text:
    Ernest F. GARRETT, Plaintiff-Appellant, v. MARTIN TIMBER COMPANY, INC., Defendant-Appellee.
    No. 14354.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    En Banc. Rehearing Denied Jan. 13, 1981.

      Campbell, Campbell & Johnson by John T. Campbell, Minden, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern by R. Raymond Arthur, Natchi-toches, for defendant-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff, E. F. Garrett, appeals the judgment of the district court rejecting his demand for damages allegedly caused by the illegal cutting of timber by the defendant, Martin Timber Company, Inc., on land which Garrett claims to possess as owner. We reverse and award plaintiff damages for the reasons assigned.

Garrett is the record owner of a tract of unimproved timber land situated partially in Section 33, Township 17 North, Range 8 West, and partially in Section 4, Township 16 North, Range 8 West in Bienville Parish, Louisiana. Directly to the east and contiguous to Garrett’s property is a tract owned by Ellis S. Martin (not a party to this suit).

On January 1, 1979, Martin sold the right to cut timber on his tract to defendant. After surveying the Martin tract to identify the extent of the tract to be cut, defendant’s loggers began operations on the Martin tract in early February 1979. They cut timber up to the north-south section line of Section 33, which was shown as the ideal boundary between the Martin tract and the lands owned by plaintiff. The survey also showed the existence of an old fence running parallel to the ideal boundary which was situated approximately 33 feet to east of the line at the northwest of Martin’s tract and 3 feet east of the line at the southwest corner of Martin’s tract. Defendant’s loggers crossed over this old fence and cut the timber standing between the fence and the ideal boundary as marked by the surveyor.

On or about February 10, 1979, Garrett discovered the cutting operations. Claiming that the old fence had been the recognized boundary between his and Martin’s land for more than 30 years, Garrett filed suit on February 20, 1979, seeking damages for the destruction of the fence and the cutting of timber situated to the west of the fence line. Garrett prayed for judgment recognizing him as owner of the strip of land lying between the old fence and the ideal boundary as determined by the survey and to have the old fence restored and declared the correct boundary between his and Martin’s property.

The trial court concluded that Garrett’s suit was in reality a petitory action since he was asking to be recognized as owner of the disputed strip by 30 years adverse possession. La.C.C.P. Art. 3651 provides that a petitory action is brought “against another who is in possession or who claims the ownership” of a tract of land adversely. Since the defendant-timber company was not in possession of the disputed strip and did not claim ownership, Garrett’s suit was dismissed. The lower court further held that even if Garrett’s suit could be classified as a separate action in trespass, he was not entitled to damages unless he could prove acquisitive prescription of the disputed strip. Garrett’s ownership claim was based on 30 years adverse possession, and the trial court concluded that he had failed to prove possession up to the fence for the required period of time.

The following are the issues on appeal:

(1) Was the trial court correct in dismissing Garrett’s suit as a petitory action?
(2) If the suit can be maintained as an independent action in trespass, must Garrett prove ownership of the disputed strip to recover?
(3) If Garrett’s claim is based on possession, was he actually possessing the disputed strip at the time of defendant’s cutting operations?
(4) What damages if any is Garrett entitled to?

NATURE OF GARRETT’S ACTION

Title II of Book 7 of the Louisiana Code of Civil Procedure contains the procedural law applicable to the so-called real actions in Louisiana. The nominate real actions outlined in Book II are four in number, i. e., the petitory action, the possessory action, the action of boundary, and the hy-pothecary action. In addition to these nominate real actions, there are others which have a close similarity but are not truly real actions. The existence of these “quasi-real” actions is recognized in the introductory comments to Title II:

No attempt has been made to include in this Title certain of the fringe actions which bear some resemblance to the real actions, such as the action of trespass, the action to remove a cloud from title, and the action of specific performance.

A suit for damages for trespass is not one of the enumerated actions in the Code of Civil Procedure and therefore the strict pleading requirements applicable to real actions such as the petitory and possessory actions are inapplicable. See Harvey v. Havard, 287 So.2d 780 (La.1973).

In the present case, Garrett’s petition was a self-styled “Suit for Damages.” The trial court concluded that since Garrett alleged 30-year prescription, his suit should be dismissed as being a petitory action. This ruling overlooks the fact that the basis of Garrett’s claim was that his possession of the disputed strip had been disturbed by the timber cutting operations of defendant. Although Garrett sought to be declared owner of the disputed strip, the thrust of his claim was that defendant had trespassed by crossing the old fence which was alleged to be the established boundary due to Garrett’s adverse possession. This was an action in trespass and the trial court erred in dismissing Garrett’s claim as being one governed by the procedural rules for petitory actions.

NECESSITY OF PROOF OF OWNERSHIP

In the trial court’s written reasons for judgment an alternative reason for dismissing Garrett’s action was that he had failed to prove ownership of the disputed tract. The trial judge was of the opinion that ownership must be proved in order to prevail in an action in trespass. Under the circumstances of this case, it was not incumbent upon Garrett to prove his ownership of the disputed strip of land.

While the action for trespass is a separate cause of action not addressed by the Code of Civil Procedure, when it is predicated on possession, as it is here, it is very similar to the possessory action. It has long been established that one in legal possession of land is entitled to bring a suit for damages against one who disturbs his possession. See Gillan v. Jones, 157 So.2d 598 (La.App. 2d Cir. 1963) writ denied 159 So.2d 284 (1964), and cases cited therein. In such an action the plaintiff need only prove that he was in legal possession of the land at issue; that his possession was disturbed by the defendant, and that he brought suit within one year of the disturbance.

Since Garrett’s claim is based on possession and the adjoining landowner (Ellis Martin) is not a party to this suit, we pose no opinion as to the ownership of the disputed strip of land.

PROOF OF POSSESSION

Having determined that this is an action in trespass and that Garrett need not prove ownership in order to recover damages, the issue remains as to whether the requisite possession was proven. Pertinent to this inquiry are the following provisions of the Civil Code:

Art. 3436. Essentials of possession. To be able to acquire possession of property, two distinct things are requisite:
1. The intention of possessing as owner.
2. The corporeal possession of the thing.
Art. 3442. Preservation of an acquired possession by intent only. When a person has once acquired possession of a thing by the corporeal detention of it, the intention which he has of possessing, suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody either himself or by others.
Art. 3443. Presumed intent to retain possession. This intention of retaining possession is always supposed, where a contrary intention does not appear decidedly; so that, although a person may have abandoned the cultivation of his estate, he shall not therefore be presumed to have abandoned the possession, but shall be presumed on the contrary to have the intention of retaining it, and shall retain it in fact.

The type of activity necessary to constitute corporeal possession of land differs with the nature of the property. Actions constituting corporeal possession on one type of property may be insufficient to constitute corporeal possession on other property. See Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).

The tract of land described in Garrett’s deed was a portion of a larger tract purchased by his father in 1940. Testimony by Garrett and his brother establishes that the Garretts built a fence completely enclosing this parent tract in 1941 or 1942. The land was utilized by the elder Garrett for farming and grazing cattle. It was apparent that the land had been farmed up to the fence. This was shown by the testimony of the defendant’s management forester who observed old farm rows in the disputed area west of the old fence and east of the ideal boundary established by defendant’s survey. These acts of possession by Garrett’s father are pertinent because they show that the Garrett family always considered the fence to be the eastern boundary of their property. Running directly adjacent to the old fence on the west side (and east of the ideal boundary) was an access road which had also been plowed up as a fire lane. This road remains to the present.

The land was eventually partitioned and in 1963 Garrett purchased from his father that portion of the elder Garrett’s land which lies adjacent to the tract now owned by Ellis Martin. Garrett testified that the fence had been maintained throughout the years until about 6 years before this suit. At about this point in time Garrett placed concrete markers on the fence line at the southeast and northeast corners of his property to mark the iron posts which were already present. Garrett and his wife testified that they regularly visited the property and walked along the disputed strip. It was apparently on one of these visits that Garrett discovered evidence of defendant’s cutting operation.

The disputed strip in question was grown over with young trees and was not suitable for farming. Garrett’s wife testified that the land had been used as a tree farm since it was bought in 1963. It is apparent that an act sufficient to constitute actual possession of this land would be somewhat less than that needed to constitute actual possession of farmland. We think the actions of Garrett as evidence by the record were sufficient to establish his legal possession of the disputed strip. The evidence is sufficient to show that Garrett possessed this land up to the old fence and had intended to treat the old fence as his eastern boundary since his acquisition of the land in 1963. It is undisputed that defendant is responsible for the timber cutting and Garrett filed suit within one year of these operations. Consequently, we conclude that Garrett is entitled to recover damages for defendant’s activities which constituted a trespass.

DAMAGES

Garrett is seeking damages for the cost of building a new fence and the value of the timber which was removed. In addition, he seeks general damages for mental anguish allegedly incurred as a result of the trespass.

Defendant contends that the old fence is valueless since it would not contain cattle and was down in many places covered with pine straw. While this may be true, the old fence nevertheless had value to Garrett. The very fact that this fence had been in its present location for a long time makes it of value in that it marks the line long recognized by Garrett as his boundary.

Any compensation for replacing a fence has to be based on the cost of building a new one since one cannot build an old fence. Garrett recognizes that the fence was old, and therefore only seeks half of his estimated cost for materials to build a new one. He places this figure at $291.75. His estimated cost for labor is $200.00, which is a fair amount. However, these estimates are based on the cost of rebuilding the fence along the entire eastern boundary of Garrett’s tract when the evidence discloses that defendant only trespassed on the southern half of the fence line. Taking this fact into consideration, we feel that a just award for replacing the fence actually disturbed together with labor costs would be $250.00.

There was conflicting evidence as to the value of the timber removed from the strip of land in question. William F. Wieger, forest manager for defendant, testified that the value of the timber taken was $172.05. Garrett’s estimate was based on an appraisal made by Lee Mudd, a forest management consultant. There is not a great deal of difference between the two estimates and under the circumstances we feel that Mudd’s independent appraisal of $309.15 is appropriate. To this will be added $75.00 for Mudd’s appraisal fee.

Garrett contends that defendant should be liable for three times the fair market value of the trees cut pursuant to La.R.S. 56:1478.1 which provides:

Trees, cutting without consent; penalty:
A. It shall be unlawful for any person to cut, fell, destroy or remove any trees, or to authorize or direct his agent or employee to cut, fell, destroy or remove any trees, growing or lying on the land of another, without the consent of the owner or legal possessor.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed or removed.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed, except however, that the provisions of this section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and that no provision herein shall apply to cutting operations within an area covered by a contract or agreement with the owner.
D. The provisions of this section shall not apply to the clearing and maintenance of rights of way or to utility service situations where a utility is acting in good faith to minimize the damage or harm occasioned by an act of God; the provisions of this Act shall not apply to land surveying by or under the direction of a registered professional land surveyor, duly registered under the laws of the state of Louisiana.

We do not feel that this is the proper case for application of the triple damages rule provided for by this statute. Subsection B is not applicable for we find no evidence that defendant “willfully and intentionally” cut timber from Garrett’s land. Defendant had ordered a survey of Martin’s land to ascertain the proper extent of the tract on which to cut and proceeded to cut only to this ideal boundary. Under these circumstances, we find defendant to have acted in good faith. The old fence was not visible in some places and it was not unreasonable on the part of the loggers to believe that the old fence was abandoned. Defendant’s witnesses testified that it was not uncommon to find evidence of old fences on tracts of land upon which timber was to be harvested. In light of the condition of the fence and the good faith reliance on a survey conducted by a registered land surveyor, we feel that Subsection C of La.R.S. 56:1478.1 is not applicable either. The provision for triple damages is punitive in nature and such damages should be assessed only in cases where the defendant is clearly in violation of the provisions of the statute. See Shaffett v. Vicks, 385 So.2d 419 (La.App. 1st Cir. 1980). Therefore, the measure of damages to which Garrett is entitled is the fair market value of the timber cut.

Having concluded that defendant was a good faith trespasser, Garrett’s claim for damages for mental anguish must be rejected. The cases allowing such recovery involve situations where the defendant trespassers were found to be in moral bad faith or to have committed a willful and wanton trespass on plaintiff’s property. See McGee v. SECO Timber Co., 350 So.2d 1265 (La.App. 3d Cir. 1977).

For the foregoing reasons the judgment of the trial court is reversed and judgment is hereby rendered in favor of plaintiff, E. F. Garrett, and against defendant, Martin Timber Company, Inc., in the amount of $630.02 plus legal interest from the date of judicial demand until paid. All costs, including this appeal, are assessed against the defendant-appellee, Martin Timber Company, Inc.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    Patricia M. EARL, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant.
    No. 14355.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      Charles B. Bice, Winnfield, for plaintiff-appellee.
    Kostelka, Swearingen & Street by C. Daniel Street, Monroe, for defendant-appellant.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Defendant, Commercial Union Insurance Company, appeals a judgment against it awarding plaintiff, Patricia M. Earl, $3500 for personal injuries sustained in an accident with an uninsured motorist.

On December 23, 1976, plaintiff was involved in an automobile accident in Houston, Texas, which was caused solely by the negligence of the other driver, an uninsured motorist. Plaintiff was driving a 1976 Chevrolet Chevette owned by her father, Elvin Earl, Sr., who had purchased for this vehicle a public liability policy with Aetna Life and Casualty Company containing uninsured motorist coverage. Plaintiff settled her claim with Aetna under its uninsured motorist coverage for the sum of $9500.

Earl, Sr., also owned another automobile on which a public liability policy had been issued by defendant containing uninsured motorist coverage. Although the car in which plaintiff was riding was not named in defendant’s policy, plaintiff seeks to recover additional damages from defendant based upon the uninsured motorist coverage in this policy.

It was stipulated at trial that if plaintiff was entitled to recover from defendant, she should receive damages in the amount of $3500.

Defendant contested coverage on the grounds that (1) plaintiff was not a resident of the same household as the named insured and for this reason was not an insured under defendant’s policy which required the relative to be a member of the named insured’s household in order to be insured and (2) the policy excluded coverage on owned vehicles not listed in the policy as an insured automobile.

The trial judge found plaintiff was a resident of the same household as her father, the named insured, and found the exclusion void because it violated the public policy of the uninsured motorist statute. Defendant assigns each of these findings as error on appeal.

Plaintiff must be residing in the same household as her father, the named insured, in order to be an insured under defendant’s policy. The policy provides insurance for the “named insured and any relative”. The policy defines relative as “relative means a relative of the named insured who is a resident of the same household.”

The leading Louisiana decision interpreting the meaning of “a resident of the same household” in an insurance policy is the case of Taylor v. State Farm Mutual Auto Ins. Co., 248 La. 246, 178 So.2d 238 (1965). In this case a 19 year old boy, a minor who finished high school in May, had left his parents’ home in Arkansas and moved to Louisiana in July to live with his uncle. He was living with his uncle and earning his own support. The uncle, a dragline operator, secured the boy a job as an oiler on the dragline. After the boy had been in Louisiana living with his uncle for about 2 months, the boy went to sleep while driving his uncle’s motor vehicle and had an accident. The uncle, a passenger in the vehicle, was seriously injured, and sued the insurer of the boy’s father’s auto, alleging the boy was insured under the policy. The issue in the case reviewed by the supreme court was whether the 19 year old minor was a resident of the same household as his father in Arkansas, and therefore an insured under his father’s public liability insurance policy. The court considered the fact that the boy was a minor as an important factor to consider in determining whether or not the boy was a resident of his father’s household. The court recognized that LSA-C.C. art. 39 which provides that the domicile of a minor is that of his father was not controlling because there is a difference between domicile, of which an individual can have only one, and a residence, of which an individual can have more than one. The court, in a thorough analysis, citing common law authorities and dictionaries, concluded that an individual who can be categorized as a member of the family group comes within the definition of a resident of the same household even though he may temporarily reside at a place other than the place where the family group resides. The court concluded that the minor was a member of his father’s family for the following reasons:

A. He continued to visit his parents.
B. He was free to return to his father’s home.
C. There was no evidence that his parents were not willing to support him or were not legally obligated to support him.
D.There was no evidence that he had permanently established his residence in Louisiana.

Plaintiff is an 18 year old, but due to the 1972 amendment to LSA-C.C. art. 37 she is a major, whereas the 19 year old in Taylor, supra, before the amendment was considered a minor. With this single exception, the cases are otherwise very similar.

Plaintiff had resided in Winnfield, Louisiana with her parents all her life until August, 1976. She finished high school in May, 1976, and planned to attend college at such time in the future as her parents became financially able to send her. There is evidence that her parents believed they could afford to send her to college in 1977. Plaintiff went to Houston for a visit with her cousin in August, 1976 and while there found a job as' a nurse’s aide in a nursing home. While she was in Houston, her father bought and financed a car for her in his name. Though plaintiff was expected to pay the notes on the vehicle, her father helped her pay the car installments when necessary. Plaintiff’s parents sent her money for other living expenses when she needed it. Her room in the family home in Winnfield was maintained. She left her radio and TV in the room along with some clothing which she did not need in Houston. During the four months she was living in her cousin’s home in Houston she visited her parents three times. The testimony of plaintiff, her mother, and her father established that plaintiff only intended to remain in Houston temporarily. A fair evaluation of the testimony of these witnesses establishes that plaintiff intended to return to her father’s home and retain it as her residence while she attended college out of town. There is an isolated answer given by the father in his deposition that he considered his daughter’s move to Houston permanent, but this statement is contrary to all the remaining portion of the deposition; and we conclude that the totality of the father’s deposition establishes he considered his 18 year old daughter remained a part of his family group who permanently resided with him. He helped her financially while she was in Houston and intended to help her go to college.

When plaintiff was injured in December, 1976, she returned to her parents’ home where she remained until June, 1977, at which time she went to college in Dallas, Texas. Her father paid part of her school expenses.

The trial judge made the following finding of fact:

“The depositions of plaintiff and her parents establish that plaintiff graduated from high school in May, 1976. At all time prior thereto, plaintiff lived with her parents. In the summer of 1976, she went to Houston with a relative for a visit. She and her parents planned for her to enter college, however, the financial situation of Mr. and Mrs. Earl was such that plaintiff could not attend college that fall.
At the end of her visit in Houston, plaintiff asked and received her parents’ permission to stay in Houston. Plaintiff became employed, continued to live at her relative’s home, and contributed some money to the relative to help with the cost of groceries and utilities. Plaintiff kept only the clothes she needed in Houston and her remaining clothes and personal possessions remained in Winnfield at the home of her parents.
I find that plaintiff was a resident of the household of Elvin Earl. The evidence establishes that the stay in Houston was temporary. Her parents continued to contribute to her support and furnished her the automobile she was driving at the time of the collision.”

The record fully supports the trial judge’s conclusion, and we agree with his finding of fact.

The cases of Ladner v. Andrews, 216 So.2d 365 (La.App. 3d Cir. 1968); Hamilton v. State Farm Mutual Auto. Ins. Co., 364 So.2d 215 (La.App. 3d Cir. 1978); Scott v. Continental Ins. Co., 259 So.2d 391 (La.App. 2d Cir. 1972); and Sheppard v. North River Ins. Co., 362 So.2d 1212 (La.App. 4th Cir. 1978), relied on by appellant, are inapplicable because the facts in those cases establish the relative sought to be made an insured had each permanently moved from the residence of the named insured and was no longer a member of his family group at the time of the accident.

Defendant contends that because plaintiff here is a major that she cannot be a resident of her father’s household while living in Houston. We disagree because all of the factors that the court considered as important in Taylor v. State Farm, supra, as establishing that the 19 year old boy remained a member of his father’s family and was only temporarily absent from his father’s household, were equally present in the case of the 18-year old plaintiff here.

In Manuel v. American Employers Ins. Co., 228 So.2d 321 (La.App. 3d Cir. 1969), the plaintiff, a major, age 24, was injured by an uninsured motorist and sued his father’s uninsured motorist carrier. The issue was whether plaintiff was a resident of his father’s household. Plaintiff was attending college away from home and maintained an apartment in the city where the college was located. He kept most belongings at his father’s home and returned to his father’s home every weekend. He never severed ties with his parents’ home and was absent from the family roof only temporarily. He was therefore considered a resident of the same household.

The determination of whether a relative, not residing with the named insured at the time of the accident, is a member of the same household of the named insured must be made upon an evaluation of all the facts. If the relative is a minor child of the named insured who is in the custody of the named insured, and for whom the named insured is legally responsible, these facts establish the minor is a member of the insured’s family group if supported by other circumstances which indicate the minor is only temporarily absent from the insured’s household. The relative, who is temporarily residing at a place other than the home of the named insured, need not be a minor child of the named insured in order to be a member of the same household as the named insured. The major relative remains a member of the named insured’s household if the facts establish that he is only temporarily absent from it and that during this absence he has retained his status as a member of the named insured’s family group.

Plaintiff was only temporarily in Houston. She visited her parents during her absence and there were plans for her to return to her father’s residence and attend college. She retained her room in her father’s home and there left part of her possessions. Her father aided her financially during her absence, and when she was injured she returned to her father’s household to convalesce. Plaintiff was only temporarily absent from her father’s household at the time of the accident and had retained her status as a member of her father’s family group.

We conclude that plaintiff is a member of the same household as defendant’s named insured.

The exclusion at issue is found in Part IV of defendant’s policy “Protection Against Uninsured Motorists”, and reads as follows:

“Exclusions: this policy does not apply under Part IV: (a) to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile; ...”

This exclusion has been held contrary to the public policy of the uninsured motorist statute (specifically LSA-R.S. 22:1406D(l)(a)). This public policy was described by our supreme court in Booth v. Fireman’s Fund Ins. Co., 253 La. 521, 218 So.2d 580 (1968), as follows:

“We conclude that the intent of our uninsured motorist statute and the policy endorsement issue thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists.” Id. at 583.

While this adjudication of the intent of the uninsured motorist statute was not necessary to the decision in Booth, supra, we agree that the underlying purpose of the law is to extend coverage to an insured who becomes a victim of the negligence of an uninsured motorist.

The mandatory requirements of LSA-R.S. 22:1406D(l)(a) are as follows:

“(l)(a). No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom....’’ [emphasis added].

This statute requires each automobile liability policy to provide uninsured motorist coverage and requires broad coverage and protection to an insured from harm caused by an uninsured motorist without regard to whether the insured is in the insured vehicle. We agree with the Third Circuit in Elledge v. Warren, 263 So.2d 912 (La.App. 3d Cir. 1972), that any policy provision which narrows the coverage mandated by the statute will not be enforced.

Exclusions identical to the one present in defendant’s policy were considered in Elledge v. Warren, supra; Thomas v. Nelson, 295 So.2d 847 (La.App. 1st Cir. 1974), writ denied 299 So.2d 791; Guillot v. Travelers Indemnity Co., 338 So.2d 334 (La.App. 3d Cir. 1976); and Bourgeois v. U. S. Fidelity & Guaranty Co., 385 So.2d 584 (La.App. 4th Cir. 1980). In each case the respective Courts of Appeal refused to give effect to an exclusion such as the one present here. Because of the broad coverage required by the uninsured motorist statute, the courts have held invalid the exclusion because it was in derogation of the uninsured motorist law which requires coverage on an insured when he is riding in an uninsured motor vehicle, walking, or rocking on his own front porch (to paraphrase Elledge, supra).

This is the first time this Circuit has been required to consider the validity of the exclusion. We agree with the First, Third, and Fourth Circuits that the exclusion is in derogation of the requirements of LSA-R.S. 22:1406, and that the intent of the law is to provide protection to an insured who is the innocent victim of the negligence of an uninsured motorist, even when the insured is riding in a vehicle which is not insured under the policy providing the insured motorist coverage. We therefore hold this exclusion to be invalid because it restricts uninsured motorist coverage in derogation of the statute.

For the reasons assigned, AFFIRMED at appellant’s cost.

      . LSA -C.C. art. 39: A married woman has no other domicile than that of her husband; the domicile of a minor not emancipated is that of this father, mother, or tutor; a person of full age, under interdiction, has his domicile with his curator.

      . LSA--C.C. art. 37-Minors are those who have not attained the age of eighteen years.

      .LSA-C.C. art. 37-Minors are those of both sexes, who have not yet attained the year of one and twenty years complete; and they remain under the direction of tutors till that age. When they have attained that age, then they are said to be of full age.


text:
    Thelma Ruth BARNARD, Plaintiff-Appellee, v. Weston J. BARNARD, Defendant-Appellant.
    No. 14356.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      J. B. Wells & Associates, James B. Wells, Bossier City, for plaintiff-appellee.
    R. J. Miciotto, Bossier City, for defendant-appellant.
    PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Weston J. Barnard, plaintiff, appeals a judgment rejecting his demand to set aside a judicial sale in which his undivided one-half interest in former community property was bought by his ex-wife, Thelma Ruth Barnard, defendant, at a judicial sale invoked to satisfy a writ of fieri facias obtained by the former wife in execution of her $9,000 judgment against her former husband for unpaid child support.

On October 25, 1979, plaintiff secured a writ of fieri facias ordering seized defendant’s undivided one-half interest in and to the house and lot owned in indivisión of plaintiff and defendant in order to satisfy the $9,000 judgment dated May 31, 1979. Plaintiff’s one-half interest in the property was appraised at $10,675. The mortgage certificate on the seized property dated December 12, 1979, reflected “a special mortgage of date March 2, 1970 given by Weston James Barnard and Thelma Crews Barnard in favor of Modern American Mortgage Corporation in the sum of $16,-500, recorded March 5, 1970 in Mortgage Volume 246, page 429, Record 223416.” This mortgage, and the notice of seizure which was recorded on October 31, 1979 in Mortgage Book 399 at Page 391, were the only two entries shown on the mortgage certificate operating against the property sold.

The judicial sale was held on December 12, 1979 and the sheriff’s proces verbal of the sale reflected only the following bid at the sale:

“Attorney J. B. Wells representing Thelma Ruth Barnard bid cost plus assumption of one-half the balance due on Modern American Mortgage Company in the amount of $8,000.00”.

The proces verbal also reflected that Thelma Ruth Barnard had paid $657.20 to the Sheriff and retained as judgment holder $7,342.80. The Sheriff’s deed to Thelma Ruth Barnard reflected that she had paid $8,000 cash for the property. At the time of the sale the $16,500 mortgage on the house and lot in favor of Modern American Mortgage Company executed by plaintiff and defendant had an unpaid balance of $15,207.28.

Plaintiff Weston J. Barnard sued to set the Sheriff’s sale aside, alleging that it was a nullity because the purchaser of the property at the sale failed to bid enough to pay off the superior mortgage and for the further reason that the purchaser failed to pay the consideration to the Sheriff.

The trial court in written reasons for rejecting plaintiff’s demands to declare the sale a nullity, stated:

“. . . The amount bid by the purchaser was sufficient to cover all cost, and the bid included the assumption and agreement to pay the defendant’s one-half of the superior mortgage. The purchaser was already bound in solido for the payment of the superior mortgage, so the purchaser was thereby required to pay the entirety of the superior mortgage.
Defendant further contends that the sale is invalid because the $8,000.00 was not actually paid to the Sheriff. However, this argument overlooks Article 2374 of the Code of Civil Procedure which provides:
‘If there is a mortgage, lien, or privilege on the property superior to that of the seizing creditor, the purchaser shall pay to the Sheriff only that portion of the sale price which exceeds the amount of the superior mortgage, lien, or privilege.’
Under the provisions of this Article, the purchaser was not required to pay to the Sheriff the portion of the sale price to be applied to the superior mortgage. That amount could be paid directly to the superior mortgage holder by the purchaser, since the superior mortgage holder retained the right to enforce the mortgage against the property purchased at the sale, under Article 2378 of the Code of Civil Procedure. The purchaser paid the actual costs, and the balance of the sale price was to be applied to the superior mortgage. Under Article 2374, the purchaser was authorized to withhold that amount, rather than pay it to the Sheriff. The evidence shows that plaintiff purchaser acted in accordance with the provisions of Article 2374.”

The superior mortgage reflected on the mortgage certificate was a solidary obligation of plaintiff and defendant. Plaintiff owed the debt in its entirety and the mortgage securing the debt is indivisible and applied in totality to plaintiff’s undivided one-half interest in the land which was seized and sold at the Sheriff’s sale. LSA-C.C. art. 3282 provides:

“The mortgage is a real right on the property bound for discharge of the obligation.
It is in its nature indivisibie and prevaiis over ail the immovabies subject to it, and over each and every portion.
It follows them into whatever hands they pass.”

See also Hughes v. Patterson, 23 La.Ann. 679 (1871); Varnado v. Thompson & Co., 129 La. 15, 55 So. 693 (1911).

The rules on judicial sales under fieri facias require that before there could have been a valid judicial sale of plaintiff’s one-half interest in the property the bid must have been for cash in an amount sufficient to pay the costs and the superior mortgage. LSA-C.C.P. art. 2335:

“The sheriff shall announce that the property is to be sold for cash subject to any mortgage, lien, or privilege thereon superior to that of the seizing creditor.”

LSA-C.C.P. art. 2337:

“If the price offered by the highest bidder at the first or subsequent offering is not sufficient to discharge the costs of the sale and the mortgages, liens, and privileges superior to that of the seizing creditor, the property shall not be sold.”

While the trial judge was correct in his statement that LSA-CCP art. 2374 does not require the purchaser at the sheriff’s sale to pay that portion of the sale price which is required to liquidate prior encumbrances to the sheriff, this provision of the Code does not alter the requirements that the bid must be in cash in an amount sufficient to pay all costs and prior encumbrances. The fact that the purchaser at the sheriff’s sale may be obligated to pay the note securing the superior mortgage against the property to be sold at the judicial sale does not eliminate the requirement that the bid be in an amount sufficient to discharge the superior mortgage affecting the property bid upon.

Defendant’s bid was not for cash and the amount of it in the sum of $8,000 was far less than adequate to pay the superior mortgage which had an unpaid balance of $15,207.28. The sheriff should not have sold the property and the sale was a nullity. Keller v. Summers, 159 So. 198 (La.App. 1st Cir. 1935); Neyrey v. Jaxon Applebee, 308 So.2d 399 (La.App. 4th Cir. 1975), and cases cited therein.

We REVERSE the judgment of the trial court and set aside and annul the sheriff’s deed conveying the following described property:

“Lot Two (2) of Glendale Subdivision, Unit Number Four (#4), a subdivision of Bossier City, Bossier Parish, Louisiana, as per plat recorded in Book 141, Page 561 of the records of Bossier Parish, Louisiana, together with all buildings and improvements located thereon,”

to Thelma Ruth Barnard contained of Record at Book 648, Page 834 of the Conveyance Records of Bossier Parish, Louisiana. Defendant in these proceedings, Thelma Ruth Barnard, is cast for all costs.

      . LSA--CCP art. 2374: If there is a mortgage, lien, or privilege on the property superior to that of the seizing creditor, the purchaser shall pay to the sheriff only that portion of the sale price which exceeds the amount of the superior mortgage, lien, or privilege.


author: HALL, Judge.

text:
    Clarabell LORD et al., Plaintiffs-Appellants, v. The DISTRICT VIII BAPTIST CONVENTION, Defendant-Appellee.
    No. 14357.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    En Banc. Rehearing Denied Jan. 13, 1981.
    Herman L. Lawson, Mansfield, for plaintiffs-appellants, Clarabell Lord, Aileen L. Martin, W. Gordon Lord, Fred A. Lord, Geraldine Lord Stone, Eloise Lord Davis, Clara Lord McDearmont and J. S. Lord, Jr.
    Don M. Burkett, Many, for defendant-appellee, The District VIII Baptist Convention.
    Hugh M. Stephens, Shreveport, for defendants-appellees, Terrell D. Hines, Jeem’s Bayou Production Corp., Village Oil & Gas Corp., Inc., W. S. Oliver, Dennis Boles, R. M. Griffin, B. M. Owens, R. F. Kizer, Jr., R. F. Kizer, III, Frances L. Kizer, Sam H. Raines, Robert B. Raines, A. J. Dupuy, and Edna Hicks.
    Mayer, Smith & Roberts by Charles L. Mayer, Shreveport, for defendant-appellee, Phillips Petroleum Co.
    R. E. Peppy Blount, Longview, Tex., for defendants-appellees, Helon J. Blount, Keith Kaldenberg, and R. E. Blount, Jr.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiffs filed this action to annul an inter vivos donation of immovable property made to defendant by J. S. Lord, Sr. and his wife Clarabell Lord. Plaintiffs, Clarabell Lord and the heirs of the now deceased J. S. Lord, Sr., argue that the donation should be annulled because the donee was an unincorporated association at the time of the donation and, as such, was incapable of accepting the donation. Alternatively, plaintiffs contend the donation should be revoked because the act of donation provided that the property would revert to the donors, their heirs or assigns, whenever it is no longer used for religious or educational purposes, which plaintiffs argue is the case here. The trial court rejected plaintiffs’ demands on the basis that, under LSA-C.C. Art. 446, an unincorporated association has the capacity to accept a donation and, additionally, that the evidence clearly established that the property in question has been continuously used for religious purposes since the donation. Plaintiffs appeal. We affirm.

On April 2, 1953, J. S. Lord, Sr. and Clarabell Lord executed an act of donation in which they conveyed an 18-acre tract of land in DeSoto Parish to the defendant, District VIII Baptist Convention, an unincorporated association. The act of donation states that the purpose of the donation is that the property may be used to establish and maintain a Baptist encampment for young people. The donation was accepted on behalf of the Convention by certain individuals acting as a committee, authorized to accept the donation by resolution of the Executive Board of the District VIII Baptist Convention. The Executive Board constitutes the governing body of the Convention and is composed of Convention members annually elected from the various subdivisions of District VIII.

On appeal, plaintiffs do not question the determination by the trial court that the property has been continuously used for religious or educational purposes since the donation, but contend only that the trial court erred in finding that an unincorporated religious association has the capacity to accept and receive a donation inter vivos.

LSA-C.C. Art. 1470 states that “[a]ll persons may dispose or receive by donation inter vivos or mortis causa, except such as the law expressly declares incapable.” The Civil Code articles following Art. 1470, i. e. those articles found in Book III, Title II, Chapter 2, “Of the Capacity Necessary for Disposing and Receiving by Donation Inter Vivos or Mortis Causa”, do not declare an unincorporated association incapable of receiving donations inter vivos. No express declaration of the alleged incapacity has been cited to us by plaintiffs nor has our research revealed any such legislative declaration.

Plaintiffs argue that an unincorporated association is not a “person” within the meaning of Article 1470. They contend that only natural persons and authorized corporations may accept or receive donations, citing as authority for this proposition the case of In Re Shepard’s Succession, 156 So.2d 287 (La.App. 4th Cir. 1963), writ refused 245 La. 460, 158 So.2d 612 (1963). In that case, the decedent by donation mortis causa bequeathed a large sum of money to the National Institute of Health, United States Public Health Service. The court, in concluding that neither the United States nor any of its agencies had the capacity to receive a donation mortis causa, held that “persons” as used in Article 1470 referred only to natural persons. The court reasoned that if the term “persons” was not so restricted there would have been no need for the provision in LSA-C.C. Art. 433 that “[cjorporations legally established are substituted for persons” thus “they are capable of receiving legacies and donations.” In essence, the court limited the meaning of “persons”, then noted a codal exception to this limited definition.

Assuming that the term “persons” is as limited as the Shepard case indicates, we hold that LSA-C.C. Art. 446 provides another exception to this limited definition. At the time of the donation at issue here, Article 446 read:

“Corporations unauthorized by law or by an act of the Legislature, enjoy no public character, and can not appear in a court of justice, but in the individual name of all the members who compose it, and not a political body; although these corporations may acquire and possess estates, and have common interests as well as other private societies.”

This article specifically authorizes unincorporated societies to acquire and possess property. The article is located in Civil Code Book I entitled “Of Persons”, a clear indication that, for the purpose of acquiring estates or property as authorized by the article, an unincorporated association is to be considered a person. One of the recognized methods of acquiring property in Louisiana is by donation inter vivos. See LSA-C.C. Art. 1467.

Plaintiffs also rely on Succession of Hardesty, 22 La.Ann. 332 (1870) and Carr v. Hart, 220 La. 833, 57 So.2d 739 (1952) in support of their argument that the donation to defendant, an unincorporated association, is null and void. In Succession of Fisher, 235 La. 263, 103 So.2d 276 (1958), the Supreme Court, in upholding a donation mor-tis causa made to the First Church of Christ, Scientist, of Boston, Massachusetts, also an unincorporated association, distinguished the cases cited by plaintiffs in the following manner:

“. . . Furthermore, the Hardesty and Carr cases, supra, do not stand for the broad proposition that every unincorporated association is ipso facto incapable of inheriting property, as appellants would have us believe. These cases involved exceptional facts, easily distinguishable from the facts in the case at bar. In Hardesty, for example, the testatrix’ heirs and universal legatees challenged a legacy to the Baptist Church of Clinton, La., claiming that at the time of the death of the testatrix there was no corporation bearing that name, or having any legal existence, which had the capacity to take. This court struck down the legacy on the ground that the Baptist Church of Clinton had no capacity to receive the legacy because it was not only not incorporated, but, unlike the Mother Church, apparently had no organization or legal powers of any kind, a number of individuals having simply associated themselves together under the name of the Baptist Church of Clinton. In Carr v. Hart, supra [220 La. 833, 57 So.2d 739], a collateral heir attacked a provision of her sister’s will which left $2,500 ‘for cemetery fund to keep cemetery clean and repairs.’ This court held the bequest invalid because ‘there was not in existence at the date of the testatrix’s death any person, political entity or body corporate charged with the administration of either fund or cemetery.’ ”

The instant case is also distinguishable from Carr and Hardesty. Defendant, at the time of the donation, was a formal organization with a definable membership operating under a written constitution. It had a governing body, the Executive Board, and established procedures for the election of members to the Board. Unlike the purported donees in Carr and Hardesty, the Baptist Convention constituted a recognizable entity with certain legal capabilities, among them the right to acquire and possess property, which includes the right to acquire property by donation.

Finally, we note as did the Fisher court, that not only does the positive law of Louisiana not prohibit such a donation as the one under attack here, but our public policy favors donations to religious and charitable institutions. Succession of Vance, 39 La.Ann. 371, 2 So. 54 (1887); Succession of Meunier, 52 La.Ann. 79, 26 So. 776 (1899).

Under our holding that the donation to the Baptist Convention was valid ab ini-tio, it is unnecessary to consider the parties’ contentions regarding the effect of a ratification instrument subsequently executed by the Lords.

For the reasons assigned, the judgment of the district court upholding the validity of the donation is affirmed. Costs of this appeal are assessed to plaintiffs-appellants.

Affirmed.

      . See 24 La.L.Rev. 918 (1964) criticizing the Shepard holding in this respect.


text:
    In the Matter of the SUCCESSION OF Woodrow U. LITTLETON.
    No. 14358.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      Truett West, Farmerville, for defendant-appellant.
    Pipes & Pipes by Richard R. Pipes, Monroe, for plaintiff-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Plaintiff, Dorothy Mae Littleton Wittner, appeals a judgment rejecting her action to annul the probated testament of decedent, Woodrow U. Littleton. We affirm.

Woodrow Littleton died on April 24, 1979. He left a will executed under LSA-R.S. 9:2442, which his second wife and widow, Jane Davis Littleton, petitioned to have probated. After the will was probated, plaintiff, decedent’s only child, sued to have the will annulled on the grounds that decedent could not read, and therefore the will was invalid.

Testimony of several witnesses was heard by the trial court, but there was no transcription made of their testimony. Neither was there a narrative of fact agreed upon by the parties, pursuant to LSA-C.C.P. art. 2131. Neither party filed a motion to dismiss the appeal. Because of the lack of a record for us to review, we must address this issue.

The trial judge rejected plaintiff’s demand to annul the testament because plaintiff did not prove beyond a reasonable doubt that testator could not read. The only assignment of error contained in plaintiff’s brief is that the Second Circuit case of Succn. of Arnold, 375 So.2d 157 (La.App.2d Cir. 1979), upon which the trial judge relied to determine the burden of proof which plaintiff was required to satisfy in order to be entitled to annul the testament, is wrong for the reason that the ability to read is not an element of testamentary capacity. Plaintiff does not complain about the sufficiency of the evidence supporting the lower court’s decision, but only that the standard of proof required by the Succn. of Arnold, and applied by the trial judge, is wrong. Plaintiff acknowledges that testamentary capacity is presumed and litigants who seek to establish that it does not exist must prove it beyond a reasonable .doubt but here contends that inability to read is not an element of testamentary capacity, and for that reason only proof of it by a preponderance of evidence is necessary.

Plaintiffs only assignment of error is set forth as follows in her brief:

“This appeal is founded upon the strongly held conviction of appellant’s counsel that the Appellate Court was wrong in that case. The error complained of in the instant case is the error of the Second Circuit Court of Appeal in Succession of Arnold [375 So.2d 157 (2d Cir. 1979)].
In the cited case the Appellate Court had fo [sic] consideration a similar situation to that here presented. The court there set forth the nature of the burden of proof that is on the party seeking to invalidate a statutory will on the basis of the inability of the testator to read. The court said:
‘Ability to read is properly classified as a matter of testamentary capacity for purposes of determining the validity of a statutory will.’
It is respectfully suggested that the Appellate Court erred in such reasoning, and that in following the holding of the Court of Appeal the Trial Court erred in this case.”

Since this assignment of error is the only one complained of by plaintiff on appeal and since it is addressed to a question of law and not of fact, lack of a transcript is not fatal to the appeal. Succn. of Seals, 243 La. 1056, 150 So.2d 13 (1963); Ammon v. Brown, 273 So.2d 588 (La.App. 1st Cir. 1973); Succn. of Walker, 288 So.2d 328 (La.1974).

Plaintiff’s statutory will was made before a notary and two witnesses in the manner provided for the statutory will at the time of its creation- by Act. No. 66 of the 1952 Legislature. Act. No. 66 specifically set forth that “Those who know not how or are not able to read cannot make dispositions in the form of the will herein provided for.” This provision of Act No. 66 was incorporated in LSA-R.S. 9:2443 where it remained until deleted by Act. No. 241 of the 1979 Legislature. The reason for elimination of the blanket requirement of the ability to read as an element of testamentary capacity to make a statutory will is that the legislature by Act No. 333 of 1976 amended LSA-R.S. 9:2442 to provide a form of statutory will which a person who could not read was qualified to make. LSA-R.S. 9:2442, following the 1976 amendment, read:

“§ 2442. A. Except as provided in Subsection B, the statutory will shall be in writing (whether typewritten, printed, mimeographed, or written in any other manner), and shall be executed in the presence of a notary and two competent witnesses not otherwise disqualified under Articles 1591 and 1592 of the Civil Code, shall be dated, and shall be made in the following manner:
(1) In the presence of the notary and both witnesses the testator shall signify to them that the instrument is his will and shall sign his name at the end of the will and on each other separate sheet of the instrument. If the testator is not able to sign his name because of some physical infirmity, he must so declare or signify to the notary in the presence of the witnesses as well as declare and signify the cause that hinders him from signing, and shall then affix his mark in the places where his signature is required. Express mention of the testator’s declaration or signification and of the cause that hinders him from signing his name must be made in the act.
(2) The foregoing facts shall be evidenced by a declaration signed by the notary and both witnesses in the presence of the testator and of each other in the following form or a form substantially similar thereto: ‘Signed on each page (or if not signed by the testator, the statement of his declaration or signification that he is not able to sign his name and of the physical cause that hinders him from signing), and declared (or signified) by testator above named, in our presence to be his last will and testament, and in the presence of testator and each other we have hereunto subscribed our names on this_day of_, 19_’
B. When the testator is blind or does not know how or is not able to read, the statutory will shall be in writing (whether typewritten, printed, mimeographed, in braille, or written in any other manner), and shall be executed in the presence of a notary and three competent witnesses not otherwise disqualified under Articles 1591 and 1592 of the Civil Code, shall be dated, and shall be made in the following manner:
(1) The will shall be read aloud in the presence of the testator, the notary and the witnesses and the notary and/or witnesses not reading the will aloud, shall follow the reading on copies of the will. (2) After the reading and in the presence of the notary and the three witnesses the testator shall signify to them that the instrument is his will and shall sign his name at the end of the will and on each other separate sheet of the instrument. If the testator is not able to sign his name he must so declare and signify to the notary in the presence of the witnesses as well as declare and signify the cause that hinders him from signing, and shall then affix his mark in the places where his signature is required. Express mention of the testator’s declaration or signification and of the cause that hinders him from signing his name must be made in the act.
(3) The foregoing facts shall be evidenced by a declaration signed by the notary and the three witnesses in the presence of the testator and of each other in the following form or a form substantially similar thereto: ‘Read aloud in the presence of the testator and of each other, such reading having been followed on copies of the will by notary and/or witnesses, not reading the will aloud, signed on each page (or if not signed by the testator, the statement of his declaration or signification that he is not able to sign his name and of the cause that hinders him from signing), and declared (or signified) by testator above named, in our presence to be his last will and testament, and in the presence of testator and each other we have hereunto subscribed our names on this_day of_, 19-’ ”

This statutory will form for a person who cannot read, as set forth in LSA-R.S. 9:2442(B), requires three witnesses and a notary to be present when the will is executed. It requires the will to be read aloud and in the presence of the testator, notary and witnesses. The form further requires that “the notary and/or witnesses not reading aloud, shall follow the reading on copies of the will.”

If one cannot read, by complying with LSA-R.S. 9:2442(B), he may execute a valid statutory will. However, if one lacks the ability to read, he does not have the capacity to execute a will under LSA-R.S. 9:2442(A), for the ability to read is an element of testamentary capacity for this form of will. The form provided for the illiterate contains protections to assure that the testator’s intent is incorporated in the will even though the testator cannot read it. It must be read aloud to him, and others who are required to sign it must follow the reading of the will on copies provided for them.

Plaintiff’s argument that this court erred in Succn. of Arnold, supra, by denominating the ability to read a requirement of testamentary capacity for a statutory will in the form used by decedent is fallacious because the pertinent legislative history referred to clearly establishes that the ability to read is an element of testamentary capacity for the use of the statutory form where only two witnesses and a notary is required and where no reading aloud of the will is required. There are appellate decisions so holding other than Arnold, supra. See Succn. of Glynn, 167 So.2d 533 (La.App. 4th Cir. 1964); Succn. of Kite, 366 So.2d 602 (La.App.3d Cir. 1978); Succn. of Hoover, 385 So.2d 351 (La.App. 1st Cir. 1980). The burden of proof placed upon opponents of a will who attempt to show lack of testamentary capacity is proof beyond a reasonable doubt. Guidry v. Hardy, 254 So.2d 675 (La.App.3d Cir. 1971). Testamentary capacity is presumed, and this standard of proof is placed on one opposing a will on the grounds of lack of testamentary capacity. Succn. of Spatatora, 239 La. 326, 118 So.2d 427 (1960); Succn. of Zinsel, 360 So.2d 587 (La.App. 4th Cir. 1978). As ability to read is an element of testamentary capacity and as the burden of proof in matters of testamentary capacity is proof beyond a reasonable doubt, it follows that the burden of proof to show inability to read is proof beyond a reasonable doubt.

This proof beyond a reasonable doubt in matters of testamentary capacity has been likened to that required in criminal cases to overcome the presumption of innocence. Succn. of Patterson, 329 So.2d 925 (La.App.2d Cir. 1976); Succn. of Herson, 127 So.2d 61 (La.App. 1st Cir. 1961).

This standard of proof, stronger than a mere preponderance of the evidence, is what the lower court applied in this case. We find no error in the long line of jurisprudence which so holds and no error in the trial judge’s application of this standard.

Judgment is AFFIRMED at appellant’s cost.

      . We note that Act No. 744 of the 1980 Legislature, inter alia, amended LSA-R.S. 9:2442 to specifically provide that a testator who knows not how to read may not execute a statutory will before a notary and two witnesses.


text:
    Joe MAGGIO, Jr., Plaintiff-Appellant, v. ST. FRANCIS MEDICAL CENTER, INC., et al., Defendants-Appellees.
    No. 14366.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    En Banc. Rehearing Denied Jan. 13, 1981.

      Paul Henry Kidd, Monroe, Nettie Ann Woolhander and Michael G. Collins, New Orleans, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes and Hudson, Potts & Bernstein by Ben R. Hanchey and Gordon L. James, Monroe, for defendants-appellees.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff, formerly an administrative employee of the St. Francis Medical Center in Monroe, sued his employer and certain supervisory and executive officers of the Medical Center in tort to recover damages for mental and emotional injuries, including two nervous breakdowns, allegedly sustained by him because of intentional harassment and other tortious acts of the defendants.

The defendants filed motions for summary judgment, contending plaintiff’s exclusive remedy is under the Workmen’s Compensation Act since his alleged injuries arose out of and were sustained while he was acting in the course and scope of his employment. In support of their motions, defendants relied on affidavits establishing facts relating to the employment status of plaintiff and the defendants, the allegations of plaintiff’s petition, and plaintiff’s discovery deposition. In opposition to the motions, plaintiff contended that LSA-R.S. 23:1032 does not provide immunity from tort liability for the intentional torts of the employers and co-employees.

In granting the summary judgment, the trial court noted first that under Guidry v. Aetna Casualty and Surety Co., 359 So.2d 637 (La.App. 1st Cir. 1978), writ refused 362 So.2d 578 (La.1978), the plaintiff must allege and establish not only that the defendants intentionally committed an act directed toward the plaintiff but also that the defendants actively desired and believed the act was substantially certain to result in injury to him. The court held there were no allegations in the petition nor testimony in the deposition to establish that the motive of any of the defendants was to bring about plaintiff’s nervous breakdowns and emotional disorder. Finding there was no genuine issue of material fact, the court concluded that “there is no evidence of an intentional tort as required by R.S. 23:1032, so Plaintiff’s remedy is only under the Workmen’s Compensation Statute.”

We reverse and remand for further proceedings.

The essential allegations of plaintiff’s petition are as follows. He was employed as assistant administrator of the Medical Center under Sister Magdalen, the chief administrator. In late 1976 or 1977 he learned that Sister Magdalen had terminated the practice of returning overpayments to patients and that funds from this source were being illegally transferred out of the country. He confronted Sister Magdalen about the matter and was told it was none of his business. He talked to the Sister’s supervisors with the same response. Thereafter, it is alleged, Sister Magdalen, by many and various forms of harassment, interference, intimidation, unfounded accusations, unreasonable acts, and other reprehensible activities directed toward plaintiff, made his life and working conditions at the hospital unbearable. The petition alleges that Sister Magdalen told plaintiff the matter was none of his business and to stay out of it; she told him she would never forgive him for approaching her superiors about the matter; she accused him of assisting in the organization of a union for hospital employees; she replaced him as associate executive director of the Center; she demoted him to a menial position and removed his office to a secluded area; she threatened him with loss of his job; she terminated his employment without just cause when he refused to resign; she intentionally caused him to breach his duty and interfered with his duty to report the wrongful transactions; she intentionally set about a pattern of harassment and frustration to cover up her wrongdoing; and the other defendants were aware of all this and failed to act to prevent the abuses.

Defendants denied the allegations of plaintiff’s petition in their answers. The affidavits filed by defendants in support of the motions for summary judgment relate only to employment status and do not contradict the factual allegations of plaintiff’s petition. The facts related by plaintiff in a discovery deposition conducted by defendants’ counsel are somewhat vague and meager and do not support in detail the allegations of his petition; nevertheless, his testimony does not negate or conflict with the allegations. The discovery deposition does not stand as a substitute for trial or the full presentation of plaintiff’s case. Quite obviously, practically all of the facts alleged in plaintiff’s petition are genuinely and seriously in dispute.

The determination of whether the motions for summary judgment should have been granted centers, then, on whether the disputed facts are material, that is, whether defendants are entitled to judgment as a matter of law even if the facts alleged by plaintiff are established as true. The issue can be otherwise stated as whether plaintiff has alleged a cause of action for an intentional tort so as to avoid the exclusivity of recovery in workmen’s compensation under LSA-R.S. 23:1032.

The requisite allegations of intent required of an employee in a tort suit against his employer and co-employees were recently set forth by this court in Johnson v. Chicago Mill and Lumber Co., 385 So.2d 878 (La.App. 2d Cir. 1980):

“To subject an employer liable for damages sustained by an employee in the course and scope of his employment, it must be alleged that the employer consciously committed an act which the employer actively desired and believed was substantially certain to result in injury to the employee. Otherwise, the employee’s petition fails to state a cause of action for damages against his employer.”

The statement of the requisite allegations under LSA-R.S. 23:1032 dovetails with this court’s statement of the allegations required to set forth a cause of action for the intentional infliction of emotional distress in Steadman v. South Cent. Bell Telephone Co., 362 So.2d 1144 (La.App. 2d Cir. 1978):

“The general rule of law concerning damages for mental distress due to intentional torts is that the defendant must either have actively desired to bring about the mental anguish or realized to a virtual certainty that it would occur. See 23 Louisiana Law Review 281 at 292; Prosser, Law of Torts (1971), 4th Ed., § 12, p. 49. Recovery for mental anguish caused by intentional torts has generally been limited to instances of outrageous conduct. Malone, Studies in Louisiana Tort Law (1970), p. 39; Nickerson v. Hodges, 146 La. 735, 84 So. 37 (1920).”

In the instant case, the essence of the allegations of plaintiff’s petition is that the defendants intentionally engaged in a pattern of outrageous, harassing conduct directed toward him in an effort to cover up their wrongdoing, the alleged acts of conduct being of such a nature as to necessarily be calculated and intended to make plaintiff’s working conditions unbearable and to cause him mental and emotional distress. The allegations of fact, viewed in the light most favorable to plaintiff, meet the requirements of the intentional act exception to the exclusiveness of workmen’s compensation under LSA-R.S. 23:1032 and of a cause of action for mental distress due to an intentional tort under LSA-C.C. Art. 2315.

There are genuine issues of fact material to plaintiff’s right to recover in tort from the defendants and defendants are not entitled to judgment as a matter of law. The judgment of the district court is reversed and set aside and this action is remanded to the district court for further proceedings. Costs of this appeal are assessed to the defendants-appellees; all other costs to await final disposition of the action.

Reversed and remanded.


author: GULOTTA, Judge.

text:
    Mrs. Bernadette Edwards, wife of/and Paul Henry WETMORE v. BLUERIDGE, INC., Maison Chatelain, Inc., and Nelson J. Chatelain.
    No. 11383.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      Cabibi & Cabibi, Charles E. Cabibi, Jr., New Orleans, for plaintiffs-appellees.
    Walter R. Fitzpatrick, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   GULOTTA, Judge.

In this suit by a homeowner against a builder for the cost of correcting defects in workmanship that caused the “bubbling” of a vinyl kitchen floor and the cracking and discoloration of a cement driveway, the trial judge awarded plaintiffs $1,900.00.

Defendants, appealing, claim that the house was built in accordance with plans and specifications drawn for plaintiffs at their expense by an architect recommended by defendants; that the cost of repair to the defectively installed kitchen floor amounted to $15.00 and not $100.00 as awarded by the trial judge; and that plaintiffs failed to show defendants had not followed the plans and specifications provided to them or that the cracks in the driveway had resulted from either defective materials or “badness of workmanship.” According to defendants, the damage to the concrete was caused by unforeseeable soil subsidence. We do not agree.

The trial judge in well considered and well articulated reasons for judgment stated:

“The plaintiffs contacted the defendants regarding the construction of a new home. Representatives of the defendants displayed various residential models to the plaintiffs and they eventually selected a style that suited their needs. The defendant’s representative, then referred them to an architect, for the internal modification of the model home. Thereafter, the architect modified the plans, eventually stamped them in order to secure a building permit. The evidence reveals that the plans and specifications were not materially changed and thereafter the defendant submitted a construction price to the plaintiffs, which was accepted.
On August 19,1977, the act of sale passed wherein plaintiffs acquired the property. However, approximately thirty days prior thereto, the plaintiffs began moving some effects into the residence. Shortly after their occupancy, they noticed that the vinyl flooring in the kitchen, “bubbled” on rainy or damp days. The extent of these bubbles, varied in size and shape. The defendant admits that the bubbling floor condition resulted from negligent workmanship of the floor installer, but disputes the amount necessary to repair this defect.
Shortly after this, the plaintiffs discovered a separation in the concrete driveway running vertically from the side of the garage entrance toward the street. Gradually thereafter other major fissures, fractures and cracks appeared throughout the driveway. Additionally, the driveway became discolored, [and] wavy and puddles of water collected on rainy days.
This Court concludes that the driveway was defective in either workmanship or materials at the time of its installation. This Court further finds as a matter of fact, that the owner did not misuse or abuse the driveway at any time.
The defendants contend that this home was built in accordance with the plans and specifications prepared. Assuming this to be true, it does not excuse the defendant from its obligation of warranty of materials and workmanship, from constructing the driveway in a proper workmanlike manner using materials that would not cause the defects herein-above described.
The Louisiana Civil Code, Art. 2769, sets forth the duty of a contractor to execute the work contracted for in a proper manner. It is well settled in the jurisprudence that a contractor is bound to warrant his work and is responsible for damages occasioned by defective workmanship or installation. It is implied in every building contract that the work will be performed in a skillful, careful, diligent and good workmanlike manner. Rotolo vs. Stewart, 27 [127] So.2d 24 (La.App. 1st Cir. 1961); Herbert [Hebert] vs. Pierrot [Pierrotti], 205 So.2d 888 (La.App. 3rd Cir. 1968); Civil Code Art. 1930.
The Court awards $1,800.00, as stipulated between the parties, as the cost necessary to repair the driveway. Additionally, it awards $100.00 as reasonable cost to repair the kitchen vinyl floor.”

We adopt as our own the opinion of the learned trial judge and affirm his judgment.

At the outset, we reject defendants’ contention that the amount awarded for repair of the vinyl floor is excessive. Although defendants’ foreman testified that the cost of repair would amount to approximately $15.00, testimony from persons who do flooring work and who inspected the property indicated that the repair would require four to eight hours work at $25.00 per hour. The trial judge awarded $100.00 as the cost of repair and we find no error in that award.

Although conceding its obligation to correct defects in the kitchen floor, the builder denies any liability for cracks in the cement driveway and cites Clark v. Whitener, 296 So.2d 393 (La.App. 4th Cir. 1974), writ refused 299 So.2d 795 (La.1974) for the proposition that it may not be held responsible even for major problems, since the work was performed in accordance with the plans and specifications furnished by the owner. The cited case, however, is distinguishable from our own. In Clark, all plans, specifications, and contracts were prepared by the owner’s architect and the dispute was whether shortcomings in the construction related to the adequacy of the plans and specifications for which the contractor was not responsible. As noted by the trial judge in our case, the builder referred the owner to a particular architect for internal modification of a residential model displayed by the builder. Moreover, there was testimony that this architect did work for the builder and that the same type of driveway construction had been used in other homes built by the defendants in the area. Hence, even though plaintiff, not the builder, paid the architect, we cannot say under these circumstances that the mere construction of the home in accordance with the plans (which did not provide for reinforcement of the concrete driveway) entitles the builder to escape liability for the resultant defects. The language in the Clark decision simply does not apply to our case.

We also reject the argument that plaintiffs failed to carry their burden of proof. Although an owner seeking to hold a contractor liable for defects in the construction must show that the ruin was due to badness of workmanship or defective materials, and must prove his case by a preponderance of the evidence, plaintiffs in our case presented sufficient evidence to prove defendants’ faulty workmanship in constructing the driveway. A civil engineer, whose experience to a large extent involved concrete construction, testified that the driveway was defective in not being supported either by pilings or by reinforced wire in the concrete. He indicated also that sparse use of expansion and control joints was a cause or contributing factor resulting in the cracking. Although he acknowledged, as claimed by defendants, that soil settlement or subsidence was also a cause of the problem, he added that reinforcing wire or piling would have compensated for the soil subsidence. The discoloration of the concrete, according to this engineer, was caused by an improper mixture of cement or by adding too much water when the concrete was poured.

As pointed out by the trial judge in his reasons for judgment, it is implicit in every building contract that the work will be performed in a good, workmanlike manner, free from any defects in either materials or workmanship. Furthermore, a contractor is liable when he should have known by the exercise of proper judgment that the condition at the site, other than a latent defect of soil, should be corrected before proceeding with the work and he fails to advise the owner in time to permit an adjustment. He is considered as having expert knowledge of such things and must bring them to the attention of the owners who have no knowledge of such affairs. Wurst v. Pruyn, supra. In our case, there is evidence that plaintiffs’ house sat on a higher elevation than his neighbors’ houses and that fill had been placed on the construction site. Defendants’ foreman acknowledged that subsidence of the fill could have caused cracks in the cement. Although defendants had constructed other homes in the area using unreinforced concrete and had encountered no problems with soil subsidence, they should have had knowledge of the unique nature of plaintiffs’ homesite and the possible subsidence problem. Indeed, plaintiff himself during construction of the driveway mentioned the need for steel reinforcement in the slab and was told by the builder that strengthening material in the cement was not necessary. Under these circumstances, the builder cannot escape liability for defective construction resulting in the cracked and discolored cement by claiming that he was unaware of the soil condition.

Accordingly, we conclude, as did the trial judge, that the cost of repair resulted from faulty workmanship by defendant. Having so concluded, we affirm the judgment.

AFFIRMED.

      . Although the suit is styled as a petition for reduction in purchase price, the residence had been purchased after completion and had been occupied by plaintiffs when the defects were discovered. The relief awarded by the trial judge amounted to the cost of repairs for the correction of the defective workmanship.

      . Brasher v. City of Alexandria, 215 La. 887, 41 So.2d 819 (1949); Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (1967).

      . LSA-C.C. arts. 2762 and 2769. Joyner v. Aetna Casualty & Surety Company, 259 La. 660, 251 So.2d 166 (1971); A & M Pest Control Service, Inc. v. Fejta Construction Co., Inc., 338 So.2d 946 (La.App. 4th Cir. 1976).

      . It was stipulated that the cost for replacement of the driveway amounted to $1,800.00.


text:
    Wayne L. LAUMANN v. SEARS ROEBUCK AND COMPANY, Allstate Insurance Company and Harris Black.
    No. 11458.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.

      Edward J. Norton, Jr,, New Orleans, for plaintiff-appellant.
    Murphy & Simon, James M. Colomb, III, New Orleans, for defendants-appellees.
    Before REDMANN, GULOTTA and GARRISON, JJ.
   GULOTTA, Judge.

In this personal injury suit, plaintiff appeals complaining that a $2,161.00 jury award (comprising $141.00 in medical expenses, $1,320.00 in lost wages, and $700.00 for pain and suffering) is inadequate. The medical expenses and lost wages represent the stipulated amount of workmen’s compensation and medical expenses paid to plaintiff by State Farm Fire and Casualty Company, the intervenor.

Wayne Laumann was injured on October 16, 1975 when the Cool-Air Refrigeration truck in which he was a passenger was rear ended by a Sears service truck. Damage to the vehicles was minor, and neither the driver of the Cool-Air truck nor the driver or passenger in the Sears truck complained of injuries. Plaintiff did not complain of injuries at the scene, but began experiencing headaches and neck pain the following day. Xrays taken at a hospital emergency room were negative and no objective symptoms were noted.

GENERAL DAMAGE AWARD

Examination on October 24, 1975 by Dr. Lynn Hamilton, an orthopedic surgeon, revealed neck stiffness and restricted motion of plaintiff’s cervical spine limited to 60°. A sprain of the ligaments was diagnosed and plaintiff was advised to return in one week.

It was not until December 23, 1975 that plaintiff made a return visit to Dr. Hamilton. At that time Laumann reported that on sudden motion he continued to experience neck pain. Examination revealed a full range of motion, but with complaint of pain upon light lateral rotation of the neck. The doctor recommended that plaintiff continue limited activity and return in three weeks.

When Laumann returned on January 14, 1976, he stated he was having “charley horses” in his neck at night and difficulty falling asleep. On this visit the doctor found full range- of motion of the cervical spine with no tenderness. Although plaintiff said he had pain, no objective findings of pain were made. Laumann was given an appointment to return in one month. He was again seen on February 11, 1976 and reported he was still having pain in the neck, with a severe episode five days before the visit. The doctor noted in his report that plaintiff said he was doing heavy work at home and taking care of horses. Examination of the plaintiff revealed no tenderness or objective symptoms. The doctor indicated in his report that plaintiff may resume light work. Dr. Hamilton discharged Laumann on March 10,1976, but he made a return visit on September 14, 1976. Although complaints of neck pain were made, again no objective symptoms were found. The doctor found a full range of motion and no tenderness.

Dr. Hamilton stated he felt plaintiff could have gone back to work in December had he asked about it. Although he made no objective findings on the February visit, the doctor advised Laumann to do only light work because of his complaints of pain.

Contrary to plaintiff’s testimony that the doctor had prescribed Valium for him, which he did not take, Dr. Hamilton stated that he had never prescribed any medication. Further, in contrast to plaintiff’s testimony, the doctor also denied he had ever prescribed physical therapy for plaintiff or told him to do physical therapy on his own at home.

In light of this medical evidence relating to plaintiff’s injury, we cannot say the $700.00 award for pain and suffering is inadequate.

LOST WAGES

In connection with the claim for entitlement to additional lost wages, plaintiff complains that he lost his job as a result of the accident and was unable to find work until June 1976, a period of eight months. At the time of the accident Laumann was working as an installer for Cool — Air, Inc. for $2.25 an hour. His brother Frank, who was vice president of the company, fired him approximately one week after the accident. Frank Laumann did not appear at trial to testify, although he had been subpoenaed. His deposition was not admitted into evidence but is included in the record as a proffer.

Although the deposition contains much inadmissible testimony, we find it necessary to consider it in order to determine whether plaintiff’s loss of his job was accident related. Frank Laumann stated that Wayne was very undependable and was frequently absent from work. Frank did not believe Wayne was truly injured. Wayne never said anything to Frank about being injured after the accident; instead, Wayne contacted the insurance company despite his employer’s orders that any injuries were to be reported either to Frank or to his secretary. Frank did not observe any behavior on Wayne’s part that would indicate he was hurt, although during a post accident one or two week period Wayne wore a neck brace that a friend had loaned him.

Wayne was terminated, according to Frank, because Wayne filed suit on a minor injury and because of his work record. He said Wayne “just didn’t want to work.” Further, Frank recalled, when he confronted Wayne after suit was filed, Wayne said that he was “going to get some money out of this.” (However, since three years had elapsed, Frank admitted he was not sure Wayne had said that.) Finally, Frank said he had tolerated Wayne as an employee previously because Wayne was his brother and “if it would have been any person . . . he wouldn’t have stayed here nowhere near as long.” Wayne testified that Frank fired him because he did not believe Wayne was hurt.

Plaintiff admitted he had worked driving a truck for a meat company in December or January following his accident. He also had worked for a refrigeration supply company beginning in March, 1976 but was terminated from that job. He testified further that he had worked for an oil company for three days in June, but quit because “the money was no good” and he “just didn’t like the job.” Plaintiff also admitted to having held several other jobs, but all of them apparently were after June, 1976 when he admittedly had recovered from the accident.

Considering plaintiff’s testimony, the admissible portions of Frank Laumann’s deposition, and plaintiff’s post-accident job history, we conclude plaintiff was not terminated from his employment because of injury sustained in the accident. Accordingly, we find no error in the jury’s failure to award the additional special damages as claimed by plaintiff.

Laumann had received workmen’s compensation benefits for temporary total disability for twenty-two weeks at the rate of $60.00 per week, for a total of $1,320.00, calculated on a salary of $90.00 per week. He contends the jury erred in failing to award additionally, the difference between the compensation benefits and the amount of his regularly earned wages, or $30.00 per week ($660.00 additional) and in failing to award lost wages for ten weeks between the time he was discharged by his doctor (March 1976) and the time he returned to work (June 1976) ($900.00 additional) for a total of $1,560.00 additional lost wages. He maintains the trial judge’s instructions and comments and the statements of opposing counsel during trial, unnecessarily confused and prejudiced the jury. We reject this contention.

Plaintiff testified his weekly net pay amounted to $67.00. His weekly gross amounted to $90.00. The award of twenty-two weeks in compensation paid to plaintiff and reimbursed to the insurer, does not establish the jury concluded that plaintiff was unable to work for that entire time. Indeed, plaintiff admitted that he had worked at several jobs during the time he claims to have been disabled.

The payment of compensation is not to be regarded as establishing a measure of damages for the injury, and the intervenor is entitled to recover from the tort feasor any amount he had paid as compensation. LSA-R.S. 23:1101. The payment of twenty-two weeks of compensation does not establish that plaintiff was actually unable to work for that entire time, and the jury was not required to conclude he was disabled as long as he received compensation. In fact, as described above, plaintiff himself admitted that he had worked at several jobs during the time he claims to have been disabled. Based on this testimony, it was reasonable and not manifestly erroneous for the jury to conclude, as they obviously did, that plaintiff could have returned to work long before he actually did. Accordingly, we find no merit to plaintiff’s contention the trial judge’s instructions regarding reimbursement to the compensation interve-nor prejudiced and confused the jury.

Plaintiff testified his net weekly earnings depended on the amount of hours he worked, but that he usually netted about $67.00, or $7.00 per week more than he received in compensation benefits. Under the circumstances we do not consider the defense attorney’s comments to the jury, to the effect that plaintiff made as much by receiving compensation benefits as he could by working, to be reversably prejudicial. See Lewis v. Fidelity & Casualty Company of New York, 230 So.2d 636 (La.App.2nd Cir. 1980). Even assuming this and other statements cited by plaintiff’s counsel were improper and prejudicial, he failed to object properly or to request the court to instruct the jury to ignore such statements. Instead, plaintiff’s counsel merely commented, “We’re getting a lot in the record that is prejudicial.” The objection has been waived. See: Wilson v. Virgademo, 258 So.2d 572 (La.App. 4th Cir. 1972); Johnson v. H. W. Parson Motors, Inc., 231 So.2d 73 (La.App. 1st Cir. 1970).

Having concluded that the jury did not err in the amount of the general damage award or in the failure to award additional lost wages, we affirm the judgment of the trial court.

AFFIRMED.


author: BOUTALL, Judge.

text:
    C. Lorraine FLANAGAN v. DEPARTMENT OF CIVIL SERVICE OF the CITY OF NEW ORLEANS.
    No. 11574.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1980.
    Ralph D. Dwyer, Jr., Many, LoCoco & Dwyer, New Orleans, for Dept, of Civil Service of the City of New Orleans, defendant-appellee.
    George M. Strickler, Jr., N. Ann Wool-handler, Michael G. Collins, New Orleans, for C. Lorraine Flanagan, plaintiff-appellant.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   BOUTALL, Judge.

This appeal concerns a judgment of the City of New Orleans Civil Service Commission sustaining an exception of no right or cause of action thereby denying the applicant an appeal from a decision of the Department of Civil Service of the City of New Orleans.

The Department of Civil Service of the City of New Orleans announced the opening of an employment opportunity. Ms. Catherine Lorraine Flanagan applied for this position but her application was denied on the grounds that she did not have the necessary minimum qualifications. Ms. Flanagan filed an appeal to the City Civil Service Commission for a review of the decision denying her application. In response to this appeal, the Department of Civil Service filed an exception of no right or cause of action. After the conclusion of a hearing on the exception, the Civil Service Commission sustained the exception, thereby denying Ms. Flanagan’s appeal. From this decision Ms. Flanagan has appealed to this court.

The evidence before us reveals that on Oct. 9, 1979, the Department of Civil Service of the City of New Orleans announced the opening of an employment opportunity entitled Program Coordinator for the Office of Manpower and Economic Development. In order to apply for this position certain minimum qualifications were necessary. They included: (1) a Master’s degree in human resources or manpower planning; (2) one year of professional experience in manpower planning; (3) two years additional experience may be substituted for the Master’s degree. Ms. Flanagan applied for this position. Her qualifications consisted of: (1) a Master’s degree in mathematics; (2) 7 months of experience while serving on the planning staff of the office of manpower and economic devélopment and (3) employment for 5 years with the urban league. On October 19, 1979, Ms. Flanagan received notice from the Dept, of Civil Service that her application had been denied because she did not meet the minimum qualifications.

On appeal the issue before us is whether the City Civil Service Commission committed an error in sustaining the exception of no right or cause of action based on a finding that the rules governing the commission do not provide Ms. Flanagan with an appeal.

The La. Constitution Art. 10 § 12 provides that the decisions of the City Civil Service Commission are reviewable on appeal to this Court on both law and fact. The scope of review is the same as that accorded appeals from the trial court. Armant v. Housing Authority of N.O., 351 So.2d 1262 (1st Cir. 1977). The general rule is that administrative boards such as the City Civil Service Commission have reasonable discretion and their decisions will not be set aside in the absence of proof of an abuse of such discretion. Toye Bros. Yellow Cab Co. v. City of New Orleans, 264 So.2d 768 (4th Cir. 1972); Cannatella v. City Civil Service Commission, 381 So.2d 1278 (4th Cir. 1980).

The City of New Orleans Civil Service Rules provide the grounds for an appeal to the City Civil Service Commission. Rule 4.1(6) states:

“Persons who shall have applied for or shall have been examined for the classified service and shall not have established their status as permanent classified employees and allege that they have been discriminated against in review of their applications, admission to the examination, the scoring of examinations, the establishment of eligible lists and certification, or regular employees in the classified service who shall have been suspended, fined, dismissed, or have suffered a reduction in pay or demotion shall have the right to appeal to the Commission, to test the reasonableness of such action.”

Ms. Flanagan contends that the minimum qualifications set by the Dept, of Civil Service for application for the position of program director for the Office of Manpower and Economic Development were unreasonable, arbitrary and discriminating. A review of the rule governing appeals to the City Civil Service Commission discloses that an appeal is not available for such a complaint. Regarding applications for employment, the rule permits an appeal only for discrimination in the review of applications for employment. Therefore, we find that the City Civil Service Commission did not abuse its discretion in finding that Ms. Flanagan did not have a right to appeal and in thereby sustaining the exception of no right or cause of action.

AFFIRMED.

      . We note that LSA-R.S. 33:2411 provides that the minimum qualifications for employment to a Civil Service position may relate to, “. .. age, sex, residence, health, habits, physical characteristics, experience, moral character, training, education, and other qualifications.” We further note that LSA-R.S. 33:2412 provides that the director of the Department of Civil Service may, “.. .. reject the application of any person for admission to tests of fitness or refuse to test any applicant, .. . who is found to lack any of the qualifications prescribed as requirements for admission to the tests for the class for which he has applied ...” Also see: Rule V § 2.4 and 2.6 of the City Civil Service Rules for similar regulations.
      Ms. Flanagan argues in her brief that there was discrimination in review of her application for employment. Under the rules for exception of no cause of action, we are bound by the allegations in the petition. In this case, no such allegation was made in the petition on appeal. The only contention was that the minimum qualifications were discriminatory.