

“4. No benefits are provided under this Contract for:
(a) Services rendered during the first year of coverage, for, or as a result of, any ailment, disease dr physical condition existing at or before the effective date of coverage.”

Defendant contends that the services rendered in behalf of Mrs. Ezernack were necessitated by a pre-existing ailment, disease or physical condition within the meaning of the above policy language.

It was established at the trial that on December 4, 1974, Mrs. Ezernack was admitted to the Natchitoches Parish Hospital for an overnight stay for the treatment of abdominal complaints. The attending physician, Dr. Archie Breazeale, diagnosed her condition as acute gastroenteritis and possible thyroid syndrome of thyrotoxicosis. The medical records also indicate that she manifested cholelithiasis, or the presence of gallstones in her gallbladder, at that time.

Defendant argues that the surgical procedure performed on Mrs. Ezernack in 1978 was the result of the gallstones that were present in her gallbladder as early as 1974. Plaintiff, on the other hand, argues that the surgery was not required because of the mere presence of the gallstones, but was needed because the gallbladder had become inflamed, a condition known as cholecysti-tis.

Plaintiff’s argument is supported by the testimony of Dr. Cook. He explained that cholelithiasis, or the presence of gallstones in the gallbladder, is a condition which develops in some people in the course of their lifetime, and which may or may not result in physical difficulties. Cholecystitis is an inflammation of the gallbladder which, according to Dr. Cook, can exist with or without the presence of gallstones, and which can result from the formation of new gallstones.

The distinction between cholelithiasis and cholecystitis was recognized by this court in the recent case of Smith v. Reserve National Insurance Company, 370 So.2d 186 (La.App. 3rd Cir. 1979). In that ease, we said:

“The existence of a gallstone may have predated the policy, but such a condition was not a ‘sickness’ within the definitions of the policies. The ‘sickness’ herein (acute inflammation of the gallbladder) occurred or manifested itself for the first time and caused the loss (medical expenses) well after the effective date of the policies.”

In that case, we also cited with approval the earlier case of Phelps v. Southern National Insurance Company, 83 So.2d 463 (La.App. 2nd Cir. 1955), wherein the court said:

“It is somewhat strenuously urged by counsel for defendant that the presence of gallstones in plaintiff’s bladder, which fact was discovered after the removal of that organ by operative procedure, is proof of a pre-existing sickness or disease. We cannot so hold for the testimony of all the medical experts reflects the opinion that the mere presence of gallstones within the gallbladder does not constitute a sickness or disease, and there is no evidence in the record before us which would serve to establish the existence of any sickness or disease resulting from the presence of gallstones.”

Defendant urges that the instant case is distinguished in that according to Dr. Breazeale’s testimony, Mrs. Ezernack experienced problems with her gallbladder as a result of the gallstones in 1974. She also complained of abdominal cramps in January of 1975, which Dr. Breazeale attributed to cholelithiasis. However, it is clear from Dr. Breazeale’s testimony that the kind of symptoms that Mrs. Ezernack experienced as a result of her gallstones do not make surgical intervention an absolute necessity. It is only when complications such as blockages occur that surgery becomes mandatory-

We find it clear from the medical testimony that Mrs. Ezernack’s hospitalization and treatment in 1978 were, the result of the onset of cholecystitis and not the mere existence of gallstones in her gallbladder. The expenses which were incurred for her treatment at that time resulted from this new condition, which was not found when she was hospitalized in 1974 or at any time prior to her hospitalization in 1978.

Under these circumstances we agree with the trial judge that the policy exclusion does not apply to the particular facts and circumstances of this case.

Accordingly, the judgment appealed is affirmed. All costs of this appeal are taxed against the defendant-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Irwin BORDELON and Hubert Wiley, Plaintiffs-Appellees, v. T. L. JAMES & COMPANY, Defendant-Appellant.
    No. 7465.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      J. Fredrick Kessenich, New Orleans, for defendant-appellant.
    George Griffing, Jonesville, for plaintiff - appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

This lawsuit is based on claims for damages due as a result of the alleged negligent acts of the defendant in causing damage to the plaintiffs’ fishing nets. The nets were in use in the Red River. The defendant, T. L. James and Company, appeals from a judgment rendered in favor of Mr. Hubert Wiley, plaintiff, awarding damages in the amount of $1,707.42, this sum being the value of twelve hoop fishing nets valued at approximately $140.00 per net and loss of income of $180.00, plus court costs.

The facts reveal that the plaintiff is a commercial fisherman earning his livelihood by fishing with hoop nets on the Red River. The plaintiff claims that his hoop nets were negligently destroyed by the defendant during certain dredging operations by the dredge boat “ARMIDILLO”. The defendant was dredging in the area pursuant to a contract with the Department of the Army, Corps of Engineers.

Originally, there were five plaintiffs and all cases were consolidated. All the plaintiffs, except for Mr. Wiley, lost in the trial court because the court found that they were attempting to prove their damages due to faulty navigation of the dredge boat rather than the dredging operations themselves.

The facts further show that Mr. Wiley pulled up his nets and kept them out of the river for several days when he became aware of the fact that dredging operations were to begin in the area where he usually fished. Mr. Wiley’s son had worked on the dredge for several days. His son had informed him that the dredge boat would be proceeding south or downstream from the point where they initially were to dredge. This information was confirmed by a navigation bulletin, defendant’s exhibit “C”, which stated that the dredge would work downstream from the point of beginning. As stated before, in view of this information, Mr. Wiley pulled his nets from the river and kept them on the bank for several days. After the dredge had passed his usual fishing site, he then replaced his nets in the river where he marked them with one-gallon plastic jugs. Shortly thereafter, the dredge boat was required by the Corps of Engineers, with whom the defendant had a contract, to return upstream and dredge out a shallow area which had apparently been omitted or missed during the primary dredging operation. This is where the damage to Mr. Wiley’s nets occurred. The crew of the dredge were required to follow the orders of the Corps of Engineers with respect to when and where to dredge.

The first issue presented is whether or not this matter is controlled by Federal law and/or the general maritime law. It is undisputed that the Red River is a navigable water body of the United States and as such, is within the power- of Congress to regulate pursuant to Article 1, Section 8 of the United States Constitution. In order for an activity or an occurrence to be governed by Federal or general maritime law, either Congress must have passed legislation making the activity or the occurrence one which is governed by Federal or maritime law, or it is an activity which has maritime locality and a sufficient maritime nexus to mandate its falling under said law.

In order for a wrong to be governed by the admiralty law of the United States, maritime locality plus a significant relationship to traditional maritime activity must be present. Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).

In determining whether there is maritime jurisdiction, circumstances to be considered are functions and roles of parties, types of vehicles and instrumentalities involved, causation and type of injury and traditional concepts of the role of admiralty law. Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973) rehearing denied, 486 F.2d 1403; certiorari denied, Chicot Land Co., Inc. v. Kelly, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974).

In the case at bar, the conduct complained of took place on a navigable water body. The ARMIDILLO is a vessel within the meaning of the general maritime law. Additionally, fishing is a traditional maritime activity. In view of the location, circumstances of the case, roles of the parties, and types of instrumentalities'involved, we find that this matter is governed by the general maritime law and applicable Federal law.

A state court is required to apply Federal maritime law in a case within Federal admiralty jurisdiction. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Chelentis v. Luckenbach, S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171 (1918). Whether a suit is brought in Federal court pursuant to its admiralty jurisdiction or, under the “saving to suitors clause”, is brought by ordinary civil action in a non-maritime court, Federal substantive admiralty or maritime law is applicable if the claim is one cognizable in admiralty. U.S.C.A.Const., Article 3, Sec. 2; 28 U.S.C.A. Sec. 1333; Lavergne v. Western Company of North America, Inc., 371 So.2d 807 (La.1979).

Appellant contends that appellee’s fishing nets constituted an obstruction within the meaning of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.A. Sec. 401, et seq. In particular, appellant refers to Section 403 of Title 33, U.S.C.A. This section prohibits the unauthorized building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structure in any navigable water or other water of the United States. A search of the jurisprudence has revealed no case which has held this type of fishing net to be an obstruction as defined by the above mentioned statute. Appellant relies on the case of Alaska Pacific Fisheries v. United States, as being authority to the effect that a fish net is an “other structure” within the meaning of Section 403. In the Alaska Fisheries case, the net or structure which was held to be an obstruction under this statute was an extensive fish trap which was located within an Indian reservation. For this reason we do not think that this case is authority for holding that a fish net is an “other structure” within the meaning of the applicable statute. However, in United States v. Republic Steel Corp., the court stated:

“The Court in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 708, 19 S.Ct. 770, 777, 43 L.Ed. 1136, decided not long after the 1890 Act became effective, gave the concept of ‘obstruction,’ as used in Section 10, a broad sweep: ‘It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done, or however done, within the limits of the jurisdiction of the United States which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of the prohibition.’ This broad construction given Section 10 of the 1890 Act was carried over to Section 10 of the 1899 Act in Sanitary District Co. of Chicago v. United States, 266 U.S. 405, 429, 45 S.Ct. 176, 179, 69 L.Ed. 352, the Court citing United States v. Rio Grande Dam & Irrigation Co., supra, with approval and saying that Section 10 of the 1899 Act was ‘a broad expression of policy in unmistakable terms, advancing upon’ Section 10 of the 1890 Act.”

As noted in the above mentioned case, the term “obstruction” is to be given a broad interpretation in favor of the free and open navigation of the waters of the United States. We do,not think that a fish net of the type used by the plaintiff in this case qualifies as an obstruction under all circumstances. However, it may qualify or be defined as an obstruction when used in such a manner as to impede or impair the navigability of the waters of the United States. Nevertheless, the servitude of navigation is paramount to that of fishing or other acts which may be performed in navigable waters. See Scozzafava v. United States, 199 F.Supp. 43 (S.D.N.Y.1961); United States v. 597.75 acres of land, more or less in St. Martin Parish, State of Louisiana, 241 F.Supp. 796 (W.D. La.1965).

Every structure or other obstruction in the water of a navigable river is subordinate to the right of navigation and subject to the obligation to suffer the consequences of the improvement of navigation, and must be removed if Congress, in the assertion of its power over navigation, shall determine that its continuance is detrimental to the public interest in the navigation of the river. United States v. Chandler-Dunbar Water Power Company, 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913).

In view of the above cited jurisprudence and the policy considerations being in favor of the open and free navigation of waters in the United States, we find that the activities in which the defendant was engaged to be of paramount importance. The defendant was under the direct control of the Army Corps of Engineers. Additionally, we find no breach of any duty owed by T. L. James to the plaintiffs which would give rise to actionable negligence.

For the above and foregoing reasons, the judgment of the trial court is reversed, and all costs herein are to be assessed to the plaintiff-appellee, Hubert Wiley.

REVERSED AND RENDERED.

      . 33 U.S.C.A. § 403: Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in
      The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. March 3, 1899, c. 425, Section 10, 30 Stat. 1151.

      . 240 F. 274 (Ct. of App. 9th Cir. 1917), affirmed 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138 (1918).

      . 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960), rehearing denied 363 U.S. 858, 80 S.Ct. 1605, 4 L.Ed.2d 1739.