author: SCHOTT, Judge.

text:
    M & D SIMON COMPANY, Division of Bobbie Brooks, Inc. v. Jody BLANCHARD.
    No. 11204.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Order On Rehearing July 25, 1980.
    On Rehearing Sept. 16, 1980.
    G. Phillip Shuler and David L. McComb, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellant.
    Henry B. Hoppe, Jr., Lee, Hoppe, Martiny & Caracci, Metairie, for plaintiff-appellee.
    Before REDMANN and SCHOTT, JJ., and SARTAIN, J., Assigned.
   SCHOTT, Judge.

Defendant Jody Blanchard was employed as a salesman by plaintiff, M & D Simon Company, from December, 1976, until March 15, 1977. Plaintiff brought this suit against Blanchard for $722.55 as the value of clothing samples issued to Blanchard for his use as a salesman. Blanchard reconvened for unpaid compensation plus statutory penalties and attorney’s fees. From a judgment in favor of plaintiff on the main demand and dismissing the reconventional demand Blanchard has appealed.

The main demand is not in dispute in this court. The issues are whether Blanchard, who was employed on the basis of a draw against a commission, is entitled to a draw, even though previous draws had exceeded the commission earned, and if so, whether he is entitled to statutory penalties and attorney’s fees under the circumstances of this case.

Defendant’s employment was on the basis of an oral contract in which he was to receive a 5% commission, against which he would draw $550 per week, of which half would be treated as salary and the other half as an allowance for travel and other expenses. On Wednesday, March 15, Blanchard was notified that the company’s efforts to sell out had been unsuccessful and it was being liquidated so that Blanchard’s employment was terminated. The last payment for his draw was made on Saturday, February 26, paying him through that date, so that he was due $1267 for the last two weeks and two days of his employment. Plaintiff took the position that Blanchard’s previous draws exceeded his 5% commission by an amount in excess of the $1267, so that Blanchard was not entitled to the final draw.

Plaintiff’s position is contrary to the law as expressed in Landry v. Huber, 138 So.2d 449 (La.App. 3rd Cir. 1962), to which we fully subscribe. In the absence of an agreement to the contrary a drawing account is in the nature of a guaranteed minimum compensation for the employee’s services and not a loan against commissions or profits to be earned. Therefore, Blanchard is entitled to a judgment on his recon-ventional demand in the amount of $1267.

As to his claim for statutory penalties and attorney’s fees under LSA R.S. 23:632, there is no evidence that Blanchard made any demand whatsoever on plaintiff until he filed his reconventional demand in these proceedings. His failure to make the demand, in accordance with R.S. 23:631, precludes him from recovery of penalties and attorney’s fees. Mitchell v. Fein, 281 So.2d 463 (La.App. 4th Cir. 1973).

Accordingly, the judgment on the main demand is affirmed. The judgment on the reconventional demand is reversed, and there is judgment in favor of plaintiff in reconvention, Jody Blanchard, and against defendant in reconvention, M & D Simon Company, Division of Bobby Brooks, Inc., in the full and true sum of $1267, with legal interest from date of judicial demand until paid. All costs of these proceedings are taxed against plaintiff, M & D Simon Company, Division of Bobby Brooks, Inc.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

ORDER

We grant rehearing on the application of Jody Blanchard, defendant and plaintiff in reconvention.

The matter will be submitted on rehearing on any additional briefs the parties may wish to file on or before August 31, 1980. The parties’ attention is called to Carriere v. Peewee’s Equipment Co., 364 So.2d 555 (La.1978).

ON REHEARING

We granted a rehearing on the application of Jody Blanchard, defendant and plaintiff in reconvention, in order to reconsider his entitlement to penalties and attorney fees under R.S. 23:632.

With respect to penalty wages a good-faith non-arbitrary defense to liability for unpaid wages permits the court to excuse the employer from the imposition of additional penalty wages. Carriere v. Pee Wee's Equipment Co., 364 So.2d 555 (La.1978). The instant case was initiated by the employer with a claim for the value of samples in the amount of $722.55. When plaintiff was confronted by a reconventional demand for unpaid wages in excess of that figure it was not unreasonable to resist that demand considering the ultimate authority on which we based liability for the unpaid drawing account was a single Court of Appeal decision from another circuit. Under these circumstances, we have concluded that the employer’s defense was in good faith and was not arbitrary so that imposition of penalty wages is not warranted.

On the other hand, Blanchard is clearly entitled to recover attorney fees. We held in our original opinion that his failure to make demand precludes him from recovering attorney fees. However, that was inconsistent with Carriere v. Pee Wee’s Equipment Co., supra, where it was held that a suit for unpaid wages and a denial of liability on the part of the employer is a sufficient basis for the imposition of attorney fees irrespective of lack of a demand prior to the suit being brought. The record supports an allowance of attorney fees to Blanchard in the amount of $500.00.

Accordingly, the judgment on the main demand is affirmed. The judgment on the reconventional demand is reversed, and there is judgment in favor of plaintiff in reconvention, Jody Blanchard, and against defendant in reconvention, M & D Simon Company Division of Bobby Brooks, Inc., in the full and true sum of $1267.00 with legal interest from date of judicial demand until paid, together with attorney fees in the amount of $500.00. All costs of these proceedings are taxed against plaintiff, M & D Simon Company Division of Bobby Brooks, Inc.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    MECCA REALTY, INC. v. NEW ORLEANS HEALTH CORPORATION.
    No. 11080.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 12, 1980.
    Rehearing Denied Nov. 6, 1980.
    Jerry C. Paradis, Robert R. Rainold, Jr., Baldwin & Haspel, New Orleans, for plaintiff.
    Trevor G. Bryan, Jefferson, Bryan & Gray, New Orleans, for defendant.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   REDMANN, Judge.

A lessee appeals from a $12,652 judgment for damages from an alleged breach of its lease with plaintiff. The question is whether the lessee was justified in abandoning the premises when the electricity was cut off because of wiring defects. We conclude the abandonment was justified and we therefore reverse.

The lessee experienced a loss of electricity and called an electrician who in turn notified the City inspectors of deficiencies in the electrical service. The deficiencies, as testified to by the electrician, included that the 60-ampere electrical service did not meet the city code requirements for lighting for the 4400 square feet of the building, plus 45 amperes for an electric oven and range and 45 more amperes for central air conditioning (and a Xerox machine and a plastic-card-making machine). (The electrician theorized that the building formerly consisted of two separate but adjacent buildings, each with a 60-ampere meter, and that when those buildings were joined together, one meter was removed.)

The city inspector testified that the elec-, trical service was inadequate for the air conditioning, which had been installed without permit and inspection. In order to solve the problem caused by the air conditioning one “would have had to increase the size of the service conductors coming into the building.”

There is no evidence that the lessee had anything to do with the air conditioning of the building or with providing the electrical wiring of the building. The building was defective before the lease.

The lessee did, however, contribute to the further overloading of the already-overloaded circuitry, by using a 30-ampere Xerox machine (the special connection for which already existed), a 15-ampere heater (for a secretary who found the central heat insufficient), and a plastic-card-making machine of unspecified amperage.

Lessor and lessee argued about who should have the necessary electrical work done, but neither did anything, not when the city ordered the work to be started by December 8 and not even when on December 22 the city ordered the electric company to discontinue service before noon of January 8. When the service was disconnected, the lessee found another location suited to its needs and moved out.

It is our judgment that the 60-am-pere service’s failure to meet the city ordinance requirements independent of the lessee’s electrical usage, testified to by both electrician and inspector, was a pre-exist-ing defect, for which the lessor was responsible under La.C.C. 2695. Failure to remedy that defect caused the building to be denied electricity, and therefore constituted a failure by the lessor to “maintain the [leased property] in a condition such as to serve for the use for which it is hired,” C.C. 2692(2). As the Civil Code sets apart repairs in arts. 2693 and 2694 from vices and defects in art. 2695, this defect was not a repair made the lessee’s obligation by the lease.

Nor did it become part of the lessee’s obligation under the lease to “comply . . . with all ordinances and laws,” and to “comply with all ... ordinances, ... orders, . . . and requirements” of government agencies “applicable to said premises.” These provisions relate to the lessee’s own behavior in the leased premises, and do not oblige the lessee, for example, to move the whole building if it be found that it was located on its lot in violation of a zoning ordinance, or to pay the lessor’s property tax levied by ordinance, against the leased property.

Finally, the lessor argues that the lessee was, in any case, not justified in vacating the premises, because under C.C. 2694, it could have made the repairs and deducted them from the rent. We have earlier noted that arts. 2693 and 2694 govern repairs, and art. 2695 governs defects. Ordinarily the lessee’s right to make necessary repairs does not extend to pre-existing defects of the building, Purnell v. Dugue, La.App.Orl.1930, 129 So.2d 178, and therefore the lessee is not obliged either to deduct the cost of remedy from the rent or to sue for dissolution, Freeman v. G. T. S. Corp., La.App. 4 Cir. 1978, 363 So.2d 1247.

Reversed at plaintiff’s cost.

ON APPLICATION FOR REHEARING

Plaintiff argues that the electrical service was 100-ampere rather than 60-ampere. The electrician’s own. earlier bill for 100-ampere fuses is somewhat inconsistent with his repeated testimony that it was 60; so is another electrician’s bill to “increase service from 100 amps to 200 amps.” Whatever the capacity, the city’s letter emphasizes the air conditioning wiring, describing the defects as:

“1. ELECTRICAL WIRING FOR CENTRAL AIR CONDITIONING WAS INSTALLED WITHOUT A PERMIT, AND ALSO OFFICE EQUIPMENT.
“2. Service too small for load capacity.
“3. Fuses on circuit breakers in excess of rated capacity allowed for branch.
“4. The entire installation . . . must be checked and brought up to requirements . . . . ” [Emphasis in original.]

Even if the service was 100 amperes, that was inadequate for the lighting of the 4400 square foot building (at 3 watts per square foot for a total of 13,200 apparent wattage, or 120 amperes at 110 volts), 45-ampere oven-range and 45-ampere air conditioning.

Rehearing is refused.


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

text:
    Anna Spear Goff THOMAS, Natural Tutrix of the Minor, Joseph A. Goff, Plaintiff-Appellant, v. Carter BEDFORD et al., Defendants-Appellees.
    No. 14252.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.

      John M. Frazier, Shreveport, for plaintiff-appellant.
    Gordon E. Rountree, Shreveport, for defendants-appellees.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

Anna Spear Goff Thomas, as the natural tutrix of her minor son, Joseph A. Goff, filed this suit against Carter Bedford, a Caddo Parish school teacher, the Caddo Parish School Board, and the latter’s liability insurance carrier, Reliance Insurance Company, for injuries allegedly sustained by the minor because of a battery committed by Bedford at a Caddo Parish School.

Plaintiff appeals from a district court judgment rejecting her demands. We reverse and render judgment for plaintiff.

The incident in question occurred in February 1979 at the Northwood High School in Caddo Parish. Goff, a student at the school, was 14 years of age, weighed between 95 and 100 pounds, and was 4 feet 9 inches in height. Bedford, a teacher at the school, was 26 years of age, weighed between 135 and 140 pounds, and was 5 feet 9 inches in height. The two had become acquainted the previous year when Goff was in one of Bedford’s classes. The record indicated that, although not a serious disciplinary problem, Goff tended to engage in mischievous behavior, some of which had been occasionally directed at Bedford.

On the afternoon of February 15, 1979, while Bedford was standing outside a classroom at the high school conversing with two other teachers, Goff came up and struck Bedford a light blow in the back with his hand. Instead of going to his class as instructed by Bedford, Goff picked up a rubber' band and from a distance of about two feet propelled it into Bedford’s face. Goff then turned and ran into his classroom, chased by Bedford who threw a two foot long 1" by 2" board at the youngster, but missed him.

Bedford left and went to his classroom where he remained for ten or fifteen minutes. He then returned to Goff’s classroom and pulled the youngster into an adjoining vacant “project” room where the altercation in question took place. Bedford testified that he gave Goff a “severe shaking.” On the other hand, Goff stated that Bed-ford struck him three or four times on the body with his fist. The statement of the physician who examined Goff, finding that the youngster had contusions of the chest, arms and back, tended to corroborate Goff’s version of the incident.

It is now recognized that “corporal punishment, reasonable in degree, administered by a teacher to a pupil for disciplinary reasons, is permitted in Louisiana.” Roy v. Continental Insurance Co., 313 So.2d 349 (La.App.3rd Cir. 1975). Further elaborating, the court in Roy commented:

“It is also a well established rule in general tort law that a teacher is immune from civil liability for physical corporal punishment, reasonable in degree, administered to a student. But it is likewise clear under tort law that this discretionary right of a teacher to use physical punishment is a limited one and immunity or privilege from liability requires a showing that said punishment was administered neither unreasonably nor excessively, measured in part by such factors as the nature of the punishment itself, the misconduct of the child, the teacher’s motive in the discipline, and the age and physical condition of the pupil. The question of ‘reasonableness’ or ‘ex-cessiveness’ is determined on a case by case basis. . .. ”

Also see LeBoyd v. Jenkins, 381 So.2d 1290 (La.App.4th Cir. 1980); LeBlanc v. Tyler, 381 So.2d 908 (La.App.3rd Cir. 1980); McKinney v. Greene, 379 So.2d 69 (La. App.3rd Cir. 1979); White v. Richardson, 378 So.2d 162 (La.App.1st Cir. 1979); Thompson v. Iberville Parish, 372 So.2d 642 (La.App.lst Cir. 1979).

The rationale of these cases, which we adopt, is that a minor’s school teacher, while the youngster is attending school, stands in the place of the parent for the purpose of enforcing discipline and, in connection therewith, may use a reasonable degree of corporal punishment. The factual question presented by each individual case is whether the punishment was unreasonable or excessive under the circumstances.

In his written reasons for judgment in this case the trial judge concluded that “although the teacher’s action greatly exceeded reasonable force (emphasis added), nevertheless, there is sufficient provocation by plaintiff for Mr. Bedford to have lost his temper in rendering corporal punishment on Joseph Goff.” In a previous portion of that opinion the minor had been characterized as the “aggressor.”

The “aggressor doctrine” contemplates an altercation provoked by the aggressor against a party who defends himself. Even if, under the facts of this case, Goff’s striking Bedford in the back and hitting him with a rubber band rendered him an aggressor, it is obvious that the subsequent altercation in the “project” room, some 10 or 15 minutes later after Bedford had admittedly calmed down, was in fact a separate incident and not a spontaneous reaction to the original provocation. Therefore, the “aggressor doctrine” is inapplicable. The pivotal issue here is whether the corporal punishment meted out by Bed-ford was unreasonable. The trial judge explicitly answered that question in the affirmative. Since this is a factual question and our review of the record does not show that the trial judge was clearly wrong in his conclusion, we must accept that ruling. Consequently, under our jurisprudence Bed-ford, his employer and the latter’s insurance carrier are liable for Goff’s injuries.

Legitimate concern for disciplinary problems in our schools ably articulated by the conscientious trial judge, does not permit us to disregard our responsibility to accord due deference to the rights of all those participants in the educational process, students as well as teachers and administrators. Needless to say, our law does not by any means render the latter impotent in the face of rule infractions. Where appropriate, corporal punishment may be administered in a reasonable manner as a measured, rational response to serious acts of misconduct.

On the issue of quantum it is obvious that the injuries sustained by Goff were relatively minor, consisting of bruises which remained sore for a week or two. No classes were missed. Under the circumstances, we conclude that the sum of $500.00 will adequately compensate the plaintiff for her son’s injuries.

For the reasons set forth, we reverse the judgment of the trial court and render judgment in favor of the plaintiff and against the defendants, in solido, for the sum of $500.00 together with legal interest as provided for by law and court costs in the lower court and on appeal.

      . Defendants’ answer added United Pacific Insurance Company as a defendant, asserting that the petition erroneously named Reliance Insurance Company as the school board’s liability carrier.


author: PRICE, Judge.

text:
    Dudley V. SNOW, Plaintiff-Appellant, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    No. 14260.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    Skeels, Baker, Coleman & Strickland, by Donald L. Baker, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts, by Mark A. Goodwin, Shreveport, for defendant-appel-lee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Dudley V. Snow, sued for recovery of hospital and medical benefits under a policy of health and accident insurance issued by defendant, Travelers Insurance Co. The trial court concluded that the policy provided coverage for the expenses incurred by plaintiff but the statutory penalties and attorney fees sought pursuant to La.R.S. 22:657(A) were denied. Plaintiff appeals alleging as error the failure of the trial court to award penalties and attorney fees. Defendant has neither appealed or answered plaintiff’s appeal. Therefore the single issue for review is whether plaintiff should have been awarded penalties and attorney fees.

During a 32-day period in July and August of 1977 plaintiff was hospitalized as a resident in-patient at La Hacienda Treatment Center in Hunt, Texas. Subsequent to his release, plaintiff submitted a claim for expenses incurred as a result of his confinement at La Hacienda which he alleged were covered under a policy issued by defendant to plaintiffs employer. Defendant denied coverage on the basis that La Hacienda was not a “hospital” as that term was defined in the policy.

The policy provided as a prerequisite to coverage that the expenses be incurred in a hospital defined as follows:

Hospital
The term “hospital” as used herein means an institution which is engaged primarily in providing medical care and treatment of sick and injured persons on an inpatient basis at the patient’s expense and which fully meets all the tests set forth in (a) or (b) or (c) below:
(a) It is a hospital accredited by the Joint Commission on Accreditation of Hospitals. . . .

It was undisputed that La Hacienda is an institution which primarily provides medical care and treatment for sick persons on an in-patient basis. It was also stipulated by the parties that La Hacienda did not meet the definitional requirements for a hospital under the terms of the policy unless it did. so under the above quoted subsection (a).

La Hacienda was in fact accredited by the Joint Commission on Accreditation of Hospitals (Joint Commission) upon recommendation of the Accreditation Council for Psychiatric Facilities. Defendant contended in the trial court that this accreditation by the Joint Commission was made pursuant to an accreditation program for psychiatric facilities and thus La Hacienda was not a hospital under the terms of the policy but rather a psychiatric facility.

The case was submitted to the trial court on a motion for summary judgment and the court agreed with plaintiff’s interpretation of the policy, i. e. the fact that La Hacienda was accredited upon the recommendation of the Accreditation Council for Psychiatric Facilities does not detract from the fact that it was “accredited by the Joint Commission on Accreditation of Hospitals” as required by the terms of the policy. This accreditation was not qualified in any manner to designate La Hacienda as a psychiatric facility to be distinguished from a hospital. However, the court concluded that the interpretation of the clause placed at issue by defendant presented a reasonably close question of coverage and therefore denied plaintiff’s request for penalties and attorney fees.

La.R.S. 22:657(A) provides for a penalty of double the amount of benefits due under health and accident policies plus attorney fees to be determined by the court when an insurer fails to pay a claim within 30 days of receiving notice and proof of claim unless such failure to pay is based on “just and reasonable grounds such as would put a reasonable and prudent businessman on his guard.”

Contrary to the findings of the trial court we feel that the refusal by defendant to pay plaintiff’s claim was based on an unreasonable interpretation of the policy in question. The undisputed facts show that La Hacienda has received an unqualified accreditation certificate from the Joint Commission. Plaintiff established by affidavits and admissions of fact and genuineness of documents that La Hacienda is licensed as a hospital by the Texas Department of Health and that it is accredited as an institutional member of the American Hospital Association. Based upon these facts and a common sense reading of the definition of “hospital” in the policy, we think it is unreasonable to expect a policyholder to look behind the plain meaning of words to see how the accreditation was obtained. If the insurer sought to differentiate accreditation programs, it could have clearly done so in a manner which would put the policyholder on notice as permitted by the insurance code. [See La.R.S. 22:213(B).] The insured should not be required to explore the method by which the hospital obtained accreditation if it otherwise appears that the institution is a bona fide hospital under the policy language.

The attempt by the defendant to reject plaintiff’s claim on the basis of this complex and strained construction of the definition of a “hospital” as contained in its own policy was unreasonable under the circumstances.

Plaintiff is therefore entitled to a penalty of double the amount of benefits due plus attorney fees under the provisions of La. R.S. 22:657(A).

The judgment of the trial court is reversed insofar as it rejected plaintiff’s claim for statutory penalties and attorney fees, and is amended to award plaintiff an additional sum of $3,016.15 as statutory penalties, and $1,000 as reasonable attorney fees. The judgment is otherwise affirmed as amended. The costs of this appeal are assessed to defendant.


author: MARVIN, Judge. HALL, Judge,

text:
    Jerry McINTOSH, Plaintiff-Appellant, v. MONROE MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 14262.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    En Banc. Rehearing Denied Oct. 30, 1980.

      Law Offices of Robert P. McLeod by Johnny E. Dollar, Monroe, for plaintiff appellant.
    Charles D. Patten, III, Asst. City Atty., Monroe, for defendant-appellee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

In this action under the Municipal Fire and Police Civil Service Law (La.R.S. 33:2471 et seq.), a Monroe fireman appeals his being fired by his Fire Chief. The Fire Chief’s discipline was upheld first by the Monroe Fire and Police Civil Service Board after a hearing, and then by the district court. We affirm.

In civil service appeals, the issue before the courts is confined to whether the determination of the Board was made in good faith for [legal] cause. § 2561. These two terms are interrelated but may present separate questions in some instances. See Martin v. City of St. Martinville, 321 So.2d 532 (La.App.3d Cir.1975).

Good faith of the Board is not directly made an issue here. Where discipline is imposed for off-duty conduct in violation of a departmental rule, as it was here, the conduct proscribed by the rule must be found to be reasonably necessary for the continued efficiency of the public service being rendered by the particular department. The rule must bear a real and substantial relation to the public service offered. Leggett v. Northwestern State College, 242 La. 297, 140 So.2d 5 (1962); White v. City of Winnfield Fire Dept., 384 So.2d 471 (La.App.2d Cir.1980); In the Matter of Geiger, 337 So.2d 549 (La.App.2d Cir.1976). If the evidence supports these findings, the statutory prerequisite of legal cause is fulfilled. See Petrus v. Guin, 378 So.2d 1016 (La.App.2d Cir.1979); Leggett, supra; White, supra; Martin, supra.

The statute permits discipline of an employee for such things as:

“(3) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.
* * 4: * * sis
“(5) Conduct of a discourteous or wantonly offensive nature toward the public or toward any municipal officer or employee, and any dishonest, disgraceful, or immoral conduct.
% * * * * *
“(7) The use of intoxicating liquors or habit forming drugs, liquids or preparations to an extent which precludes the employee from performing the duties of his position in a safe or satisfactory manner.
* * * * * *
“(14) The willful violation of any provision of this Part or of any rule, regulation or order adopted under its authority.
“(15) Any other act or failure to act which the board deems sufficient to show the offender to be an unsuitable or unfit person to be employed in the fire and police service.”
L.R.S. 33:2500(A), in part.

McIntosh was informed by the Fire Chief in a letter dated April 14, 1978, that

“In keeping with the provisions of the Municipal Fire and Police Civil Service Law, pg. 29, Section 30-a, paragraphs 3 and 7 (R.S. 33:2500 A, 3 and 7); you are held to be in violation of departmental rules and regulations Article XXII, Pg. 46, Sec. A-7 and Article XX, Pg. 40, Sections B-3 and B-4 dealing with the use of intoxicants on or off duty.”

Paragraphs 3 and 7 of the Municipal Fire and Police Civil Service Law (L.R.S. 33:2500 A (3) and (7)) referred to in the letter are quoted above. The pertinent parts of the Monroe Fire Department Rules and Regulations referred to in the letter are quoted below:

“A. OFFENSES. No member shall be engaged in or be involved in any of the following acts of conduct:
$ * & $ ‡
“(7) Drinking of intoxicants while on duty or intoxication while off duty;”
Article XXII, Page 46
“B. DUTIES. ALL MEMBERS SHALL:
if: * sfc * #
“(3) Conduct themselves in such a manner as is approved by law abiding, self respecting citizens;
“(4) Refrain from committing any act which might bring discredit upon the department or its members;”
Article XX, Page 40

In his brief on appeal, McIntosh complains of the generality of the reasons given him for his discharge in the letter of April 14, 1978. Unlike Policeman Powell, however, he did not object at the hearing to any deficiency in the reasons given in the letter or to the admissibility of the evidence supporting the reasons (here, evidence of DWI arrests and convictions).

With over 10 years civil service, McIntosh had attained the rank of Fireman First Class and has a good service record without prior discipline. Even though it was shown that McIntosh and most of the Monroe firemen had not been called while off duty, McIntosh, unlike fireman White, supra, was required to be on call at all times when he was off duty. White, not being on call, was free to live and apparently to do what he pleased while off duty.

McIntosh did not deny that he had been arrested three times in 28 months for the offense of DWI (Art. 98, La.Cr.C.) and convicted twice. He did not object to documentary evidence of these arrests and dispositions. All of the convictions were in the West Monroe City Court. This evidence shows:

(1) McIntosh was arrested at 10:50 p. m. on September 17, 1975 for driving while intoxicated. He was convicted of DWI and was sentenced to pay a fine.
(2) McIntosh was arrested for DWI after a near accident at 11:25 p. m. on May 30, 1977. This charge was later amended to reckless operation of a motor vehicle and he was convicted of the amended charge and was sentenced to pay a fine.
(3) McIntosh was arrested for DWI second offense, at 12:52 a. m. on January 14, 1978. He was convicted on March 16, 1978, and was sentenced to pay a fine and to serve 125 days in jail. The jail sentence was suspended and McIntosh was placed on supervised probation and was ordered to serve, as one of the conditions of probation, two days each weekend in the West Monroe correctional facility for 25 weeks.

McIntosh voluntarily informed one of his superiors about this last conviction. The Department then obtained certified copies of the court records and the Chief wrote the letter quoted above. In essence the letter states that McIntosh is being fired for “intoxication off duty”, (XXII A(7)), for “failure to conduct himself as a . . . law abiding citizen”, and for acting to bring “discredit upon the department” (XX B(3) and (4)).

At the hearing, the Board questioned McIntosh about his arrests, convictions, his sentence, and the fact that his driver’s license would be revoked by the State. McIntosh denied his “intoxication” but admitted the other matters and that he expected the State to “pick up” his driver’s license at any time. The conviction records and L.R.S. 32:414 also make it clear that McIntosh will lose his driving privileges for being convicted of DWI second offense. The Board voted 3-2 to uphold the Chief’s discharge of McIntosh. The scope of our factual review is set forth in Petrus, supra:

“Although the Personnel Board made no written findings of fact, it is to be presumed that the board found facts sufficient to afford a legal basis for its decision. Unless there is a lack of sufficient evidence to support the board’s decision, and unless the decision is clearly wrong or manifestly erroneous, it must be affirmed.” 378 So.2d 1020 Citations omitted.

McIntosh contended in the district court and here that he was denied equal treatment or protection of law, that he was terminated for violating an unwritten regulation, and that he did not violate any regulation. The determination of the courts in these cases is confined to “whether the decision made by the Board was made in good faith for cause.” L.R.S. 33:2501. We shall discuss the appellant’s contentions in the light of and in relation to the statutory direction.

While McIntosh argues that there is no presumption of his intoxication under L.R.S. 32:662, the record contains sufficient evidence to support the reasonable inference of the Chief and the Board that McIntosh was intoxicated when he was off duty, but on call, when he was arrested for DWI on three occasions and convicted twice, within about 28 months.

Obviously there is a real and substantial relation between the rule prohibiting intoxication of an off-duty, on-call, fireman and the public service offered by a fire department. It is true that this record shows that Monroe firemen of the rank of McIntosh are rarely called while off duty. This evidence speaks well of the efficiency of the department. The on -call requirement is patently necessary in the case of emergencies and catastrophies, and a fire department should be able to expect its firemen to maintain themselves in a reasonable state of readiness and efficiency even though off duty. Drinking off duty is not prohibited, but intoxication off duty and on-call can be reasonably presumed to affect the efficiency of the public service offered by the fire department.

The offense of DWI is “operating a vehicle while intoxicated.” This term is further defined as being “under the influence of alcoholic beverages.” Art. 98, La.Cr.C. In Jones v. Continental Casualty Co. of Chicago, Ill., 246 La. 921, 169 So.2d 50 (1964), the Supreme Court upheld a finding of intoxication, stating that “the alcoholic content of the driver’s blood (.11 percent) was sufficient to establish that he was intoxicated and that his mental and physical faculties were materially impaired ...” McIntosh’s arrest and conviction records reveal that his blood alcohol content ranged from .11 to .13 percent.

McIntosh additionally was allowed to show at the hearing that three other Monroe firemen had been convicted of DWI, one of which eventually obtained the rank of Fire Chief. He complains that these firemen were either suspended for five days or received no discipline and that the result in his case is unequal protection or treatment. This argument is without merit because none of the others are shown to have been disciplined after being convicted of DWI 2d offense. It is in this respect that McIntosh also complains of the existence of an alleged “unwritten” rule that a DWI 1st offense is supposed to result in a suspension, while a DWI 2d offense is supposed to result in a dismissal.

We can only look to the evidence presented before the board and we review this evidence in the light of the presúmption that the board found facts sufficient to afford a legal basis for its decision. Petrus, supra. Unless it is shown that the Board acted arbitrarily or discriminatorily so as to abuse its discretion, the Board’s judgment, even as to the severity of the discipline, will not be overturned. Petrus, supra. McIntosh was not accused of violating any unwritten rule, but expressly of violating the Monroe Rule XXII A(7), and the other Rules (XX B(3) and (4)). There is sufficient evidence to uphold the determination that McIntosh violated the written rule against off-duty intoxication (XXII A(7)). Clearly it is within the power of the department to adopt such a rule. § 2560 A(14), (15), (3), (7). When the Board’s decision is upheld on this ground, it is not necessary to discuss whether the terms of the other rules al.leged to have been violated (law abiding, self-respecting, and not discrediting to the department) are constitutionally overbroad.

We hold that it is not arbitrary or ultra vires for a fire department to enact a rule which requires firemen to refrain from drinking intoxicants while on duty and from being intoxicated while off-duty and on call. Monroe Rule XXII A(7).

At appellant’s cost, judgment is AFFIRMED.

HALL, Judge,

concurring in the denial of the application for rehearing:

I concur in the denial of the application for rehearing. The discharge of plaintiff because of three arrests for DWI, resulting in two convictions on that charge and one plea of guilty to reckless driving, over a 28 month period, was for cause under LSA • R.S. 33:2560(A)(3), (5) and (15) and Paragraphs B(3) and (4) of the Monroe Fire Department Rules and Regulations, quoted in the opinion of this court. I disagree with this court’s opinion insofar as it justifies the discharge on the grounds of LSA-R.S. 33:2560(A)(7) and Rule A(7) of the Fire Department, the rule being much broader than the statute and bearing little if any relationship to the efficiency of the public service, especially where, as here, it is shown that off-duty firemen are rarely called to duty.

      . Powell v. City of Winnfield Fire & Police, etc., 370 So.2d 109 (La.App.2d Cir.1979).


author: JASPER E. JONES, Judge.

text:
    Nellie PARR, Plaintiff-Appellant, v. SANTA MARIA PRODUCE CO. et al., Defendant-Appellee.
    No. 14263.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.

      Weinstein & Moak by Lewis Weinstein, Shreveport, for plaintiff-appellant.
    Kitchens, Benton & Kitchens by Paul E. Kitchens, Minden, for Wissman, State Farm, defendants-appellees.
    Cook, Yancey, King & Galloway by John D. Collinsworth, Shreveport, for Aetna Casualty & Surety Company, defendants-ap-pellees.
    Lunn, Irion, Switzer, Johnson & Salley by S. Maurice Hicks, Jr., Shreveport, for Santa Maria Produce Co., R. C. Coatney, Jr. and Fidelity & Casualty Co. of New York, defendants-appellees.
    Hilary Huckaby, Shreveport, for Mercu-lus J. Chretien, defendant-appellee.
    Bodenheimer, Jones, Klotz & Simmons by James P. Bodenheimer, Shreveport, for James H. Oehlke & Guarantee Insurance Company, defendants-appellees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Plaintiff, Nellie Parr, appeals a judgment rejecting her demands for damages for personal injuries sustained in a multi-vehicle collision which occurred on 1-20 in Bossier City on October 16, 1976. We affirm.

The accident occurred at about 11:00 A.M. on a rainy morning on the south side of I -20 in the lanes provided for eastbound traffic a short distance west of the Benton Road exit ramp. There exists a short distance east of the Benton Road exit ramp another exit ramp provided for traffic exiting L20 to Barksdale Boulevard. At the site of the accident there are four eastbound traffic lanes divided from the westbound traffic lanes of I -20 by a concrete division wall. The southerly, or far right, traffic lane is provided for traffic exiting at the Benton Road exit. The lane immediately north of and adjacent to the Benton Road exit lane is provided for traffic exiting at the Barksdale Boulevard ramp. The two lanes north of the Barksdale Boulevard exiting lane are provided for through eastbound I ■ 20 traffic. There exists between the division wall and the two northernmost through lanes of traffic a concrete area that we shall refer to as a shoulder.

There were six vehicles involved in the circumstances surrounding the collisions wherein plaintiff sustained her injury. Just prior to the series of collisions, which will be here described, plaintiff was driving her vehicle easterly • in the southernmost through traffic lane and was approaching the area of the Benton Road exit. Behind her approximately 50 feet' was an 18-wheel-er driven by James H. Oehlke in the northernmost through lane. To plaintiff’s right traveling in the Barksdale exit lane was a pick-up truck belonging to Santa Maria Produce Company, Inc., and operated by R. C. Coatney, Jr. To the right of the Coatney vehicle traveling in the Benton Road exit lane was a pick-up truck operated by William 0. Wissman, followed by a Pontiac automobile driven by Merculus J. Chretien. As these five eastbound vehicles approached the area immediately west of the Benton Road and Barksdale exits, a white vehicle traveling west on the Barksdale exit ramp suddenly entered the portion of 1-20 provided for eastbound traffic. As this westbound vehicle entered 1-20, Coatney was preparing to change from the Barksdale exit lane to the Benton Road exit lane for the purpose of exiting 1-20 at Benton Road exit. Coatney was observing traffic to his rear through his rear-view mirrors located on the inside and left side of his truck. As he directed his full attention ahead and as he had almost completed his lane-change maneuver, the brake lights suddenly appeared on the vehicle operated by Chretien, who had suddenly braked his vehicle because the Wissman vehicle in front of him suddenly slowed to avoid a collision with the white vehicle which entered the highway from the Barksdale Boulevard exit. The white vehicle, after entering 1-20 from the Barksdale exit, proceeded west and then made a sharp U-turn maneuver and exited 1-20 at the Benton Road exit directly in the path of the three-car line of traffic consisting of Wissman, Chretien, and Coatney. The maneuver of this white vehicle, the identity of which was never discovered, required Wissman to suddenly apply his brakes and Wissman’s sudden slowing maneuver required Chretien to suddenly slow. As the result of Chretien’s sudden slowing action, Coatney applied his brakes and pulled to the right but was unable to avoid colliding with the left rear of the Chretien vehicle. The Chretien vehicle struck the rear of the Wissman vehicle and then spun from the Benton Road exit lane across the Barksdale Boulevard exit lane and into the southernmost through lane where it was then facing west, and at which point it collided head-on with the Parr vehicle. The collision between Chretien and the Parr vehicle caused the Parr vehicle to move into the outside or northernmost through lane where the left rear of the Parr vehicle collided with the right rear of the 18-wheéler which had moved as far as possible to the left and was traveling at that time at least partially on the shoulder area between the dividing rail and the northernmost through lane.

The investigating officer arrived at the scene of the accident within five minutes of being notified of the accident, but was not given a sufficient description of the white vehicle which had entered 1-20 proceeding west from the Barksdale Boulevard exit for him to make any attempt to locate this vehicle and its driver. A sketch which the officer prepared at the time of his investigation of the accident reflected that following the accident the Wissman vehicle was located on the shoulder immediately adjacent to the Benton Road exit lane a short distance west of the exit ramp and behind it on the shoulder was the Santa Maria truck. This sketch showed the 18-wheeler on the shoulder next to the dividing rail with the Chretien and Parr vehicles facing each other head on located at a northeasterly angle across the Barksdale Boulevard exit lane, the southernmost through lane, and partially into the northernmost through lane.

Plaintiff sued Wissman and his insurer, Merculus J. Chretien, Santa Maria Produce Co., Inc. and its insurer, James H. Oehlke and his insurer, and Aetna Casualty & Surety Company, her uninsured motorist carrier.

Defendant Wissman and his insurer third- partied R. C. Coatney, Jr., Santa Maria Produce and their insurer, and Merculus J. Chretien seeking judgment against them for any sums for which they might be held liable on the main demand.

Aetna Casualty & Surety Company third-partied William O. Wissman and his insurer, Santa Maria Produce, its driver, Coatney, and their insurer, James H. Oehlke and his insurer, and Merculus J. Chretien, seeking judgment against them for any sums which it might be held liable to plaintiff. Aetna, as the collision insurer of Nellie Parr, intervened in these proceedings and sued William O. Wissman and his insurer, Santa Maria Produce, its driver, Coatney, and their insurer, James H. Oehlke and his insurer, and Merculus J. Chretien for the property damages it was required to pay Nellie Parr under a collision policy issued by Aetna covering the Parr vehicle.

The Parr case was consolidated for trial with a case styled “Merculus J. Chretien v. Santa Maria Wholesale Produce, Inc., et al.”

The trial court concluded that the sole cause of the accident was the gross negligence of the westbound driver of the unidentified vehicle which had entered the eastbound lanes of 1-20 from the Barksdale Boulevard exit, and for this reason rejected the demands of plaintiff, Nellie Parr, of the intervenor, Aetna Casualty & Surety Co., and of all third-party plaintiffs. The trial court further rejected the demands of Mer-culus J. Chretien contained in the consolidated suit. Only Nellie Parr appealed.

Third-party plaintiff William 0. Wiss-man and his insurer answered the appeal asserting that if the judgment rejecting Nellie Parr’s demands should be reversed and they should be held liable to her, that they should recover on their third -party demands.

Aetna Casualty & Surety Co. answered the appeal asserting only that in the event the judgment appealed from be modified or reversed in favor of Nellie Parr that the judgment rejecting the demands of Aetna, as intervenor and as third-party plaintiff, also be modified in its favor.

Appellant Nellie Parr filed an original and supplemental brief herein, but neither of these briefs contains an assignment of error as required by Rule 9, § 3 of the Uniform Rules of The Courts of Appeal. The briefs contain extensive citations and quotations of statutory and jurisprudential rules of law which generally require a motorist to maintain a proper look-out, maintain control of his vehicle, to operate at a safe speed and to follow preceding vehicles at a safe distance. All or part of the law cited by appellant could be applied to possible contentions of liability on the part of all defendants sued by appellant. We have concluded after a careful review of the briefs filed by appellant wherein the only defendants discussed by name were Coat-ney and Santa Maria that the only assignment of error that can be gleaned from them is directed at the trial court’s conclusion that Coatney was guilty of no negligence in colliding with the rear of the preceding Chretien vehicle. Based upon this assignment of error supplied by us we conclude that the single issue on liability contained in this case is whether or not Coat-ney was guilty of any negligence which brought about the accident sued upon.

Appellant contends that Coatney was traveling at an excessive rate of speed. Coatney testified at the trial, which took place three years after the accident, the he did not know how fact he was driving. The only evidence with regard to Coatney’s speed was given by Nellie Parr and Chretien. Nellie Parr stated that prior to the accident the Santa Maria Produce truck was traveling to her right and was going slightly faster than she, and she estimated her speed between 45-55 mph. Chretien testified that as he traveled down the Benton Road exit lane preparing to exit at the Benton Road ramp, that the car in front of him (Wissman) slowed in a normal manner and that he also slowed in a normal unhurried manner and that he observed the Santa Maria truck approaching him from the rear at a very fast rate of speed. Chretien stated there was no westbound vehicle obstructing their path of travel which created an emergency situation. The trial court concluded that none of the vehicles involved in the collision were exceeding the posted speed of 55 mph.

The officer who investigated this accident stated: “Mr. Wissman had told me that there was an unknown vehicle that was coming up the interstate going west in the eastbound lane going the wrong way toward him and that he turned into Benton Road exit and for that reason he had to apply his brakes suddenly ... to avoid hitting that vehicle.” Wissman did not testify at trial. The statement of Wissman to the police officer was admissible. Stewart v. Herrin Transp. Co., 37 So.2d 30 (La.App. 1st Cir. 1948); DeArmond v. New Amsterdam Cas. Co., 53 So.2d 474 (La.App. 1st Cir. 1951); Hemphill v. Strain, 371 So.2d 1179 (La.App. 1st Cir. 1979). This statement establishes that Wissman saw the car and realizing it created an emergency situation suddenly applied his brakes.

Nellie Parr, her guest passenger, Mrs. McGee, and Louis Parr, her grandson, saw the westbound vehicle. Louis Parr said that he saw it going down the Benton Road exit ramp just as the wrecks were all over. Mrs. McGee was so concerned about the westbound vehicle when she saw it that she ducked her head. .Nellie Parr was very concerned about it. She said “I was holding my wheel. I don’t know what was going to happen.” Oehlke saw it. R. C. Coatney saw it. He testified “At the time all I seen was the car coming across. I seen just a glimpse of something going across the ramp at the time I was trying to keep from hitting the car in front of me.”

Nellie Parr’s testimony that Coatney was going in excess of her speed of from 45-55 mph as they were traveling side- by side does not establish that Coatney was traveling at an excessive rate of speed. The testimony of Chretien that Coatney approached his rear at a high rate of speed as he slowed in a normal manner was not accepted by the trial judge. Chretien’s testimony was contrary to all the witnesses with regard to the existence of the westbound car and contrary to Wissman’s statement that he suddenly braked. Combining these circumstances with the fact that Mer-culus J. Chretien, an uninsured motorist, was a plaintiff in a companion suit against Santa Maria Produce, we cannot conclude that the trial judge who saw and heard him testify was incorrect in rejecting his testimony. Appellant did not establish that Coatney was traveling at an excessive rate of speed.

Plaintiff asserts that Coatney was not maintaining a proper look-out because of Coatney’s testimony that prior to the time he changed from the Barksdale .Boulevard exit lane to the Benton Road exit lane he made an observation in his inside and outside rear view mirror to be certain that he could make this maneuver in safety. This testimony of Coatney contrary to plaintiff’s contention establishes that Coatney was doing exactly what he was required to do— maintain a proper look-out to his rear before changing lanes. Coatney testified that Chretien’s brake lights came on just as he was about to complete the lane-changing maneuver and this does not establish that Chretien had begun his braking efforts before Coatney observed his brake lights. Appellant did not establish that Coatney was not maintaining a proper look-out.

Appellant contends that Coatney was traveling too close behind the Chretien Pontiac, basing this contention upon the testimony of Nellie Parr that she observed the Coatney vehicle traveling 10 feet behind the Chretien vehicle. A careful review of her testimony establishes first, that she does not state in which lane each of the vehicles were traveling when she made the observation upon which she based her estimation of the distance which they were apart. This observation could have been made before Coatney changed lanes and at a time when Coatney was traveling in the Barksdale Boulevard exit lane and Chretien was driving in the Benton Road exit lane. Mrs. Parr testified she did not see the brake lights on the Chretien vehicle. It is just as probable that her observation of the distance between the two vehicles occurred after Chretien applied his brakes in response to Wissman’s sudden stopping maneuver in front of him, as it is that her observation occurred prior to this time, and if it be true that the distance between the following and preceding vehicles had already been reduced by the slowing maneuver of Chretien’s vehicle before she made the observation, the estimation of distance under these circumstances would have no relevance to the contention that Coatney was following too close.

We also note that the testimony of Nellie Parr was established to be unreliable in that she contended the Santa Maria truck, following its collision with the Chretien ve-hide, collided with her right front and that after the collision was over it rested against the right side of her car; whereas, the investigating officer found no damage to the right side of the Parr vehicle and found the Santa Maria truck on the south shoulder of the road following the accident, rather than resting close to the right side of the Parr vehicle which was primarily located in the south through lane and the Barksdale lane following the accident.

Coatney’s testimony that he did not know the distance between him and Chretien at the time the emergency occurred does not establish that he was following too close. For these various reasons, the trial judge’s refusal to find Coatney was following Chretien too closely, based upon Nellie Parr’s testimony, is not manifestly erroneous.

Appellant contends further that Coatney is presumed negligent because he collided with the preceding vehicle and appellant cites numerous decisions in support of this rule of law. This general rule is correct, but it is subject to exceptions which will be hereinafter discussed.

The trial court made the following specific finding with regard to the action of Coat-ney, to-wit:

“Coatney was in the process of a lane change to exit on Benton Road when confronted with the sudden emergency of vehicles stopping in front of him. He braked his vehicle to avoid the collision and reacted as an ordinary prudent man would faced with the sudden emergency which he did not create.”

The evidence does not establish that Coatney was following the preceding vehicle at such a distance that he would not have been able to avoid colliding with it had it slowed or stopped under normal circumstances. The reason for the collision was the sudden and abrupt slowing by Wissman and by Chretien, precipitated by the unknown westbound motorist in the eastbound traffic lanes of 1-20. Because Coat-ney had no reason to anticipate such an occurrence, he was unable to bring his vehicle under control and avoid colliding with Chretien.

In the case of Nomey v. Great American Indemnity Company, 121 So.2d 763 (La.App. 2d Cir. 1960) where a preceding motorist suddenly stopped to avoid striking a dead cat, this court absolved the following motorist of negligence, even though she collided with the rear of the preceding vehicle. The court there reasoned that there were adequate intervals between the vehicles for a following driver to have stopped the vehicle under circumstances which she could have reasonably anticipated.

This court in the decision of Logue v. O’Donley, 190 So.2d 653 (La.App. 2d Cir. 1966), found a following motorist free of negligence who had collided with a preceding vehicle which had suddenly slowed or stopped because of the entry of a truck into the lane of travel of the two vehicles. The court there recognized the provisions of LSA R.S. 32:81 which provides as follows:

“The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” Id. at 655,

and the general rule that a driver of a following vehicle is required to keep his car under such control as to avoid a collision if the forward car comes to a stop. The court pointed out that this rule is subject to an exception that the following driver may not be negligent where the driver of the lead vehicle creates a hazard by a sudden stop. The court there cited Nomey v. Great American, supra, with approval and referring to the Nomey case said at page 655:

“. . . wherein it was held that a failure to maintain a specified distance between automobiles does not of itself constitute negligence, and that a driver is entitled to rely upon the assumption that an automobile ahead is being driven with care and caution in accordance with the law of the road and that the driver thereof will not commit acts of negligence which will endanger following traffic.”

The court here found that whether the sudden stop was the result of the negligence of the preceding driver or occurred as the result of the preceding driver’s justifiable attempt to avoid a collision with another who had created an emergency that the following driver was still not necessarily guilty of negligence because of his collision with the sudden slowed or stopped preceding vehicle. The court was here recognizing that a following driver is not required to maintain such a distance between his vehicle and the preceding vehicle that the"' following driver can bring his vehicle to a stop when circumstances occur that the following driver had no reason to anticipate. The court concluded at page 656:

“Mrs. O’Donley was not confronted with any circumstance indicating the necessity of anticipating a grossly negligent act on the part of the driver of the truck in suddenly driving in front of the forward vehicle, requiring its driver to likewise abruptly and drastically reduce its speed or to stop. We find no basis for concluding that Mrs. O’Donley’s acts were not reasonable and prudent.”

The court in Odom v. Texas Farm Products Company, 229 So.2d 118 (La.App. 2d Cir. 1969) correctly applied the sudden emergency doctrine to a following motorist who collided with the rear of a preceding truck. The eastbound truck and following car had been traveling in the outside lane of the two lanes provided for eastbound traffic. The truck driver observed the outside lane was obstructed by a parked vehicle and changed to the inside lane which was suddenly blocked by a vehicle that backed from a private drive. The truck suddenly stopped to avoid a collision with the backing vehicle. The following vehicle observed the parked car in his lane and changed to the inside lane where it collided with the rear of the truck which had suddenly stopped. The court set forth the rule as follows:

“This rule, generally stated, is that, when a motorist is confronted with a sudden emergency or danger, not of his own making and to which he did not contribute, he will not be held responsible for error of judgment committed by him in the emergency, provided he exercises ordinary, prudent, and reasonable care under the circumstances.” Id. at 123.

The court there excused the truck driver of any negligence in suddenly stopping his vehicle because of the sudden emergency created by the backing vehicle entering his path. The court said the same rule was applicable to the following motorist. The court found that when the truck stopped this created a sudden emergency for the following driver who had changed the course of his car to avoid the parked car. The court found that the following driver had little or no opportunity to take any evasive action when he followed the lane change maneuver of the preceding truck upon observing the parked vehicle in his lane of travel and was then faced with the sudden stop made by the truck when the car backed in front of it.

The court there stated with reference to the following driver:

“His efforts to avert an impending disaster were those of a reasonable and prudent motorist. It can hardly be said, under the circumstances, that he had a choice of means to avoid the accident. If error was committed, he is excused from its effects by the sudden emergency which confronted him.” Id. at 124.

In the case of Ashford v. Richards, 228 So.2d 530 (La.App. 1st Cir. 1969), a southbound motorist was required to suddenly brake his vehicle when a passing unidentified motorist cut sharply in front of him and slowed his vehicle. At the time this occurred a northbound motorist was approaching. The southbound motorist was required to brake so forceably to avoid colliding with the passing motorist that he lost control of his car and entered the northbound lane and collided with the approaching northbound motorist. The court excused the southbound motorist of any negligence based upon the sudden emergency doctrine. It found the accident was solely due to the negligent passing maneuver of the unidentified motorist. The court stated the applicable rule to be:

“It is settled law that a motorist confronted with a sudden emergency not of his own creation is not held to the same accuracy of judgment or degree of care as in ordinary circumstances. He is not necessarily negligent in making a mistake of judgment or failing to exercise the best or wisest course for avoiding an accident or injury. Neither is he liable for injury if he exercises such care as is reasonably to be expected of an ordinarily prudent individual under similar facts and circumstances. Smith v. Marquette Casualty Company, 247 La. 1054, 176 So.2d 133.” Id. at 533.

The trial court here necessarily found that Coatney by applying his brakes and pulling to the right had exercised “such care as is reasonably to be expected of an ordinarily prudent individual under similar facts and circumstances.”

The scope of our review has been clearly set forth as follows in the often cited case of Canter v. Koehring Company, 283 So.2d 716 (La.1973), at p. 724:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

While there is no evidence in the record to establish the speed of Coatney nor the distance he was behind Chretien as he accomplished the lane change maneuver, the other circumstances that were conclusively established, and the “reasonable inferences” from these established facts provide substantial evidence to support the trial judge’s finding that Coatney was not legally responsible for colliding with the rear of Chretien’s vehicle and that the sole cause of the accident was the negligence of the unidentified motorist in traveling west in the eastbound lanes of 1-20.

AFFIRMED at appellant’s cost.


author: FRED W. JONES, Judge.

text:
    Dale F. PATTY et ux., Plaintiffs-Appellants, v. BROOKSHIRE GROCERY COMPANY et al., Defendants-Appellees.
    No. 14265.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.

      Hargrove, Guyton, Ramey & Barlow by Donald E. Walter, Shreveport, for plaintiffs-appellants.
    Gordon E. Rountree, Shreveport, for defendants-appellees, Brookshire Grocery Co. and Reliance Insurance Co.
    Wilkinson & Carmody by Arthur R. Car-mody, Jr., Shreveport, for defendant-appel-lee, Coca-Cola Bottling Company of Shreveport, Inc.
    Before HALL, MARVIN and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

Plaintiffs, Mr. and Mrs. Dale F. Patty, appeal a judgment rejecting their demands against Brookshire Grocery Company (Brookshire), its insurer, and Coca-Cola Bottling Company of Shreveport, Inc. (Coca-Cola) for damages for injuries sustained by Mrs. Patty at one of Brookshire’s Shreveport stores. We affirm.

According to the evidence presented at the trial, Mrs. Patty entered the Brookshire store involved in this litigation on the afternoon of November 1, 1977 for the purpose of purchasing some 7-Up soft drinks which were a special sales item. She had shopped at this store on a regular basis for some eight years and was familiar with the rack upon which soft drinks were displayed.

The rack in question, provided and stocked by Coca-Cola, was a standard L • shaped three shelf display rack identical to that used in supermarkets throughout the Shreveport-Bossier area. The top two shelves were metal, where 32-ounce soft drink bottles were placed either in cartons one stack high or simply as singles. On the bottom shelf the 32-ounce soft drinks bottles were arranged in six pack cartons three stacks high, with each stack separated from the other by a plastic material technically described as “Mylar Spring Roll Shelving.” This was a flexible material designed to hold cartons in the rack. With the removal of a carton, the plastic divider rolled back, making the next carton accessible.

Mrs. Patty desired to purchase three diet 32-ounce 7-Ups and three regular 32-ounce 7-Ups. Since none of the displayed cartons contained that particular mixture, and since she saw no empty cartons, she decided to remove three of the “regulars” from one of those cartons and substitute three diet 7-Ups from another section of the display rack. Pursuant to this scheme, Mrs. Patty removed one bottle from the “regular” pack and placed it on the plastic divider next to the carton. She then removed a second bottle and also placed it on the plastic divider next to the first bottle. As she proceeded to reach for a third bottle, one of the first two bottles toppled off the plastic divider. Mrs. Patty reacted by extending her foot to break the fall of the bottle. As a result, the bottle struck her foot and then hit the floor, breaking and causing the injuries to Mrs. Patty for which plaintiffs seek damages.

Plaintiffs asserted that because of its opaqueness the plastic divider appeared to be a rigid shelf upon which it was safe for Mrs. Patty to place the single bottles. Since this appearance was deceptive, it was a trap for the unwary customer and, as such, constituted a premise hazard. The burden then shifted to defendants to prove themselves free of negligence, which they had failed to do. Consequently, plaintiffs-appellants argue that the trial judge erred in holding that no premise hazard had been created by defendants because there was no unreasonable risk of harm to customers under the circumstances.

As pointed out in William L. Prosser, Law of Torts (3rd Ed. 1964), p. 148, “the real basis of negligence is not carelessness, but behavior which should be recognized as involving unreasonable (emphasis added) danger to others.” Or, to put it another way, negligence is “conduct which falls below the standard established by law for the protection of others against unreasonably great risk of harm.”

Turning specifically to the duty of storekeepers, the following pertinent comments are found in 65 C.J.S. Verbo Negligence § 63(121):

“A storekeeper is not an insurer of the safety of his customers or invitees and is not liable for injuries unless they are caused by his negligence, fault or breach of duty. . . . Some latitude must be allowed a storekeeper to use and have nearby equipment reasonably necessary for the sale of his goods and to display his goods in a manner consistent with the nature of his goods and his business.” (pp 889, 890)
“The proprietor of a store who knows or by the exercise of reasonable care could discover a condition on his premises which he should foresee exposes his business visitors to an unreasonable risk, and who has no basis for believing that they will discover the condition or realize the risk involved, must exercise ordinary care either to make the condition reasonably safe for their use or to give warning adequate to enable them to avoid harm.” (pp 894, 895)

A premise hazard was defined in Johnson v. Insurance Company of N. America, 360 So.2d 818 (La.1978) as a “condition of the premises or of the store operation that results in an unreasonable risk of harm to customers under the circumstances.” The court further noted:

“When a customer in a self-service store proves injury resulting from a premise hazard, the burden shifts to the store operator to exculpate himself from the presumption of fault thereby arising and to establish his own freedom from fault.”

It is appropriate to note that from a factual standpoint we are not dealing with the typical falling merchandise case in which, without any action by the customer, cans or other objects which might have been improperly stacked or in disarray fell and struck the claimant. See, for example, Bell v. Bestyet Discount Foods No. 2, 372 So.2d 781 (La.App.2d Cir. 1979). On the contrary, our primary factual question is whether the display rack upon which this lawsuit focuses, with its plastic dividers, constituted a trap or hidden danger in that its appearance led Mrs. Patty to assume that the divider would safely support single 32-ounce soft drink bottles.

In this context, the case of Murphy v. Newark Insurance Co., 170 So.2d 248 (La. App. 4th Cir. 1964) is pertinent. There the plaintiff tripped over a slightly elevated concrete bumper in the merchant’s parking lot. She contended that the concrete object constituted a trap because it appeared to be a flat yellow line. Discussing the duty of storekeepers under these circumstances, the court stated:

“Storekeepers and property owners are not insurers of the safety of their invitees; they are only under a duty to keep their premises in a safe condition for use in a manner consistent with the purposes thereof, i. e., free of defects or conditions in the nature of hidden dangers, traps or pitfalls which are not known to the invitee and would not be observed by him in the exercise of reasonable care; the invitee assumes the obvious, normal or ordinary risks attendant on the use of the premises and storekeepers or owners are not liable for injuries to an invitee when those injuries result from a danger which should have been observed by the latter in the exercise of reasonable care. . . .
“There is no fixed rule for determining whether or not a defect in the premises is dangerous or in the nature of a trap; the facts and surrounding circumstances of each particular case control. ...”

In the case at bar it is apparent that the plastic dividers were designed and used for the purpose of supporting cartons of soft drinks rather than single bottles. Two facts are significant: no single bottles were displayed or standing on the plastic dividers, and the plastic tended to curl or fold up when a carton was removed, indicating the flexibility of the material. Since the danger of placing a single bottle on the plastic divider should have been obvious to customers, the divider was not a trap or hidden danger. Consequently, we agree with the trial judge that this was not a premise hazard which constituted negligence on the part of defendants. For that reason, the burden of proving freedom from negligence never shifted to defendants.

Since plaintiffs-appellants did not prov.e by a preponderance of the evidence that defendants were negligent, we affirm the judgment of the trial court, at appellants’ cost.


author: MARVIN, Judge.

text:
    Virginia Fryberger SELLWOOD, Plaintiff-Appellant, v. Sidney G. MYERS, Jr., Defendant-Appellee.
    No. 14266.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    En Banc. Rehearing Denied Oct. 30,1980.
    Writ Refused Dec. 15, 1980.
    Bodenheimer, Jones, Klotz & Simmons by David B. Klotz, Shreveport, for plaintiff-appellant.
    Egan, Cook & Titone by Reuben W. Egan, Shreveport, for defendant -appellee.
    Before HALL, MARVIN and FRED W. JONES, JJ.
   MARVIN, Judge.

Mrs. Sellwood, a Minnesota resident, appeals a judgment rejecting her demands to rescind her assignment of her one-half working interest in a then unproductive oil and gas lease to defendant Myers, a Shreveport resident and the owner of the other one-half working interest, who managed the joint venture in Louisiana.

She contended below and here that Myers misrepresented to her both the risk and the expense of reworking the well on the lease to restore production and that the assignment should be rescinded because of this error in fact as to the cause of the contract. C.C. Arts. 1819, 1821, 1823, 1825. Humble Oil & Refining Company v. ChappUIs, 239 So.2d 400 (La.App.3d Cir. 1970). This issue is essentially one of credibility which is best determined by the trial court. We affirm.

As a result of negotiations by her husband, Mrs. Sellwood acquired a one-half interest in the joint venture with defendant. Myers managed the venture which dealt in productive oil and gas leases for more than 10 years. Mrs. Sellwood was responsible for one-half the expenses of operating and maintaining the venture. One well that had produced oil since a workover in 1965 became unproductive during July 1977. Myers’ proposal to rework this well caused the assignment and eventually this lawsuit.

The chances of a relatively expensive workover succeeding decreased greatly with the passage of time. Because of these factors, Myers flew to Duluth to confer with Mrs. Sellwood on July 29, 1977. He estimated that reworking might cost as much as $60,000. More than one-half of the estimated cost was attributed to a new type of easing which might be necessary to give pumping capability to the well. Myers explained that other methods might be tried and that the new type casing may or may not have to be used.

Mrs. Sellwood consulted with an engineering firm, her lawyer-brother, her trust officer, and a friend in the oil and gas business before declining to continue in the venture. Sometime between August 29 and September 13, 1977, she agreed to assign to Myers her interest in the venture upon his agreeing to pay $442, the amount charged her by the engineering firm with whom she consulted about the venture. When he learned by telephone that Mrs. Sellwood had executed the assignment on September 13, 1977, Myers did not hesitate to rework the well at his expense. Reworking began September 15, 1977. Mrs. Sellwood executed the assignment on September 13, 1977, which was received by Myers about September 28, 1977, and was recorded by him on September 30, 1977. Successful reworking of the well was effectively completed on September 21, 1977, at a cost of $21,000, without the necessity or expense of using the improved casing. Production from the well resumed about September 26, 1977, at about twice the amount it had previously produced. Mrs. Sellwood claims these results and Myers’ failure to disclose to her before he received the executed assignment that the cost of reworking was only $21,000, compel a reversal of the judgment and our rescission of the assignment. We cannot agree.

It is true that Myers, as the manager of the joint venture, owed a fiduciary duty to Mrs. Sellwood. L.R.S. 9:3801; Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963). Mrs. Sellwood agreed before September 13, 1977, to assign her interest for consideration and on that date she formally executed the assignment. The joint venture ended on September 13 at the latest, and on and after that date the entire risk of the reworking belonged to Myers. The trial court correctly found that no one could have determined the exact costs or the result of the reworking before it was attempted. Reworking did not begin until September 15, 1977, after Mrs. Sellwood executed the assignment, and did not prove successful until about the time Myers received the assignment and recorded it. Mrs. Sellwood sought and apparently relied upon the advice of her attorney and her engineering firm to reach her determination to assign her interest instead of continuing in the venture.

We find no error. For reasons given below and summarized here, at appellant’s cost, judgment is

AFFIRMED.


author: HALL, Judge.

text:
    Edwin GAAR, Plaintiff-Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellee.
    No. 14268.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.
    Emmons, Henry & Reeves, by Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appellant.
    John W. King, Dotd, Office of Highways, Baton Rouge, of counsel, for defendant-ap-pellee.
    Before HALL, MARVIN and FRED W. JONES, JJ.
   HALL, Judge.

Plaintiff seeks damages from the State of Louisiana through the Department of Highways for losses he sustained when part of his herd of cattle became ill and died. Plaintiff alleges that his cattle died of arsenic poisoning after defendant’s employees sprayed the highway right of way adjacent to plaintiff’s pastureland with a herbicide containing arsenic. The trial court found that plaintiff failed to prove by a preponderance of the evidence that his losses were caused by the acts of defendant’s employees. Plaintiff appeals. We affirm.

Plaintiff owns 43 acres of land in Winn Parish where he runs a small herd of cattle. Louisiana Highway 34 runs north and south through plaintiff’s property, dividing the tract into an east pasture and a west pasture of approximately equal size. Barbed wire fences .separate plaintiff’s pastures from the grassy right of way bordering the paved roadbed. Plaintiff’s cattle are allowed to graze on the right of way only when he moves the herd from one pasture to another.

On September 23, 1975, defendant’s employees sprayed a herbicide on the right of way of the part of Highway 34 that bisects plaintiff’s property. The active ingredient in the herbicide is monosodium acid metha-nearsonate (MSMA), which contains 22.4% arsenic. On the date that these weed control operations were conducted, plaintiff’s entire herd of cattle was grazing in the west pasture.

During the first weeks of October, some of plaintiff’s cattle began showing signs of sickness. Several cows were listless, were not eating, and had scours. Plaintiff attempted to improve their diet and later he' and a neighbor tried to treat the cattle with terramycin; the condition of the cattle did not improve. On October 20 plaintiff moved the herd from the west pasture, which was overgrazed, to the east pasture, which was lush. Within several days, five to six cows were down and. others were sickly and trembling. Plaintiff called Dr. Pray, a local veterinarian.

Dr. Pray treated the cattle for scours but was unable to determine the cause of their ailment. Several cows died and Dr. Pray performed necropsies on them, removing organs and tissue samples for analysis. Dr. Pray learned that MSMA had been sprayed near the pastures several weeks before and, therefore, called in Dr. Every, a veterinary pathologist with the Northwest Louisiana Livestock Diagnostic Laboratory, to aid in diagnosing the problem. After examining the cattle, Doctors Pray and Every concluded that they were suffering from pulmonary emphysema, an ailment common among adult bovines in the Gulf Coast region. Arsenic poisoning was ruled out as the cause of the ailment because the cows had respiratory difficulties which are not symptomatic of arsenic poisoning.

On November 4, plaintiff called in Dr. Garrett, his veterinarian for 15 years. Dr. Garrett, aware of the Pray-Every diagnosis, examined the cattle and concluded that they were suffering from arsenic poisoning. The fact that the cows had scours and had suffered tremendous weight loss supported his diagnosis.

About 21 of plaintiff’s 45 cows became sick. Eleven died between the end of October and the end of December. The cows that survived were in a deteriorated condition.

At trial of the matter, a number of experts testified, including Doctors Pray, Every, Garrett, and Nicholson. The testimony established certain facts regarding arsenic poisoning in cattle. When arsenic is ingested by cattle, it travels through the liver and kidneys and is excreted in the urine; very little arsenic remains in the body of the cow but severe damage to the liver, kidneys, and renal tubes usually results. Initial symptoms of arsenic poisoning include listlessness, scouring, lack of appetite and weight loss. Although plaintiff’s cattle exhibited each of these symptoms, they also suffered from labored breathing which is symptomatic of pulmonary emphysema but not symptomatic of arsenic poisoning. Dr. Every testified that arsenic poisoning will usually result in death within two weeks; if the poisoned cow survives that period of time, it will usually recover.

Laboratory analysis of tissue samples taken from plaintiff’s cattle revealed, at most, only minute traces of arsenic in the liver and kidneys. However, it was established that cattle quickly excrete arsenic from the body. Nonetheless, the organs and tissue samples analyzed revealed no evidence of lesions or damage to the kidneys, liver, or renal tubes, which is normally found in cases of arsenic poisoning.

The expert testimony also established that while not all of the causes of pulmonary emphysema are known, it is known that the disease can be caused by ingestion of perilla mint (the most common cause of pulmonary emphysema in Louisiana) and by changing cattle from an overgrazed pasture to a lush pasture. Dr. Every noticed perilla mint in plaintiff’s west pasture.

At trial Dr. Garrett testified that plaintiff’s cattle had been in excellent condition prior to September 1975 and he continued to maintain that arsenic poisoning was the cause of plaintiff’s losses. Doctors Pray and Every testified on behalf of the defendant that the cattle died of pulmonary emphysema. Both of these veterinarians testified that labored breathing and gas bubbles trapped under the skin of the back of the cow are classic signs of pulmonary emphysema. Both symptoms were exhibited by some of plaintiff’s cattle. Further, the two doctors necropsied one of the cows and found that the lungs were distended with air trapped inside, another classic sign of pulmonary emphysema.

Dr. Nicholson, a specialist in veterinary science with the Louisiana Cooperative Extension Service, reviewed the laboratory reports and the veterinarians’ opinions. He testified that the information available to him was not sufficient to make a firm diagnosis but he thought the cattle probably died from emphysema.

The plaintiff in a civil action must prove his case by a preponderance of the evidence. “Proof by a preponderance of the evidence simply means that, taking the evidence as a whole, such proof shows that the fact or cause sought to be proved is more probable than not.” (citations omitted) Prestenbach v. Sentry Insurance Company, 340 So.2d 1331 (La. 1976).

Plaintiff failed to establish by a preponderance of the evidence that his cattle suffered from arsenic poisoning. Based on all of the evidence, a more probable cause of the deaths was pulmonary emphysema, unrelated to the herbicide spraying by defendant. There is no evidence in the record that arsenic poisoning can cause pulmonary emphysema. The probability of pulmonary emphysema as the cause of the cattle dying is supported by the testimony of Doctors Pray, Every, and Nicholson, the classic findings of pulmonary emphysema revealed by the necropsies, the absence of findings supporting arsenic poisoning, the existence of factors known to cause pulmonary emphysema, and the fact that some of the deaths occurred more than three months after the spraying occurred.

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

Affirmed.


text:
    J. L. CUMMINGS et al., Plaintiffs-Appellants, v. CONTINENTAL CAN COMPANY, INC. and Louisiana Power & Light Company, Defendants-Appellees.
    No. 14272.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.

      James M. Fowler, Jonesboro, for plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Roberts by Joseph W. Milner, Robert Roberts, III, Shreveport, for defendant-appellee-Conti-nental Can Co.
    Theus, Grisham, Davis & Leigh by Robert Lee Curry, III, Monroe, for defendant-ap-pellee-Louisiana Power & Light Co.
    Shaw & Shaw by W. M. Shaw, Jenifer Ward Clason, Homer, amicus curiae in support of plaintiffs-appellants.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

Plaintiffs are appealing from a judgment sustaining an exception of no cause of action and dismissing their suit against Continental Can Company for damages and cancellation of a lease agreement. We affirm for the reasons assigned.

Plaintiffs or their ancestors in title granted a 99-year lease of timber lands to Southern Advance Bag and Paper Company on 686 acres in 1949. Southern’s interest in the leased property was subsequently transferred to Continental. In 1971 Continental executed an agreement permitting Louisiana Power and Light (LP&L) to lay a natural gas pipeline across a portion of the leased property. The pipeline was constructed and is now in place.

Plaintiffs sued both LP&L and Continental seeking rescission of the lease granted Continental and damages based on allegations that Continental willfully breached the lease by granting LP&L a right-of way to lay the pipeline and that LP&L fraudulently purchased the right-of-way from Continental since it knew Continental was not the owner of the property and did not have authority to sell a right-of-way. Both Continental and LP&L filed peremptory exceptions of no cause of action. Continental’s exception was sustained and forms the basis of this appeal. LP&L’s exception was overruled and is not before us for review at this time.

Plaintiffs contend that Continental primarily leased their lands for the growing of timber and the right to construct pipelines for transmission of oil and gas was specifically reserved to plaintiffs in the lease agreement. They therefore contend the sale of the right-of-way to LP&L was a violation of the lease and of Continental’s duty as a lessee to not use the premises for any other purpose than that intended by the parties.

Continental contends to the contrary that the 99 year lease, although primarily for timber growing purposes, granted it the unlimited right to use the property for any purpose it saw fit subject only to plaintiff’s reservation of the right to mineral exploration and production. Continental also contends the specific reservation by plaintiffs of the right to lay pipelines is intended to be limited to lines necessary to the production of oil or gas under the mineral reservation. Continental concedes it could not, as lessee, have conveyed a perpetual servitude for a pipeline, but contends the right which it conveyed to LP&L was only the transfer of a personal right or a sublease of posses-sory rights to which it is entitled as lessee.

Examination of the lease and right-of-way agreements attached to plaintiffs’ petition convinces us the arguments made by Continental are well taken.

The lease between plaintiffs and Continental is not limited to the purpose of timber growing as shown by the following provision:

It is expressly agreed that the vendee shall not be limited to the growing, cutting and removing of timber, trees, wood and other forest products on the said land, but is hereby given the specific right to use the lands for any purpose it desires, including farming, renting, etc. which right carries with it the full power and authority to do any and all things necessary, essential, and incidental to the use thereof, ....

The only restriction on the use by Continental was the reservation by plaintiffs of the right to explore for and produce minerals. In connection with this reservation the lease provided specifically that plaintiffs or their assigns had the right to lay pipelines. It is clear however from the language employed that this right was merely accessory to the right to produce oil or gas and does not otherwise reserve such a right to plaintiffs.

The right-of-way agreement from Continental to LP&L provides:

Said rights granted herein cover the following described lands insofar and only insofar as the Grantor has the right to do so under those certain 99-year lease contracts set forth below: . . .

Such language does not indicate any intent on the part of Continental to convey a perpetual predial servitude but to the contrary grants permission for LP&L to exercise whatever rights Continental has under its lease to construct and maintain a pipeline on the property during the period of the lease. Continental concedes that should the pipeline constructed by LP&L interfere in the future with any development by plaintiffs under their mineral reservation, the line would have to be modified to accord to plaintiffs superior rights.

When the allegations of plaintiffs’ petition are considered along with their lease to Continental and the right-of-way contract from Continental to LP&L, it is apparent that they have not stated a cause of action against Continental and the trial court was correct in sustaining the exception of no cause of action against this defendant.

For the foregoing reasons, the judgment is affirmed at appellants’ costs.


text:
    LaVeta PRICE and Oleta Goodman, Plaintiffs-Appellants, v. FRANKLIN PARISH SCHOOL BOARD: Tom A. Kerrigan, Jr., President, Franklin Parish School Board; and Victor S. Hodgkins, Superintendent, Franklin Parish School Board, Defendants-Appellees.
    No. 14273.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 1980.

      George M. Strickler, Jr., New Orleans, and Paul H. Kidd, Monroe, for plaintiffs-appellants.
    Lowen B. Loftin and Thomas E. Cooper, Jr., Rayville, for defendants-appellees.
    John Barkley Knight, Jr., Winnsboro, for intervenor-appellee, Dorothy Young.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

Plaintiffs, two school teachers, appeal a judgment rejecting their demands to permanently enjoin the defendant school board from continuing to employ another teacher, Ms. Young, as Coordinator of Testing under Title I of the federally funded Emergency School Assistance Act. We affirm.

The Title I program is designed to provide remedial and corrective instruction for underprivileged school children. Specialized positions with particular job requirements are created to administer the program. These positions include Title I Director, Media Center Director, Reading Coordinator, Math Coordinator, and Coordinator of Testing. The school board established these positions to meet federal and state guidelines. These positions are not analogous to, and are not included in, the Louisiana Department of Education Bulletin No. 746, which sets forth job requirements for other positions such as supervisor in parish educational systems. For example, the director of the Title I program is required to have a valid Louisiana teaching certificate, a master’s degree, and a minimum of three years administrative experience. A supervisor under the Education Bulletin requirements must have a Type A Louisiana teaching certificate, five years of professional school experience, and a master’s degree.

Plaintiffs contend that the Bulletin requirements for a supervisor should apply to the position of Title I Testing Coordinator, and that Ms. Young should not be employed in that position because she did not meet these requirements. The Title I Testing Coordinator is in a specialized position and is required to have a valid Louisiana teaching certificate, a master’s degree, with some course work in testing, and a minimum of three years of successful teaching in the elementary grades. Ms. Young met these requirements when she applied for the job. To impose the Bulletin requirements would require the Title I Testing Coordinator to have higher qualifications than her superi- or, the Title I Director. After Ms. Young was hired as Title I Testing Coordinator, she obtained the certification required by the Education Bulletin for a supervisor. While this was not a requirement for the position of Title I Testing Coordinator, this accomplishment enhances Ms. Young’s position and effectively renders plaintiffs’ claim legally inconsequential.

Statutory authority to adopt employment policies and to choose personnel is given to school boards and not to the courts.

“La. R.S. 17:84 grants sole authority to parish school boards to select and employ supervisory personnel and La. R.S. 17:81 permits school boards to adopt their own rules and regulations to carry out their governmental functions provided the policies adopted are not inconsistent with law or the regulations of the Louisiana Department of Education. The courts should not interfere with a school board’s management unless there is a clear showing of abuse of the authority granted to the board under the statutory law. See State, ex rel Rathe v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153 (1943); Shaw v. Caddo Parish School Bd., 347 So.2d 39 (La.App.2d Cir. 1977).” Earnest v. Caldwell Parish School Board, 368 So.2d 801, 803 (La.App.2d Cir. 1979).

The Board’s policies are not inconsistent with state law or policy. The Board did not clearly abuse its authority in hiring Ms. Young. At appellants’ cost, we

AFFIRM.