text:
    Sol W. MEYERSON, d/b/a Galleria Fashions, Petitioner, v. TEXSOL, INC., Respondent.
    No. 80-334.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied July 18, 1980.

      Greene & Cooper and Joan M. Bolotin, Miami, for petitioner.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for respondent.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This petition for certiorari seeks review of an order of the Circuit Court for Dade County, entered in its appellate capacity, dismissing an appeal from the County Court of Dade County.

The order of dismissal under review reads as follows:

This is an appeal from a post decretal order of civil contempt entered on March 5, 1979. Notice of Appeal was filed on April 12,1979. Appellant’s “Motion to Set Aside Order and Award of Fees”, filed in the trial court on March 15 and denied on April 2, did not toll the time required for filing a notice of appeal from the order of March 5. Even if we consider the aforesaid motion to be a motion for rehearing, it is not authorized by Rule 1.530 of the Florida Rules of Civil Procedure and, ergo, does not toll the appeal period during its pendency. The time for taking an appeal is tolled when a timely motion for rehearing is directed to an order granting summary judgment or a final judgment in a non-jury trial. The order of civil contempt sub judice is not in either category. It is ordered sua sponte that the appeal be and is hereby dismissed. See Wagner v. Bieley, 263 So.2d 1 (Fla.1972).

It is petitioner’s contention that the circuit court departed from the essential requirements of law in holding (1) that the motion to set aside order and award of fees filed in the trial court on March 15, 1979, and denied on April 2, 1979, did not toll the time required for filing a notice of appeal from the order of March 5, 1979; (2) that even if the motion be considered a motion for rehearing, it was not authorized by Fla. R.Civ.P. 1.530, and thus did not toll the period during its pendency.

We find merit in petitioner’s contentions and quash the order of the circuit court dismissing the appeal as untimely. Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla.1979); Clearwater Federal Savings & Loan Association v. Sampson, 336 So.2d 78 (Fla.1976); Khem-Troll, Inc. v. Edelman, 351 So.2d 1040 (Fla. 4th DCA 1976); Hall v. Ricardo, 331 So.2d 375 (Fla. 3d DCA 1976); Jones v. Denmark, 259 So.2d 198 (Fla. 3d DCA 1972); Kirby v. Speight, 217 So.2d 871 (Fla. 1st DCA 1969).

The petition for writ of certiorari is granted and the order dismissing the appeal is quashed with directions to the circuit court to reinstate the appeal and decide the merits of the cause.

So ordered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lillie W. KEATON, Appellant, v. Howard YOUNG and Preferred Mutual Insurance Company, Appellees.
    No. 79-2240.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.

      Robert J. Gorman of Brennan, McAliley, Hayskar, McAliley & Deckert, P. A., Fort Pierce, for appellant.
    George S. Okell, Jr., and Larry Klein, West Palm Beach, for appellee, Preferred Mut. Ins. Co.
   PER CURIAM.

This matter has been considered upon the brief of appellant and a confession of error by appellee on behalf of Preferred Mutual Insurance Company. Based thereon, it appears the summary judgment in favor of Preferred Mutual Insurance Company was improperly entered and same is hereby reversed and the cause remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

LETTS, C. J., and ANSTEAD and BER-ANEK, JJ., concur.


text:
    Clarence STREETER, Appellant, v. STATE of Florida, Appellee.
    No. 80-114.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    Jack 0. Johnson, Public Defender, David A. Davis, Asst. Public Defender, and Richard A. McKinley, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The trial court revoked appellant’s probation for failure to file monthly reports and to pay costs of supervision, and for changing his residence without consent of his probation officer. There was no evidence to show that appellant was able to pay costs of supervision; therefore, this violation must be stricken from the order. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). We have reviewed the transcript of the revocation hearing, however, and have concluded that the trial court’s order was based primarily on appellant’s failure to file monthly reports and to obtain consent prior to changing his residence. Therefore, this case does not require a remand as in Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976).

Accordingly, we strike that part of the order revoking appellant’s probation for failure to pay costs; otherwise, we affirm.

HOBSON, Acting C. J., and SCHEB and CAMPBELL, JJ., concur.


text:
    Robert K. BRADBURY, Guardian of the property of Frank Daniels, Appellant, v. William B. FULLER and wife, Rubye D. Fuller, Appellees.
    No. 79-4/T4-348.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.

      Neal E. Young, Haines City, for appellant.
    William M. Rowland, Jr. of Rowland, Bowen & Thomas, Orlando, for appellees.
   PER CURIAM.

Plaintiff, Robert K. Bradbury, appeals an order of the trial court granting, with prejudice, defendants’ motion to dismiss the complaint. The order granting the motion to dismiss recites that the complaint shows on its face that plaintiff’s action is barred by section 95.11, Florida Statutes (1977). Plaintiff contends there are theories available to plaintiff which would not be barred by section 95.11 and suggests among others the theory of a resulting trust.

A beneficiary of a resulting trust is not bound to act until the trustee repudiates the trust or begins to hold the property adversely with knowledge on the part of the beneficiary. Smith v Reddish, 113 Fla. 20, 151 So. 273 (1933); Anderson v. Northop, 30 Fla. 612, 12 So. 318 (1892); Peacock v. Firman, 177 So.2d 560 (Fla. 3d DCA 1965), cert. denied, 183 So.2d 215 (Fla.1965).

We cannot say that plaintiff will be able to state a cause of action not barred by the statute of limitations. However, he should be given the opportunity to amend his complaint. Fla.R.Civ. P. 1.010; Town of Coreytown v. State, 60 So.2d 482 (Fla.1952).

REVERSED.

ORFINGER and COBB, JJ., and WATSON, RICHARD O., Associate Judge, concur.


text:
    Larry Eugene CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 78-1698/T4-175.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    Richard L. Jorandby, Public Defender, and Tatj ana Ostapoff, Asst. Public Defender, Chief, App. Div., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

The phrase “at hard labor” is hereby stricken from the sentence as surplusage. Manning v. State, 384 So.2d 46 (Fla. 5th DCA 1980); Edwards v. State, 373 So.2d 388 (Fla. 4th DCA 1979).

COBB, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


author: ORFINGER, Judge.

text:
    Mark HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. NN-346/T1-80.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.

      Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   ORFINGER, Judge.

Appellant Houston was charged with second degree murder, and pled guilty to manslaughter pursuant to plea negotiations. After a pre-sentence investigation and hearing, the trial court sentenced appellant to ten years in prison. Appellant wrote a letter to the trial judge, requesting that his sentence be reconsidered. This letter was treated as a motion to mitigate sentence, which was denied, and as a notice of appeal.

Appellant’s court-appointed counsel filed a brief as prescribed by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On November 2, 1979, counsel’s motion to allow appellant to file his own brief was granted, but no such brief has been filed.

The court has reviewed this record and counsel’s brief. No reversible error appears. The judgment and sentence of the trial court is therefore

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    David H. BUTLER and Bonnie L. Hopper, Appellants, v. The KEYES COMPANY, a corporation, Grant S. Hamilton and Kathleen W. Hamilton, his wife, Appellees.
    No. 79-2020.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Maurice Jay Kutner, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and Lawrence A. Schroeder, Ronald L. Fried, Miami, for appellees.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment under review is affirmed upon a holding that: (a) the appel-lees as sellers of the subject realty did not breach the contract herein between the parties by failing to close on or before the date set by said contract as there was competent, substantial evidence in the record that the parties had waived by their conduct such a closing date, (b) the appellants as buyers of the subject realty subsequently breached the contract herein between the parties by unreasonably refusing to close on said contract on any date, and (c) the appellants under these circumstances were not entitled to a return of their deposit monies under the contract or to an award of damages based on their above breach of said contract. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Goldfarb v. Robertson, 82 So.2d 504 (Fla.1955); Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975); see Delta Mobile Homes, Inc. v. Ehmann, 275 So.2d 269, 270 (Fla. 3d DCA 1973).


text:
    AETNA CASUALTY & SURETY CO. and Morton Insurance Agency, Inc., Appellants, v. John MEYER, Appellee. John MEYER, Appellant, v. AETNA CASUALTY & SURETY CO. and Morton Insurance Agency, Inc., Appellees.
    Nos. 80-596, 80-662.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Walton & Garrick and Edward L. Walton, Miami, for Meyer.

      Edward C. Vining, Jr. and Richard A. Burt, Miami, Ress, Gomez, Rosenberg & Howland and David R. Howland, North Miami, for Aetna Cas. & Sur. Co. and Morton Ins. Agency, Inc.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order in Case No. 80-596 granting John Meyer’s motion for summary judgment and determining that he is entitled to recover damages from Aetna Casualty & Surety Co. is affirmed. Meyer’s interlocutory appeal in Case No. 80-662 from the trial court’s order which (a) denied Meyer’s motion for summary judgment against Morton Insurance Agency, Inc. and (b) granted Morton’s motion for summary judgment against Meyer is dismissed. An order denying or granting a motion for summary judgment is not an appealable final order. Donnell v. Industrial Fire & Casualty Company, 378 So.2d 1344 (Fla.3d DCA 1980); Kessler v. Gumenick, 358 So.2d 1167 (Fla.3d DCA 1978); Shupack v. Allstate Insurance Company, 356 So.2d 1298 (Fla.3d DCA 1978). Moreover, since the order granting Morton’s motion for summary judgment did not determine an issue of liability in favor of the party seeking affirmative relief (Meyer), it is not an appeal-able non-final order order. Fla.R.App.P. 9.130(a)(3). Shupack v. Allstate Insurance Company, supra. See York Insurance Company v. Becker, 364 So.2d 858 (Fla.2d DCA 1978).


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Harris HALIBURTON, Appellee.
    No. 79-2553.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1980.
    David H. Bludworth, State’s Atty., and Sandra M. Kabboush, Asst. State’s Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by the State from the trial court’s order granting a new trial to the defendant/appellee. The defendant and another individual were tried and convicted of the crime of burglary. Both defendants moved for new trial and the trial court granted only defendant’s motion, finding, “the evidence ... is inconclusive, fragmentary and insubstantial as to the issue of identification of the defendant from any view so as to sustain a jury verdict.” We hold that the trial court abused its discretion in ordering a new trial and reverse with directions to reinstate the jury verdict.

The standard for review after the grant of a new trial is whether the trial judge has abused the broad discretion which is his prerogative in considering such a motion. See Cloud v. Fallis, 110 So.2d 669 (Fla.1959), and State v. Riggins, 314 So.2d 238 (Fla. 4th DCA 1975), cert. denied 333 So.2d 464 (Fla.1976). Here, the evidence was not lacking in any sort of intrinsic credibility. There was no impeachment of the State witnesses on the issue of defendant’s identity. Defendant did not take the stand. Counsel on appeal agrees completely with the State’s version of the facts relating to identification. This is not a situation where the evidence was inconsistent or in any way unworthy of belief. The only question presented was the sufficiency of the evidence, and we conclude that the State’s case on identity was more than adequate. State v. Coles, 91 So.2d 200 (Fla.1956).

The order granting new trial is reversed and the cause remanded with directions to reinstate the jury verdict and for further proceedings thereafter.

REVERSED AND REMANDED.

DOWNEY and HERSEY, JJ., concur.


text:
    STATE of Louisiana v. Charles H. WESTBROOK.
    No. 65132.
    Supreme Court of Louisiana.
    June 6, 1980.
   PER CURIAM.

Defendant Charles H. Westbrook was charged by bill of information with DWI (Second Offense) in violation of R.S. 14:98. After trial before a judge alone, he was found guilty and sentenced to serve 125 days in the parish jail and to pay a fine of $250.00 and costs. From this conviction and sentence, he seeks writs from this Court. We summarily grant relief and remand for a new trial based on the issue raised by assignment of error number four.

At trial the state did introduce into evidence a copy of the certificate filed with the Calcasieu Parish Clerk of Court certifying that machine no. 51 had been checked out and approved for use on August 3, 1978, within four months of the September 30, 1978 date on which that machine was used to perform the PEI test on defendant, all as required by the Rules and Regulations in effect at that time. See R.S. 32:663; Rules and Regulations (2), Louisiana Register, Vol. 3, No. 6, at 271 (1977). The certificate, however, is devoid of any showing that the individual who tested and approved the machine had been certified to do so. Rules and Regulations (6), supra at 272.

Consistent with our previous decisions that the state must show strict compliance with the established Rules and Regulations before it may avail itself of the R.S. 32:662 presumption of a defendant’s intoxication arising from chemical analysis, State v. Goetz, 374 So.2d 1219 (La.1979); State v. Graham, 360 So.2d 853 (La.1978); State v. Jones, 316 So.2d 100 (La.1975), we hold that at trial the state must show that the individual who approved the relevant machine for use has been certified to perform maintenance by the Department of Health and Human Resources. Since no such evidence was introduced at trial, the conviction must be reversed and the case remanded for a new trial. See State v. Goetz, supra; State v. Graham, supra; State v. Burnette, 353 So.2d 989 (La.1978).

In basing reversal on the issue raised in assignment of error number four, we have pretermitted consideration of the issues raised by assignments of error numbers two and three. It is noted, however, that at least some members of the Court were concerned that the state had not properly shown that the ampuls in Lot 7806 were certified for standard quality within four months of the date on which the PEI test was performed on defendant. Hopefully the issue will be clarified on retrial.

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded to the district court for further proceedings in accordance with law.

DIXON, C. J., dissents from remand, believing it creates a double jeopardy situation if defendant is put to trial again.

      . At the time here at issue certification was required by the Department of Health and Human Resources, Office of Health Services and Environmental Quality, Bureau of Laboratories. La. Register, Vol. 3, No. 6, at 273. The Rules and Regulations now require certification by the Department of Public Safety. La. Register, Vol. 4, No. 10, at 392.


author: LEMMON, Judge.

text:
    Gary W. AMACKER, Individually, and Dinettes and Barstools Unlimited, Inc. v. Mary Ellen McEniry WEDDING, Edgar E. Wedding, Jr., Catherine R. Cleary, Tom Cleary and Rosedale Rentals, Inc.
    No. 10781.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 1980.
    Rehearing Denied July 3, 1980.
    Sutterfield & Vickery, James R. Sutter-field, New Orleans, for plaintiffs-appellees.
    Buchler, Morel & Hanewinckel, Ernest H. Hanewinckel, Metairie, for deféndants-ap-pellants.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   LEMMON, Judge.

This appeal involves disputes over (1) the amount deposited into the registry of court by the lessees of immovable property in satisfaction of an earlier judgment rendered against them and (2) cancellation of the suspensive appeal bond furnished by the lessees.

I

The lease, as amended several times to increase the leased area, provided for rental of 2,625 square feet of ground floor space at $6.00 per square foot per year, or $1,312.50 per month, and of 2,625 square feet of mezzanine level space at 2% per month of the actual construction cost. Lessees paid the $1,312.50 each month for ground floor rental, but disputed the amount due for mezzanine space and paid only $525.00 per month for this item. After trial of lessors’ suit the trial court on July 2,1976 rendered judgment, holding that the cost of mezzanine construction was $41,377.92 and that the monthly rental should have been $827.56, and ordering lessees to vacate the premises and to pay rental for mezzanine space at $827.56 per month from February 21, 1973 through the date of judgment, subject to several stipulated adjustments and to credit for the amounts paid for mezzanine rental. The judgment also awarded 15% attorney’s fees and interest on the amount due. Lessees appealed suspensively from the judgment and furnished security in the amount of $40,000.00.

On appeal this court substantially affirmed the July 2, 1976 judgment, but amended (1) to correct a conceded error in the beginning date for payments (February 21,1974 rather than 1973) and (2) to award liquidated damages in the amount of $15,-000.00. See 363 So.2d 223. Lessees’ application for certiorari was denied on December 8,1978, and lessees vacated the premises.

II

The first issue in this appeal is the amount necessary to satisfy the July 2,1976 judgment.

After the denial of certiorari in the original matter lessees computed the amount due to satisfy the amended judgment as $22,767.63 and tendered that amount, which lessors refused. Lessees then deposited that sum into the registry of court and filed a rule to enjoin lessors from executing on the judgment and to order the July 2, 1976 judgment declared satisfied. After a hearing the trial court rendered judgment ordering the July 2, 1976 judgment to be marked satisfied upon payment by lessees of an additional $1,302.05. Lessors then filed the present appeal.

The record does not contain any evidence taken at the trial which resulted in the judgment on appeal, but lessees’ trial brief contains an itemization of the calculations which formed the basis of the January 15, 1979 deposit of $22,767.63 into the registry of court.

Lessors’ original and supplemental briefs do not establish any error in the calculations, as increased by the trial court, and the court correctly ruled that the sums of $51,733.88 and $1,302.65 would satisfy the July 2, 1976 money judgment as to all amounts due through July 2,1976, including principal, interest, costs, attorney’s fees and liquidated damages.

Ill

The real dispute on appeal involves lessors’ contention that the July 2, 1976 judgment should not be marked satisfied and the suspensive appeal bond cancelled until the rentals are paid for the period beyond July 2, 1976, during which lessees occupied the premises pending disposition of their suspensive appeal. Lessors argue that the rentals for the period between July 2, 1976 and the date lessees vacated the premises constitute damages which may be satisfied by the suspensive appeal bond.

Security for a suspensive appeal may cover items other than the amount of a money judgment, such as damages for the delay resulting from the suspension of the execution. C.C.P. art. 2124(3). In a judgment of eviction, for example, the security is set “in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal”. C.C.P. art. 4735.

In the present case the July 2, 1976 judgment both ordered eviction and awarded lessors a sum of money. Upon lessees’ application for new trial filed on July 12, 1976 (after the July 6 notice of the signing of the July 2 judgment) the trial court deleted $300.00 from the award and otherwise denied a new trial. Lessees then appealed suspensively and furnished security on October 15, 1976.

The appeal, while timely as a suspensive appeal from the money judgment, was not timely as a suspensive appeal from the judgment of eviction. C.C.P. art. 4735. Thus, lessors could have obtained dismissal of the suspensive appeal as to that portion of the judgment ordering eviction and could have obtained possession of the premises. Accordingly, lessors did not sustain damages as a result of the suspensive appeal.

Since the money judgment portion of the July 2, 1976 judgment has now been satisfied, and since there was no timely suspensive appeal from the remainder of the judgment relating to eviction, there is no basis for lessors’ contention that the suspensive appeal bond should not be can-celled and the sureties released.

AFFIRMED.

      . These monthly payments resulted from an agreement at the rule for eviction, which was referred to the merits contingent upon the agreed payments.

      . The calculations are as follows:
      Original judgment $32,355.89
      Correction on appeal - 9,930.72
      $22,425.17
      Legal interest through date of payment 4,993.25
      Attorney’s fees 4,853.38
      Costs paid by defendants 25.00
      Liquidated damages (corrected by lessees) 15,750.00
      Legal interest through date of payment 3,687.08
      Total $51,733.88
      The trial court calculated an additional $1,302.05 in legal interest.


author: GULOTTA, Judge. SCHOTT, Judge,

text:
    Lloyd WEYSHAM, Jr. and Louis Weysham v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 11046.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 3, 1980.

      James Maher, III, New Orleans, for defendant-appellant.
    Zelden & Zelden, Frederick W. Wild, III, New Orleans, for plaintiffs-appellees.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   GULOTTA, Judge.

The question in this appeal by defendant, New Orleans Public Service, Inc.' (NOPSI), is whether NOPSI can be held liable for a battery against plaintiff, which defendant’s employee either caused, assisted or encouraged. We conclude NOPSI is liable and affirm.

The incident occurred on July 11, 1978. Defendant’s employee, Joe Morris, Jr., was operating a bus along the Haynes Boulevard route between Elysian Fields Avenue and Paris Road on an 8:30 p. m. to 11:50 p. m. overtime shift. At approximately 10:15 p. m. the bus pulled up to the Haynes Boulevard-LaManche Street stop. As the doors opened to discharge passengers, Louis Weysham, 17 years of age at the time, pulled alongside the bus on his bicycle. Stopping on the sidewalk approximately ten feet from the open front door of the bus, he called angrily to Morris that he had nearly been struck by the bus. Morris descended from the bus to investigate, and seeing no damage to either the bicycle or the bus, turned to Weysham and accused him of throwing bottles at the bus earlier in the evening. Both parties used obscenities toward each other.

At this point the events and actions of the parties, subsequent to the verbal confrontations, differ. However, not disputed is the fact that Vincent Williams, a/k/a Lonnie Joseph, an acquaintance of Morris and a passenger in the bus, descended from the bus and stepped into the quarrel. Pulling a knife from his pocket, he slashed Weysham on the face and left forearm. Both Morris and Williams then returned to the bus, which departed and continued on its route, leaving the injured plaintiff.

In this lawsuit, plaintiff named only NOPSI as a defendant. The trial judge found NOPSI liable and awarded special damages to Weysham’s father in the amount of $1,101 and general damages to Weysham in the amount of $15,000. In written reasons for judgment, the trial judge concluded that Morris and Williams “conspired and joined together in their vicious and unprovoked attack upon the plaintiff”, and that Morris was acting in the course and scope of his employment.

We are confronted with two questions. The first is whether the evidence supports the trial court’s conclusion that Morris, the NOPSI employee, either caused, assisted or encouraged the passenger Williams to injure Weysham. See LSA-C.C. art. 2324. The second is, assuming Morris caused, assisted or encouraged Williams to injure Weysham, whether Morris was exercising the functions in which he was employed when plaintiff was injured. See LSA-C.C. art. 2320.

CAUSING, ASSISTING OR ENCOURAGING THE INJURY

According to plaintiff’s version, while not intending a confrontation, he shouted at Morris as he was going by the bus on his bicycle and as he was preparing to turn a comer. Morris stepped off the bus to inspect for damage, but then advanced on Weysham, shaking his finger in Weysham’s face and denouncing him for throwing bottles at the bus earlier that evening. Weys-ham testified that Morris then grabbed him and his bike, after which Williams joined the fray and punched him. He said Morris tried to kick him while he was on the ground and, as he got up and put his fist up, that’s when Williams cut him. Weys-ham stated further that when Williams hit him, Morris was holding him “by the back”. According to Weysham, Morris stood by while Williams cut him and then both assailants turned and went back to the bus.

A bus passenger, Mack Boutrin, corroborated the fact that Morris grabbed Weys-ham by the shoulder. Boutrin also said he saw Williams get off the back of the bus and walk toward Weysham, pulling something from his pocket. Boutrin saw Williams swing at and hit Weysham, but was unaware Weysham had been cut. According to Boutrin, during the fight the driver was next to plaintiff and facing him. After the fight, the bus driver followed Williams into the bus.

Morris, on the other hand, testified that he never touched plaintiff and was walking away from Weysham after he had told the boy not to throw things at the bus. According to Morris, by that time, however, Williams had come off the bus, dashed by Morris, saying, “I’ll take care of this . . ,” and attacked plaintiff. At this point, Morris claims, he was going back to the bus but admits he saw Weysham and Williams arguing, shoving and fighting. Morris stated that he was on the bus when Weysham received the injury. He claims that he could not stop Williams because he didn’t know what Williams was going to do. The entire incident, according to Morris, “lasted maybe forty-five seconds to a minute.”

Williams stated that Morris was standing behind him and plaintiff while they were fighting. He indicated that Morris was standing near plaintiff and Williams when Williams cut plaintiff and that Morris made no attempt to stop him.

Although the evidence is contradictory regarding the participation of each party in the incident, Morris nonetheless admitted that plaintiff was “pushing off” on the bicycle, apparently attempting to leave, after accusing Morris of almost hitting him with the bus.

In determining whether Morris and Williams were acting in concert when plaintiff’s injury occurred, it is important to understand the relationship between the bus driver and the assailant. Morris and Williams had lived in the same neighborhood and knew each other for approximately three years prior to the July 11th incident. Earlier in the evening on the night that Weysham was cut, and while Williams was a fare-paying passenger on the bus, Morris had asked him to remain on the bus to the end of the run in order that Williams could drive Morris’ car from the terminal point to the bus barn to pick him up since Morris had to drive the bus back to the barn. There is some slight indication that Morris had invited Williams to assist him in the event that he had any trouble on the route, because people had been throwing bottles at the bus and cursing him. Williams testified that Morris told him about the earlier throwing incidents but denied that he was asked by Morris to ride the bus for protection.

The trial judge concluded, that, at the least, Morris was acquainted with Williams’ criminal record and “propensity for crime and violence”, and that both men anticipated and were prepared for any disturbance. The record supports the trial court’s conclusion that Morris was aware of Williams’ tendency to get into trouble. Morris was extremely evasive when asked whether he was aware, before the incident, that Williams had a criminal record or “had been in trouble.” He stated that he had lived in the same neighborhood and knew Williams for about three years. Morris indicated that he learned of Williams having been “in trouble with the law” from Williams’ father or neighbors but did not know of any specific involvement with the “law.” According to Williams, he previously had been arrested for assault and battery and “a couple of aggravated burglaries”, and had been involved in several knife fights. He stated that Morris did not know of his history of knife fights or his trouble “with the law” but that Morris had seen police pick him up at his house.

The resolution of the question whether Morris caused, assisted, or encouraged Williams’ unlawful act involves a credibility determination of Morris’ involvement in the incident. The trial judge concluded that the critical part of Morris’ testimony was “unbelievable, improbable, and in part untrustworthy”. He further stated that he accepted as true plaintiff’s version of the incident. Because we conclude the record supports the trial judge’s determination based on a credibility finding, we cannot say he manifestly erred or was clearly wrong.

We conclude, therefore, the evidence establishes that Morris caused, assisted and encouraged Williams to inflict injury on Weysham. Accordingly, we agree with the trial judge that Morris was equally culpable with Williams for plaintiff’s injuries. LSA-C.C. art. 2324; See also Miller v. Keating, 339 So.2d 40 (La.App. 3rd Cir. 1976), amended on other grounds and affirmed, 349 So.2d 265 (La.1977); Tabb v. Norred, 277 So.2d 223 (La.App. 3rd Cir. 1973), writ denied 279 So.2d 694.

VICARIOUS LIABILITY OF NOPSI

The second issue is whether Morris was acting in the function in which he was employed at the time the accident occurred. See LSA-C.C. 2320. Liability cannot attach to NOPSI unless the tort was committed within the course and scope of employment. LeBrane v. Lewis, 292 So.2d 216 (La.1974). Whether an employee was so acting must be decided on the facts of each case; the test is whether the employee is performing some function for his employer which he was employed to perform. Orgeron v. Sweatman, 367 So.2d 1199 (La. App. 4th Cir. 1978), writ denied, Cheramie v. Sweatman, 371 So.2d 615 (La.1979). See also Normand v. City of New Orleans, 363 So.2d 1220 (La.App. 4th Cir. 1978), writ denied 366 So.2d 573 (La.1979).

It is clear from the evidence that Morris was acting in the course of his employment at the time of the incident; however, the more difficult question is whether he was acting in the scope of his employment when Weysham was cut. The relevant consideration is whether Morris’ action was so closely connected in time, place, and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared to conduct motivated by purely personal considerations entirely extraneous to the employer’s interest. LeBrane v. Lewis, supra. In the LeBrane case, the Supreme Court concluded the violence was “primarily employment rooted” and was “reasonably incidental” to the performance of the employee’s duties. Our consideration of the facts in the instant case leads us to a similar conclusion.

The evidence here shows Morris was somewhat anxious because he had had trouble early in the evening with adolescents throwing bottles at the bus and cursing him. He had related the incidents to Williams and expressed concern over a possible recurrence on the final run. According to Morris, he had told the bus passengers to be careful because of trouble earlier with “guys” throwing things at the bus. Morris’ descent from the bus and confrontation of Weysham were partially actuated by his belief that Weysham was one of the trou-blemaking adolescents, and also were partially to ascertain (according to Morris) whether Weysham had been injured, or the bike or the bus damaged.

Nonetheless, we conclude that Morris was acting in the scope of his employment when he initially stepped from the bus to investigate the damage after Weys-ham had told him he was almost struck by the bus. He was also acting within the scope of his employment in warning Weys-ham to stop throwing bottles at the bus. Although he became angry when Weysham cursed him and he grabbed Weysham, precipitating Williams’ attack, we believe this conduct was related closely enough to his furtherance of his employer’s interests (i. e., protection of the bus and passengers) to be regarded as a risk of harm fairly attributable to the employer’s business. Accordingly, we conclude NOPSI is vicariously liable for the tortious behavior of Morris under LSA-C.C. articles 2320 and 2324.

QUANTUM

Finally, we reject NOPSI’s claim that the $15,000 general damage award is excessive. Immediately following the incident, Weysham was taken to Methodist Hospital, where he was hospitalized for three days. Because of a serious loss of blood plaintiff required a three-unit blood transfusion. The facial injuries resulted in severe scarring.

By joint agreement of all counsel, the facial lacerations and remaining scars were graphically described as follows: There is a scar on the top surface of plaintiff’s left forearm, approximately four inches in length and approximately one-quarter inch wide; the scar has no height, but is tough to the touch. There is also a scar on the left forehead extending in a vertical direction from the middle left eyebrow. This scar is jagged and resembles the figure five, and extends back into the hairline approximately an inch and one-half over the eyebrow. An additional scar on the bridge of the nose extends from the middle of the bridge down to a point approximately three-quarters of an inch below and to the middle from the inside comer of the left eye. The nose scar is somewhat faded; however, the scar on the forehead is still very apparent as is the scar on the forearm.

According to Weysham, his recuperation required approximately two months, but he was unable to return to construction work for approximately three and one-half months after the injury. Weysham testified further that because of the profuse bleeding and weakness suffered from the loss of blood, he feared imminent death. Considering plaintiff’s pain, suffering, scarring, disfigurement and mental anguish, we do not find the $15,000 general damage award to be an abuse of the trial court’s discretion. See Reck v. Stevens, 373 So.2d 498 (La.1979).

It is NOPSI’s contention, however, that Weysham’s verbal abuse of Morris was calculated to provoke and arouse Morris’ retaliation and requires mitigation of the damages, necessitating a substantial reduction. We do not find in the trial judge’s reasons for judgment any reference to a mitigation of damages. We conclude, therefore, the general damage award did not include any mitigation of the amount.

As pointed out by NOPSI, the Louisiana Supreme Court in Morneau v. American Oil Company, 272 So.2d 313 at 316 (La.1973), citing earlier cases, recognized that provocation by words can be considered in mitigation of damages. The Morneau court applied the rule that mitigation can be considered where the words “are calculated to provoke and arouse to the point of physical retaliation . . . ” In Skains v. Tidwell, 359 So.2d 247 at 249 (La.App. 2nd Cir. 1978) the court concluded that an abusive verbal attack on a party’s “veracity and lineage, in the context of the parties’ previous unpleasant encounters, was calculated to provoke plaintiff’s physical retaliation.”

Applying the test and examples set forth in Morneau and Skains, we conclude that the verbiage in Weysham’s initial confrontation of Morris was not such as to provoke and arouse Morris’ physical retaliation. According to Morris, Weysham stated to him “you tried to hit me with that f_ing bus.” The record does not disclose any additional verbal abuse by Weysham after Morris disembarked from the bus and argument ensued. Under the circumstances, we determine that mitigation of damages is not applicable.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

APPENDIX I

SCHOTT, J., dissents and assigns reasons.

SCHOTT, Judge,

dissenting.

I respectfully disagree with my colleagues and the trial judge that defendant is vicariously liable for its bus driver’s tort. LSA C.C. Art. 2320 makes employers liable “for the damage occasioned by their servants ... in the exercise of the functions in which they are employed.” In this case, Morris left his bus to engage in an altercation with plaintiff because plaintiff had provoked him. I see no connection between Morris’s function as a bus driver, including the protection of his bus and passengers, and his getting off the bus to engage in a fight with the plaintiff on his bicycle after being provoked by plaintiff’s insults. Even if there was some connection between plaintiff and the bottle throwing incident which occurred earlier it was likewise beyond the functions of his employment for Morris to leave his bus and .somehow punish or threaten plaintiff in connection with that earlier incident. The safety of his bus and passengers was not jeopardized at that time, and the only function in which he was employed at that time was to drive on with the bus and passengers.

The foregoing analysis is based on the facts as viewed most favorably from plaintiff’s point of view because it ignores the fact that plaintiff’s real injuries were caused not by Morris, but by Lonnie Williams, a passenger. In order to find vicarious liability here we must conclude that it was within Morris’ functions as a bus driver to cause, assist, or encourage Williams to commit a felonious attack on plaintiff who was outside of the bus because Morris was either angry at being cursed or intent on punishing plaintiff for the suspected bottle throwing, which occurred an hour earlier.

LeBrane v. Lewis, 292 So.2d 216 (La.1974) is distinguishable. There, the employee’s tortious conduct occurred “while the employee was at least partly actuated by his purpose of acting for his employer in the discharge of the recalcitrant employee . and it was reasonably consequent upon or incident to his performance of his employment function of hiring and firing sub-employees . . . ” I do not agree that the present case meets this test.

I have also compared this case with Jones v. Sights and Sounds, Inc., 365 So.2d 15 (La.App. 4th Cir. 1978) which is likewise distinguishable. There the tortious conduct occurred while the employees were engaged in the collection of a rental fee from plaintiff after delivering a television set to plaintiff’s home where the assault by the employees on plaintiff took place.

I would reverse the judgment of the trial court.

      . LSA-C.C. article 2324 reads as follows:
      “Art. 2324. He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

      . LSA-C.C. article 2320 reads as follows:
      “Art. 2320. Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed. Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence. In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.”

      . We attach a photograph of plaintiff showing the lacerations and mark the photograph Appendix 1.


author: GARRISON, Judge.

text:
    Patrick M. CALLAGHAN v. DEPARTMENT OF FIRE.
    No. 11068.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.

      Michael A. Starks, Deputy City Atty., New Orleans, Salvador Anzelmo, Acting City Atty., New Orleans, for defendant-ap-pellee.
    Barker, Boudreaux, Lamy, Gardner & Foley, Louis L. Robein, Jr., New Orleans, for plaintiff.
    Before BOUTALL, GARRISON and BARRY, JJ.
   GARRISON, Judge.

This is an appeal by the City of New Orleans from a decision rendered by the City Civil Service Commission. The Commission upheld the findings of two lower administrative hearings that fireman Patrick M. Callaghan was guilty of violating Section 13:01 of the Regulations of the Fire Department by failing to apologize when ordered to do so by his superior in rank, Fire Superintendent, William J. McCrossen. The Fire Superintendent dismissed Callaghan for his refusal to obey a direct order to apologize. The Commission reversed the dismissal, reinstating Callaghan as of the date of the first administrative hearing, with back pay, but without overtime, and subject to a credit for any wages earned by Callaghan during the period of his suspension and later dismissal. The panel further condemned Callaghan to work for a period of twenty-four hours without pay. From that decision, which we now affirm and amend, the City of New Orleans appeals.

On September 22, 1978, Callaghan was engaged in a private discussion with Captain Joseph Brouillette and District Chief Eugene Ravain. The topic of discussion was the low service rating given to Callaghan by Brouillette, which Callaghan believed to be the result of an existing personality conflict between the two men. Callaghan was asked why he disliked Brouillette. In response thereto, Callaghan stated that he disliked Brouillette because of a previous incident which the City states that Callaghan described as Brouillette’s abandonment of his men in a burning building. Although Callaghan repeatedly stated at the administrative hearing that he was not charging and did not formally charge, Brouillette with misconduct, Brouillette took umbrage with the remark and charged Callaghan with making a false report.

At an administrative hearing on November 15,1978, Fire Superintendent William J. McCrossen ordered Callaghan to apologize to Brouillette. When Callaghan refused to apologize, McCrossen charged the fireman with a violation of 13:01 of the Regulations of the New Orleans Fire Department:

“Section 13:01 General Orders
Obedience to the orders of a superior in rank must be faithfully observed, and any member offending in this regard shall be held strictly accountable.”

McCrossen suspended Callaghan indefinitely-

A second administrative hearing was held on December 15, 1978, at which time Callaghan again refused to obey McCrossen’s order to apologize. As a result of this refusal, McCrossen dismissed Callaghan.

At the outset we note that the following facts are undisputed by the parties:

1. That Chief McCrossen ordered Callaghan to apologize.

2. That Callaghan refused to apologize.

3. That the remark to which Brouillette took umbrage was made during the course of a private conversation.

In Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 696, 58 L.Ed.2d 619 (1979), the United States Supreme Court stated:

“The First Amendment forbids abridgment of the ‘freedom of speech.’ Neither the Amendment itself nor our decision indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public. We decline to adopt such a view of the First Amendment.”

In Givhan, a public school teacher was terminated as a result of, “among other things, a series of private encounters between petitioner and the school principal, in which petitioner allegedly made ‘petty and unreasonable demands’ in a manner variously described by the principal as ‘insulting,’ ‘hostile,’ ‘loud,’ and ‘arrogant.’ ” (99 S.Ct. at 695).

By virtue of the First and Fourteenth Amendment to the U.S. Constitution, as well as Article 1 § 7 of the Louisiana Constitution of 1974, we find Givhan to be controlling in the instant appeal so that Patrick M. Callaghan’s remark, relating to Department policies, procedures, and his own employee evaluation by Captain Brouillette, made in the course of private conversation with his employers, is protected speech for which he cannot be penalized.

The second action for which Callaghan was penalized was his failure to obey a direct order to apologize, which the Civil Service Commission found to be a violation of Section 13:01 of the Regulations of the Fire Department:

“Obedience to orders of a superior must be faithfully observed, and any member offending in this regard must be held strictly accountable.”

As discussed above, the order given by Superintendent McCrossen had no reasonable basis in law. Thus, Callaghan cannot be penalized for failing to follow an order having no reasonable basis in the law. Neither the Fire Department, the Civil Service Commission, nor any court in the land has the jurisdiction to enforce “good manners.” Such matters are better left to the province of Amy Vanderbilt and Emily Post. Under our Code, “good manners” fall within the ambit of imperfect obligations:

“If the duty created by the obligation operates only on the moral sense, without being enforced by positive law, it is called an imperfect obligation, and creates no right of action, nor has it any legal operation. The duty of exercising gratitude, charity, and the other merely moral duties, is an example of this kind of operation.” C.C. Art. 1757(1)

In so holding, this Court is not required to reach the issue of whether the regulation in question is void for vagueness.

The last issue to be reached by this court is the question of penalties assessed against Patrick Callaghan. Callaghan was penalized by being reinstated without overtime, subject to a credit for wages earned, and by being condemned to work for 24 hours without pay. A condemnation to work without pay is not allowable, nor could it ever be allowed:

“. . Each commission may impose penalties for violation of its rules by demotion in or suspension or discharge from position, with attendant loss of pay.” (emphasis added) La. Constitution of 1974, Art. 10 § 10(A)(4).
“Neither Slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” XIII Amendment, U.S. Constitution.
“Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.” La. Constitution of 1974, Art. 1 § 3.

Forcing a man to work against his will and without pay is involuntary servitude, which cannot be compelled in the absence of a conviction for criminal activity. Patrick M. Callaghan has not engaged in any criminal activity in the instant appeal. Additionally, slavery is defined as “a condition of enforced compulsory service of one to another.” “Master has been defined as one who has another or others under his immediate control, a lord paramount or employer of slaves.” 80 C.J.S. Slaves § 1.

We are somewhat surprised to learn that the Fire Department and the City Civil Service Commission regard involuntary servitude as still in existence in the United States. We thought the issue had been resolved some time ago.

In any case, while a penalty of suspension with a fixed duration and without pay may be assessed under certain circumstances, a man cannot be compelled to work without pay as a condition of employment.

For the reasons discussed above, we affirm the decision of the City Civil Service Commission with regard to reinstating Patrick M. Callaghan. However, we amend the reinstatement to be with back pay and overtime, if any, subject to a credit for any wages earned during the period of his suspension and dismissal. We reverse the requirement that Patrick M. Callaghan work for a period of 24 hours without pay as a condition of his employment. All costs of this appeal to be paid by appellant.

AMENDED IN PART, REVERSED IN PART, AND AS AMENDED, AFFIRMED.

      . Although the New Orleans Fire Department is modeled upon a military hierarchial structure, there is a crucial distinction to be remembered. The Fire Department is not part of the United States Military. An employee may voluntarily terminate his employment with the Fire Department at any time of his choosing and he will not be subject to imprisonment as a result of that choice. While a military officer in wartime may order men to take actions which would be unreasonable or illegal under civilian law, that grant of power is not given to the New Orleans Fire Department.


text:
    SIGUE TRUCKING INCORPORATED v. Richard BRAZEN, Sr.
    No. 11131.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    John W. Porterfield, Jeanerette, for plaintiff-appellant.
    Glynn A. Long, Donaldsonville, for defendant-appellee.
    Before GULOTTA, GARRISON, and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing Sigue Trucking’s suit on an open account against the defendant, Richard Brazen, Sr., granting a recission of the sale to the defendant and rejecting defendant’s demand for attorney’s fees. From that judgment which we now amend and affirm, plaintiff Sigue Trucking appeals.

On appeal, Sigue Trucking contends that the trial court erred in granting recission or in the alternative should have granted quanti minoris, that it erred in failing to render judgment in its favor on the open account, and that it should have been granted a credit for the use of the machine.

On March 29, 1978 Richard Brazen, Sr. purchased a used sugarcane sprayer from Sigue Trucking, Inc. The machine in question was a cotton sprayer to which the Sigue interests added a superstructure designed by Donald Sigue, the President of Sigue Trucking. The superstructure increased the height and length of the machine so that it could be used in sugarcane fields. Prior to the sale at issue, the machine had been used on Donald Sigue’s farm. Although the purchase was made on an open account, Donald Sigue admitted that the sale was made subject to a trial period. Approximately nine weeks later, after Brazen had been contacted relative to his failure to make any payment, Brazen informed Sigue that he did not want the machine because it was defective. Throughout the period from the date of sale to the offer of tender, the machine required considerable work. Indeed, Brazen’s first complaint occurred on the day that the machine was delivered. Lester Rodriguez, who was accepted as an expert witness, had worked on the machine at issue both before and after the sale to the plaintiff. Rodriguez testified that the frame was cracked prior to the sale and that there existed several other cracks as well. He stated that he, as an expert, was unable to discover the cracks prior to the sale.

It was only later, when he was called upon to repair the machine, that he sanded the paint off the machine and determined that the crack in the frame was an “old” one. Rodriguez also testified as to a number of other defects on the machine.

During the period of the controversy, defendant used the machine to spray about 800 acres of his sugarcane crop. As reflected by the testimony, the timing of sugarcane spraying is a crucial factor to the success of the crop to the extent that a delay in spraying could result in the failure of the entire crop.

Upon review, this court concludes that the trial court was not manifestly erroneous on the main issues. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We do, however, conclude that the court erred in failing to award a use credit. Civil Code Article 2531 provides as follows:

“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
“In any ease in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.” (emphasis added)

Ronald Hebert, who was admitted as an expert on sugarcane farming, testified that the costs of commercially leasing an operator and machine and providing fuel to spray a field would all be included in a flat rate two to three dollars an acre. In the instant appeal, we note that the defendant provided his own fuel and driver. Additionally, we note that the fact that the redhibitory defect limits the use of the thing and causes inconvenience to the purchaser can be considered by the court in its calculation of the use credit. Thibodeaux v. Meaux’s Auto Sales, Inc., 364 So.2d 1370 (App. 3rd, 1978).

For the reasons assigned, the judgment appealed from is amended to provide as follows:

“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the defendant in reconvention, Sigue Trucking, Inc. and against the plaintiff in reconvention, Richard Brazen, Sr., in the sum of SIXTEEN HUNDRED AND NO/100 ($1,600.00) DOLLARS.”

As thus amended, and in all other respects, the judgment is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.


author: BARRY, Judge.

text:
    Thad ACKEL v. COCA COLA BOTTLING COMPANY, Grover Verrett, ABC Insurance Company and XYZ Insurance Company.
    No. 11143.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.

      Roy L. Price, and Stephen J. Simone, Metairie, for plaintiff-appellee.
    Reuter & Reuter, Kurt S. Blankenship, New Orleans, for defendants-appellants.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   BARRY, Judge.

Plaintiff was driving his automobile on the primary roadway of private property owned and operated by the Fairgrounds racetrack in New Orleans. A vehicle owned by the defendant and driven by its employee entered the roadway from beneath the grandstand. The vehicles collided causing plaintiff to sustain personal injuries and damage to his vehicle.

Plaintiff was awarded:
Personal Injuries $ 7,500.00
Vehicle Damage 6,824.42
Vehicle Deterioration 3,856.61
Medical Expenses 477.00
$18,658.03
Plus expert fees, interest and costs.

Defendant is self-insured and appealed on the following issues:

(1) The trial judge erred in finding defendant’s employee negligent and the proximate cause of the accident.
(2) The amount awarded for general damages is excessive.
(3) The amount awarded for vehicle damage caused by the collision is excessive.
(4) The amount awarded for deterioration of the vehicle following the accident is not justified because plaintiff breached his duty to mitigate damages.

I.

In the reasons for judgment the trial judge vividly described the location of the accident as it related to the pertinent parts of the racetrack property. Plaintiff entered the property from Gentilly Boulevard and was driving next to the lengthy grandstand structure which is parallel to the roadway. Defendant’s employee had already entered the Fairgrounds from the opposite area to make a delivery. The employee had driven his truck to the end of the grandstand and parked under the structure. Plaintiff contends as he approached the end of the grandstand the defendant was driving his truck into the roadway and struck him flush on the right side. Defendant contends he was driving out from beneath the grandstand and was partially turned left when his truck stalled in the roadway; further, he was immobile when plaintiff’s vehicle struck his truck with a glancing blow along the side of plaintiff’s vehicle creating nominal impact.

It is clear from the facts that plaintiff was proceeding on a primary roadway and defendant was attempting to enter the roadway when the accident occurred. Defendant’s contention — that the truck stalled while attempting to turn left onto the roadway and was stopped at an angle—is difficult to believe after looking at photographs of plaintiff’s vehicle. The greatest damage on the vehicle occurred to the right front and rear doors causing both doors to be crushed inward. This clearly indicates a direct impact, not a glancing blow as urged by defendant. There is no evidence that plaintiff was driving at an excessive rate of speed nor do the facts indicate any negligence or contributory negligence by the plaintiff. The defendant was leaving an area difficult to see from the roadway and should have exercised extra caution. It appears plaintiff was incapable of avoiding the accident.

In his reasons the trial judge went into great detail analyzing his factual conclusion that the defendant was negligent and the sole cause of the accident. From the record we find no basis to disagree. Factual findings of the trial judge are not to be disturbed absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

II.

Plaintiff is a thoroughbred racehorse owner and trainer who was participating in the racing season at the Fairgrounds when this accident occurred. The trial court awarded Mr. Ackel the sum of seven thousand five hundred dollars ($7,500.00) for pain and suffering. Dr. R. T. Ribando, the family doctor, testified that he found in the neck and cervical area “a great amount of spasm and rigidity of the muscles . examination of the lumbar spine had a great deal of tenderness with spasms.” Plaintiff was also treated by Dr. Randall Williams, an orthopedic surgeon, and was seen once by Dr. W. Aiken, a specialist in neck and back injuries.

The trial court concluded that the plaintiff suffered lumbar and cervical strain for approximately four months. According to plaintiff’s testimony, he had intermittent discomfort during the three years awaiting trial. An award of $7,500.00 for this type of strain injury may seem generous considering its primary duration of four months, but not unreasonable with additional evidence of intermittent discomfort over a much longer period of time. Therefore, we find no abuse of discretion in the award of $7,500.00.

Medical expenses of $477.00 were not contested on appeal nor were expert fees of $200.00 each for Drs. Berkett and Ribando.

III.

Appellant questions the amount awarded for vehicle damage as a result of the collision.

On the day of the accident defendant had the damaged Jaguar examined by an estimator who calculated repairs at $6,012.15. Later, plaintiff had an employee of Paretti Pontiac prepare an estimate which amounted to $6,824.42. The trial judge listened to both estimates and was in the best position to evaluate the testimony of each witness. Without a compelling reason we are not in a position to disagree and accordingly affirm the crash damage estimate of $6,824.42.

IV.

We have a problem with the award of $3,856.61 to repair interior parts of the vehicle damaged solely from deterioration and exposure to the elements from the day of the accident on January 6, 1976 to the date of trial on March 20, 1979.

After the accident defendant called Par-etti Pontiac who dispatched a tow truck which took the vehicle to Paretti’s place of business. Thereafter the automobile remained in an outside area uncovered and unattended for more than three years.

Plaintiff was the title owner of the Jaguar which he purchased several months earlier with a $7,600.00 loan. He contends defendant assumed control of his vehicle when it had the car moved from the accident location and, accordingly, became responsible thereafter. Defendant asserts that it merely removed the vehicle from the scene of the accident and did nothing further since the cause of the accident was in dispute and liability had not been determined.

The doctrine of mitigation of damages applies in Louisiana as well as common law jurisdictions (also known as doctrine of avoidable consequences). LSA-C.C. Art. 2323.

Certainly the owner of a damaged vehicle has the responsibility to do something within a reasonable period of time other than remain totally inactive or silent in order to protect his property. Some effort should be made by the owner to minimize damages which are foreseen or could easily have been averted. This is especially true where the owner seeks property damages three years after the accident when he did nothing to mitigate his property loss. Plaintiff was the owner and only person with authority to order repairs, or to seek salvage, or to do anything necessary to preserve his property. Failure to do so should not allow him to complain thereafter. Accordingly, we amend the judgment to disallow the award of $3,856.61 for vehicle deterioration damage.

One cannot stand by silently and allow himself to be damaged when by his acts or words he could prevent or lessen the damage. Nunez v. Superior Oil Co., 406 F.Supp. 261 (D.C.La.1976).

The victim of a tortious act owes a duty to minimize the loss sustained by him if he is reasonably able to do so. Crowson v. Bayou State Oil Corp., 367 So.2d 417 (La.App. 2nd Cir., 1979).

For the reasons assigned, the judgment appealed from is amended to reduce the $18,658.03 award in favor of the plaintiff-appellee to $14,801.42. As thus amended, and in all other respects, the judgment is affirmed. Costs of this appeal to be paid by defendant-appellant.

AMENDED and AFFIRMED.


author: SAMUEL, Judge. SARTAIN, Judge,

text:
    PARENT-COMMUNITY ALLIANCE FOR QUALITY EDUCATION, INC., the Greater New Orleans Louis A. Martinet Society, Inc., Nate Phipps, Carl Galmon, and Rev. Sylvester Lyle, Sr. v. The ORLEANS PARISH SCHOOL BOARD.
    No. 11570.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 1980.
    Writ Refused June 23,1980.

      Lolis E. Elie, Okla Jones, II, Walter J. Wilkerson, New Orleans, for plaintiffs-appellants.
    Polack, Rosenberg, Rittenberg & Endom, Franklin V. Endom, Jr. and Samuel I. Rosenberg, New Orleans, for defendant-appel-lee.
    Durrett, Hardin, Hunter, Dameron & Fritchie, Emile C. Rolfs, III and Stephen H. Vogt, Baton Rouge, amicus curiae, Sigma Delta Chi.
    Taylor, Porter, Brooks & Phillips, Frank M. Coates, Jr., Baton Rouge, amicus curiae, Capital City Press, Inc.
    Jeff McHugh David, Denham Springs, Claire M. Goldsworthy, Baton Rouge, ami-cus curiae, Louisiana Press Association.
    Before SAMUEL, SCHOTT and SAR-TAIN, JJ.
   SAMUEL, Judge.

Plaintiffs filed this suit against the Orleans Parish School Board seeking declaratory and injunctive relief from the Board’s alleged non-compliance with some of the provisions of R.S. 42:4.1 through 42:9 (the “Open Meeting Law”) during the Board’s proceedings to select a superintendent of the Orleans public schools. Following a full summary hearing on the merits there was judgment in favor of the defendant, dismissing plaintiffs’ suit, and in favor of the defendant and against the plaintiffs in the sum of $5,000 as attorneys’ fees. Plaintiffs have appealed.

With our permission, Louisiana Press Association, Inc., Capital City Press and Sigma Delta Chi, a journalist association, have filed briefs amicus curiae in support of the appellants. They appear to seek relief beyond that requested by appellants. However, our settled law is that when particular relief has not been requested, or particular questions have not been raised, by the litigants, such relief or questions may not be granted or determined at the request of those allowed to appear as ami-cus curiae.

The record reveals the following facts:

Since October, 1979, the Orleans Parish School Board has been looking for a superintendent of schools to replace the present superintendent whose contract expires on June 30, 1980.

At a formal public meeting held on November 12, 1979, the Board decided to request the assistance of the National School Boards Association to recommend experts in the field of selection of school superintendents. Dr. Carroll Johnson, a white male, and Dr. Edyth Gaines, a black female, the experts recommended by the Association, were retained through the Association. They met with the general public at two of the Board’s regular public meetings and at a special public meeting held on a Saturday in order to give additional interested citizens an opportunity to convey to these consultants anything they thought to be of importance in establishing a profile for the new superintendent. Additionally, the school administration, the superintendent’s staff and all others in the local system were invited and given the opportunity to discuss the vacancy with the consultants, and the Board itself told the consultants what they were looking for. Eventually, the suggestions, comments, recommendations and directions received from these multiple sources were compiled into a statement of criteria for the selection of a new superintendent.

The consultants advertised nationally in newspapers and professional magazines, a bulletin was sent to all members of the National School Boards Association and notices were posted in the local schools. In some instances consultants and members of the Board itself invited qualified persons to apply.

A total of 82 applications were received. These applicants were screened by the consultants, their credentials verified and numerous telephone conversations were initiated by the consultants in an effort to select those applicants best qualified to fit the profile or criteria.

During the course of the search, the Board interviewed four different applicants invited to meet with the Board at a local hotel, and at luncheon thereafter. At the recommendation of the experts, no decisions or discussions were made by the Board members regarding those interviewed. These meetings were solely for the purpose of meeting these candidates whose professional criteria made them highly eligible for the position.

At an open public meeting of the Board on March 31, 1980, a motion to recess and go into executive session was made for the purpose of receiving the consultants’ final report and their list of six candidates for the superintendency who, in the judgment of the consultants, were best qualified for the vacancy.

At this executive session there was a discussion as to whether or not those candidates not named in the final slate should be notified. No vote was taken on the matter. Dr. Mack Spears, president of the Board, was of the opinion it was only fair to notify the other applicants in the event they might be considering other jobs. Another Board member commented there was a lot of local “politicking” and such a letter might get the “politicking employees” back to work. At least one member concluded such a letter could wait until a final selection was made, and the experts, originally of the opinion a letter should wait until a final determination, later concluded a letter should be sent at this time.

Shortly thereafter, on April 2, 1980, Dr. Spears wrote the following letter to all candidates not among the finalists named by the experts:

“The consultants to the Orleans Parish School Board have presented their final report. We were quite favorably impressed by the general caliber of those who were interested in the superintendency. Although we have not interviewed candidates and our selection process has just started, in fairness, we must inform you that you were not selected by the consultants for the final slate.
“We appreciate your interest in the superintendency and your loyalty and the many contributions which you have made toward the betterment of the New Orleans Public Schools.
“We thank you for your willingness to allow the Board to consider you for the New Orleans superintendency. The consultants have advised that we had many superior candidates and that the screening was most difficult. We feel certain that the consultants may be willing to respond to any specific questions which you may have regarding your candidacy. “Again, our thanks for your many services and our best wishes for your continued success.
“Sincerely,
“/s/Mack J. Spears”

When some local candidates concluded the Board was in violation of the Open Meeting Law of this state, resulting in their unfair exclusion, this law suit followed.

In this court appellants make five assignments of error. The first is that the trial court erred by not holding the appointment of a superintendent of schools to be an appointment to a public body, thereby prohibiting a discussion of such an appointment in executive session. They rely on the last proviso of R.S. 42:6.1 A (1), which portion of the statute reads:

“A. A public body may hold an executive session pursuant to R.S. 42:6 for one or more of the following reasons:
“(1) Discussion of the character, professional competence or physical or mental health of a person, provided that such person may require that such discussion be held at an open meeting, and provided that nothing in this Subsection shall permit an executive session for discussion of the appointment of a person to a public body.” (Emphasis added)

Plaintiffs cite authority to the effect that a school board superintendent is a public officer, and attempt to reason that as such his appointment falls within the philosophy, if not the letter, of the quoted provision.

We disagree. The language relied upon by plaintiffs applies to the fulfillment by a public body of its constitutional and statutory duty to fill vacancies as they occur.

Article 6, Section 13 of the Louisiana Constitution of 1974 provides:

“(A) Vacancy; Appointment. Except as otherwise provided by this constitution, a vacancy in any local office filled by election wholly within the boundaries of a local governmental subdivision or a school district shall be filled by appointment by the particular governing authority of the local governmental subdivision or school district in which the vacancy occurs, until it is filled by election as provided by law. “(B) Exception. This Section shall apply to each local governmental subdivision unless otherwise provided by its home rule charter or plan of government.”

Likewise, R.S. 18:602 B, as amended, provides:

“B. When a vacancy occurs in the membership of a city or parish school board, the remaining members of the board shall appoint a person who meets the qualifications of the office to fill the vacancy.”

These authorities place a duty upon a parish school board to make an appointment to fill a vacancy in its makeup within ten days. The proviso of R.S. 42:6.1 A (1) simply prohibits discussion in executive session of the appointment of a person to fill a vacancy, and has nothing to do with the appointment of a superintendent who is not a member of the school board.

It is thus obvious that the actions of the defendant Board in discussing qualifications of a potential superintendent in executive session is not prohibited. The Board was, in effect, merely discussing the hiring of an employee and not filling a vacancy in its membership.

Appellants next argue the defendant violated R.S. 42:6 by making a final and binding decision in its executive session meeting of March 31, 1980. Revised Statute 42:5 provides meetings of public boards and government bodies be open to the public. Revised Statute 42:6 provides:

“A public body may hold executive sessions upon an affirmative vote, taken at an open meeting for which notice has been given pursuant to R.S. 42:7, of two-thirds of its constituent members present. An executive session shall be limited to matters allowed to be exempted from discussion at open meetings by R.S. 42:6.1; however, no final or binding action shall be taken during an executive session. The vote of each member on the question of holding such an executive session and the reason for holding such an executive session shall be recorded and entered into the minutes of the meeting. Nothing in this Section or R.S. 42:6.1 shall be construed to require that any meeting be closed to the public, nor shall any executive session be used as a subterfuge to defeat the purposes of R.S. 42:4.1 through R.S. 42:8.
“Amended by Acts 1976, No. 665, § 1; Acts 1977, No. 707, § 1; Acts 1979, No. 681, § 1.” (Emphasis added)

At the March 31, 1980 executive session, the experts hired by the Board to interview and screen applicants to fill the superintendent’s position presented their final report, by which they recommended all but six of the 82 applicants be eliminated from consideration. On April 2, a letter was sent to the remaining 76 informing them they had not been selected “for the final slate”. That letter is quoted in full above.

Appellants contend this letter was the result or culmination of a final and binding decision taken by the Board in executive session and, as such, was a violation of the above quoted R.S. 42:6.

The April 2, 1980 letter was written by Dr. Mack J. Spears, president of the Board. However, the evidence clearly discloses this letter was the action of Dr. Spears alone, and did not represent the consensus or vote, formal or informal, of the Board. Dr. Spears testified that while some discussion was had at the March 31 meeting, no decision was reached on the question of whether or not such a letter should be sent, and he wrote the letter on his own initiative without the vote, recommendation, or consensus of the Board. It was Dr. Spears’ intention to allow those applicants who were not among the six recommended to have knowledge of their status so that they could seek appointments or employment elsewhere without further delay, if they desired to do so. The testimony and remarks of other members of the Board corroborate Dr. Spears’ testimony.

Moreover, Dr. Spears specified that writing the letter did not per se eliminate its recipients from consideration altogether. He indicated he wished to keep the Board’s options open with regard to employment of the recipients of the letter in the event the Board did not choose any of the six recommended by the consultants or in the event those chosen did not accept the appointment.

Given the testimony and evidence as a whole, we conclude Dr. Spears’ April 2 letter is not proof of a final or binding action taken at an executive meeting, but merely the ex parte action of one of its members. This is particularly true in view of the fact that the letter states the Board’s selection process “has just started” and that the addressee was “not selected by the consultants for the final slate.” (Emphasis ours.)

Next, appellants contend the trial court committed error by finding the single and multiple concurrent executive sessions of indefinite duration held by the Board did not violate the Open Meeting Law. Specifically, they argue it was improper for the Board to declare an executive session at its open special meeting of April 8, 1980 and then recess and go into executive session to discuss the competence of the individual candidates recommended to them by their consultants. To accomplish this, individual interviews were arranged for April 9, 11, 13, and 15. On each occasion, the Board, while still in executive session, interviewed a different applicant on each date. The record does not disclose that a final or binding action was taken during any of these sessions. On the contrary, the record establishes that, on the recommendation of their consultants, the board members avoided discussing the relative merits of the persons interviewed.

In any event, we construe plaintiffs’ argue to be based on the law as it existed prior to 1976. Before Act 665 of 1976, when recessing an open meeting to go into executive session a public body was obliged to announce the specified time the recess would end. This is no longer required. The law as amended simply requires an affirmative vote of two-thirds of the constituent members present at an open meeting, for which notice has been given, to authorize executive sessions.

Consequently, we hold the Board’s use of multiple executive sessions with no specific termination date was not in violation of the Open Meeting Law, but instead was authorized by R.S. 42:6. Moreover, the evidence shows the multiple executive sessions were used for a legitimate purpose, that is to interview in a one-on-one situation those applicants recommended to the Board by the advisors hired by it to screen and select applicants.

Plaintiffs’ fourth complaint is that they were deprived of a sufficient opportunity to question Board members in order to determine if final or binding action was taken at other than open meetings. During his examination of those members, counsel for plaintiffs attempted to elicit testimony as to what was discussed at executive sessions, particularly at the meeting of March 31. In several instances defense objections were maintained and in maintaining a few of those objections the trial court stated such testimony was inadmissible because it involved what had been done at an executive session. This ruling was erroneous; only by ascertaining the content of such discussion could a determination be made as to whether the exemption of R.S. 42:6 A (1) was applicable.

However, we have carefully read the transcript of the testimony of the school board members and we find the trial judge, despite the statements mentioned above, did not in fact exclude pertinent testimony. To the contrary, with rare exceptions, plaintiffs’ counsel was allowed to question the school board members regarding everything which had occurred at the executive sessions (as can be seen from the factual matters set forth herein, all of which were obtained from the testimony now being considered). The exceptions referred to were such matters as the names of the four applicants the Board had interviewed, which particular Board member or members had been in favor of, or opposed to, the sending of the April 2 letter, etc. None of those exceptions involved matters pertinent or material to the issues here. In addition, we note the trial judge’s statements were made only after counsel’s questioning had become overly repetitious.

We are satisfied that Dr. Spears took it upon himself without any vote, authority, or consensus from other members of the Board to send out the letter complained of to those applicants not named in the final list of those most qualified, so that they might make other arrangements, if any they might have. He described it as a kind and humane act, and we accept that explanation.

Plaintiffs also contend the general procedural employed by the Board violated the spirit, if not the letter, of the Open Meeting Law, as expressed in R.S. 42:4.1:

“It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of R.S. 42:4.1 through R.S. 42:10 shall be construed liberally.”

Under the process employed by the Board the major part of the selection process would be performed outside of open meetings. Applications were treated as confidential, interviews and investigations were conducted only by the two consultants, and confidential background information was gathered with no information, not even names, disclosed to the public or even to the Board. After the consultants’ report was delivered to the Board, its members had separate luncheon meetings with each of four leading candidates so as to interview them in an informal setting, but the Board was still not disclosing the identity of the finalists or letting the public in on the interviews.

Hindsight being the greatest wisdom, some of these steps might have been conducted at open meetings without great difficulty. The need for holding all the applications in confidence was not established, and the final report could have been delivered at a public meeting.

On the other hand, some aspects of the necessary procedure hardly could have been handled at public meetings. For the Board to receive 82 applications, interview the applicants, conduct individual investigations and obtain supplemental information on the applicants, all at public meetings, would be impractical if not impossible. A screening process of this magnitude conducted by the Board at public meetings, even if at all possible, would be a colossal waste of time. Furthermore, R.S. 42:6.1, quoted above, permits discussion “of the character, professional competence, or physical or mental health of a person” in executive session.

Obviously, the screening selection process for a new superintendent required discussion of the character and professional competence of the applicants and the letter as well as the spirit of the law recognizes that frank discussion about an applicant could not be achieved unless it could be conducted in a private session.

In the final analysis it may be argued the Board could have found some ways in which to operate more openly, but their general procedure cannot be said to have constituted a violation of the law.

Finally, we do agree with appellants’ fifth contention regarding the award of attorneys’ fees. The trial judge gave these reasons for making that award:

“ . . . The court does not grant that request (for attorneys’ fees) because this lawsuit was frivolous, and without substantial justification.”

R.S. 42:11(C) provides for attorney’s fees against a plaintiff in an enforcement proceeding under the open meeting law only if the court finds that the proceeding was of a frivolous nature and was brought with no substantial justification. Thus, as no other authority for making the award has been cited to us, and as we know of none, on the basis of his finding (we also find this lawsuit was not frivolous), we conclude the trial judge was not authorized to award attorneys’ fees under this section. Accordingly, we will delete that award from the judgment.

For the reasons assigned, the judgment appealed from' is amended to delete the award of attorneys’ fees. In all other respects the judgment is affirmed.

AMENDED AND AFFIRMED.

SARTAIN, Judge,

concurring.

In addition to the views expressed in the foregoing opinion, I feel constrained to make further comments.

Initially, the Board is to be congratulated on the thoroughly professional manner in which it originated its election process to fill the office of Superintendent. Two obviously qualified consultants were engaged and extensive publication was made nationwide in an effort to obtain the best qualified person for the job.

I also agree that it is within the authority of the Board to permit the consultants to engage in a screening process and to express an opinion as to the four or six applicants they deem most qualified. But the screening process engaged in by the consultants and the participation in that process by the individual members of the Board are two entirely different matters.

I get the distinct impression from briefs and argument of counsel for the Board that it interprets R.S. 42:6.1 A (1), quoted in the main opinion, to encompass basically all but the final selection; that this is a personnel matter which necessarily includes the discussion of the “character, professional competence”, etc. of the applicants; and that its conduct to date falls within the purview of the exception to the open meeting law. Support for this view is found in the fact that the names of all of the applicants, including the four or six finalists, were known only to the consultants and the Board members. I personally do not view the section as being this broad in scope. The exception contained in this section, in my opinion, is to permit discussion of one’s character, etc. in executive session where the details of that discussion would tend to demean the individual under consideration and public discussion of such information would serve no useful purpose.

In the instant matter preliminary interviews with most, if not all, of the finalists have already taken place. While there has been no discussion among the Board members as to the relative merits of the applicants and each member has endeavored not to form an opinion, the risk of an undisclosed consensus under the procedure followed thus far is apparent.

However conscientious the individual members of the Board may be the ultimate official action of the Board may prove to be only a formality. It may have selected a very capable superintendent only to have its action in doing so seriously contested under the penalty of invalidity. R.S. 42:11 A (4).

      . Dinet v. Orleans Dredging Co., La.App., 149 So. 126.

      . R.S. 42:6.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Anna Marie PAYN, Wife of/and Thomas Payn v. WEST JEFFERSON GENERAL HOSPITAL and Western World Insurance Company.
    No. 11134.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1980.

      David R. Heno, Garner & Munoz, New Orleans, for plaintiffs-appellants.
    Mary Ann McGrath Swain, Law Offices of Rudolph R. Schoemann, C. Gordon Johnson, Jr. and Edward J. Brandao, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and SAR-TAIN (Assigned), JJ.
   SCHOTT, Judge.

Plaintiffs have appealed from a dismissal of their suit for damages on defendants’ motion for summary judgment. Plaintiffs alleged in their petition that Mrs. Payn was injured when she slipped on a sloped floor while she was exiting from the ladies lounge on the fourth floor of defendant hospital. The issue is whether plaintiffs’ suit was properly dismissed by summary judgment under the law considering the pleadings and affidavits on file.

Defendants, in support of their motion, filed affidavits of hospital representatives stating that the restroom in question adjoins the fourth floor lobby by a slip-proof ceramic tile slope or incline measuring 1% inches over a 4Vi inch wide threshold and that the restroom had been used by thousands with plaintiff’s accident being the only one to have ever occurred. Plaintiffs countered with an engineer’s affidavit stating that the threshold in question is slightly over 1% inches high and the width of the door is 22 inches, while the Jefferson Parish Building Code prescribes that this rise shall not exceed one inch and no interior door shall be less than three feet wide.

LSA C.C.P. Art. 966 provides that a summary judgment “shall be rendered forthwith if the pleadings, . . . together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” In granting the motion, the trial judge reasoned that the 1% inch elevation where plaintiff fell was, as a matter of law, not a substantial defect based on Kospelich v. New Amsterdam Casualty Company, 164 So.2d 68 (La.App. 4th Cir. 1964) in which this court reversed a judgment in favor of a plaintiff tenant against her landlord holding that an alleged defect in the form of a door sill, existing of two worn boards slanting at seven or eight degrees toward a 6 inch step was not such a substantial defect as to cause injury to a reasonably prudent person.

At the outset, we distinguish the Kospe-lich case on the basis that it was decided after a full trial and not on a motion for summary judgment. Kospelich stands for the proposition that the alleged defect in that case, in the light of all of the facts and circumstances, was not a substantial defect which caused plaintiff’s injury. In the instant case, we have only the affidavits showing the height and width of the elevation but nothing as to the surrounding circumstances or conditions which may or may not have some bearing on the accident. There is no support for the proposition that because Mrs. Kospelich was denied recovery by the Court of Appeal in connection with her fall over a 6 inch elevation no plaintiff may recover for a fall over an elevation of under 6 inches. The fact finding province of the trial court requires that the court consider evidence, and reach a conclusion based on the particular facts and circumstances of that case.

By filing their suit plaintiffs have invoked the provisions of C.C. Art. 2315, that “[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” The courts have lately tested liability under Art. 2315 by means of the duty-risk approach explained in Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), and Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Under this approach the plaintiff must show that the conduct complained of bears a causal connection with the occurrence of her accident and establish that defendants breached a legal duty imposed upon them to guard against the particular risk involved. These issues have all been disposed of by simple affidavits stating that the area where plaintiff tripped is a 1% inch high incline on a 4 inch base.

We are satisfied that the affidavits establish that there is no issue of material fact as to the height and width of the incline on which plaintiff fell. We are not satisfied as to other factors: that lighting and surrounding conditions along with the age and condition of plaintiff would not have some influence on the trier of fact in making the decision that this elevation was a cause in fact for plaintiff’s fall and/or that the elevation in this particular place and under these particular circumstances constituted a breach of duty to plaintiff; as to the inferences the trial court may draw from evidence at trial that the elevation constituted a violation of the parish building code; or that a plaintiff who falls over an elevation of the size established in the affidavits cannot prevail in an Art. 2315 suit as a matter of law.

Summary judgment is not to be used as a substitute for a full trial of a controverted fact issue which is material to a decision in the case. LeBlanc v. Landry, 371 So.2d 1276 (La.App. 3rd Cir. 1979). In deciding upon a motion for summary judgment all reasonable doubt must be resolved against the mover and in favor of denying the motion, Walker v. Graham, 343 So.2d 1171 (La.App. 3rd Cir. 1977). In the application of these principles we have concluded that summary judgment was inappropriate.

Accordingly, the judgment appealed from is annulled and set aside and there is judgment in favor of plaintiffs, Anna Marie Payn, wife of/and Thomas Payn and against defendants. West Jefferson General Hospital and Western World Insurance Company, denying the latters’ motion for summary judgment. The case is remanded to the district court for further proceedings. The costs of this appeal are assessed against defendants with assessment of other costs to await the outcome of the case.

ANNULLED, SET ASIDE, AND REMANDED.

REDMANN, J., concurring with assigned reasons.

REDMANN, Judge,

concurring.

I concur on the basis that, as a matter of law, a 1.75" drop (over so short a distance as 4.25") in floor level is a premises defect for injury from which the owner may be liable.

The trial judge has already expressly reasoned that plaintiffs’ is “a vain and useless crusade, which can only end in judgment against them, after a long and costly trial.” His view seems to be that Kospelich held a 6" step-down not defective and therefore any lesser step is not defective. But a closer reading persuades that Kospelich was not concerned with the height of the step but with the condition of the deteriorated sill at its top (the slant of which is described as seven or eight degrees, compared to 22 ° [the angle whose tangent is 1.75/4.25] for the sill in our case). If we do not disabuse the trial judge of his belief that Kospelich controls, and if we tell him that it is a simple matter of trial versus summary judgment and no new facts arise at trial, we gain nothing but the chance to hear “I told you so.”

If, indeed, plaintiff wife fell because the change in floor level caused her loss of footing and the circumstances ■ (the door, especially, also floor colorings, etc.) excuse her not being aware of the change and thus negate contributory negligence, then plaintiffs should recover.


author: SCHOTT, Judge.

text:
    CHEVRON CHEMICAL COMPANY v. CRESCENT RIVER PORT PILOTS ASSOCIATION.
    No. 11685.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 23, 1980.

      Walter W. Christy and Michael D. Bew-ers, New Orleans, for plaintiff-appellant.
    Joseph W. Nelkin, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

This case is before us on a motion, ex proprio motu, to dismiss the appeal. The following chronology is pertinent:

May 27,1980 Judgment announced orally by the trial court at the conclusion of trial.
June 3,1980 Motion for appeal by appellant.
June 9, 1980 Judgment signed by trial court.
June 20, 1980 Record lodged in this court.

Under the provision of C.C.P. Art. 1911 as amended by Act 618 of 1979, this appeal is vulnerable to dismissal because it was taken before the judgment was signed. However, the posture of this case is identical to that of Lang v. Reynolds, 386 So.2d 126 (1980) in that appellant has until June 24, 1980, in which to take a new appeal so that the only effect of a dismissal would be to require appellant to go back to the trial court, obtain another order of appeal and relodge the record in this court. As in Lang, we see no point to such a requirement.

Accordingly, we consider the present appeal to be valid and we therefore deny our own motion to dismiss.

MOTION TO DISMISS DENIED.