text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lieutenant WIGGINS, Jr., Defendant-Appellant.
    No. 14745.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Samuel Thomas, Tallulah, for defendant-appellant.
    George E. Wall, Jr., Tallulah, for plaintiff-appellee.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   HALL, Judge.

Under the authority of LSA-R.S. 46:236.-1(F) the State of Louisiana filed suit against the defendant to have him declared the father of Carolyn Parker, a recipient of Aid for Dependent Children, and to obtain a judgment of child support. A hearing was held at which the state adduced evidence to establish defendant’s paternity of the child. After this hearing the trial court rendered judgment declaring the defendant to be the father of Carolyn Parker and further ordered the defendant to pay $65 per month in child support. The defendant appealed and we reverse.

On appeal, the defendant argues essentially that the evidence was insufficient to support a finding that he was the father of the child. Defendant argues that, other than the results of blood tests conducted on the mother, the child, and the defendant which established that defendant could be the father of the child, the only evidence which supports the decision of the trial court is the assertion of the mother that defendant is the father of her child. Defendant contends that under LSA-C.C. Art. 210 the oath of the mother is insufficient to establish filiation because the mother is known to be a woman of dissolute manners and has had an unlawful connection with one or more men, other than the defendant, either before or since the birth of the child. Defendant also contends that, the state did not establish by a preponderance of the evidence that he had acknowledged the child as his own, either through his actions or through his words.

Pertinent to this suit are LSA-C.C. Arts. 203, 208, 209, and 210. By Act 549 of 1980, effective July 23, 1980, Articles 208 and 209 were amended and Article 210 was repealed. The operative facts of this case took place prior to the amendment and the suit was filed July 11, 1980, prior to the effective date of the amendment. Neither party has raised any issue as to whether the articles prior to amendment or subsequent to amendment apply to this case. Defendant in his brief relies on Article 209, prior to its amendment, and on Article 210, which was repealed by the 1980 act.

Although one decision of this court has characterized the 1980 legislation as substantive and as having no retroactive effect, State v. Watson, 403 So.2d 1249 (La. App. 2d Cir. 1981), it would seem that those provisions of the 1980 legislation relating to evidentiary matters are remedial or procedural in nature and should be applied even where the operative facts occurred and suit was filed prior to the effective date of the legislation. See Page v. American Motorist Ins. Co., Ltd., 381 So.2d 889 (La.App. 2d Cir. 1980).

It is not, however, necessary to resolve this issue in order to decide this case. Under the law as it existed both before and after the 1980 legislation, it was and is necessary for the party seeking to establish filiation to prove such by a preponderance of the evidence. Succession of Washington, 308 So.2d 892 (La.App. 2d Cir. 1975). In this case, the state has not done so.

As noted above, the results of the blood tests indicated that defendant could be the father of the child. The mother testified that she was dating the defendant from 1971 to 1973. Carolyn Parker was born on January 4, 1973. A sister of the mother corroborated the mother’s testimony in this regard. Throughout this period of time the mother, then 16 years old, was living at home with her parents. The mother also testified that, although she had other male friends during the time she was seeing the defendant, she was not having sexual relations with anyone but the defendant. The sister confirmed that the mother had other male friends during the time she was seeing the defendant but could not confirm that the mother was not having sexual relations with anyone else.

The defendant introduced evidence that at the time the mother was dating the defendant and prior to the birth of the child, she was also dating Edward Ñutes. The defendant testified that he dated the mother for only three or four months and that they broke up because the mother was seeing Ñutes. The defendant denied being the father of the child.

The state attempted to establish that the defendant had acknowledged the child as his. The acts of the defendant which were alleged by the state to constitute acknowledgment were that defendant had given the mother $15 and a box of Pampers shortly after the child was born. Upon questioning by the court, the mother testified that defendant had verbally acknowledged the child as his on one occasion. Neither of these assertions were corroborated. Defendant denied giving the mother $15 and the box of Pampers and asserted he had never acknowledged the child ás his own verbally or otherwise. The defendant also introduced evidence that the mother was seeing other men around the time the child was conceived.

This claim of paternity was not asserted for more than seven years after the birth of the child. The mother has since lived with at least two other men and has had another illegitimate child. The defendant has since married and has two children. The defendant never acknowledged the child as his own, formally or informally. There was no relationship between the mother or child and the defendant after the child’s birth. There is some evidence that the mother was visited by or dated other men about the time the child was conceived. The facts that defendant dated the mother and had sexual relations with her in the general time period when she became pregnant and that, biologically, he could be the father of the child, are not sufficient to establish paternity by a preponderance of the evidence. The decision of the trial court is manifestly erroneous or clearly wrong. Therefore, we reverse the judgment of the trial court declaring the defendant to be the father of Carolyn Parker and ordering him to pay $65 per month in child support.

For the reasons assigned, the judgment of the trial court is reversed and judgment is rendered dismissing plaintiff’s suit. Plaintiff, the State of Louisiana, is cast with such costs of these proceedings as are allowed by law.

Reversed and rendered.

      . “F. The department, except when it is not in the best interest of the child, may, without the necessity of written assignment, subrogation, tutorship proceedings, separation proceedings, or divorce proceedings, take direct civil action, including actions to establish paternity, in any court of competent civil jurisdiction to obtain child support from the person primarily legally responsible for the support of a minor child who is receiving aid to families with dependent children when that person has failed to support such child. The amount of such child support shall be set only by order of a court of competent jurisdiction or by the consent of the parties. A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding.”


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Betty Oliver LaBORDE and Gene Arthur LaBorde, Plaintiffs-Appellants, v. EAGLE TRUCKING COMPANY, Lincoln Insurance Company, Guarantee Insurance Company & Felix Porta, Defendants-Appellees.
    No. 14746.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.

      Mecom & Scott by Leroy H. Scott, Jr., Shreveport, for plaintiffs-appellants.
    Bodenheimer, Jones, Klotz ,& Simmons, Shreveport by G. M. Bodenheimer, for defendants-appellees.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

Does CC Art. 2317 afford to a decedent’s surviving parents a cause of action for wrongful death when they do not have a cause of action under CC 2315 because the decedent’s spouse and child also survive?

The trial court answered this precise issue negatively and the parents appeal the judgment dismissing the action on defendants’ peremptory exception of no cause of action.

The wrongful death action has been much discussed by the bench and bar in Louisiana. The Supreme Court has said that the legal right and cause of action of one injured by loss of economic aid [and] love and affection is independent of any action which the decedent might have had and which would have passed to his heirs. King v. Cancienne, 316 So.2d 366 (La.1975). Nonetheless, the wrongful death action is still considered as a creature of legislation specifically provided in those certain and limited circumstances set forth in amendments to CC Art. 2315. Flynn v. Devore, 373 So.2d 580 (La.App. 3d Cir. 1979).

The parents here argue that other Supreme Court cases have expanded traditional tort recovery beyond mere negligence and into fault and strict liability in some instances. The theory common to these cases perhaps is best expressed in Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), to the effect that delictual responsibility [does] not necessarily depend upon negligent acts, but upon fault, and that the custodian of an instrumentality that poses an unreasonable risk of injury to another is at fault. 365 So.2d at p. 1335.

Fault is a more comprehensive term than negligence, and fault encompasses many acts which are not morally wrong, but are merely violative of laws or of legal duties. Seals v. Morris, 410 So.2d 715 (La.1981); Langlois v. Allied Chemical, 258 La. 1067, 249 So.2d 133 (1971).

Perhaps the legislature may one day agree that parents ought to recover for the loss of a child in all circumstances of wrongful death, rather than under the circumstances delineated by the present statute. The courts thus far, however, have not accepted invitations to go beyond the clear import of the statute and instead have generally construed the statute creating the wrongful death action strictly rather than liberally. Roche, cited in footnote 2.

Civil Code Art. 2315 begins Chapter 2 of Title V of Book III of the Civil Code. This chapter, entitled “Of Offenses and Quasi Offenses”, includes the strict or custodial liability of CC 2317 as an offense or quasi offense. The right to recover damages if the injured person dies because of a CC 2317 offense or quasi offense is set forth in CC 2315, and because of the surviving spouse and child, these parents do not have the right or cause of action to recover for the wrongful death of their son.

Other plaintiffs have unsuccessfully asserted that other statutory and constitutional provisions effectively “extend” the CC 2315 wrongful death action to circumstances and persons not within the clear import of the article. Branch v. Aetna Cas. & Sur. Co., 370 So.2d 1270 (La.App. 3d Cir. 1979), writ denied. Other provisions of law, constitutional, statutory, and, as in this appeal, Civil Code Article 2317, will not be used by the courts to extend or to broaden the action for wrongful death that is exclusively set forth in CC Art. 2315. See Branch, supra.

At appellants’ cost, judgment is AFFIRMED.

      .CC 2315 reads in part:
      “The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.”
      CC 2317 reads:
      “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications."

      . See generally, Johnson, “Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions” 37 La.L.R. 1 (1976) and authorities cited and discussed therein; Roche v. Big Moose Oil Field Truck Service, 381 So.2d 396 (La.1980); Shepard v. Louisiana Power & Light Co., Inc., 369 So.2d 1196 (La.App. 2d Cir. 1979); Collins v. Becnel, 297 So.2d 506 (La.App. 4th Cir. 1974); Wakefield v. Government Employees Insurance Co., 253 So.2d 667 (La.App. 4th Cir. 1971), writ refused; deVerges v. Bourg, 314 So.2d 558 (La.App. 1st Cir. 1975), writ refused.

      . These cases include Holland v. Buckley, 305 So.2d 113 (La.1974); Turner v. Bucher, 308 So.2d 270 (La.1975); Loescher v. Parr, 324 So.2d 441 (La.1975); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979); Seals v. Morris, 410 So.2d 715 (La.1981).


author: JASPER E. JONES, Judge.

text:
    Dempsey ALLEN and Merlie Sue Prisock Allen, Plaintiffs-Appellants, v. SEARS, ROEBUCK & COMPANY, et al., Defendants-Appellees.
    No. 14747.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Writ Granted March 19, 1982.

      Donald R. Miller, Shreveport, for plaintiffs-appellants.
    Wilkinson & Carmody by Arthur R. Car-mody, Jr., Mayer, Smith & Roberts by A. J. Gregory, Jr., Shreveport, for defendants-ap-pellees.
    Before HALL, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Plaintiffs, Merlie Allen and her husband Dempsey, appeal a summary judgment rejecting their demands for medical expenses and general damages suffered by Mrs. Allen after she was stopped exiting a Sears, Roebuck & Company store because her passage activated a shoplifting detection device. The defendants are Sears, Roebuck & Company, Palais Royal, Inc., and Federal Insurance Company, Palais Royal’s insurer.

Sears’ motion for summary judgment was based upon the pleadings and affidavits of its employees. Palais Royal and Federal relied upon Sears’ affidavits and the pleadings supplemented by an affidavit from its store manager and the deposition of one of its store clerks to support its motion for summary judgment. The plaintiffs filed affidavits opposing the motions. The district judge granted the motion for summary judgment and dismissed the action. Plaintiffs appealed and we affirm.

THE FACTS

In November, 1979, Mrs. Allen and her daughter, Audrey Herring, were shopping in the Palais Royal store located in Mall St. Vincent in Shreveport, Louisiana. Mrs. Allen found a purse she wished to buy, but could not find a sales clerk in that department. She then went to the cosmetic department and got its clerk, Eva Hughes, to check her out.

Hughes rang up the sale and then examined the purse to remove the special inventory tag which activates Palais Royal’s electronic shoplifting detection system. Hughes could not find such a tag in the purse so she placed it in a sack and gave it to Mrs. Allen. Mrs. Allen and her daughter then left the store and passed through the detection system without incident.

During lunch Mrs. Allen transferred the contents from her old purse into the new purse and placed her old purse in the Palais Royal sack. The two women then continued their shopping in the Sears store located in the mall. On their entrance into the Sears store they passed through Sears’ detection system without incident. Both Sears and Palais Royal prominently displayed signs informing patrons that electronic shoplifting equipment was in use.

Mrs. Allen made a purchase in the Sears store. She placed the Palais Royal sack containing her old purse in the larger Sears sack and began leaving the store with her daughter. When Mrs. Allen passed through the detection system on the way out it was activated by her passage. There is some dispute as to how the Sears employees reacted.

The affidavits of the Sears’ employees recount this version. A saleswoman approached Mrs. Allen and explained that a clerk had probably failed to remove an inventory tag from her purchase. Mrs. Allen then handed the lady the Sears bag, but no tag was found on the Sears purchase. The saleswoman then noticed the Palais Royal sack. Mrs. Allen explained that she had just bought a purse at Palais Royal. Mrs. Allen then opened the new purse where the clerk found a Palais Royal inventory tag which had triggered Sears' device. The saleslady and a security guard who had walked up explained the operation of the equipment to Mrs. Allen.

Mrs. Allen and her daughter’s affidavits recalled the incident differently. They said that after the alarm sounded a saleslady approached and snatched the Sears bag from Mrs. Allen’s hands. The saleslady and a security guard who soon arrived began going through the sack without any explanation despite Mrs. Allen’s requests for one. The Sears employees then found the Palais Royal tag and told her it had activated the system.

There is no dispute as to what followed the incident in Sears. Mrs. Allen returned to Palais Royal and demanded that -Ms. Hughes come with her to Sears and explain what had happened. Mrs. Allen also complained to the Palais Royal manager and he and Ms. Hughes returned to Sears with Mrs. Allen where they explained what had happened and apologized for the incident.

Mrs. Allen was very upset by the incident. She visited a hospital emergency room, a physician, and took medication for the treatment of her agitation.

Plaintiffs then brought this action. The defendants moved for summary judgment. The trial judge granted the motion for summary judgment concluding that the defendants’ conduct was sanctioned by LSA-C.Cr. P. art. 215.

The plaintiffs appeal and set out three assignments of error. First, that the trial judge erred in failing to hold LSA-C.Cr.P. art. 215 unconstitutional. Second, that the trial judge erred in finding that LSA-C.Cr. P. art. 215 protected a defendant who had failed to remove a tag from merchandise. Third, that it was error for the trial judge to fail to hold Palais Royal liable under LSA-C.C. art. 2322, contending Palais Royal’s detection system was in ruin because it was not triggered when Mrs. Allen walked through it carrying her purse containing the tag designed to activate the system.

Summary judgment should be granted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); LSA-C.C.P. art. 966. The mover must show that there was no genuine issue of material fact and reasonable minds must inevitably conclude that he is entitled to judgment as a matter of law for summary judgment to be warranted. Chaisson, supra.

LIABILITY UNDER ARTICLE 2322

The appellants contend that Palais Royal should be liable under LSA-C.C. art. 2322 as the owner of premises which had an object of ruin, a defective shoplifting detection device.

There are three elements which are required for the imposition of liability under LSA-C.C. art. 2322: (1) there must be a building; (2) the defendant must be its owner; and (3) there must be a ruin, due to a vice in construction or failure to repair, which caused the damage for which recovery is sought. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978).

The third requirement is lacking in this case. Plaintiffs never suggest how the alleged ruin, the detection system, is causally connected with the damage. The damage was not caused by the failure of Palais Royal’s system to go off. It was caused by the failure of Hughes to find and remove the tag. Once that had occurred the incident complained of was set to occur and it would have occurred at Palais Royal had its system been activated. The failure of Palais Royal’s detection system did not cause plaintiff’s damage, instead, it delayed the occurrence of the damage. Assignment number three is without merit.

THE APPLICABILITY OF LSA-C.Cr.P. ART. 215

Appellants contend that Article 215 should not protect these defendants because it was not intended to provide immunity to merchants who detain innocent customers because of neglect of the clerk to remove the tag and because of defective detection equipment which only activates one-third of the time. We shall first consider this assignment of error as it applies to Sears.

The incident occurred in the Sears store. There were signs warning that electronic detection equipment was in use. Mrs. Allen activated the equipment when she was exiting the store, and, therefore, was briefly detained until the Palais Royal tag was discovered. Even under Mrs. Allen’s and her daughter’s description of the incident we cannot say that the detention and search, while perhaps discourteous, were unreasonable in force or duration. We conclude that Sears was within the protection of LSA-C.Cr.P. art. 215 in its actions.

A similar case with the same result is Lindsey v. Sears, Roebuck & Co., 389 So.2d 902 (La.App. 4th Cir. 1980). In Lindsey the plaintiff was leaving the store with her purchase when a tag which a sales clerk had failed to remove activated the store’s detection equipment. Plaintiff was stopped by a store detective who took her back inside the store where the contents of her bag were examined until the plaintiff’s receipt was found. Upon discovery of the receipt the plaintiff was released. The clerk who had failed to remove the tag apologized to the plaintiff for her error. The court concluded that the detention was not unreasonable in manner or extent, and that, therefore, the store was protected by LSA-C.Cr.P. art. 215. It is even more apparent here than in Lindsey that Sears is covered by the Article. In this case it was not even a Sears employee who failed to remove the tag. Instead, it was the employee of another store who failed to remove the tag.

Appellants’ contention that the immunity provided to Sears by LSA-C. Cr.P. art. 215 should not apply because the detection system failed to trigger when she entered the store is without merit because the failure of the device to activate caused her none of the alleged damages. We also conclude that the language of subsection B — “.. a signal from the device to the merchant or employee indicating the removal of specifically marked merchandise shall constitute a sufficient basis for reasonable cause to detain the person” does not require the person so detained to have triggered the device with the merchant’s merchandise containing the activating tag. The language of the statute requires only that the signal be transmitted indicating the customer is exiting with tagged merchandise and applies to provide “reasonable cause to detain” and there is immunity when the signal is given due to a malfunction in the detecting device causing the signal to occur even when the customer does not have merchandise containing the sensormatic tag.

Whether Palais Royal and its insurer should be protected by Art. 215 is a more difficult question, as plaintiff contends that the immunity provided by the Article is inapplicable to a detention brought about by a failure of the defendant’s employee to remove the tag which triggered the alarm from the merchandise. Its answer requires a consideration of the purpose behind Article 215.

The purpose behind the enactment of Louisiana’s first merchant detection statute in 1958 (then R.S.15:84.5 which is the source of Art. 215) was to assist merchants in dealing with the increasing problem of shoplifting. 25 La.L.Rev. 956. In the case of Thompson v. LeBlanc, 336 So.2d 344 (La.App. 1st Cir. 1976), the court stated that the intent of C.Cr.P. art. 215 was to provide shopkeepers and merchants a reasonable means of protecting their goods against theft compatible and consistent with the constitutional guaranteed protection of patrons and customers from unreasonable detention and search for suspected crimes.

The official comments under C.Cr.P. art. 215 recognizes that while it does not contain the specific immunity provisions for civil and criminal liability contained in the source legislation (R.S.15:84.5) that immunity will naturally follow if the detention is authorized by the statute and the eases decided under C.Cr.P. art. 215 have provided the immunity from liability where the merchants action has been found authorized by art. 215. See Thompson, supra, and cases therein cited, and also Lindsey, supra.

Shoplifting continues to be an ever-growing problem. Merchants have sought to employ new methods and tactics, including electronic detection equipment to combat it. The case of Clark v. I. H. Rubenstein, Inc., 326 So.2d 497 (La.1976), dealt with the use of electronic detection equipment.

In Clark a shopper was allowed to recover damages when she was detained because a clerk had failed to remove an inventory tag which activated the detection equipment when the shopper left the store. In the next session of the legislature, following the Clark decision, the 1976 legislature, by Act no. 339, amended LSA-C.Cr.P. art. 215 to add Subdivision B to provide that a signal from the electronic device shall constitute a reasonable cause for the detention. The intent of the legislature is to be ascertained by inquiring into what was its motive in acting, what mischief was to be avoided or remedied, and what object obtained. Tennessee Gas Transmission Co. v. Violet Trapping Co.. 248 La. 49, 176 So.2d 425 (1965). The action of the legislature shows that it was their purpose and intent to encourage and protect the use of electronic detection equipment in combatting shoplifting.

A statute should be construed so as to accomplish its purpose and object and give effect to the legislative will. State in Interest of Bruno, 388 So.2d 784 (La.1980); J. M. Brown Const. Co. v. D & M Mechanical Con., Inc., 275 So.2d 401 (La.1973).

In light of the purpose and object behind LSA-C.Cr.P. art. 215 its fair construction requires that it be construed to protect Palais Royal in this case and under these facts. There is no sound reason why Palais Royal should not be entitled to the benefits of Article 215 when the failure to remove the tag triggered the electronic detection system in another store rather than triggered the detection system in Palais Royal under which circumstance it would be entitled to rely on LSA-C.Cr.P. art. 215. See Lindsey v. Sears, supra. Assignment number two is without merit.

THE CONSTITUTIONALITY OF LSA-C. CR.P. ART. 215

The appellants’ final contention is that Article 214 violates the fourth amendment of the United States Constitution and Article 1, Section 5 of the Louisiana Constitution.

The detention and search in this case were performed by private individuals who were employees of Sears. The fourth amendment limits the activities of government, not of private persons. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980); State v. Hutchinson, 349 So.2d 1252 (La.1977); White v. Scrivner Corp., 594 F.2d 140 (5th Cir. 1979). Thus, Article 215 does not contravene the fourth amendment since it is concerned with the activities of private persons while the fourth amendment regulates the activity of government.

The appellants also contend that Article 215 is invalid under Article 1, Sec. 5 of the Louisiana Constitution. Appellants rely on State v. Nelson, 354 So.2d 540 (La.1978).

In Nelson a patron of a store was thought to have taken a diamond ring. The patron was taken to a back room by two private security guards where he was handcuffed and strip searched. When one of the guards thought he saw the ring in the customer’s mouth the guards choked him to prevent his swallowing it. During the choking the patron made an inculpatory statement which was introduced at the patron’s criminal trial over his objection. The court there stated:

“The store’s security guards, who were not commissioned as police officers, detained and questioned the accused under purported authority of La.C.Cr.P. art. 215, the ‘shoplifters’ statute. This permits ‘a specifically authorized employee of a merchant’ to ‘use reasonable force to detain a person for questioning on the merchant’s premises,’ when there is reasonable cause (as there was here) to believe that the detained person has committed a theft of the merchant’s goods held for sale.
However, even though there may be probable cause for detention and inquiry, the search itself may be unreasonable in method or extent so as to go beyond the statutory authorization.” Id. at 542.

The court found the search to have been unreasonable and concluded that the statement should be excluded as obtained in violation of Article 1, Section 5. That holding does not impugn the constitutionality of LSA-C.Cr.P. art. 215.

The search in Nelson was clearly unreasonable and obviously far beyond any conduct sanctioned by Article 215. We think the rule of Nelson is that Article 1, Section 5 prohibits unreasonable searches by anyone, whether private persons or police. Article 215 only provides that detentions conducted in accord with its provisions are reasonable. Thus, any detention and search which does not violate Article 1, Section 5 and is carried out in accord with Article 215 is protected. To that extent, and in this case, there is no constitutional infirmity of the statute.

We conclude that there is no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law. Therefore, the judgment appealed from is affirmed. All costs of this appeal are taxed against the appellants.

AFFIRMED.

      . C.Cr.P. art. 215-A. A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.
      A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.
      B. If a merchant utilizes electronic devices which are designed to detect the unauthorized removal of marked merchandise from the store, and if sufficient notice has been posted to advise the patrons that such a device is being utilized, a signal from the device to the merchant or employee indicating the removal of specially marked merchandise shall constitute a sufficient basis for reasonable cause to detain the person.

      . C.C. art. 2322 — The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction. ,

      . C.C.P. art. 966 — The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

      . This basis of liability is not asserted against Sears.

      . Though there is some dispute as to the action of the Sears’ employees, their actions under either version were reasonable and, therefore, there is no genuine issue of material fact presented by the factual dispute as to the application of LSA-C.Cr.P. art. 215.

      . Sec. 5 — Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

      . Of course Article 215 cannot authorize any activity which would violate the constitution.


text:
    John C. BRAY, Plaintiff-Appellee, v. ARTHUR TREACHER’S FISH & CHIPS, INC., et al., Defendant-Appellant.
    No. 14749.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Writ Denied March 19, 1982.

      Peatross & Greer by Charles Peatrose, Shreveport, for plaintiff-appellee.
    Gillespie & Jones by Lyman L. Jones, Jr., Metairie, for defendant-appellant.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This is an action on a lease by the lessor, John C. Bray, against the lessee, Arthur Treacher’s Fish & Chips, Inc., and its surety, National Diversified Corporation, for all the rent due under the lease which the lessor accelerated because the tenant failed to pay the insurance on the premises as required by the lease. The defendants appeal from a judgment against them. We affirm.

The Facts

In November, 1969, Bray leased a location on Hearne Avenue in Shreveport, Louisiana, to Treacher’s for the operation of a fast food, fish and chips restaurant. The lease contained the following provisions relative to insurance:

“12. Tenant at its expense shall obtain and during the term of this lease or any extended period thereof, keep in force a policy or policies of fire insurance, with extended coverage, in an amount equal to the full replacement cost of the building on the demised premises, naming the Landlord as additional insured. Such policy may also have a mortgage clause in favor of any mortgagee of the demised premises to whose mortgage this lease shall be subordinate as hereinafter provided. Such insurance policy may also contain, at Tenant’s option, a waiver of subrogation provision. In the event of loss covered by such insurance, the proceeds shall be paid to Landlord or Landlord’s mortgagee, as their interests may appear. Tenant shall also obtain, at its cost and expense, and keep in force during the term of this lease or any extension thereof, public liability insurance with limits of $250,000.00 per person and $500,000.00 per accident and $25,000.00 for property damage, which policy of liability insurance shall name both the Landlord and Tenant as assureds. Upon failure of Tenant to furnish any policy of insurance as above set forth, Landlord, may at its option, obtain the same and the premium therefor shall immediately become due and payable as additional rent.” [emphasis added]

The lease contained the following provisions as to the lessor’s rights in case of a default by the tenant:

“18. If Tenant shall default in the payment of any rent or additional rent and such default shall continue for more than fifteen days after Landlord has given Tenant written notice of such default, or if Tenant shall default in the observance of any of the other terms, covenants or conditions of this lease and such default shall continue for more than thirty days after written notice of such default, or if such default shall be of such character that it cannot be completely cured within thirty days, and if Tenant shall not have commenced and shall not thereafter proceed with reasonable diligence to cure the same, or if Tenant shall make an assignment for the benefit of creditors, file a voluntary petition in bankruptcy, be by any court adjudicated a bankrupt, then, upon the happening of any one or more of the defaults or events above mentioned, this lease and the term hereof shall, upon the date specified in a notice, which date shall not be less than ten (10) days after the mailing of such notice by Landlord to Tenant, wholly cease and terminate, with the same force and effect as though the date so specified were the date herein-above set forth as the date of the expiration of the original term of this lease and thereupon Landlord may re-enter and have possession of the premises and/or may recover possession thereof in the manner prescribed by the statute relating to summary proceedings. Notwithstanding such re-entry or the dispossession of Tenant by summary proceedings, Tenant shall nevertheless remain and continue liable to Landlord in a sum equal to all rent and additional rent herein reserved for the balance of the term hereof originally demised, or if the extended term of this lease shall then be in effect, for the balance of such extended term. Landlord may relet the demised premises and may alter and repair same for the purpose of such reletting and Tenant shall at all times remain liable for the difference between the rent and additional rent reserved under this lease and the rent obtained as the result of any such relet-ting and for the cost of such repairs or alterations. In the event Tenant shall default at any time, in addition to the remedies set forth above, Landlord may at its option, declare all unmatured^ rental payments hereunder to be due and exigi-ble. All past due rent shall bear interest at the rate of 8% per annum from its due date until paid. In the event it is necessary for Landlord to retain an attorney to collect past due or matured rental, Tenant agrees to pay the reasonable fees of such attorney, [emphasis added]

The evidence shows that Bray and Treacher’s generally had a good relationship. However, on at least two occasions prior to the circumstances on which this suit is based Bray learned that the premises were not insured as required by the lease. On each occasion insurance was quickly obtained, but after the second incident Bray informed Treacher’s that he did not expect this problem to continue to recur.

In early May, 1978, Bray again learned that the premises were uninsured. Bray attempted to contact Treacher’s by telephone about the situation, but was unable to do so. Bray arranged for insurance coverage and informed Treacher’s by certified mail on May 10 that the property had been uninsured, that the lease had been violated and that he had obtained insurance whose cost he expected to be paid as additional rent. The last paragraph of the letter stated:

“Please be advised that we are taking out such insurance and are hereby advising you that the premium is due this date as additional rent and that we consider you, as the Tenant, to be in default of your lease.”

The letter of May 10 did not include the specific cost of the insurance.

On May 26, Bray sent Treacher’s a second letter, again by certified mail, notifying it of the cost of the insurance, $985, and demanding payment of the additional rent by June 10. The letter also informed Treacher’s that, should it fail to pay the additional rent, Bray would avail himself of his rights under the lease provisions relating to tenant defaults.

Bray received no response from Treacher’s before June 16 and on that day filed this suit exercising his option to accelerate the future rentals. Bray also sought the cost of the insurance as additional rent, interest and attorney’s fees as provided for by the lease in his action.

On June 27 Bray received a check for $985 from Treacher’s. On June 28 Bray received a certified letter dated June 21 informing him that a check for the additional rent was being forwarded under separate cover.

Bray also received on June 28 a certificate of insurance which purported to show coverage retroactive to May 10. Treacher’s also later claimed that the property had been covered since August 31, 1977 under its policy with Nationwide Mutual Insurance Company. This assertion is based on an alleged unwritten policy of Nationwide to extend insurance coverage to unknown locations of its national accounts for lengthy periods of time. It is not contended that there is coverage under the written terms of the policy.

After a trial on the merits the district judge found that Treacher’s had violated the lease by failing to maintain insurance on the premises. He granted judgment against the defendants for the additional rent, accelerated future rent, interest and attorney’s fees.

The defendants appealed and set out five assignments of error. First, that the trial court erred by awarding punitive damages. Second, that the trial court erred in concluding that the property was uninsured. Third, that the trial court erred in holding that Treacher’s received proper notice of its failure to provide insurance. Fourth, that the trial court erred in holding that defendant was properly placed in default. Fifth, and finally, that the trial court erred in holding the defendants’ breach of contract to be irreparable. We will consider each assignment separately.

ASSIGNMENT NO. 1

The appellants contend that the district judge erred by awarding accelerated rents because this constituted an award of punitive damages. We agree that punitive damages are generally not allowable in Louisiana. Ricard v. State, 390 So.2d 882 (La.1980). However, the merit of this assignment depends on whether appellants are correct in asserting that accelerated rents are punitive damages.

Clauses providing for the acceleration of future rent in case of breach are lawful and binding on the parties. Shepard Realty Co. v. United Shoe Stores Co., 193 La. 211, 190 So. 383 (1939); Succession of Israel, 154 So. 487 (La.App.Orl.1934); Skye Realty Co. v. Diversified Insurance Agency, Inc., 221 So.2d 871 (La.App. 3d Cir. 1969). Such clauses have been enforced by this circuit. Redline v. Snodgrass, 8 La.App. 19 (La.App. 2d Cir. 1928). We conclude that the award of accelerated rents was not an award of punitive damages. This assignment is without merit.

ASSIGNMENT NO. 2

The defendants assign as error the conclusion that there was no insurance.

Contracts have the effect of law on the parties to them. LSA-C.C. art. 1901. Contracts are to be interpreted to give effect to the intent of the parties. LSA-C.C. art. 1945.

The district court, in its written reasons for judgment, said:

“Lessee, Treacher, has failed to maintain the policy required by Paragraph 12 in full force and effect.”

This is a finding that Treacher’s failed to maintain insurance within the intent of the parties under the lease. That is a factual conclusion which we may not disturb absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Treacher’s contends that the property has been covered since August 31, 1977 under its policy with Nationwide. There is no coverage under the written terms of the insurance contract between Treacher’s and Nationwide. The alleged coverage is based on a supposed unwritten policy of liberality by Nationwide in favor of its national accounts. Because of this unwritten policy Nationwide would have supposedly broadly construed its undisclosed locations coverage to cover the Hearne Avenue location.

Appellants contend that the trial judge ignored the testimony of their witnesses in concluding that there was no coverage. That is incorrect. The district judge’s reasons for judgment show that he was aware of that testimony and considered it, but was unpersuaded by it. The trial judge has considerable discretion on credibility determinations and questions of fact. Kirklin v. Winn-Dixie Louisiana, Inc., 391 So.2d 87 (La.App. 4th Cir. 1980). The trial judge’s rejection of the testimony as to Nationwide’s alleged unwritten policy of liberality was well within that discretion.

Treacher’s also claims coverage by virtue of its effort to have the Hearne Avenue location specifically added to its policy with Nationwide. In accord with this effort Treacher’s obtained on June 19 a certificate of insurance purporting to show retroactive coverage to May 10. This coverage was not accepted by Nationwide until July 20.

This retroactive coverage does not fulfill the lease requirement that the lessee maintain insurance. The obvious intent of the provisions requiring that the leased premises be insured is to protect the parties against loss occasioned by damages to the premises. Obtaining retroactive coverage would not give effect to that intent. This retroactive coverage amounts to nothing more than attributing part of the premium for coverage to days already past when no loss occurred. The parties would derive no benefit from such coverage since they would gain no protection by it.

Assuming that the agent who issued the certificate of insurance on June 19 had the power to bind Nationwide to the coverage before Nationwide accepted the coverage on July 20 (and this fact is established in the record only by the testimony of the issuing agent) the premises would have been uninsured from prior to May 10 until June 19 if plaintiff had not immediately obtained the insurance.

At the time Treacher’s obtained the retroactive coverage Treacher’s primary problem was not getting insurance on the property, but paying for that which Bray had already secured. The trial judge was correct in concluding that Treacher’s had failed to maintain coverage within the intent of the lease.

Assignment number two is without merit.

ASSIGNMENT NO. 3

The appellants assign as error the finding that Treacher’s received proper notice of the failure to provide insurance.

The defendants seem to complain that Bray did not give them some general notice of their failure to provide insurance. The notice of failure to provide insurance was fulfilled by plaintiff’s letter of May 10.

Bray’s first letter cites the provisions of the lease which require the lessee to maintain insurance on the property. The letter states that the property had been uninsured, that the lessor had exercised his option to obtain insurance when the lessee failed to do so, that the cost of the insurance was due as additional rent and that the lessor considered lessee to have violated the lease. This letter gave Treacher’s more than adequate notice of its breach of the lease by failing to maintain insurance.

ASSIGNMENT NO. 4

Appellants assert that there was no proper putting in default. The lease provided that the premiums for any insurance purchased by the lessor because the lessee had failed to insure the property were “immediately due and payable as additional rent.” Bray’s letter of May 26, received by Treacher’s on June 6, informed Treacher’s of the amount due as additional rent, $985, and demanded its payment by June 10.

A party may be put in default by a demand in writing. LSA-C.C. art. 1911. Such a demand is effective from the time of delivery. Laville v. Rightor, 17 La. 303 (1841). The putting in default should be made at or after the time stipulated for performance of the obligation. Southern Construction Co. v. Housing Authority, 250 La. 569, 197 So.2d 628 (1967). To put in default a letter need only let the debtor know that his performance is expected and that the creditor stands ready to perform any obligation he has. Hafner Mfg. Co. v. Lieber Lumber & Shingle Co., 127 La. 348, 53 So. 646 (1910); Fox v. Doll, 221 La. 427, 59 So.2d 443 (1952).

Treacher’s obligation to reimburse Bray for the insurance premium was due immediately upon Bray’s purchase of the insurance. Plaintiff’s letter of May 10 which was received by Treacher’s on May 17, may have adequately notified Treacher of its default and triggered the commencement of the fifteen day delay, even though it failed to state the amount plaintiff paid as premium for the insurance. This letter advised Treacher’s of its violation of the lease by the failure to maintain the insurance and specifically stated that Treacher’s was in default. A contention could be made that at this point Treacher’s with sufficient notice of its default had the duty to find out the amount of the premium for the insurance and pay it, and plaintiff was not required to give Treacher’s the specific information as to the cost of the insurance as a condition precedent to the commencement of the fifteen day delay allowed Treacher’s by the lease to cure the defect. However, we find it unnecessary to base our decision upon the grounds that the fifteen day delay commenced upon Treacher’s receipt of the May 10 letter because Treacher’s failed to cure the default within fifteen days following its receipt of plaintiff’s May 26 letter which it received on June 6.

Treacher’s did not pay the rent on or before June 21. Treacher’s sent Bray a letter on June 21 informing him that a check for the additional rent was being forwarded under separate cover. The envelope containing the check had postage placed on it by means of a postage meter and the meter stamp was not placed on the envelope until June 22. Since the postage was not placed on the envelope until after the delay had run, it could not have been mailed within the fifteen days permitted Treacher’s by the terms of the lease to cure the default.

The suit was filed on June 16 demanding the additional rent and accelerating the unpaid rental installment. The lease specifically authorized plaintiff to accelerate the rent upon any default by Treacher's:

“In the event the Tenant shall default at any time, in addition to the remedies set forth above, the Landlord may at its option declare all unmatured rental payments hereinunder due and exigible.”

This suit was filed ten days after the defendant had received the notice of default contained in plaintiff’s letter of May 26 but five days before the elapse of the fifteen days that the lease gave Treacher’s to cure the default and for this reason was premature if plaintiff’s letter of May 10 is construed as not triggering the commencement of the fifteen day period for curing the default. Defendants remedy to the premature suit was to have filed an exception of prematurity which is a dilatory exception authorized by LSA-C.C.P. art. 926.

Defendants failed to file the exception of prematurity and for that reason any contention by it that the suit was premature because it was filed before the elapse of fifteen days following its receipt of notice of default is waived. Martin v. Watson, 273 So.2d 677 (La.App. 1st Cir. 1973); May v. Southland Corp., 341 So.2d 421 (La.App.3d Cir. 1976); Texas Gas Transmission Corporation v. Pierce, 192 So.2d 561 (La.App.3d Cir. 1966); Pringle Associated Mortgage Corporation v. Eanes, 211 So.2d 399 (La.App.1st Cir. 1968).

Assignment number four is without merit because the defendants failed to cure their default within the fifteen days following receipt of notice of default and waived any contention they may have had that the suit was premature by failing to file an exception of prematurity.

ASSIGNMENT NO. 5

This assignment complains that the trial judge should have found defendants’ breach to have been cured by the payment of the insurance premium and the securing of insurance coverage.

An obligor cannot cure his default merely by performing the principal obligation. He must also perform the accessory obligations which have accrued to the obligee by virtue of the default in order to cure it. Litvinoff, Louisiana Civil Law Treatise, Vol. 7, 435.

When defendants defaulted Bray acquired and then exercised the right to accelerate the future rent. Therefore, to cure its default it was necessary for Treacher’s to pay the additional rent and the accelerated future rent. Treacher’s sent a check for the additional rent alone. This assignment is without merit.

The judgment appealed from is AFFIRMED. All costs of this appeal are assessed against appellants.

      . C.C. art. 1901 — Agreements legally entered into have the effect of laws on those who have formed them [Agreements formed according to law bind those who make them].
      They can not be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.
      They must be performed with good faith.

      . C.C. art. 1945 — Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:

        First — That no general or special legislative act can be so construed as to avoid or modify a legal contract previously made;

        Second — That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;

        Third — That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences.

        Fourth —That it is the common intent of the parties — that is, the intention of all — that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no contract.

      . C.C. art. 1911 — MANNER OF PUTTING IN DEFAULT. “The debtor may be put in default in three different ways: by the term [terms] of the contract, by the act of the creditor, or by the operation of law:
      1. ...
      2. By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.
      3. ...”

      . C.C.P. art. 926 — The objections which may be raised through the dilatory exception include, but are not limited to, the following:
      (1) Prematurity;
      (2) Want of amicable demand;

      All objections which may be raised through the dilatory exception are waived unless pleaded therein.

      . “As the obligee has a right to those accessory obligations because of the default incurred by the obligor, the latter cannot avoid the consequences of his failure by offering to perform just the principal obligation. His late tender cannot be effective without the consent of the creditor, who has now the choice of seeking, or accepting, performance plus damages for delay, or of seeking the dissolution of the contract in the proper case.”


author: FRED W. JONES, Jr., Judge.

text:
    Iva June NELSON, Plaintiff-Appellee, v. Earl C. HILDEBRAND, Defendant-Appellant.
    No. 14750.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for defendant-appellant.
    Bethard & Davis by Henry W. Bethard, III, Coushatta, for plaintiff-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, JJ.
   FRED W. JONES, Jr., Judge.

Defendant appeals a judgment rendered in an eviction proceeding ordering him to vacate and deliver possession to plaintiff of certain property situated in Red River Parish. We affirm.

The record reveals that the community existing between one J. G. McGinty and Ruby Giddens McGinty acquired several hundred acres of land in Red River Parish. Upon the death of McGinty some time prior to 1975, an undivided one-half interest in this property was vested in his widow and the other one-half interest in his two children, Mrs. Iva June McGinty Nelson and Mrs. Ruby McGinty Shrell, subject to the usufruct of their mother.

In March 1975 Mrs. McGinty donated to her two children, her undivided interest in this property, but expressly reserved the usufruct thereof. In April 1975 the two daughters executed an act of partition under which each acquired the sole naked ownership of designated portions of the property.

On February 10, 1978 Mrs. McGinty executed in favor of Earl C. Hildebrand a lease for the “hunting of wild game” for a primary term of five years at a rental of $400 per year covering that property of which Mrs. Nelson had the naked ownership. The lessee was further granted an option to renew the lease for an additional five years at an annual rental of $475. The fact that Mrs. McGinty was only the usufructuary of the leased property was not mentioned in the instrument.

Hildebrand exercised his rights under the lease by placing a school bus on the property for use as a camphouse; connecting electrical lines to the bus; building deer stands; clearing underbrush for access to the camp-house and the stands; fencing some unfenced portions of the property; and installing two metal gates.

Mrs. McGinty died in July 1979. The record indicates that Hildebrand, who lived in Caddo Parish, continued to exercise hunting privileges on the property covered by the lease. On February 11, 1980 Hildebrand transmitted to Mrs. Nelson a check in the amount of $400, made payable to “Imogene Nelson”, as annual rental for the “deer lease”. Mrs. Nelson accepted the check and deposited it in her bank account.

By letter dated January 23, 1981 Mrs. Nelson's attorney advised Hildebrand that his lease from the usufructuary expired upon her death and notified him to vacate the property. Hildebrand’s 1981 rental check was returned with the letter. Subsequently, by letter dated February 19, 1981 Mrs. Nelson’s attorney gave Hildebrand five days notice to vacate the property or, alternatively, face eviction proceedings. Then, by letter dated March 16, 1981 Mrs. Nelson’s attorney advised Hildebrand’s attorney that eviction proceedings would be instituted if Hildebrand failed to vacate the property within ten days.

This eviction suit was filed on April 9, 1981, alleging that the lease had terminated with the death of the usufructuary. It was further asserted that Hildebrand had violated the conditions of the lease by failing to fence all unfenced portions of the lease premises.

On the day of the trial of the summary eviction proceeding, Hildebrand filed an answer to the rule and reconvened for the value of improvements made to the leased property and for loss of profits anticipated from subleasing (in the event of eviction). The trial judge ruled that trial would proceed as to the eviction demand only, reserving to Hildebrand the right to try the re-conventional demand later.

In oral reasons for judgment the trial judge found that the lease was terminated by the death of the usufructuary; that Mrs. Nelson’s acceptance of the rental check in 1980 “was done through error and was not intended for ratification of the lease”; and that defendant’s failure to fence all of the unfenced portions of the leased property breached the lease (apparently an alternative finding in the event that the lease was still in existence).

Appellant contends that the trial judge erred in failing to find that Mrs. Nelson’s acceptance of the rental check constituted a ratification of the lease executed by her mother and in concluding that appellant had breached the lease.

Civil Code articles dealing with the authority of a usufructuary to lease property burdened by the usufruct and the legal effect of that type of lease are:

Art. 567 (formerly Art. 555).
The usufructuary may lease, alienate, or encumber his right. All such contracts cease of right at the end of the usufruct.
If the usufructuary leases, alienates, or encumbers his right, he is responsible for the abuse that the person with whom he has contracted makes of the property. Art. 607 (formerly Art. 606).
The right of usufruct expires upon the death of the usufructuary.
Art. 2730.
A lease made by one having a right of usufruct, ends when the right of usufruct ceases.
The lessee has no right to an indemnification from the heirs of the lessor, if the lessor has made known to him the title under which he possessed.

Finding that a lease had expired upon the death of the lessor-usufructuary, the court in Sparks v. Dan Cohen Co., 187 La. 830, 175 So. 590 (1937) noted:

“A lease made by an usufructuary, therefore, “ceases of right at the expiration of the usufruct,” whether the lessor informed the lessee, or failed to inform him, before or at the time of making the lease, that he, the lessor, was only the usufructuary, and not the owner, of the property. It is the right of the lessee to be indemnified by the heirs of the lessor, if the lessor is only the usufructuary and if he dies before the expiration of the term of the lease, that depends upon whether the lessor failed to make known to the lessee that he, the lessor, was not the owner but only the usufructuary of the property. That is the precise language and meaning of. article 2730 of the Civil Code. An usufructuary cannot, by failing to disclose to a lessee that he, the lessor, is not the owner but only the usu-fructuary of the property, deprive the owner of his right under the law which says that such a lease “ceases of right at the expiration of the usufruct.”

On the other hand, in Aucoin v. Greenwood, 199 La. 764, 7 So.2d 50 (1942), the court found that the naked owner had ratified the lease by the usufructuary. Since this appears to be the only reported Louisiana case addressing this specific question, the particular facts of that case merit close scrutiny. In 1929 the owner (Young) of an undivided one-half interest in a lot, having a usufruct on the other undivided one-half interest, executed a lease which was subsequently assigned to Greenwood. In 1935 Greenwood purchased Young’s undivided one-half interest. In 1936 Aucoin acquired the other undivided one-half interest, subject to Young’s usufruct. In June 1938 Young executed a notarial act waiving and abandoning his usufruct in favor of’Aucoin. This instrument included a clause directing payment of lease rentals by Greenwood to Aucoin. Aucoin immediately notified the lessee Greenwood of the effect of this usu-fruct waiver by letter containing this language:

“ ‘You have a recorded lease, and I realize that I purchased the children’s one-half interest in the property subject to the terms and conditions of your lease. Whatever, rights you have under this lease I have respected and will continue to do so as long as you do not violate the terms and conditions of the same.
“ T now stand in the place of Napoleon Young with the right to collect one half of the stipulated rental due for this property in advance each month.’ ”

Young died in November 1938.

Rejecting Aucoin’s argument that the lease terminated with the death of the usu-fructuary, the court held:

“.. . He fails, however, to take into consideration his conduct, his activities, and express declaration prior to the cessation of this usufruct wherein he, voluntarily, accepted the position of lessor to defendant in accordance with the then existing valid lease. Readily conceding that a usufruct ceases at the death of a usufructuary, plaintiff having accepted the benefits of the waiver of this usu-fruct five months prior to its legal cessation, and created for himself by his own actions and conduct the relation of lessor and lessee as between he and defendant, cannot now be heard to demand the abrogation of this lease which he himself gave a continued life. And to go further, at the death of Napoleon Young he no longer was usufructuary, having five months previously waived and abandoned it in favor of plaintiff, who then in turn confirmed and accepted the privileges and obligations flowing from the then existing lease.”

Here, unlike Aucoin, there is no contention that Mrs. Nelson did anything prior to extinction of the usufruct by the death of the usufructuary to ratify the lease. Under the plain language of the pertinent codal articles, we must conclude that the lease by Mrs. McGinty in favor of Hildebrand terminated in July 1979 upon the death of the usufructuary. The pivotal question in this case is whether, after the death of her mother, Mrs. Nelson by any means adopted the terms and conditions of that lease so as to assume the relation of lessor of her Red River Parish property to Hildebrand.

First, again unlike Aucoin, there was no express statement in writing by Mrs. Nelson expressing an intent to adopt her mother’s lease to Hildebrand. Second, as to an oral agreement, appellant alludes to a conversation between Mrs. Nelson and Hildebrand in January 1981 dealing with the lease. However, the evidence concerning the substance of this conversation is vague and inconclusive. Consequently, in the final analysis, appellant’s principal reliance for proof of continued existence of his lease is upon Mrs. Nelson’s acceptance of the rental check from him in February 1980.

We note that, because of ambiguity in the lease relating to this annual payment, it is unclear whether the check in question was for the past year’s rent or for the next year’s rent. Be that as it may, we do not find that the mere acceptance of rent by the property owner after the termination of a lease by the death of the lessor-usufructuary, absent other circumstances manifesting a clear intent to adopt the pri- or lease, constitutes an adoption of the lease by the property owner. Once the lease terminated with the death of the lessor-usu-fructuary, to retain possession of the lease premises for hunting purposes Hildebrand had the burden of proving that, either expressly or impliedly, a contract of lease was established between Mrs. Nelson and him. He attempted to do this by proving that Mrs. Nelson had adopted the lease executed by her mother. We agree with the trial judge that appellant failed to discharge his burden of proof. Therefore, the trial judge correctly found that the lease terminated upon the death of Mrs. McGinty; was not subsequently adopted by Mrs. Nelson; and Mrs. Nelson was entitled to have Hildebrand evicted.

Having determined that no contract of lease existed between Mrs. Nelson and Hildebrand, we find it unnecessary to consider whether that lease should be dissolved because of its breach by the lessee Hildebrand. As previously noted, Hildebrand retains the right to pursue his claims under the reconventional demand.

For the reasons set forth, the judgment of the district court is affirmed, at appellant’s cost.

      . Although Hildebrand filed an exception of nonjoinder of an indispensable party plaintiff, contending that Mrs. Shrell also owned some of the property covered by the lease, the trial judge made the fact-finding, based upon the only evidence in the record on this point, that the lease covered only land owned by Mrs. Nelson. Since this finding was not clearly wrong, we conclude that the trial judge properly overruled the exception of nonjoinder.


text:
    Tex C. MERCER, Plaintiff-Appellee, v. COLUMBIA EQUIPMENT COMPANY, INC., Defendant-Appellant.
    No. 14751.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.
    Harold D. Vaught, Shreveport, for defendant-appellant.
    Smith & Bowers by Glen H. Smith, Shreveport, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Defendant appeals a judgment rendered in favor of a former employee for the value of tools allegedly stolen from the employer’s premises after working hours, contending the trial judge erred in (1) finding the parties had entered into a contract of deposit and (2) holding that the loss of the tools was due to the employer’s lack of care.

We affirm.

Plaintiff was hired as a mechanic by defendant in January 1974. In accordance with company policy, plaintiff was required to furnish his own tools. Defendant normally employed from four to six mechanics. Although permitted to take their tools with them after working hours, the mechanics usually left them in the individual bays where they worked, except on occasions when they “moonlighted” on other jobs. Defendant’s premises included a tool room where the mechanics could place their tools after working hours for security purposes. However, defendant did not require their use of the room and it was established that the mechanics seldom if ever stored their tools in that room.

At the beginning of his employment with defendant, plaintiff arranged to have his tools transported to defendant’s shop in a relative’s pickup truck. The tool box, measuring some four feet high and two and one-half feet wide, consisted of two parts — a roll cabinet on bottom and a separate unit sitting on top. Because of the bulk and weight of the units, two men were required to load them onto the truck and later carry them into defendant’s shop. The units would not fit in a car, which was plaintiff’s sole method of transportation during his first months of employment with defendant.

Plaintiff testified that at the end of the working day he routinely left his tools in the area where he was working — as did the other mechanics. He stated that taking his tools back and forth home every day or on the weekends would have simply been impractical, since this would have required his securing a pickup truck (before his was repaired) and hiring someone to assist in lifting the box. This obvious fact was acknowledged by defendant’s general manager.

Upon reporting for work on the morning of October 14, 1976, plaintiff discovered that the top part of his tool box and the tools contained therein were missing. After his employer declined to reimburse plaintiff for his loss, this litigation ensued. At the trial on the merits the parties stipulated that the value of the missing tools was $1229.02.

In his written opinion, relying upon the recent case of Harper v. Brown & Root, Inc., 391 So.2d 1170 (La.1980), the trial judge found a contract of deposit had been established between the parties; the property in question was lost while deposited; and defendant did not rebut the legal presumption that the loss resulted from the depositary’s lack of care.

Louisiana Civil Code Article 2926 defines a “deposit” as “an act by which a person receives the property of another, binding himself to preserve it and return it in kind.” This contract is created by the parties’ mutual consent, either express or implied. The other requisite for formation of the contract is delivery of the property. A depositary’s acceptance of delivery may imply consent. La.C.C. Arts. 2930, 2932, 2933. A partial surrender of possession and control may constitute a delivery if the necessary consent or intent to create a deposit is found. Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La.1973).

In the Harper case, supra, a mechanic sued his employer for the loss of tools stolen from the employer’s power plant construction site after working hours. It was shown that plaintiff was required to furnish his own tools, which filled two chests. During working hours these tools were transported around the construction area on a company truck, which was parked near a guard shack after working hours. Employees, upon obtaining a permit, could remove their tools from the construction area at the end of the day. However, the mechanics usually left their tools on the company truck, stationed within a fenced area, with the gates locked. Guards were on duty 24 hours a day. Reversing lower court judgments in favor of the employer, the Louisiana Supreme Court held:

“Under these circumstances the employee as a practical matter was virtually required to leave his tools at the construction site and cannot reasonably be viewed as having done so for his own convenience as a matter of choice. We hold that when the employee initially furnished the tools on the job site, the parties implicitly intended that the employer would preserve the tools and return them to the employee, partially during , each working day and completely at the termination of his employment. The fact that both parties exercised some degree of possession and control each day does not necessarily exclude a finding of receipt and delivery necessary to constitute a deposit, when the parties by their words and action clearly intended the creation of this relationship.”

Despite appellant’s argument to the contrary, we find that Harper is factually indistinguishable from the ease at bar. In both the employee was required to furnish his own tools at the job site and it was impractical for him to take the tools with him at the end of the work day. Consequently, we agree with the trial judge that a contract of deposit was established here between the plaintiff employee and the defendant employer, based upon the nature of their arrangement with reference to the tools and the circumstances of the case. There was consent (implied) to the deposit by the requirement that the employee use his own tools at defendant’s work premises. The impracticality of removing the tools each day after working hours required their delivery to the employer for safekeeping. The fact that both parties exercised some degree of possession over the tools does not militate against characterizing the legal relationship as a contract of deposit. See Coe Oil Service, Inc. v. Hair, supra.

Having determined that there was a contract of deposit, we next examine the duty of the depositary. La.C.C. Art. 2937 stipulates that the “depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.” Our jurisprudence has established that a depositary’s obligations under this codal article are those of a “prudent administrator.” Brown & Blackwood v. Ricou-Brewster Bldg. Co., 239 La. 1037, 121 So.2d 70 (1960); Leatherman v. Miller’s Mutual Fire Ins. Co., 297 So.2d 540 (La.App.3rd Cir. 1974); Insured Lloyds v. Liberty Mutual Ins. Co., 295 So.2d 206 (La.App.3rd Cir. 1974).

Once the depositor proves the existence of the contract of deposit and the loss of the deposited articles, there is a presumption that the depositary has not fulfilled his obligation to act as a prudent administrator. Harper v. Brown & Root, Inc., supra, p. 1173.

It follows that, in this case, it became incumbent upon the defendant depositary to exonerate itself from liability by proving, as an affirmative defense, that it had acted as a prudent administrator in safeguarding the deposited property, i.e., plaintiff’s tools. In fact, the record is practically devoid of evidence pertaining to measures taken by defendant to secure its premises against burglaries, other than the fact that its building was locked at night. The existence of other protective devices is left to speculation. Defendant’s general manager indicated that the mere presence of a fence around the building might have resulted in coverage of this particular theft under its insurance policy. Apparently, there was no fence. In summary, we agree with the trial judge that the defendant employer failed to rebut the presumption that it was not a prudent administrator with reference to the deposited property.

For these reasons, we affirm the judgment of the district court, at appellant’s cost.


text:
    Theresa Pantalion PRIMM, Plaintiff-Appellee, v. Mark Steven PRIMM, Defendant-Appellant.
    No. 14752.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.

      Sockrider & Bolin by H. F. Sockrider, Jr., Shreveport, for defendant-appellant.
    Roland V. McKneely, Jr., Bossier City, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The father appeals that part of a divorce judgment which awarded custody of the two children of the marriage to the mother who obtained the divorce on the grounds of a one-year separation.

The litigants agree that CC 157 is the applicable law, notwithstanding that the trial court apparently applied CC 146 and awarded provisional custody to the mother for a period of nine months. Barrilleaux v. Barrilleaux, 381 So.2d 518 (La.App. 1st Cir. 1979).

Civil Code Art. 146 effectively provides that pending a decision in a separation or divorce action, provisional custody of children shall be awarded to either parent. CC 157 mandates that in all cases (judgments) of separation or divorce, the permanent custody of children shall be granted to either parent. Both articles direct that custody is to be awarded in accord with the best interest of the children.

Expert and lay testimony revealed many shortcomings of both parents and the trial court observed “. .. that we cannot say that either party is much better qualified to take care of these children than the other.” In determining “. .. who will best take care of these children”, the trial court said that it weighed very thoroughly the expert testimony in awarding provisional custody to the mother. Because the best-interest standard is to be applied in determining permanent as well as provisional custody, we shall accept the trial court’s weighing of the testimony in the light most favorable to upholding the judgment in accord with that standard. See Ford Motor Credit Co. v. Diffey, 378 So.2d 1032 (La.App. 2d Cir. 1979).

Where a divorce is granted, that custody should be permanent, not in the sense that it cannot be later modified because of a change in circumstances, but because permanent custody is mandated in all cases of separation or divorce by the clear language of CC 157. Barrilleaux, supra. The trial court that awards permanent custody remains a court of proper jurisdiction and venue to later change custody when the circumstances of the parties have changed. Sims v. Sims, 388 So.2d 428 (La.App. 2d Cir. 1980).

A trial court may condition the award of permanent custody where the circumstances reasonably warrant. See Lloyd v. Lloyd, 313 So.2d 854 (La.App. 2d Cir. 1975). One of the conditions here imposed was that the mother should not have the children with her at any time when she and her male friend, S.M., visit each other. The trial court had the discretion to accept or reject the testimony of S.M.’s ex-wife about S.M.’s unsavory actions in the presence of his own son. We find that the imposition of that condition upon the award of custody was not error.

The trial court directed the Louisiana Department of Health and Human Resources to investigate the children’s circumstances for nine months and to notify the court at any time if any action needed to be taken with respect to the children. See Art. 25 CJP, LRS 14:403. We pretermit considering whether or not information revealed to the court by DHHR can be revealed by the court to the father. See CJP Arts. 124, 125. Caddo Parish has a juvenile court distinct from the Caddo Parish District Court and we pretermit considering what, if any, jurisdictional authority remains with a judge of the district court to direct the DHHR activities outside of the juvenile statutes or LRS 14:403. We see no real error in the trial court’s expressing a continued concern in the welfare of children whose custody is or has been at issue. It is a universally recognized proposition that the State and its courts are always concerned with the welfare of children. Wood v. Beard, 290 So.2d 675, 677 (La.1974).

These children are two boys who were ages six and two when the divorce was granted. Their parents married while teenagers and lived together about five years. Before the separation, this family lived in a mobile home on the I2V2 acre homestead of the maternal grandparents. After the separation, the mother and the children have lived in the home of these grandparents on the same property. The mother has had the same employer for four years and has a good work record. The children stay with a baby sitter while their mother works. The grandparents also sit with the children. The mother and the children have regularly attended church before and after the separation. A psychological expert who said that the mother was emotionally immature and of low average IQ, was of the opinion that she could adequately function as the mother-custodian of the children, whom she has primarily attended since their birth.

The father now works regularly and has become active in his church and, according to a clinical social worker, is fit for custody. Mr. Primm’s psychological tests revealed some relatively serious problems of depression and impulsiveness.

Neither parent is perfect, but the best interest of these young children will be served by maintaining their “permanent” custody with their mother in the same environment they have known since birth. Stability of environment is one factor which may be considered in applying the best interest standard. See Languirand v. Languirand, 350 So.2d 973 (La.App. 2d Cir. 1977), writ denied.

The judgment appealed is amended to change the custody awarded to the mother from provisional custody for a period of nine months to permanent custody, and, as amended, and in all other respects, at appellant’s cost, the judgment is AFFIRMED.

      . The judgment reads in part:
      “.. . that the provisional custody of the minor children, ... is hereby awarded unto [the mother] for the next nine months, at which time the proceeding shall be brought back into this Court for further determination, subject to the following conditions:
      “(a) The Louisiana Department of Health and Human Resources is to investigate the surroundings and circumstances in which these children find themselves, during the next nine months, including, but not limited to, surprise visitations of their above at any time, to determine their circumstances and to notify the court at any time in their opinion that any action should be taken for or on behalf of the children’s protection;
      “(b) [The mother] must never be found to have these children in the presence of [S.M.]”

      . CC 146 reads:
      “If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the husband or wife, in accordance with the best interest of the children. In all cases, the court sháll inquire into the fitness of both the mother and the father and shall award custody to the parent the court finds will in all respects be in accordance with the best interest of the child or children .... ” (Emphasis supplied.)
      CC 157 reads, in part:
      “A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent ...” (Emphasis supplied.)


text:
    Charles FRAZIER, dba Frazier’s Manufactured Housing, Plaintiff-Appellant, v. GREEN STEEL BUILDING, INC., Defendant-Appellee.
    No. 14753.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1982.

      Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Farrar, Perry & Jefferson by Bennie Mac Farrar, Monroe, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

The plaintiff, Charles Frazier, d/b/a Frazier’s Manufactured Housing (sometimes hereinafter called Frazier) appeals a judgment sustaining an exception of no right of action and dismissing his action on a contract. We reverse and remand.

Frazier contracted with defendant, Green Steel Building, Inc., for the construction of a building. Green Steel built the structure and Frazier sues for damages allegedly suffered on account of certain defects in the structure.

In support of the exception of no right of action the defendant filed an affidavit which shows that, in order to end the controversy over the building, it had agreed to take a reduced price for the building and plaintiff had agreed to make any needed repairs at its own expense. Plaintiff attached a copy of its check given at time of the compromise to a memorandum which controverted the assertion that it had agreed to make all repairs. The copy of the check contained a statement signed by John Gammill, defendant’s representative who had signed the affidavit, which defendant had attached to its exception of no right of action, in which statement Gammill said: “It is understood that the water problem on the front of the building will be corrected.” The memorandum and check containing the quoted statement was filed in the record on June 1, 1981.

On June 17, plaintiff filed an affidavit which was in accord with its memo. This affidavit was filed one day after the exception of no right of action was submitted for decision. The district judge refused to consider the facts alleged in plaintiff’s memo because it was not sworn to. The exception of no right of action was maintained and plaintiff’s action dismissed. Frazier then took this appeal.

On appeal Frazier makes one assignment of error: that it was error for the trial judge to sustain the exception of no right of action. We agree and reverse and remand.

The exception of no right of action contests whether the plaintiff is in the class to which the law extends a remedy. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979). Evidence is admissible in support of or opposition to an exception of no right of action. LSA-C.C.P. art. 931; Gustin, supra. The factual evidence admissible is restricted to that which relates to whether or not plaintiff falls into a class having a legal interest to sue upon the cause of action sued upon. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3d Cir. 1967).

The exception of no right of action is not to be used to urge that the plaintiff is without interest simply because the defendant has a defense to the action. Bielkiewicz, supra; Langley v. Copolymer Rubber and Chemical Corp., 233 So.2d 353 (La.App. 1st Cir. 1970); Guide Newspaper Corporation v. Langford, 363 So.2d 77 (La.App. 4th Cir. 1978).

The plaintiff has alleged that it and the defendant are the parties to a contract which the defendant has breached. The face of the petition and the supplemental and amending petition set forth a cause of action and that plaintiff is the proper party to assert it. The defendant by the affidavit submitted in support of the exception of no right of action attempts to show a compromise. Compromise is an affirmative defense. LSA-C.C.P. art. 1005. Thus, Green Steel is attempting to assert an affirmative defense through an exception of no right of action. This is an improper use of the exception of no right. Bielkiewicz; Langley; Guide Newspaper; supra.

The course adopted by defendant would require a complete adjudication of the merits of the case to determine the exception of no right. This is contra to the purpose and function of the exception of no right of action. Gustin, supra. What the defendant seeks to do through this exception is more properly done through a motion for summary judgment.

We note that the evidence submitted in support of the exception was merely an affidavit. Generally, affidavits are inadmissible because they are hearsay. Miller v. Miller, 226 La. 273, 76 So.2d 3 (1954).

The record contains no indication that the plaintiff or defendant agreed to submit the exception of no right of action to the judge for decision based upon the record, but the briefs of each litigant indicate that the parties entered into such an agreement and under these circumstances it could be argued that a stipulation was made that the defendant’s affidavit and defendant’s check with the statement of plaintiff’s agent written upon it could have been considered by the judge even though both violated the hearsay rule. However, this evidence is totally irrelevant to the exception of no right of action and there is no evidence in the record which shows that plaintiff does not as a matter of law have the legal interest to assert an action against the defendant for damages for breach of contract.

The exception of no right of action should have been overruled. The judgment dismissing plaintiff’s action is REVERSED, the exception of no right of action is OVERRULED, and this matter REMANDED for further proceedings. All costs of this appeal are to be borne by appellee, Green Steel Buildings, Inc.