author: BARRY, Judge. REDMANN, Judge,

text:
    Robert J. FINERAN v. Gloria P. O'CONNOR and J. M. O'Connor.
    No. 12224.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 1982.

      John G. Munoz, New Orleans, for plaintiff-appellee.
    Jerome P. Halford, New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and BARRY, JJ.
   BARRY, Judge.

Defendants appeal from a dismissal of their petition to nullify a default judgment based upon fraud and ill practices.

Plaintiff sued the husband and wife defendants on a $11,000.00 promissory, note which they signed in conjunction with their purchase from Dan C. Garner of Delta Commerce, Inc., a closely-held corporation whose primary asset was a leasehold interest in the Flying Dutchman Lounge. The sale price was $16,000.00 represented by $5,000.00 cash and the balance by the note. The lounge was leased by Lewis Johnson to Delta and the lease had more than two years left on its primary term with two five-year options to renew.

The defendants purchased Delta (in effect, the lounge lease) on June 21,1976. On August 2, 1976 they were notified that the building in which the lounge was situated was part of Johnson’s bankruptcy proceedings and the court-appointed manager for the property informed defendants that a second mortgage holder had acquired the property free and clear of the lease and defendants had ninety days to vacate. Defendants’ monthly rental was refused, an eviction notice was tacked on the premises, and defendants sold the lounge contents for $500.00. Defendants then sued the plaintiff in Jefferson Parish.

Subsequently this lawsuit was filed by Robert J. Fineran as the holder of the $11,-000.00 note. Defendants responded with exceptions of vagueness and no right of action after which plaintiff’s petition was amended to substitute Dan C. Garner as plaintiff. The exceptions were set for hearing in January, 1978, but notice of the hearing could not be served on defendants’ attorney because he moved his office, so plaintiff served defendants personally and they turned the matter over to their attorney.

At this point there are conflicts as to what happened. Plaintiff contends defendants’ attorney acquiesced in a dismissal of his exceptions as being moot. The defendants counter that their attorney believed that the hearing on the exceptions was to be continued. Defendants did not appear and a judgment was granted dismissing the exceptions. On May 9,1978 plaintiff took a preliminary default and on June 6,1978 the default was confirmed resulting in a judgment awarding plaintiff $10,516.00 plus interest and attorney’s fees. In August, 1978 a writ of fieri facias was issued to seize defendants’ property after which defendants filed this petition to nullify the default judgment.

Defendants urge two grounds in support of their petition for nullity:

(1) There was fraud and ill practices as provided in LSA-C.C.P. art. 2004 because plaintiff obtained the default judgment without defendants having notice of the proceedings and while . they were represented by an attorney “.. .who was notoriously known to have been up for disbarment and subsequently disbarred, and other circumstances which would indicate that they did not treat the defendants herein with an above the board manner and candor” ... because plaintiff is an attorney and defendants are lay people who relied upon their attorney.
(2) That the transaction which supported the promissory note was without consideration since plaintiff knew at the time of the sale that the property was under administration of a judicial trustee and the lease on the premises was not viable under the circumstances.

The Trial Judge was faced with a factual determination and rendered his decision based upon credibility of the witnesses, notably the opposing attorney’s. His Reasons for Judgment concluded that plaintiff did not commit fraud or ill practices because the defendants were advised by their attorney of the pending lawsuit and of the validity of the lease and “(t)he court ... believe(d) that there was consideration in connection with the sum paid”.

Plaintiff’s lawyer, John G. Munoz, set the exceptions for hearing with notice personally served on the defendant who gave the notice to Roger Jordan, his lawyer. Jordan testified he called Munoz and requested that the matter be continued and said he did not acquiesce in the dismissal of the exceptions. Jordan stated he did not receive any further communication and assumed that this lawsuit and the prior litigation in Jefferson Parish was a “stand off”.

Munoz testified he and Jordan agreed that an amendment to the petition would cure any defect and a consent judgment would be appropriate. Munoz then filed an amended petition substituting plaintiffs and prepared a consent judgment which he forwarded to Jordan. The proposed judgment was not returned so Munoz appeared in court without Jordan on the date set to hear the exceptions and they were ■ dismissed. Jordan testified he did not contact the court for a continuance nor did he do anything thereafter. Munoz stated he then waited four months, during which he attempted to reach his opponent, then proceeded to confirm the default.

In Johnson v. Welsh, 334 So.2d 395 (La.1976) the defendant was personally served and he engaged an attorney to defend him in the litigation; however, the attorney failed to answer the petition and plaintiff obtained a default judgment. The Supreme Court sustained this court’s holding that such failure does not constitute a ground to set aside a default judgment. LSA-C.C.P. arts. 1701-02, 2002, 2004 (1960).

We feel the defendants’ problem stems from the inaction of their attorney rather than the course pursued by plaintiff’s counsel. Notice of the hearing date was personally served on the defendant because his attorney had closed his office and couldn’t be located. Jordan said he sought the continuance, but he did not make such a request to the court orally or by written motion. It appears to us the peremptory exception was satisfied when Garner was substituted as plaintiff and the dilatory exception (vagueness) had doubtful merit. Four months passed after the exceptions were dismissed and Jordan nor his clients did anything further to protect their interests. To proceed to judgment under these circumstances was not unconscionable or inequitable. We find no error with the Trial Court’s failure to find fraud or ill practices by the plaintiff.

Defendants’ second basis for nullity is that the transaction supporting the promissory note was without consideration. Apparently this argument was the basis for defendants’ earlier lawsuit in Jefferson Parish which was never brought to trial. However, having determined there was no valid and sufficient reason for defendants’ failure to defend the original suit, this alleged defense could and should have been pleaded in the original suit. Verdin v. Unico, Inc., 366 So.2d 1007 (La.App. 1st Cir. 1978); Steele v. Ruiz, 202 So.2d 376 (La.App. 4th Cir. 1967), and cases cited therein. Further, the allegation of no consideration is an affirmative defense and cannot be maintained in an action for nullity of the original judgment.

For the foregoing reasons the judgment of the District Court is affirmed with defendants to pay all costs of this appeal.

AFFIRMED.

REDMANN, Judge,

dissenting.

In accord with La.C.C.P. 2164, there should be judgment for the buyers in quanti minoris, C.C. 2541, in the amount of $15,500 plus the expenses of sale and damages (in this case 11.2% interest on $10,516 principal plus 25% attorney’s fees on that interest and principal). The evidence is that no reasonable person would have paid $16,000 for a business whose lease had been destroyed by the foreclosure of a pre-existing mortgage; such a business is worth only the value of its physical assets, and those assets sold for only $500 to the only buyer the lease buyers could find. Moreover, the judgment should award attorney’s fees to the buyers on a holding that the seller knew the defect of the thing sold; Borne v. Mike Persia Chev. Co. Inc., 396 So.2d 326 (La.App. 4 Cir. 1981), writ denied 401 So.2d 976.

Although seller has not had an opportunity to plead prescription to quanti minoris, the claim in quanti minoris is not prescribed because the Jefferson parish suit to rescind the sale entirely was filed within a few months of the sale and interrupted prescription. See Levy v. Stelly, 277 So.2d 194 (La.App. 4 Cir. 1973), writ denied 279 So.2d 203. Nor, for the reasons set forth in Welch v. Crown-Zellerbach Corp., 359 So.2d 154 (La.1978), does the default judgment on the note constitute res judicata of the claim for quanti minoris (any more than having paid cash would do so). There is no point in obliging these buyers to convert their pending rescission action in Jefferson parish into an action quanti minoris and to retry the whole matter already tried in this record.

      . Gamer filed exceptions in that case which were pending when this matter was tried.

      . LSA-C.C.P. art. 2004. Annulment for vices of substance; peremption of action
      “A final judgment obtained by fraud or ill practices may be annulled.
      “An action.to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    DIXIE BREWING COMPANY v. George LOVELL.
    No. 12495.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 1982.

      Torres & Bischof, Sidney D. Torres, III, George N. Bischof, Jr., Chalmette, for defendant and third-party plaintiff-appellant.
    Henican, James & Cleveland, Robert An-gelle, New Orleans, for third-party defendant and appellee John Roberts.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Defendant in this suit on his note appeals from the dismissal of his third party demand on an exception. Defendant pleads lack or failure of consideration for the note, which he allegedly gave to his former employer because of shortages on his beer delivery route, and he third-parties his former supervisor with the allegation that he did nothing save on instruction of his supervisor, and the supervisor is therefore liable for any shortages. We affirm the dismissal of defendant’s claim against his former supervisor as not presentable by third party demand in a suit on defendant’s note.

La.C.C.P. 1111 allows a defendant to bring into the suit a third party “who is or may be liable to him for all or part of the principal demand.” Defendant views this suit on his note as if it were a suit alleging his damaging his employer during his employment, in which case he might be authorized by C.C.P. 1111 to bring in his supervisor as a joint tortfeasor or as a person solidarily liable for breach of his employment contract. Defendant argues that by questioning the consideration for the note he converts the suit on the note into a suit on the underlying obligation for which the note was given, thus making it in effect a suit in tort or breach of contract, by which he should be able to third-party one allegedly also liable for the tort or breach.

We disagree. If defendant does not defeat the suit on the note by his plea to the consideration, the judgment that results will be one on the note, for its principal rather than the amount of proven damages, with interest at the rate and from the date the note provides rather than legal interest from judicial demand or contractual breach, and with attorney’s fees that the note provides rather than no attorney’s fees as is the case in a judgment in tort or breach of contract. The point of accepting a note is to avoid the problems of proof of liability and quantum in a damages claim, and defendant’s questioning consideration for the note requires only that plaintiff show some lawful cause, C.C. 1893, or consideration, such as forbearance to sue or prosecute defendant at the time on a claim of at least colorable validity. Plaintiff is not in this suit on a note required to prove the original tort or breach of contract claims.

Thus the third party demand shows neither that the third party is responsible on the note nor that judicial economy would be served by allowing defendant’s claim against his former supervisor to be tried in a suit on defendant’s note. The third party demand was therefore properly dismissed as not presentable in this action.

Affirmed.


text:
    Mose LEE v. ILLINOIS CENTRAL GULF RAILROAD CO. et al.
    No. 12679.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 1982.
    Lloyd N. Frischhertz, Seelig, Cossé & Frischhertz, New Orleans, for plaintiff-appellant.
    Raymond J. Salassi, Jr., Matthew A. Wellman, Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, New Orleans, for defendant-appellee City of New Orleans.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal of a late-joined defendant on an exception of prescription. The preliminary question is whether that defendant may be solidarily liable with any of the other defendants, because suit against one solidary co-obligor interrupts prescription as to all. We conclude that that defendant is not liable at all and we therefore affirm.

Plaintiff alleges he slipped and fell in a railroad car while unloading bags of clay; that the car’s door and its track were damaged so that the door could not close fully and admitted rain which mixed with the clay to make the floor dangerously slippery; that the shipper of the clay, its shipping agent, the owner of the car, a railroad company which hauled the car, and (by late supplemental petition) another railroad company and the City of New Orleans through the Public Belt Railroad Commission (which also moved the car) all knew the car’s dangerous condition but “used the damaged car when possible bodily injury was foreseeable.”

Because of the rule that suit against one solidary co-obligor interrupts prescription against all, the question of whether solidary liability may exist will often be determinative of an exception of prescription filed by a defendant added late to a timely filed lawsuit. The exception of prescription in this case would raise the solidarity question. If Public Belt and any of the timely-sued defendants are liable for plaintiff’s damages under the petitioner’s allegations, then they would be liable in solido because they would meet the definition of La.C.C. 2091: each would owe the entire amount of the damages and payment by either would discharge the other towards the tort victim creditor; Foster v. Hampton, 381 So.2d 789 (La.1980).

Accordingly, resolution of the solidarity question in favor of prescription requires a conclusion either that the late-joined defendant is not liable under the petition’s allegations (in which case the exception of no cause of action would seem more directly appropriate), or that none of the timely-joined defendants is liable under the allegations.

We conclude that the petition does not state a cause of action against Public Belt (and therefore, although it is superfluous to say so, Public Belt is not liable at all and therefore not liable in solido with anyone timely sued and therefore the running of prescription in its favor was not interrupted by timely suit against others allegedly liable). The petition does not state a cause of action because it makes no factual allegations from which it could be concluded that Public Belt had a duty towards persons whose employment and expertise it is to unload freight cars either (1) to report to them that the door did not fully close and admitted rain which with the clay cargo caused the floor to be muddy and slippery (all of which must be as obvious to the expert freight car unloader as to Public Belt) or (b) to refuse to move the car from the delivering railroad to its ship destination on the ground that it is probably slippery inside, or (c) to do anything else under the circumstances recited. We cannot find any breach of any duty owed to plaintiff by Public Belt, on the allegations of the petition. Nor can we suppose any amendment that would state a cause of action against Public Belt. The dismissal of Public Belt was therefore correct.

Affirmed.


author: GARRISON, Judge.

text:
    Dolores Faciane, wife of/and Joseph C. DeBATTISTA v. ARGONAUT-SOUTHWEST INSURANCE CO., et al.
    No. 10596.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 1982.
    Writ Denied March 19, 1982.

      Abbott J. Reeves, Gretna, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, William S. Penick and George E. Cain, New Orleans, for defendants-appellees.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   GARRISON, Judge.

Plaintiff, while a patient at Southern Baptist Hospital, was administered blood which she alleged later caused hepatitis. After trial on the merits the trial court failed to find liability of Southern Baptist Hospital Blood Bank, Dr. Ralph M. Hart-well, Dr. George A. Hauser and the insurers, Argonaut-Southwest and St. Paul Fire and Marine, and dismissed plaintiff’s suit. This court affirmed, 403 So.2d 26; however, the Supreme Court of Louisiana reversed the judgment of the trial court, 385 So.2d 518, finding liability based upon C.C. art. 2315 and Loescher v. Parr, 324 So.2d 441 (La.1975), and remanded the matter to this court for the purpose of fixing quantum.

Plaintiff then moved this court to remand the matter to the trial court for the purpose of adducing medical testimony based upon the contention that such evidence was not presented at the time of the initial trial of the matter. This contention is not supported by the record which revealed that medical testimony was presented on behalf of plaintiff. The record discloses that a period of five and one-half months were involved from the first evidence of hepatitis until plaintiff was completely cured.

Approximately one month after receipt of the blood, plaintiff began experiencing loss of appetite, became listless and was experiencing nausea. Plaintiff was referred to Dr. Lloyd C. Eyrick, an internist, by her gynecologist, Dr. Steele. Dr. Eyrick hospitalized her on April 18, 1973 at Southern Baptist Hospital and discharged her some 15 days later on May 2, 1973. During her hospitalization and subsequent recuperation at home, bed rest, Prednisone, Bena-dryl, Vistarel, Mylanta, Levsin, intravenous fluids and proper diet were prescribed.

On May 30, 1973, serium Bilirubin and S.G.O.T. tests were performed which disclosed mild elevation above normal and prescription of bed rest and proper diet with moderate activity was continued.

After discharge by Dr. Eyrick, she was tested at Ochsner and that test for hepatitis was found to be negative.

In view of the fact that this matter was tried three years after suit was filed and no evidence of additional medical treatment was presented, and the presumption being that the attorney for plaintiff has presented all of the available medical testimony, it can be concluded that the above history constitutes the entire treatment of plaintiff for hepatitis.

Based upon the foregoing history, we are of the opinion that $15,000.00 amply compensates plaintiff for her injury and all incidental expenses in connection therewith. Accordingly,

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff in the full and true sum of $15,000.00, together with legal interest from date of judicial demand until paid. Defendants-appellees are to bear all costs of these proceedings.

RENDERED ON REMAND.


text:
    LAKEWOOD PATIO HOMES ASSOCIATION, INC. v. Marilyn SPITZFADEN d/b/a Mrs. C. J. Spitzfaden, III.
    No. 12573.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1982.
    Michael E. Botnick, Roberts, Katz & Bot-nick, New Orleans, for plaintiff-appellant.
    Tucker & Schonekas, Provino Mosca, New Orleans, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Plaintiff association of condominium owners appeals from the dismissal, on exception of no cause of action, of its petition ■for assessments against one of its members.

Defendant theorized that the resolution of the board of directors accelerating the balance of the year’s monthly assessments and authorizing the filing of a lien and this lawsuit was ineffective because the resolution was signed only by the president and the secretary instead of by all directors. We conclude that defendant misreads the corporate by-laws (cited in and attached to the petition).

The first by-law she cites authorizes board action by written consent instead of by meeting (as authorized for corporations generally by La. R.S. 12:81 C(9)); it does not require that directors sign a resolution adopted at a meeting.

The second by-law defendant cites appears to allow board action by a combination of a quorum-short meeting plus written consent by absent directors, for it counts absent directors as present if they sign and concur in the minutes. But it does not override the standard procedure of a board that acts by voting in person (or by proxy if authorized) at a meeting, expressly provided by these by-laws: “The acts of the Board approved by 51% of votes present at a meeting at which a quorum is present shall constitute the acts of the Board of Directors .... ”

Reversed; exception overruled.

      . Any action which may be taken at a meeting of the board or of any committee thereof may be taken by a consent in writing signed by all of the directors or by all members of the committee, as the case may be, and filed with the records of proceedings of the Board or committee.

      . A quorum at directors’ meetings shall consist of the directors entitled to cast 51% of the votes of the entire Board. The acts of the Board approved by 51% of votes present at a meeting at which a quorum is present shall constitute the acts of the Board of Directors, except as specifically otherwise provided by law or in the Condominium Declaration, Articles of Incorporation, or these By-Laws. If at any meeting of the Board of Directors less than a quorum is present, the majority of those present may adjourn the meeting from time to time until a quorum is present. At an adjourned meeting any business which might have been transacted at the meeting as origi-naliy called may be transacted without further notice. The joinder of a director in the action of a meeting by signing and concurring in the minutes thereof shall constitute the presence of such director for the purpose of determining a quorum.


text:
    SUCCESSION OF Ulysses Samson LOEB.
    No. 12713.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1982.
    Writ Denied March 19, 1982.
    Charles E. McHale, Jr., New Orleans, for appellants Julian J. Loeb and Emmanuel J. Loeb.
    Harry Nowalsky, Henrik A. Pontoppidan, New Orleans, for appellees Herman Rosenberg et al.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Opponents appeal from a judgment upholding the validity of a statutory will, La. R.S. 9:2442. An attestation following the testator’s first “signature” (an “X”) does not explain the testator’s having signed with a mark. Before that first signature, however, the typewritten will does recite, after all dispositive clauses, “Because I am partially paralyzed and physically weak, but of sound mind and having all my mental capabilities, my signature may be shaky and illegible, I therefore make my mark.”

The question is whether the statute requires this declaration to follow rather than precede the testator’s (first) signature (if he signs twice). We answer no and affirm.

The statute, as amended by Acts 1976 No. 333, recited that if the testator cannot sign his name because of physical infirmity he must so declare, stating the cause, to notary and witnesses; that “mention of the testator’s declaration ... and of the cause ... must be made in the act”; and that the “facts shall be evidenced by a declaration signed by notary and both witnesses .... ” The statutory sample of a declaration (substantial similarity to which the statute ordains) contains a full recital of declaration and cause.

Opponents first argue that the statute requires two recitals of the disability and its cause, one in the dispositive portion (“the body”) of the will and a second in its attestation, citing subd. (l)’s “mention ... in the act” and subd. (2)’s sample “declaration” form’s inclusion of such a recital. We disagree.

The “act” is not the dispositive portion only, but the entire document, and subd. (2) is, to say the least, reasonably interpretable as providing a suggested method for making in the “declaration” (or attestation) of the “act” the express mention that subd. (1) requires “in the act.” Succession of Bel, 377 So.2d 1380 (La.App. 4 Cir. 1980), rejected an analogous argument from statutory language that the statutory will must be “dated” both in the dispositive portion and in the attestation. We see no advantage to a will’s reciting twice the explanation of the testator’s physical inability to sign, and we do not read the statute to require two explanations any more than Be! read it to require two dates. Opponents suggest that the dispositive portion could have been reduced to writing privately, at a time before the witnesses were present, and that therefore it is the attestation that should contain the recital of the declaration in their presence. That suggestion does not justify invalidating a will that contains only one explanation. One explanation of the disability is all that is reasonably necessary and is all that the statute requires.

The remaining question, then, is whether the single recital in the portion of the will preceding the attestation suffices in view of the inclusion of a recital in the statutory sample attestation. We hold that it does. The statutory command is mention “in the act” and the sample attestation is no more than a sample compliance with the statutory command.

Our will is similar to those of Succession of Porche, 288 So.2d 27 (La.1973), and Succession of Peterson, 240 So.2d 39 (La.App. 2 Cir. 1970), writ refused 257 La. 175, 241 So.2d 532, in that in each of those there was a departure from the statute’s attestation. The testator signed the will only once, preceding rather than following the attestation. The statute at that time (as amended, Acts 1964 No. 123) required the attestation “above the signatures of the notary public and witnesses and the testator at the end of the will.” (Emphasis added.)

In Porche, the supreme court noted that the two basic statutory requirements were met by the testator’s declaring the instrument his will and signing a declaration to that effect, all in the presence of notary and witnesses.

The sole contention is that the testator did not formally reiterate in the attestation clause that these formalities had been complied with .... 288 So.2d at 29.

The court found substantial compliance. In our case, the similarity is that (if, indeed, the will must be compartmentalized) the testator does make the required declaration and sign it (with a mark) in the portion of the will prior to the attestation, after which come the signatures of the notary and witnesses, but that portion following the testator’s first signature does not include a repeat declaration of the testator’s declaration. Our case is stronger than Porche, however, in that (as in Peterson) our notary’s and witnesses’ signatures are below the testator’s, and thus in literal compliance with the law, while in Porche the testator’s signature was not below the notary and witnesses’ declaration, and thus not in literal compliance with the then law.

Peterson, like our case, involved a one-page will in which, after the dispositive clauses but before the testator’s signature, a non-dispositive, narrative recital contained what was supposed to be then “evidenced in writing above the signatures” of notary and witnesses as well as testator. Peterson ruled that the non-dispositive recital was itself an attestation, 240 So.2d at 41:

An attestation clause is merely a certification or recital of the acts done in the confection of an instrument. The division of the clause is immaterial as long as the proper recitals are made, the declarations by the testator are above his signature, and the attestation made by notary and witnesses is above their signature with no intervening dispositive matter. Succession of Eck, [233 La. 764, 98 So.2d 181 (1957)].

We apply the same reasoning. The last sentence before our testator’s first signature is not a disposition but an attestation and declaration. And, just as the statutory requirement for the testator’s signature “at the end of the will” is not defeated by the intervention of the statutory attestation between his dispositions and his signature, Succession of Dugas, 400 So.2d 333 (La.App. 4 Cir. 1981), writ refused 404 So.2d 1257, so also the requirement that the notary and witnesses sign after the attestation is not defeated by the testator’s signing between the attestation (or part of it) and their signatures.

Charged by several supreme court decisions such as Succession of Morgan, 257 La. 380, 242 So.2d 551 (1971), to maintain a will if possible rather than require strict compliance in form, we conclude that this will substantially complies with the statutory requirements.

Affirmed.

      . LAST WILL AND TESTAMENT OF ULYSSES S. LOEB
      New Orleans, Louisiana
      June 12, 1980
      I, Ulysses S. Loeb, being of sound mind and testamentary intent, knowing the uncertainty of human life and the certainty of death, do hereby make and constitute this my last will and testament, hereby revoking any and all prior wills made by me.
      I hereby declare that I am single, having never been married, and that my parents are deceased.
      I give and bequeath the real estate bearing Municipal Nos. 4113-15 Carondelet Street, New Orleans, Louisiana to Mrs. Shirley Rosenberg Watsky, daughter of Herman and Tillie Rosenberg.
      I give and bequeath my entire interest in the real estate bearing Municipal Nos. 4109-11 Carondelet Street, New Orleans, Louisiana to my nephew, Melvin Herman Rosenberg.
      I give and bequeath to Mrs. Violet Loeb, widow of Sigmund Loeb, the sum of $150.00 Cash.
      I give and bequeath the residue of my estate to my nephew, Melvin Herman Rosenberg.
      I name and appoint Herman Rosenberg, executor of my estate with full seizin and without bond. In the event he is unable to so act or desires not to so act, I name and appoint my sister, Mrs. Tillie Loeb Rosenberg, executrix of my estate with full seizin and without bond.
      I name and appoint Harry Nowalsky as attorney for my estate and the executor thereof.
      Because I am partially paralyzed and physically weak, but of sound mind and having all my mental capabilities, my signature may be shaky and illegible, I therefore make my mark.
      This foregoing will has been prepared for me at my request and signed by me on this 12th day of June, 1980 at New Orleans, Louisiana.
      HIS X MARK
      ULYSSES S. LOEB
      And now the said ULYSSES S. LOEB has appeared before the undersigned Notary Public and witnesses and declared to them in the presence of each other that the foregoing is his last will and testament and, as such, has signed the foregoing will in the presence of the said parties and has signed this subscription together with the said parties in the presence of each other on this 12th day of June, 1980 at New Orleans, Louisiana.
      HIS X MARK ULYSSES S. LOEB
      Harry Nowalsky HARRY NOWALSKY NOTARY PUBLIC
      631 St. Charles Avenue New Orleans, Louisiana 70130
      WITNESSES:
      Marion M. Robbins
      Theresa S. Heimel
      Patricia E. Regan

      . The statute has often been amended. The 1976 amendment controls this will and those of the Bel and Dugas cases hereafter discussed. Earlier versions controlled the Porche and Peterson cases hereafter discussed. One difference important to our discussion is that the earlier versions of the statute required the testator’s signature after the attestation, and the 1976 version does not.


author: EDWARDS, Judge.

text:
    STATE of Louisiana, ex rel. William J. GUSTE, Jr., Attorney General v. ESTATE OF Numa Paul HIMBERT, et al.
    No. 15031.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 28, 1982.
    William J. Guste, Jr., Atty. Gen., Kenneth C. De Jean, Thomas S. Halligan, Asst. At-tys. Gen., Baton Rouge, for plaintiff-appellant State of Louisiana ex rel. William J. Guste, Jr., Atty. Gen.
    Risley C. Triche, Napoleonville, for defendants-appellees Christian Faser, Jr. and Mrs. Mariska C. Faser.
    Neil H. Mixon, Baton Rouge, for defendants-appellees Adelheid S.- Himbert and Janet Himbert Nehrbass.
    Sidney W. Provensal, Jr., New Orleans, for defendant-appellee Grace M. Gravolet.
    Ralph Brewer, Baton Rouge, for defendants-appellees Steven Wayne Ard, Ronald Stanley Ard and Philip F. Ard, the latter as natural tutor of the minor child, Melanie Mae Ard.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

The facts involved in this case were set out in our opinion in State ex rel. Guste v. Estate of Himbert, et al., 327 So.2d 698 (La.App. 1st Cir. 1976), at page 699:

“Numa Paul Himbert was Auditor of the Louisiana Department of Highways from January 2, 1942, through February 16, 1965. It is alleged that, during the period from June 1, 1960, to March 1, 1966, he conspired with Ezekiel W. Gravo-let, Jr. and Christian Faser, Jr. to devise a scheme to defraud the State of Louisiana for private financial gain.
“Under that scheme, Mr. Gravolet, then a State Senator, entered into a contract of employment with the First National Bank of Jefferson Parish to solicit depositors for the Bank. For this service, he was to receive payments not to exceed one per cent of the average monthly balance of such deposits. Thereafter, pursuant to a directive from Mr. Faser, then Executive Secretary to the Governor, Mr. Himbert, in his official capacity, transferred various Highway Deaprtment funds to the First National Bank, which were deposited in non-interest bearing accounts. Eventually, these funds to-talled $23,000,000.00.
“Payments of $491,033.38 were made to Mr. Gravolet, and were deposited in the accounts of three public relations corporations set up by him. From the accounts of these corporations, payments totalling $94,480.00 were made to Mr. and Mrs. Himbert.”

The State of Louisiana filed this suit against the heirs of Numa Paul Himbert, seeking to recover $94,840.00 which was allegedly wrongfully obtained by Mr. Him-bert. After remand from the previous appeal, the State amended and supplemented its petition to add additional defendants and to seek also the amounts that they had received as a result of the alleged illegal scheme. The State alleged that the illegal scheme was carried- out by various writings, financial records, checks and the like issued by the coconspirators. In November of 1980, the State filed a request for admission of genuineness of documents in which it requested that defendants admit the genuineness and authenticity of 2,029 documents. In response to the request for admission, a number of defendants alleged that they were without sufficient information to either admit or deny the genuineness of the documents. They also contended that, because of the large number of documents involved, plaintiffs request was unduly burdensome. Defendants sought a protective order relieving them from the duty of responding. Two defendants filed untimely responses to the State’s request. Another defendant failed to respond at all.

The trial court considered defendants’ motions for a protective order and plaintiff’s motion to compel responses on September 30, 1980. The trial court denied plaintiff’s motion to compel and granted the defense motions relieving all defendants from the duty of responding.

Plaintiff appealed the ruling of the district court. Plaintiff obtained an order from the trial court entitled: “EX PARTE ORDER OF DEVOLUTIVE APPEAL AND SETTING OF RETURN DAY FOR SAID APPEAL OR, IN THE ALTERNATIVE, FOR THE TREATMENT OF THIS APPEAL BY THE COURT OF APPEAL AS AN APPLICATION FOR WRITS OF CERTIORARI, PROHIBITION, MANDAMUS, RULE NISI, AND ALL OTHER SUPERVISORY REMEDIES.” The trial court’s order set December 11, 1981, as a return date for plaintiff’s appeal or, in the alternative, “for treatment of this appeal by such Court of Appeal as an application for writs of certiorari, prohibition, mandamus, rule nisi, and all other supervisory remedies.”

This court, ex proprio motu, issued an order requiring plaintiff to show cause why its appeal should not be dismissed on the ground that there is no right of appeal. In response to the show cause order the State has filed a brief in support of its right to maintain the appeal. Alternatively, the State seeks to have the appeal treated as a writ application.

RIGHT TO APPEAL

Louisiana Code of Civil Procedure art. 2083 limits the types of judgments which may be appealed. LSA-C.C.P. art. 2083 provides as follows:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

The ruling of the trial court in this case is not a final judgment. See LSA-C.C.P. art. 1841. Therefore, in order for plaintiff’s appeal to be maintained the trial court’s ruling must be “an interlocutory judgment which may cause irreparable injury.”

The State’s brief alleges that irreparable injury will result from the trial judge’s ruling but fails to detail that alleged injury with any particularity. Because there has been no showing of irreparable injury in this case, we will dismiss plaintiff’s appeal. James v. Charity Hospital of La. at New Orleans, 398 So.2d 622 (La.App. 1st Cir. 1981).

PLAINTIFF’S APPLICATION FOR WRITS

In its show cause brief the State seeks to have its appeal treated, in the alternative, as an application for writs. We decline to do so, however, because the State has failed to comply with the requirements of Rule XII, Section 4 of the Court of Appeal Uniform Rules relative to applications for remedial writs.

For the foregoing reasons, the plaintiff’s appeal is dismissed. Costs of this appeal, in the amount of $1,158.77, are to be paid by plaintiff.

APPEAL DISMISSED.


author: SAMUEL, Judge.

text:
    PARISH OF JEFFERSON v. Charles MORTON and Dorothy Morton.
    No. 5-257.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 1982.

      Hubert A. Vondenstein and Louis G. Gruntz, Jr., Asst. Parish Atty., Gretna, for relator.
    Barker, Boudreaux, Lamy, Gardner & Foley, Jerry L. Gardner, Jr., New Orleans, for respondents.
    Before SAMUEL, BOUTALL and GARRISON, JJ.
   SAMUEL, Judge.

The Parish of Jefferson has applied for writs from a trial court dismissal of its petition against Mr. and Mrs. Charles Morton. The petition seeks to enjoin those defendants from operating a nursery school in a R-l residential neighborhood. As respondents have filed an opposition to the application, and as none of the pertinent facts involved herein are in dispute, there is no need to issue certiorari.

Previously, the Parish Council had refused to grant the Mortons a permit to operate the school and they filed suit seeking judicial reversal of that refusal. Their suit was dismissed and they appealed to this court. Our judgment reversed that of the trial court, directed the Parish to issue the permit, and enjoined the Parish from closing, hampering or impeding plaintiffs’ business. The Parish filed a timely application for rehearing.

Following our judgment, but priór to any action on the Parish’s application for rehearing, the Mortons began operating their nursery school. The Parish then filed its injunctive suit. The trial court refused to consider the matter on the ground it lacked jurisdiction because the matter was still pending on appeal. On January 21, 1982, this court denied the application for rehearing and mailed notice thereof. Subsequently, relator filed this application for writs.

We disagree with the trial judge’s conclusion that he lacked jurisdiction because the matter was still pending on appeal. As provided by Code of Civil Procedure Article 2088, on appeal the trial court is divested of jurisdiction only over those matters which are reviewable under the appeal. Here the issue presented by the injunctive suit, whether the Mortons should be enjoined from operating their school during the pendency of the appeal from the original judgment effectively denying them the right to so operate, was not before this court on appeal and the trial court retained jurisdiction over that suit.

Nor does there appear to be any doubt about the proper conclusion to be reached in the injunctive suit. The application for rehearing was denied and notice thereof was mailed on January 21, 1982. The last two paragraphs of Code of Civil Procedure Article 2166 read as follows:

“If a timely application for rehearing has been filed in the court of appeal, and the court of appeal denies the application, the judgment becomes final and definitive unless an application for writ of certiorari to the supreme court is filed within thirty days of the mailing of the notice of a denial of rehearing.
If an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiorari.” LSA-C. C.P. Art. 2166.

Thus, relator has thirty days from January 21, 1982 to apply for writs to the Supreme Court, our judgment is not final, and the original trial court judgment, which we reversed, is still viable. As the trial court judgment refused to order the issuance of a permit, and as the respondents cannot open their nursery school without a permit, they cannot open their school while that judgment is on appeal.

For the reasons assigned, the judgment of the trial court refusing to consider the Parish’s suit to enjoin the Mortons from operating their nursery school is annulled and set aside and the matter is remanded to the trial court which is now directed to issue the requested injunction until such time as our judgment on appeal becomes final or, alternatively, should the Supreme Court grant writs, until the finality of the Supreme Court judgment.

ANNULLED, SET ASIDE AND REMANDED.

      . No. 233-557 of the docket of the 24th Judicial District Court.

      . No. 12,055 rendered September 15,1981. 408 So.2d 3.


text:
    Velvet West JAUME v. Henry Arthur JAUME.
    No. 5-169.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Harry Nowalsky and John Levy and Wayne M. Richardson-Harp, New Orleans, for defendant-appellant.
    Before SAMUEL, BOUTALL and CHE-HARDY, JJ.
   SAMUEL, Judge.

This is an appeal by the father from a judgment which dismisses his rule for permanent custody and awards his former wife continued temporary custody of the two children born of the marriage, a girl and a boy, ages 8 and 5, respectively. The judgment also specifies visitation rights and orders the parties, together with their present respective spouses, to return to court for a further hearing at a later date to review the progress made. The “progress” referred to was concerned with court orders to the spouses to attempt, within their financial means, to improve their living conditions, and to get acquainted with their children. It was also concerned with the future condition of the parties and the children.

The father filed his brief in this court on November 10, 1981. The mother has not made an appearance. The record originally lodged in this court contains the pleadings, exhibits and testimony only of the July 20 and 21, 1981 hearings which resulted in the judgment appealed from.

Ex proprio motu, we made further inquiry to determine if the trial court had held the additional hearing specified in the July judgment. We have found that on November 24, 1981 such a hearing did take place. Following that hearing, on December 4, 1981 judgment was signed maintaining the father’s rule to the extent of granting him the temporary care, custody and control of the children, thus reversing the judgment appealed from.

Thus, it is clear that the December judgment superseded and set aside the July, 1981 judgment here appealed from and, as the July judgment is the only judgment before us, this appeal is moot. Ordinarily, we would simply and only dismiss the appeal as moot. However, because this is a custody matter, we prefer to call the trial court’s attention to Civil Code Article 157. In pertinent part that article reads:

“A. In all cases of separation and divorce, and changes of custody after an original award, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children, without any preference being given on the basis of the sex of the parent.” LSA-C.C. Art. 157. (Emphasis ours).

Article 157 mandates that in a change of custody after an original award, permanent custody must be given in accordance with the best interest of the child or children. As the award of custody to the father in the December judgment was at least the third award of custody, that award should have been one of permanent custody. Accordingly, we remand the matter to the trial court for the purpose of awarding permanent custody to the appellant if, in the opinion of the trial judge, such an award would be proper.

For the reasons assigned, this appeal is dismissed as moot and the matter is remanded to the trial court for the purpose of making a determination of the permanent custody of the children involved based on the evidence presented at the prior custody hearings and any other evidence he may consider necessary. Costs of this appeal are to be divided equally between the parties. All other costs are to await a final determination.

APPEAL DISMISSED; MATTER REMANDED.

      . The judgment was rendered July 21, 1981 and signed July 29.

      . The father scarcely knew the children because the mother had placed the girl with her uncle and aunt in Lafayette, Louisiana for several years, and the boy with other relatives in West Virginia.

      . See Barrilleaux v. Barrilleaux, La.App., 381 So.2d 518.


text:
    Jacob A. WORTMANN v. Louise FRENCH, divorced wife of Jacob A. Wortman.
    No. 12217.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Writ Denied April 15, 1982.

      Turner & Young, George P. Hebbler, Jr., New Orleans, for plaintiff-appellee.
    Before REDMANN, GULOTTA and BARRY, JJ.
   REDMANN, Judge.

An ex-wife appeals from a judgment that annulled her then husband’s 1976 transfer to her by private act of a house then worth $4,500 for “$10 ... and other good and valuable consideration.” The husband also transferred to her the household furnishings, but not the community cash, whose amount is undisclosed. The trial judge reasoned that La.C.C. 1790 (prior to its amendment by La. Acts 1978 No. 627 § 3) prohibited contracts between spouses during the marriage. We reverse. C.C. 1790 only prevented interspousal commutative contracts, C.C. 1768, by which each does, gives or promises to do or give something for or to the other. C.C. 1790 did not prevent either simple interspousal donations, which are expressly authorized by C.C. 1743, or givings in payment, C.C. 2446 (prior to its repeal by Acts 1978 No. 627 § 5). The deed in this case was a giving in payment in discharge of a natural obligation, a “transfer made by the husband to his wife, even though not separated, [that] has a legitimate cause ...,” C.C. 2446(2).

The transfer was for $10, and thus of course it was not a sale. Just as in the case of “the sale of a plantation for a dollar,” C.C. 2464, the absence of a proportionate price prevents this transfer’s being deemed a sale, although, as 2464 adds, it may be effective (if not otherwise invalidated) as “a donation disguised.” Whatever its true character, our $10 transfer is not a sale but is merely disguised in the form of a sale.

The evidence explains the transfer as a result of (1) the husband’s radical and continuous breach of the marital obligation of fidelity, C.C. 119, by living part-time with another woman even while still living with the wife and (2) the husband’s interest in the wife’s obtaining a divorce swiftly and without bringing the other woman into the proceedings.

The wife testified that the husband had agreed to give her the house and its furnishings if she would get a quick and clean divorce. The husband’s testimony (“I agreed to give her anything and everything.”) in effect corroborates this agreement notwithstanding his protests, as does the fact that he executed a deed reciting $10 “consideration,” transferring the house to the wife. As we view the question on appeal, it is whether this case is within the exception to C.C. 1790 provided by C.C. 2446(2), allowing an interspousal transfer “When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.” We answer that question yes.

We first express doubt that one spouse’s desire for a quick and clean divorce could be “legitimate cause” within C.C. 2446(2). The codal example of “replacing ... effects alienated,” although not a limit on the generality of the expression “a legitimate cause,” suggests the principle that the cause should be a pre-existing cause; otherwise any ordinary sale by husband to wife would come within the exception (and would make it the rule rather than the exception). See Planiol, Civil Law Treatise (La. Law Inst, trans.) 11,1442-3. (We also question whether the other spouse’s fulfilling the desire for a quick, clean divorce could constitute “services” supporting a remunerative donation within C.C. 1523, exempted by C.C. 1526 from C.C. 1536’s requirement of authentic form.)

The fact that justifies characterizing this transfer as supported by “a legitimate cause” within C.C. 2446(2) is the husband’s breach of the marital obligation previously described. Policy reasons prevent one spouse’s suing the other for damages for breach of marital obligations and for that reason the obligation to repair the damage thus caused does not rise to the level of a legally enforceable “civil obligation” within C.C. 1757. But we reason that the obligation of one spouse to make reparation to the .other for this kind of damage is among the natural obligations defined by C.C. 1758(1): “Such obligations as the law has rendered invalid ... for some reason of general policy, but which are not in themselves immoral or unjust.” The natural obligation cannot be enforced by lawsuit, but “No suit will lie to recover what has been paid, or given in compliance with a natural obligation,” C.C. 1759. The husband in our case evidently recognized the injury he had caused the wife and felt the natural obligation to make reparation (in addition to which he wanted a quick and clean divorce that would not involve the other woman, whom he shortly thereafter married). Most important, he in fact did discharge his natural obligation to make reparation by executing the deed to the house. C.C. 1759 prevents his suing to get it back.

Finally we note that the husband also demanded annullment of his transfer to the wife of some land worth about $750 in another state. We expressly disclaim jurisdiction in the courts of Louisiana either to annul or to confirm that transfer.

Reversed; suit dismissed at plaintiff’s cost.

      . Besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as a husband and wife, tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contract, such as purchases, by the administrator, of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband, to alienate her dotal property, or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this Code.

      . Married persons can, by marriage contract, make to each other reciprocally, or the one to the other, what donations they think proper, under the modifications hereafter expressed.

      .A contract of sale, between husband and wife, can take place only in the three following cases:
      1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
      2. When the transfer made by the husband to his wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.
      3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.
      Saving, in these three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.


author: GULOTTA, Judge.

text:
    Vera GIANECHINI, Individually and as Natural Tutrix of the Minor Child David Gianechini and Executrix of the Estate of Ernest Gianechini v. CITY OF NEW ORLEANS, New Orleans Fire Department, Arthur Turner, Joseph Fricano, Early American Insurance Company and XYZ Insurers.
    No. 12422.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 1982.
    Writ Denied April 15, 1982.

      Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Robert E. Winn, J. David Forsyth, New Orleans, for plaintiff-appellant.
    Ronald J. Favre, New Orleans, for City of New Orleans & New Orleans Fire Department.
    John P. Nelson, Jr., New Orleans, for Arthur Turner & Joseph Fricano, defendants-appellees.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   GULOTTA, Judge.

The surviving spouse and minor child of Ernest Gianechini appeal from the dismissal of their suit against the City of New Orleans and two individual firemen, Arthur Turner and Joseph Fricano, for negligence in rendering emergency assistance to Giane-chini. We affirm.

Ernest Gianechini suffered a heart attack while dining with business associates at the Andrew Jackson Restaurant on Royal Street in New Orleans at approximately 9:45 p. m. on September 16, 1976. Within seconds, a bystanding paramedic and another man, identified as a doctor, rushed to his aid. After determining he had no pulse and was not breathing, the two began to administer cardio-pulmonary resuscitation (CPR) within forty-five seconds to one minute after the onset of the attack.

Within three to five minutes of Gianechi-ni’s initial distress, a New Orleans Fire Department emergency vehicle manned by defendants Turner and Fricano arrived on the scene. Turner administered oxygen to the victim for a few moments with an Emerson resuscitator before resuming CPR using the mouth-to-mouth method. Gianechini was then placed on a stretcher and wheeled to the ambulance.

The emergency vehicle, driven by Frica-no, arrived at the emergency room of Charity Hospital within ten minutes after the onset of the attack. During the three to five minute ride from the restaurant to the hospital, Gianechini was attended by fireman Turner, who continued to perform chest compressions, and James P. Murphy, a medically untrained associate of Gianechini, who administered oxygen mechanically through a mask at Turner’s instructions.

At Charity Hospital, Gianechini’s heartbeat was restored. It was subsequently determined, however, that although his heart attack had not been massive, he had suffered brain damage from lack of oxygen during the cardiac arrest. In April, 1977, he died from resulting medical complications.

Plaintiffs claim the decedent’s brain damage and death were caused by the negligent acts or omissions of the two firemen at the restaurant and en route to Charity Hospital. They sought to prove that proper CPR had been administered by the two bystanders at the restaurant and that the firemen had failed to continue this life-saving technique properly. Plaintiffs seek recovery against the City based on respondeat superior and also under LSA-C.C. Art. 2317 and negligence theories because of the City’s failure to staff its ambulance with properly trained personnel and to equip them with effective safety devices. Plaintiffs also complain that the trial judge erred in ordering a bifurcated jury trial on the liability of the firemen and a judge trial on the City’s liability. They additionally complain of various errors during trial.

BIFURCATED TRIAL

Over the objection of the plaintiffs, who had prayed for a jury determination of all issues as to all defendants, the trial judge conducted a “bifurcated” trial whereby the jury determined the liability of the individual firemen while the judge sat as trier of fact of the City’s culpability. The trial judge based his ruling on LSA-R.S. 13:5105, which provides: “No suit against the state or a state agency or political subdivision shall be tried by jury.”

Plaintiffs, appealing, contend that LSA-R.S. 13:5105 violates the equal protection provisions of the Louisiana and United States Constitutions and is an unconstitutional application of the doctrine of sovereign immunity, which was abolished by Article 12, § 10 of the 1974 Louisiana Constitution. We disagree.

The validity of LSA-R.S. 13:5105 has been upheld as a proper exercise of legislative authority to provide a “procedure” for suits against the state and its political subdivisions under LSA-Const. Art. 12, § 10. Jones v. City of Kenner, 338 So.2d 606 (La.1976); Carter v. City of New Orleans, 327 So.2d 488 (La.App. 4th Cir. 1976). Controlled by these cases, we reject plaintiffs’ constitutional arguments. Accordingly, we conclude the trial judge properly “bifurcated” the trial and had the issues determined separately.

GROSS NEGLIGENCE STANDARD

Turner’s liability as an emergency vehicle attendant was submitted for the jury’s determination on a “gross negligence” standard, whereas Fricano’s liability as driver of the vehicle was submitted on ordinary negligence. This disparity of standards arises from LSA-R.S. 37:1732(A) and (C) which afford firemen “certified” in first aid training a limited immunity from liability for emergency medical assistance “... except for acts or omissions intentionally designed to harm or grossly negligent acts or omissions which result in harm” to the injured victim. Undisputed evidence indicated that Turner had received certification as an Emergency Medical Technician (EMT), whereas Fricano had only received basic first aid training by the fire department and had no certification.

Although no issue is raised as to the standard of care applied to Fricano, plaintiffs contend that the “gross negligence” standard set forth in LSA-R.S. 37:1732 should not be applied to Turner’s behavior since the statute is unconstitutionally vague.

A statute violates due process if the language is so vague that men of common intelligence must guess at its meaning. State v. Baker, 359 So.2d 110 (La. 1978). We cannot say that LSA-R.S. 37:1732(A) and (C) are impermissibly ambiguous concerning certification requirements of firemen. In our case, it is clear that fireman Turner had received EMT training and while currently certified by the American Red Cross and the National Register of Emergency Technicians rendered “emergency care, first aid or rescue while in the performance of his duties at the scene of an emergency” and moved Gianechini “to a hospital or other place of medical care” as provided by the statute. Accordingly, we conclude that Turner clearly falls within the provisions of LSA-R.S. 37:1732(A) and (C), and we find no merit to plaintiffs’ argument based on statutory vagueness.

CITY’S STANDARD OF CARE

In determining the City’s liability, the trial judge employed an ordinary negligence standard and refused to apply LSA-R.S. 37:1732(B), which by its terms would permit the City to benefit from the gross negligence standard applicable to its employee-fireman. He declared that LSA-R.S. 37:1732(B) was unconstitutional as violative of equal protection.

Because the trial judge concluded the negligence of the City “was not a substantial factor in causing the harm ... ”, a determination with which we agree, the question whether the statutory gross negligence standard is applicable or unconstitutional is moot. Courts do not pass upon the constitutionality of a statute if the case can be decided on another ground. State v. Stripling, 354 So.2d 1297 (La. 1978).

LIABILITY OF FIREMEN

At the outset, we need only briefly mention that the evidence overwhelmingly supported the jury’s conclusion that fireman Fricano, the driver of the emergency vehicle, was not guilty of negligence in transporting Gianechini from the Andrew Jackson Restaurant to the Charity Hospital emergency room. It was undisputed that Fricano completed the trip in three to five minutes driving at the maximum speed that safety permitted. Furthermore, the weight of the evidence was that Fricano’s failure to notify the hospital in advance of his arrival with the cardiac arrest victim had no dis-cernable effect on the treatment he received in the emergency room.

A more difficult question for the jury, however, was determining whether fireman Turner, the emergency vehicle attendant, was grossly negligent in rendering improper CPR to Gianechini resulting in decedent’s brain damage and death.

A factual dispute existed concerning the procedure used by Turner during the ambulance ride. According to Turner, he instructed the layman, Murphy, to hold an oxygen mask over Gianechini’s nose and mouth and to administer oxygen at Turner’s signal. The fireman testified that after every five chest compressions he nodded to Murphy to administer oxygen by depressing an Ohio demand valve and releasing it at a second nod of the head after Gianechini’s lungs were inflated. Turner stated that at least 36 times on the ride to the hospital he gave nodding signals to Murphy to depress the button and release it again. According to expert witnesses, the method described by Turner would be an effective form of CPR.

Murphy’s testimony, on the other hand, was that Turner had simply handed him an oxygen mask in the ambulance, and told him to hold it over the victim’s face and press the button. According to Murphy, he was never told to take pressure off the button at any time and was not given any kind of signal by Turner. Murphy stated that he held the mask over Gianechini’s face and did not release the button unless he was wiping away vomitus on at least two or three occasions on the way to the hospital. If Murphy’s version were believed, such CPR would probably not have been effective.

A second factual dispute concerned the physical condition of Gianechini in the minutes following his heart attack. According to medical testimony, the pupils of cardiac arrest victims dilate within one minute of arrest as the brain is deprived of oxygen. When the flow of oxygen is restored the pupils constrict or become smaller and react to light but they do not become “pinpointed” or very small and unreactive. According to the deposition of John T. Williams, the bystanding emergency medical technician who rendered emergency CPR in the restaurant before the arrival of the firemen, Gianechini’s pupils began to dilate or get wider (a sign of cardiac arrest) within seconds after the onset of the attack, but the victim’s color remained pink and his pupils constricted and remained “very small, pinpointed” after CPR began. When asked if his pupils reacted to the light, Williams testified that they “just remained constricted”, a significant indication, according to this witness, that effective CPR was being administered. According to Turner, however, Gianechini’s pupils were “pinpointed” and non-reactive to the light, representing possible brain damage.

Apart from these factual contradictions in the evidence, expert testimony concerning the effectiveness of CPR as a life-saving technique was also conflicting, based on statistical studies of survival rates of patients who had been administered CPR. Although plaintiff’s experts estimated survival rates ranging from 70-95%, defendants’ experts placed the rate as low as 15%. Irrespective of the differences in percentages, a reasonable inference from the testimony is that CPR is not a cure-all. Significantly, plaintiffs’ medical experts acknowledged that properly performed CPR is not always effective in preventing brain damage and death.

Medical experts responded to hypothetical questions about the onset of the decedent’s brain damage. Dr. Edward Gaber, plaintiffs’ expert in internal medicine and CPR, was of the opinion that Gianechini’s brain damage probably occurred during the ambulance ride, based on assumptions that he had received proper two-man CPR in the restaurant for five minutes, that his pupils had remained constricted and his color pink, and that he had only received chest compressions from Turner and oxygen from the Emerson resuscitator or from a demand valve used by his untrained friend during the ambulance ride. Significantly, however, Dr. Gaber acknowledged that he did not know Gianechini’s skin color or the condition of his pupils upon arrival at Charity. He testified that if those signs had been the same at Charity as when he had left the restaurant, he could not say at what point brain damage had started. Furthermore, this physician testified that the easy defi-brillation of Gianechini at Charity Hospital indicated “something right” had been done, partially in the ambulance, prior to his arrival at the hospital.

Dr. Robert Martinez, a neurologist called by plaintiffs, could not say, from an examination of the hospital records, at what point after the attack Gianechini had become brain damaged. Based on an assumption that he had received effective CPR in the restaurant and his pupils had been erroneously described by Williams as “pinpointed”, he was of the opinion that the brain damage probably occurred after he had left the restaurant. Significantly, however, this physician also testified that to give a better opinion of when the brain became damaged it would be important for him to know what Gianechini looked like upon arrival at the Charity emergency room. Assuming the skin color, pupils and other signs were the same upon arrival at the hospital as at the restaurant, he acknowledged it could be concluded that brain damage could have occurred in the restaurant.

Defendants’ experts were of the opinion that Gianechini had suffered brain damage at the restaurant before the firemen’s arrival. Dr. Edward Howell, an expert in emergency medicine, felt that it was highly probable that Gianechini had aspiration at the restaruant whereby foreign materials went into his respiratory system sufficiently to prevent effective CPR. In his opinion, the victim’s initial vomitting and regurgitation at the restaurant impeded effective CPR and caused difficulty in ventilating him and allowing oxygen to enter the lungs. He believed that Gianechini had demonstrated pulmonary atelectasis or collapse, aspiration of gastric content, some pulmonary edema, and capillary profusion disorder, or a lung collapse whereby blood does not get oxygenated. He also felt that the finding of “pinpointed” pupils by Williams at the restaurant indicated that Gianechini had cerebral inoxia causing brain damage as pointed out in the autopsy. According to Dr. Howell, Gianechini’s continuing regurgitation at the restaurant meant that excessive pressure was necessary to ventilate his lungs. Significantly, this physician also testified that the treatment Gianechini received in the ambulance “was certainly not detrimental to the patient” since he was resuscitated without too much trouble after arrival at Charity Hospital.

Similarly, Dr. Richard A. Paddison, defendants’ expert neurologist, was also of the opinion that Gianechini’s brain damage had probably occurred before the firemen came to the restaurant and “in spite of" the CPR he received. This physician was of the opinion that something “catastrophic” had occurred in the victim’s nervous system, including his brain and brain stem, taking into account the factors that he was comatose, unresponsive, not breathing on his own, and his pupils were “pinpointed” at the restaurant.

The defendants’ case was also buttressed by the testimony of Lonnie M. Campbell, a paramedic accepted as an expert EMT, who was of the opinion that Gianechini’s brain damage had occurred in the restaurant before the arrival of the firemen. This witness stated that even if proper CPR had been started in the restaurant within one minute by two qualified people and continued until the patient was brought to Charity, he could not say he would have survived without permanent brain damage since he could have aspirated vomitus impairing his ability to get oxygen into his blood.

Considering the lay and expert testimony, we cannot say the jury erred in exonerating Turner from liability for Gianechini’s brain damage and death. If Turner’s testimony concerning use of the Ohio demand valve equipment and the head-nodding signals to Murphy during the ambulance ride, though disputed, is believed, the jury could have concluded that he performed proper CPR and there was no showing of any negligence, much less gross negligence. The undisputed medical testimony was that brain damage can occur even with proper CPR. In other words, the occurrence of brain damage does not necessarily mean improper CPR has been performed. Evidence that proper CPR was performed in the restaurant and that Gianechini arrived at Charity Hospital with brain damage does not establish that Turner did not administer proper CPR or that his treatment in the ambulance caused the brain damage.

In short, the plaintiffs simply failed to show that Turner had performed improper CPR that was a cause in fact of the victim’s brain damage. This conclusion finds support in defendants’ expert medical testimony, although disputed by plaintiffs’ experts, that Gianechini very well could have suffered irreversible brain damage at the restaurant despite Williams’ efforts and proper CPR even before the firemen arrived on the scene. The evidence supports the jury’s conclusion that Turner was not “grossly negligent.”

CITY’S LIABILITY

Although it is true, as pointed out by the trial judge, that the emergency vehicle manned by Turner and Fricano failed to meet the accepted standards for emergency vehicle equipment by its lack of a hand operated bag-mask unit, portable suction unit, portable oxygen unit, we find no error in the trial judge’s further conclusion that “... the City’s negligence was not a substantial factor in causing the harm which was sustained by Ernest Gianechini.” We cannot conclude the record supports a finding that brain damage occurred after the arrival of the firemen and that improper CPR was administered because of lack of equipment.

Although Turner had no portable aspirator or portable demand oxygen equipment for use in the restaurant and in transporting Gianechini to and from the emergency vehicle, the evidence, though conflicting, does not indicate that CPR was interrupted for more than 15 seconds, the accepted maximum time of interrupting CPR in transporting the victim, or that the overall effectiveness of the CPR actually performed was diminished significantly. Moreover, if Turner’s version of the events is accepted as true, his limited use of the Emerson resuscitator was not detrimental. Accordingly, we conclude that no showing was made that the faulty or missing equipment was a cause-in-fact of the brain damage.

TRIAL ERRORS

As grounds for reversal, plaintiffs also cite certain alleged errors or improprieties occurring at trial. We find no merit to these contentions.

Plaintiffs argue that the trial judge erred in withholding from the jury the City’s obligation to pay any judgment rendered against the individual defendants Turner and Fricano, while permitting, over plaintiffs objection, evidence of the firemen’s limited financial ability to respond in judgment. This argument is addressed to quantum. Because the firemen and the City were exonerated from liability, no necessity exists to consider this alleged trial error.

During trial, the judge interrupted the questioning of one of plaintiffs’ medical experts and stated that he could not give his opinion in response to a hypothetical question unless he could do so “to a reasonable medical certainty” rather than on a “probability standard.” Later in the trial, the judge denied plaintiffs request for mistrial, and told the jury to disregard his previous comment concerning “reasonable medical certainty”. He further instructed the jury that the causal relationship between the injury and the brain damage could be considered “as a medical certainty, a more reasonable than not, probable than not, or a reasonable probability.” Furthermore, the court clarified the degree of proof in his final charge to the jury. Although plaintiffs argue that the effect of the judge’s error concerning the degree of proof of medical causation was “devasting”, we conclude, considering the record as a whole, that any initial prejudice was removed by the trial court’s corrective instructions and final charge to the jury. Under these circumstances, we find no reversible error. Accordingly, we reject plaintiffs’ contention that the jury’s findings are not entitled to the benefit of the manifest error rule.

We likewise are not persuaded by plaintiffs’ arguments concerning the trial judge’s charge to the jury on the issue of proximate cause. The judge described proximate cause as one “without which the accident could not have happened” and referred to it as the “procuring, efficient or predominant cause”. Plaintiffs contend the judge’s explanation was erroneous since proximate causation need not be the predominant causation but only a “substantial factor” in causing the injury. Although the trial court’s charge to the jury may not have been couched in the precise terms preferred by plaintiffs, we cannot say that the court’s language was so confusing or misleading as to constitute reversible error. Moreover, in the written interrogatories, the jurors were asked if Turner’s gross negligence or Fricano’s negligence was “a proximate cause or a substantially contributing factor producing Mr. Gianechini’s death.” Accordingly, any error in the trial judge’s charge concerning causation was harmless.

As a final ground for reversal, plaintiff contends that a mistrial should have been granted when counsel for defendant, during his closing arguments to the jury, stated, in effect, that a verdict for plaintiffs “ends emergency service in New Orleans”. Although this statement was obviously improper, we find no error in the trial judge’s denial of the motion for a mistrial. Upon plaintiffs’ immediate objection to the comment, the judge instructed the jury to disregard the remark. Any prejudice in the jury’s mind was thereby dispelled.

Accordingly, the judgments are affirmed.

AFFIRMED.

      . An Emerson resuscitator is a pressure-cycled device whereby oxygen is pumped into the victim’s lungs and released once a certain pre-set pressure is reached. The Emerson resuscitator cannot be used to ventilate a victim’s lungs during CPR because the chest compressions trigger the machine to release the air and adequate oxygen does not reach the victim’s lungs.

      . LSA-C.C. Art. 2317 provides as follows:
      “Art. 2317. Acts of others and of things in custody.
      We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

      . LSA-R.S. 37:1732(A) and (C) provide:
      “A. Any fireman, policeman or member of an ambulance or rescue squad who holds a valid current certification by the American Red Cross, L.S.U. Fireman Training Rescue Program or United States Bureau of Mines, who renders emergency care, first aid or rescue while in the performance of his duties at the scene of an emergency, or moves a person receiving such care, first aid or rescue to a hospital or other place of medical care shall not be individually liable to such person for civil damages as a result of acts or omissions in rendering the emergency care, first aid, rescue or movement of such person receiving same to a hospital or other place of medical care except for acts or omissions intentionally designed to harm or grossly negligent acts or omissions which result in harm to such person, but nothing herein shall relieve the driver of an ambulance or other emergency or rescue vehicle from liability arising from the operation or use of such vehicle.

      C. In order for any fireman, policeman or member of an ambulance or rescue squad to receive the benefit of the exemption from civil liability provided for herein, he must first have taken and successfully completed the standard first aid course recognized or approved by the American Red Cross or the United States Bureau of Mines or the L.S.U. Fireman Training Rescue Program and further he shall have a valid certification from the Red Cross or the United States Bureau of Mines or the L.S.U. Fireman Training Rescue Program that he has successfully completed any necessary training or refresher courses, or shall have successfully completed a first aid course having standards at least equal to the standard first aid course recognized or approved by the American Red Cross or the United States Bureau of Mines or the L.S.U. Fireman Training Rescue Program.”

      . LSA-R.S. 37:1732(B) provides:
      “B. The immunity herein granted to a fireman, policeman or member of an ambulance or rescue squad in accordance with Subsection (A) of this section shall be personal to him and shall not inure to the benefit of any employer or other person legally responsible for the acts or omissions of such fireman, policeman or member of an ambulance or rescue squad nor shall it inure to the benefit of any insurer, except that no parish governing authority engaged in rendering ambulance services nor its insurer with respect to such ambulance services shall be liable for the act or omission of any member of any ambulance squad employed by it unless such individual would be personally liable therefor under the provisions of Subsection (A) hereof.”

      . When the button on the Ohio demand valve is pressed, oxygen is forced into the victim’s lungs and when the button is released the flow of oxygen stops. This form of ventilation, unlike the Emerson resuscitator (see footnote 1, supra), can be used in CPR.
      The emergency vehicle was equipped with a working Ohio demand valve connected to an oxygen source. Turner’s trial testimony concerning use of the Ohio demand valve and the nodding signals in the ambulance differed from his earlier deposition where he did not mention switching from the Emerson to the Ohio.

      . Plaintiffs medical expert, Dr. Edward Gaber, stated that use of an untrained layman who pressed a button on a demand oxygen system at the nod of an EMT’s head in connection with chest compressions would be an acceptable method of CPR if done correctly. Dr. Warren K. Carter, also called by plaintiffs, felt it was “perfectly fine” for an EMT to use lay help if properly observed.

      .Dr. Arthur Wayne Owens, plaintiffs’ expert in internal medicine, cardiology and CPR, testified that proper CPR instituted within one minute and continued until a hospital is reached results in a survival rate of 70-80% on a national average, and approaches 95% of individuals with ventricular fibrillation. On cross-examination Dr. Owens acknowledged that the salvage rate in Seattle, which has a better emergency program than New Orleans, is initial out-of-hospital resuscitation of 40% of patients and discharge as long term survivors of 25%. Dr. John Lownry, Ph.D., an emergency medical service officer, testified that the survival rate is “pretty low”. According to Lowry, studies of patients in 1974-76 responded to in three minutes or less indicated only 16% survived to discharge from the hospital, and of the survivors one-half had severe neurological deficits and had to be admitted to nursing homes. Dr. Edward Gaber, plaintiffs’ expert in internal medicine and CPR, stated that his personal success rate in reviving a person from cardiac arrest through CPR is “two out of three” and that the “current thinking” is a success rate up to 80% if CPR is within one minute of the onset of cardiac arrest and a better rate for ventricular fibrillation.
      Dr. Warren K. Carter, an expert in emergency medicine testified that proper CPR administered to a man in Mr. Gianechini’s condition would give him a “reasonably good chance for survival after advanced cardiac support at hospital.”
      Dr. Richard M. Paddison, defendants’ expert neurologist, cited a 1979 study that showed a mortality rate of 73-80% of patients who suffered an out-of-hospital arrest and were comatose on arrival at the hospital.
      Dr. Edward Howell, defendants’ expert in emergency medicine, testified that a December, 1977 study of patients who went into ventricular fibrillation in front of a paramedic with all the equipment available showed only 43% survived. According to Howell, a Seattle study of 1975 showed only 40% of patients in ventricular fibrillation outside the hospital were initially resuscitated and only 25% were discharged as long-term survivors. He said that average success rates for out-of-hospital cardiac resuscitation from 1973-78 show 14.9% of persons survive to leave the hospital.

      . Dr. Arthur Owens testified that under the best of circumstances CPR is not always effective, and he had no opinion about the treatment administered to Gianechini.
      Dr. Edward Gaber did not feel that all CPR, no matter how properly given, is always effective.

      . There is no record of Gianechini’s condition upon arrival at the emergency room of Charity Hospital.