text:
    James E. FITZMORRIS, Jr. v. Louis J. LAMBERT, Jr., et al.
    No. 66155.
    Supreme Court of Louisiana.
    Nov. 17, 1979.
   In re James E. Fitzmorris, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 382 So.2d 169.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Dalila T. CANGELOSI v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS.
    No. 67150.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Dalila T. Cangelosi applying for writ of certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 836.

Granted.


text:
    Robert A. RAYFORD v. LOUISIANA SAVINGS ASSOCIATION.
    No. 67323.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Louisiana Savings Association, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 380 So.2d 1232.

Denied.


text:
    James Presley BERNARD et al. v. MARATHON OIL COMPANY et al.
    No. 67242.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re James Presley Bernard, Raymond Bernard, Marjorie Bernard, and Emily Bernard, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 381 So.2d 1286.

Denied.


text:
    Police Officer Ronald J. CANNATELLA and Police Officer Howard P. Robertson v. CITY CIVIL SERVICE COMMISSION OF the CITY OF NEW ORLEANS.
    No. 67143.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Officer Ronald J. Cannatella, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 381 So.2d 1278.

Denied.

WATSON and CALOGERO, JJ., would grant the writ.


text:
    Freddie Lee LACEY v. BAYWOOD TRUCK & MACHINERY. CAPITAL BANK & TRUST COMPANY v. Freddie Lee LACEY.
    No. 67416.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Freddie Lee Lacey and Edward J. Lacey, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 381 So.2d 863.

Granted as to Assignment No. 1 only; otherwise denied.


text:
    RED BALL MOTOR FREIGHT, INC. v. Larry N. BURAS et al.
    No. 67325.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Red Ball Motor Freight, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 380 So.2d 654.

Denied.


text:
    Louis MEYERS v. Norman BASSO et al.
    No. 67370.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Louis Meyers applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. 21st Judicial District Court. Parish of Tangipahoa. 381 So.2d 843.

Denied.

MARCUS, BLANCHE and WATSON, JJ., would not have allowed any damages for mental anguish in this case; however, defendant did not apply for writs. Therefore, we concur in the denial of plaintiff’s application.


text:
    John O. HUDSON v. Don McAVOY.
    No. 67369.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Don Mcavoy applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, 31st Judicial District Court. Parish of Jefferson Davis. 380 So.2d 1248.

Denied.


text:
    CONSOLIDATED SEWERAGE DISTRICT OF the CITY OF KENNER v. OKC DREDGING, INC.
    No. 67333.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re OKC Dredging, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 380 So.2d 657.

Denied.


text:
    Dayton GUILLOT v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY.
    No. 67329.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Department of Public Safety applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 380 So.2d 1250.

Writ denied.


text:
    STATE of Louisiana v. Cruz VALDEX.
    No. 67432.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Cruz Valdez applying for supervisory writs. Parish of Rapides. 9th Judicial District Court. No. 194-347.

Denied.


text:
    STATE of Louisiana ex rel. Wendell A. MARTIN v. Judge Jerome M. WINSBERG, Orleans Criminal Judicial District Court.
    No. 67435.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Wendell A. Martin, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 263-888.

Writ denied.


text:
    William C. BALLARD v. NATIONAL FOOD STORES OF LOUISIANA, INC.
    No. 67441.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re William C. Ballard, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13,225.

Denied.


text:
    MARSH INVESTMENT CORPORATION v. PARISH OF JEFFERSON.
    No. 67442.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Marsh Investment Corporation, applying for writs of supervisory and for writs of review, certiorari, prohibition and mandamus. Parish of Jefferson. 24th Judicial District Court. No. 222-306.

Denied.


text:
    STATE of Louisiana v. Larry RAINWATER.
    No. 67450.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Larry Rainwater, applying for writs of certiorari, prohibition, mandamus. Parish of East Baton Rouge. No. 1-80-653.

Writ denied. Adequate remedy on review in event of conviction.


text:
    SUCCESSION of Willard Hansford KILPATRICK v. SUCCESSION of Katherine Terrill KILPATRICK.
    No. 67464.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Willard Hansford Kilpatrick, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. 2nd Judicial District Court. Parish of Jackson. Nos. 14,231 and 14,232.

Denied.


text:
    STATE of Louisiana v. Sammy HUFFMAN.
    No. 67485.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Sammy Huffman, applying for remedial writ. Parish of Terrebonne. 32nd Judicial District Court, Division B. No. 90,811.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Joseph HARRISON.
    No. 67497.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Joseph Harrison, applying for cer-tiorari, prohibition, and mandamus. Parish of Orleans, Criminal District Court. Nos. 272-344, 273-362.

Denied.


text:
    STATE of Louisiana ex rel. Samuel DAUPHINE v. STATE of Louisiana.
    No. 67000.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Samuel Dauphine applying for writ of mandamus to the Criminal District Court. No. 272-869. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Therman M. BRAXTON v. STATE of Louisiana.
    No. 67353.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Therman M. Braxton applying for remedial writs. Parish of East Baton Rouge. 19th Judicial District Court. No. 3-11-75-220.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Warren BATISTE v. STATE of Louisiana.
    No. 67426.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Warren Batiste applying for writs of habeas corpus, certiorari, mandamus, and prohibition. Parish of Orleans. No. 266-727.

Denied.


text:
    STATE of Louisiana ex rel. Clyde STEWART v. STATE of Louisiana and Philip S. Brooks (Attorney).
    No. 67469.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Clyde Stewart, applying for remedial writs. Parish of Orleans. No. 268-004.

Denied.


text:
    STATE of Louisiana ex rel. Larry Joe PHILLIPS v. STATE of Louisiana.
    No. 67498.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Larry Joe Phillips, applying for remedial writs. Parish of Orleans, Criminal District Court. No. 259-425.

Denied.


text:
    STATE of Louisiana ex rel. Robert D. STOKES v. Frank C. BLACKBURN, Custodian, Louisiana State Penitentiary.
    No. 67471.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Robert D. Stokes, applying for writ of certiorari. Parish of Beauregard. 36th Judicial District Court. No. C-661-79.

Denied.

BLANCHE, J., recused.


text:
    Betty Jean SIMPSON v. S. S. KRESGE COMPANY.
    No. 67214.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Betty Jean Simpson applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 379 So.2d 1161.

Granted.


text:
    Olezime CHERAMIE et al. v. Alidore CHERAMIE et al.
    No. 67126.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Olezime Cheramie, wife of Alidore Cheramie et al., applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 380 So.2d 166.

Writ granted.


text:
    Olezime CHERAMIE et al. v. Alidore CHERAMIE et al.
    No. 67120.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Annabelle Cheramie Pitre, Thelma Cheramie Messick, Anna Cheramie Carma-delle, Marilyn Cheramie Dematteo, Debra Cheramie Esserman, Stephen J. Cheramie,. Jr., Stephanie Cheramie and Pat Terre-bonne, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 380 So.2d 166.

Writ granted.


text:
    Sandra LeBlanc SIMON v. SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION et al.
    No. 67356.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Deliha Vincent applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia, 15th Judicial District Court. Hon. Carrol L. Spell, Judge, presiding. 380 So.2d 1242.

Granted.


text:
    Ruby B. SMITH v. WILLIS-GERTRUDE-GEDDES FUNERAL HOMES, INC., Robert King, Continental Insurance Company and Firemans Fund Insurance Company.
    No. 67328.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Ruby B. Smith, applying for certio-rari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 380 So.2d 752.

Granted.


text:
    Sandra LeBlanc SIMON v. SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION et al.
    No. 67311.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Sandra LeBlanc Simon, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia. 380 So.2d 1242.

Granted.


text:
    Sylvia C. BORDELON v. SAFEWAY INSURANCE COMPANY et al.
    No. 67444.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Safeway Insurance Company et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles, 12th Judicial District Court. 380 So.2d 1379.

Denied.


text:
    ILLINOIS CENTRAL GULF RAILROAD v. STEVENS READY-MIX CONCRETE, INC.
    No. 67438.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Stevens Ready-Mix Concrete, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 19th Judicial District Court. 381 So.2d 840.

Denied.


text:
    J. K. HAYNES et al. v. LOUISIANA TEACHERS ASSOCIATION et al.
    No. 67445.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re J. K. Haynes et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 19th Judicial District Court. 381 So.2d 849.

Denied.


text:
    Arthur BRITTEN v. Thomas L. PAYNE et al.
    No. 67448.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Arthur Britten, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 381 So.2d 855.

Writ denied. The result is correct.


text:
    Arthur BRITTEN v. Thomas L. PAYNE et al.
    No. 67510.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Thomas L. Payne et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 19th Judicial District Court. 381 So.2d 855.

Writ denied. The result is correct.


text:
    Frances Mathews BAKER v. PAYNE & KELLER OF LOUISIANA, INC., Georgia Pacific, Inc., Maryland Casualty Company, et al.
    No. 67437.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Frances Mathews Baker, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Iberville. 381 So.2d 859.

Writ granted.


text:
    Herman LACROIX and Tawana Lacroix v. Jacquita Lamb COOK and Edward L. Florence.
    No. 67447.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Herman Lacroix and Tawana La-croix, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bossier. 383 So.2d 59.

Denied.


text:
    Julius C. HATCHER v. DEPARTMENT OF HIGHWAYS et al.
    No. 67602.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re St. Paul Fire & Marine Insurance Co. et al., applying for writs of certiorari, prohibition and mandamus. Parish of St. Landry. No. 77,383-2.

Writ denied.


text:
    STATE of Louisiana in the Interest of Donald Ray ROCK.
    No. 67599.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Donald Ray Rock, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 26223-C. Also applying for stay order.

Denied.

DENNIS, J., would grant on the burden of proof issue.


text:
    STATE of Louisiana v. Denise LAWSON.
    No. 67591.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Denise Lawson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Beauregard. No. CR153-80.

Denied. Adequate review by appeal in event of conviction.


text:
    Robert G. FARNED v. ILLINOIS CENTRAL RAILROAD COMPANY, David O. Howe and William H. Crone.
    No. 67440.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Robert G. Famed, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13211.

Denied.


text:
    STATE of Louisiana v. John DOMINO.
    No. 66492.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re John Domino applying for writ of habeas corpus. Orleans Parish. No. 251— 471.

Denied.


text:
    STATE of Louisiana ex rel. Gregory Jacob BOSMA v. Hon. Frank SHEA, Judge, Orleans Criminal Judicial District Court.
    No. 66241.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Gregory Jacob Bosma, applying for writs of mandamus or prohibition. Parish of Orleans. No. 255-119.

Granted. Evidentiary hearing ordered to determine status of defendant’s appeal and to act on his application.


text:
    STATE of Louisiana ex rel. Woodrow BARKSDALE v. ORLEANS CRIMINAL DISTRICT COURT, SECTION “B”.
    No. 66904.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Woodrow Barksdale, applying for writ of mandamus. Parish of Orleans. No. 254-966.

Granted. If the trial judge has not already acted on relator’s January 10, 1980 petition, he is ordered to do so, forthwith.


text:
    STATE of Louisiana ex rel. Michael THERIOT v. CRIMINAL DISTRICT COURT, SECTION C.
    No. 66948.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Michael Theriot, applying for writ of mandamus. Orleans Parish. No. 268-962.

Granted and transferred to District Court for action.


text:
    STATE of Louisiana v. Charley BROWN, Jr.
    No. 67236.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re State of Louisiana applying for writs of certiorari, mandamus, and prohibition through the District Attorney, Harry F. Connick. Parish of Orleans. No. 275-335.

Writ granted.


text:
    STATE of Louisiana ex rel. Newman SANDERS v. CLERK OF COURTS, CRIMINAL DISTRICT COURT, PARISH OF LIVINGSTON, State of Louisiana.
    No. 67390.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Newman Sanders applying for writ of mandamus. Parish of Livingston. Number unknown.

Granted and transferred to District Court for action.


text:
    STATE of Louisiana ex rel. Roosevelt HALL v. 19TH JUDICIAL DISTRICT COURT, EAST BATON ROUGE PARISH.
    No. 67408.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Roosevelt Hall applying for writ of mandamus, 19th Judicial District Court. Parish of East Baton Rouge. No. 4-79-475.

Writ granted. The District Court is ordered to proceed with relator’s trial forthwith or release the relator.


text:
    Calvin A. REVERE v. Karen Hiller REVERE.
    No. 67434.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Karen Hiller Revere, applying for writs of mandamus, certiorari and prohibition. Parish of St. Tammany. 22nd Judicial District Court. No. 13,579.

Writ granted.


text:
    James C. CURTIS and Mary Beth Curtis, Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 67479.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Certification from the United States Court of Appeals for the Fifth Circuit. No. 79-3187.

This Court respectfully declines to answer the question certified.


text:
    Julius C. HATCHER v. DEPARTMENT OF HIGHWAYS, Madelon Bowman, et al.
    No. 67601.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Max Merrick Farms et al., applying for Writs of Certiorari, Prohibition and Mandamus. Parish of St. Landry. No. 77383-2.

Writ denied.


text:
    STATE of Louisiana ex rel. Richard S. HALVORSEN v. Frank BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67159.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Richard S. Halvorsen, applying for writs of mandamus, habeas corpus, remedial. Parish of Orleans. No. 259—430.

Granted. Restricted to validity of Count One.


text:
    SUCCESSION of Edward G. KOCH.
    No. 67543.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Martin R. Koch, applying for certio-rari, or writ, to the Court of Appeal, Fourth Circuit. Parish of Orleans. Civil District Court. No. 78-8021.

Writ denied.


text:
    OCEANIC CONTRACTORS, INC., et al. v. UNDERWRITERS AT LLOYD’S et al.
    No. 67594.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Geoffrey R.P.M. Valentine, etc., applying for writs of certiorari, prohibition and mandamus. Civil District Court. Parish of Orleans. No. 79-16598.

Denied.

BLANCHE and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Reuben TACKNO and Milton Armstead v. CLERK OF the COURT, CRIMINAL DISTRICT COURT, SECTION “G”, PARISH OF ORLEANS.
    No. 67307.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Reuben Tackno and Milton Arm-stead applying for writ of mandamus. Parish of Orleans. No. 249-185.

Dismissed on motion of relator.


text:
    STATE ex rel. Paul BILLIOT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65349.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Paul Billiot, applying for writ of habeas corpus. Parish of Jefferson. No. 113,816.

Writ denied.


text:
    STATE of Louisiana ex rel. Aaron DELANEY v. Hon. Isreal AUGUSTINE, Judge, Orleans Criminal Judicial District Court.
    No. 66496.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Aaron DeLaney, applying for writ of mandamus. Parish of Orleans. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Oscar GOINS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66819.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Oscar Goins, applying for remedial writs. Parish of Calcasieu. No. 7518-77.

Denied.


text:
    STATE of Louisiana ex rel. Tookie DAVALIE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67078.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Tookie Davalie applying for remedial writs to Orleans Parish. No. 235-759.

Writ denied.


text:
    STATE of Louisiana ex rel. Warren MASSEY v. JUDGE-CRIMINAL DISTRICT COURT, SECTION “E”.
    No. 67203.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Warren Massey applying for writ of mandamus. Parish of Orleans. No. 270-376.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Walter HOUSTON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67271.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Walter Houston applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Caddo. Number unknown.

Writ denied.


text:
    STATE of Louisiana ex rel. Ronald SMITH v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67281.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Ronald Smith applying for writ of certiorari, prohibition, mandamus or habeas corpus. Parish of Orleans. No. 245-462.

Writ denied.


text:
    STATE of Louisiana ex rel. Jessie HAWKINS, Jr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67319.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Jessie Hawkins, Jr. applying for writs of certiorari, prohibition, mandamus or habeas corpus. Parish of Ouachita. Number unknown.

For the reasons stated by the trial judge, the application is denied.


text:
    STATE of Louisiana v. George EAMES.
    No. 67347.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re George Eames applying for writ of certiorari. Parish of Concordia. No. 79-2389.

Denied.


text:
    McArthur JOHNSON v. Juanita B. JOHNSON.
    No. 67352.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re McArthur Johnson applying for remedial writs. Parish of Bossier. No. 52-260. 26th Judicial District Court.

Denied.


text:
    STATE of Louisiana ex rel. Clarence W. WALKER v. 26TH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER.
    No. 67380.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Clarence W. Walker, applying for writ of habeas corpus. Parish of Bossier. No. 46,674.

Denied.


text:
    STATE of Louisiana ex rel. George Henry LEE v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 67387.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re George Henry Lee applying for writ of mandamus. Parish of Madison. Number unknown.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Tracy LEWIS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67389.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Tracy Lewis applying for writ of certiorari. Parish of West Baton Rouge. No. 26-857.

Writ denied.


text:
    STATE of Louisiana ex rel. Clifford RYAN v. 14TH JUDICIAL DISTRICT COURT and C. Paul Phelps, Secretary, Louisiana Department of Corrections, et al.
    No. 67425.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Clifford Ryan applying for writs of mandamus and certiorari. Parish of Calca-sieu. No. 4089-73.

Denied; moot.


text:
    STATE of Louisiana v. Paul R. ROBBINS.
    No. 67575.
    Supreme Court of Louisiana.
    May 21, 1980.
   In re Paul R. Robbins, applying for remedial writs. Parish of Caddo. No. 114,015.

Writ denied.


text:
    STATE of Louisiana v. Thomas Ray JERNIGAN.
    No. 67213.
    Supreme Court of Louisiana.
    May 21, 1980.
   In re Thomas Ray Jernigan, applying for writs of certiorari, mandamus, prohibition and stay order. Parish Court, Parish of Ascension. No. 27,316.

Writ granted.


text:
    STATE of Louisiana ex rel. Wendell A. MARTIN v. Honorable Jerome C. WINSBERG, Judge,—Section C, Criminal District Court.
    No. 67617.
    Supreme Court of Louisiana.
    May 26, 1980.
   In re Wendell A. Martin applying for writ of habeas corpus, prohibition, mandamus, and stay order. Parish of Orleans.

Writ denied. Issue moot.


text:
    STATE of Louisiana v. Edward Charles MORRIS.
    No. 67675.
    Supreme Court of Louisiana.
    May 29, 1980.
   In re State of Louisiana, through the District Attorney Leonard Knapp, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Calca-sieu. No. 13,264-79.

Assuming the evidence sought to be adduced is a predicate for a ruling by the trial judge on the admissibility of evidence of character and threats of the victim, and that defendant will take the stand in the event of a favorable ruling on the predicate, writ denied.


text:
    STATE of Louisiana v. Louis MANGANO, Jr.
    No. 67679.
    Supreme Court of Louisiana.
    May 29, 1980.
   In re Louis Mangano, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 80-824.

Denied; trial judge has fixed new bond at $5,000.00.


author: GARRISON, Judge.

text:
    Charles S. TAYLOR v. ZETZ 7 UP BOTTLING COMPANY and Continental Insurance Company.
    No. 10704.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied June 20, 1980.
    Roberts & Katz, Bradford R. Roberts, II, New Orleans, for plaintiff-appellee.
    Christovich & Kearney, John T. Holmes, William K. Christovich, New Orleans, for defendants-appellants.
    Before SAMUEL, BOUTALL, and GARRISON, JJ.
   GARRISON, Judge.

Plaintiff-appellee Charles Taylor was injured in the scope of his employment with General Drayage Service, Inc. on February 7, 1973, when he was struck by a forklift operated by an employee of the Zetz-7UP Bottling Company. Mr. Taylor was making a delivery for General Drayage at the Zetz Bottling Company when the accident occurred. Within one year, Charles Taylor instituted suit for workmen’s compensation against his employer, General Drayage, and the employer’s workmen’s compensation insurer, American Casualty Co., in civil action number 568-064. American Casualty Co. filed a separate suit, number 568-032, against Zetz-7UP Bottling Co., the employer of the tortfeasor, and Continental Casualty Co., the insurer of Zetz.

In 1975 the compensation suit between Mr. Taylor and General Drayage was settled for $250.00, payment made on November 6th of that year. The pertinent parts of the settlement judgment number 568-064 between General Drayage and Charles Taylor reads as follows:

“. . . in favor of Charles E. Taylor and against General Drayage Service, Inc. and Continental Casualty Co., . in full settlement, compromise, and discharge of any and all liability which exists or might exist by General Drayage Service, Inc. and Continental Casualty Co. to Charles E. Taylor, whether by way of compensation, medical, surgical, or hospital expenses, damages, maintenance and cure, and all other amounts, if any, which might be due Charles E. Taylor by reason of the alleged accident of February 7, 1973, or any accident prior to the date hereof, whether the liability, if any, arises under the laws of the State of Louisiana, or of any State of the United States, or the laws of the United States, including the Jones Act and General Maritime Law, or the laws of any foreign nation.” (Emphasis Added.)

Counsel for plaintiff received the following letter dated June 26, 1975:

“Dear Brad:

As I told you at court, we had a subro-gation file arising from this accident. It was settled last April.
I enclose a copy of the Petition filed by American Casualty Company, bearing No. 568-032 in the Civil District Court.
Best of luck in yout third-party claim against Zetz-7UP.
Cordially,
/s/ Fritz Bott”

On August 28, 1975, American Casualty Co. filed the following motion and order dismissing its separate subrogation action, number 568-032, against Zetz and Continental Casualty Co.:

“On motion of American Casualty Co., plaintiff in the above entitled and numbered cause, through its undersigned counsel of record herein, and on suggesting to the Court that the above matter has been settled in full; that mover desires to dismiss the said cause, with prejudice at his costs; and that all costs and commissions due the Clerk of Court and the Sheriff have been paid as evidenced by the certificates of those officers annexed hereto and made a part of this motion;
IT IS ORDERED BY THE COURT, that the above entitled and numbered cause be and the same is hereby dismissed, with prejudice, at plaintiff’s costs.” Signed 8/28/75 (Emphasis added.)

The defendants compromised the claim of the compensation carrier, but chose not to obtain a release from Mr. Taylor. Subsequently, Mr. Taylor filed suit against Zetz-7UP and Continental Insurance Co. on November 13, 1975.

Defendants moved to dismiss the action pleading settlement. They further alleged that Mr. Taylor failed to intervene in the suit between American Casualty Co. and the defendants, causing prescription to run against the plaintiff. On October 15, 1976, the trial court rendered judgment denying defendant’s motion to dismiss.

After trial by jury, a verdict was granted in favor of plaintiff, awarding damages in the amount of $225,000.00. From that judgment, both defendants appeal.

Revised Statutes 23:1102 provides as follows:

“If either the employee or his dependent, or the employer, brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.” (Emphasis added.)

Defendant-appellant contends that the above quoted letter dated June 26, 1975 constituted notice for the purpose of R.S. 23:1102. We do not agree.

The letter spoke of a prior settlement some months earlier. Furthermore, it did not give notice of a right to intervene, nor was it provided timely. Under the statute, “forthwith” means “forthwith” and the party to be notified should receive that notification in time to file a timely intervention.

Defendant-appellee further contends that Mr. Taylor’s action against Zetz had prescribed at the time suit was filed, arguing that the previous case was a voluntary dismissal without prejudice under C.C. Art. 3519 so that the case should be treated as if it had never existed and no interruption of prescription had ever occurred.

Plaintiff argues that the absence of sufficient notice for purposes of intervention gives rise to the application of R.S. 9:5801 and that the prior case was dismissed with prejudice which interrupted prescription.

The dismissal by American Casualty Co. quoted above clearly states “with prejudice” so that R.S. 9:5801 would apply:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and venue . . . ” (Emphasis added)

We conclude, as did the trial court, that plaintiff’s case had not prescribed. Indeed, this result is required by the ruling of the Louisiana Supreme Court in National Surety Corp. v. Standard Accident Ins. Co., 247 La. 905, 175 So.2d 263 (1965):

“. . .it follows that any prescription applying to the filing of an intervention . was interrupted by the timely filing of suit by the employer’s insurer

Additionally, this outcome is mandated by the recent ruling of the Louisiana Supreme Court in Roche v. Big Moose Oil Field Truck Service, 381 So.2d 396 (1980).

In Big Moose, the court stated:

“One apparent purpose for preferring to require intervention of an employer or an employee into a lawsuit previously filed by the other is to prevent the third party tortfeasor from having to defend two separate lawsuits based on the same del-ictual and quantum facts. As suggested by the Court of Appeal another reason for allowing intervention is to protect the employer from losing his right to indemnification in the event of a lawsuit by the employee against the tortfeasor. While each of these is a valid purpose, neither is sufficient to require an employee, to whom the cause of action accrues under Article 2815 and who under R.S. 23:1101 has a tort claim, to intervene in an earlier filed action by the employer. It is the employee or his statutory beneficiaries who have suffered the full loss compensa-ble under Article 2315, not the employer. The employer’s right is only a statutory one under R.S. 23:1101 for reimbursement of compensation paid or payable out of the employee’s damage claim.” At 9-10. (Emphasis added.)

Defendant-appellant further specifies the following errors:

1. Plaintiff failed to prove total and permanent disability.

2. Testimony as to loss of future wages was prejudicial in the absence of a showing of permanent disability.

3. The judgment of the jury on liability was clearly erroneous as the plaintiff failed to prove his case by a preponderance of the evidence.

4. The judgment of the jury was clearly erroneous in that the evidence established that plaintiff was contributorily negligent.

5. The judgment of the jury relating the injury to the original accident was clearly erroneous.

6. The jury award was clearly erroneous.

Our review of the record indicates that the judgments of the jury were not manifestly erroneous on any of the specifications of error. As no manifest error occurred, we must affirm the findings of fact by the jury. Canter v. Koehring, Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Additionally, we find that the award of damages is clearly supported by the evidence and that the jury did not abuse its discretion. Accordingly we affirm the award given. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979).

For the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.


author: LABORDE, Judge.

text:
    CALVARY TABERNACLE, Plaintiff-Appellee, v. LOUISIANA CENTRAL BANK, Defendant-Appellant.
    No. 7543.
    Court of Appeal of Louisiana, Third Circuit.
    May 5, 1980.
    Rehearing Denied June 26, 1980.
    James H. Brown, Jr., Ferriday, and H. James Lossin, Jonesville, for defendant-appellant.
    William G. Avery, Jonesville, and Glenn B. Gremillion, Ferriday, for plaintiff-appel-lee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

Calvary Tabernacle filed suit against Louisiana Central Bank for restitution of the purchase price and cost of improvements due to a partial eviction from property purchased from the bank.

The trial court rendered judgment for the church for $1,000. From that judgment, the bank has appealed urging reversal of the trial judge, and the church has answered the appeal asking for an increase in the award.

The trial judge has set out the facts in a well written statement which we include here:

The Defendant has a mortgage on a two acre tract of land with building and improvements which it foreclosed on when the note secured by the mortgage was not paid. A one acre tract adjoined the two acre tract which was also owned by the Defendant’s mortgagor, but was not secured by the mortgage. It was, however, subject to a judgment held by a third party. A Sheriff’s sale was held on the Defendant’s foreclosure on it’s mortgage and the execution of the judgement on the same day. The Defendant bought the two acre tract at the Sheriff’s sale and the Plaintiff bought the one acre tract at that same sale. The one acre tract was sold first.
The mobile home, subject to this lawsuit, was located somewhere on either or both of the properties. The evidence taken at the trial does not show the precise location, but it apparently was located either entirely on the one acre tract or on the one acre tract and slightly on the two acre tract. The best evidence is that it was located on the one acre tract.
The mobile home was not described in the Defendant’s mortgage, but the Defendant’s attorney furnished a description of the property to be seized to the Sheriff. This description does include the mobile home and was the property described in the advertisement of the Sheriff’s sale. There were other mobile homes definitely on the two acre tract. The Defendant’s attorney and the Plaintiff’s representative were at the two sales at the same time. The attorney announced to the public that the Sheriff’s sale of the two acre tract foreclosed by the Bank would not include the mobile home in spite of the description contained in the advertisement. Some argument was made by the Defendant’s attorney that the wording of the description was intended to exclude this particular mobile home.
The Plaintiff’s representative, it’s pastor, also took the position at the Sheriff’s sale that the mobile home was located on the one acre tract and that it had been in fact purchased by him when he purchased the one acre tract at the Sheriff’s sale of that tract, which had occured prior to the sale of the two acre tract. When the two acre tract came up for sale, he was making that position known. That is stating that he had purchased the mobile home with the one acre tract.
The Plaintiff had been negotiating with the Defendant to buy the two acre tract and shortly after the Sheriff’s sale a price was agreed upon. The Plaintiff and it’s attorney met with the President of the Defendant Bank and reached an agreement on the price. At that time the Plaintiff was insistent that the Bank convey all of the property described in it’s advertisement. It was agreed that the Plaintiff’s attorney would prepare the act of sale and that the Defendant would see about the necessary corporate resolution.
Thereafter, the Plaintiff brought the act of sale to the Defendant Bank to consúmate the agreement. The document conveying the two acre tract also described the mobile home by serial number and title was warranted in the act of sale. The real question in this case is to whether or not it was the intent of the parties that the title of the mobile home be warranted or that the Bank was simply conveying any interest it might have in the property because of the fact that the advertised description might have included the mobile home.
The resolution of the Bank under which it’s officer, Hobson, was to function, did not specifically describe the mobile home, although Hobson was given full general authority to act with respect of execution of an act of sale. This omission was noted by the Plaintiff’s representative who pointed it out to Hobson. Hobson did not know what action to take, but the Bank had taken the position that it did not own the trailer and could not convey it. Plaintiff’s representative insisted that the act of sale include the mobile home, according to Hobson, for his peace of mind. Hobson attempted to locate his attorney but, after failing to locate him or any other Bank official, Hobson simply had his secretary type the description of the mobile home in the corporate resolution. There is no evidence that this action was ever ratified by the Defendand Bank through it’s Board of Directors.
Plaintiff and Hobson completed the transaction and the Plaintiff took possession of the property, including the mobile home. Approximately $1,000.00 was spent on improving the mobile home.
Shortly thereafter the mobile home was seized by the Sheriff under a foreclosure by the holder of the first chattel mortgage. By letter, the Plaintiff notified the Defendant and asked it to take action to comply with it’s warranty of title. The Defendant replied by letter denying that it had sold the mobile home to Plaintiff and denying that Defendant had ever owned it. Neither party did anything further and the mobile home was eventually sold by the Sheriff and moved from the premises.

The pertinent issues on appeal are first, whether the amended answer on the day of trial was properly allowed; second, whether parol evidence was admissible; and third, what is the proper measure of damages. All other issues briefed by appellant and appellee are factual issues which we are not able to review and therefore are not under consideration.

Art. 1151 of the Code of Civil Procedure provides in part:

A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.

Defendant has amended its answer twice. The second amendment was offered the morning of trial and included an allegation of mutual error. Appellee has argued in its brief that the second amendment was improperly allowed. The standard by which we must review the granting of leave to amend is whether or not the trial judge abused his discretion. Brooks v. Fondren, 199 So.2d 588 (La.App. 3rd Cir. 1967); Wallace v. Hanover Insurance Company of New York, 164 So.2d 111 (La.App. 1st Cir. 1964).

The trial judge, in holding that the amendment is permitted, notes that he was influenced by Judge Albert Tate, Jr., in his writing on the subject. In his article, Judge Tate says, “In permitting amendment or not, the most important consideration is whether the opponent is unfairly prejudiced.” In Wallace v. Hanover Insurance Company of New York, supra at p. 120, the court held that it was an abuse of discretion to allow an amendment where the other party did not have adequate time to prepare to meet the new issue or defense. The court there suggests that prejudice may be cured by a continuance. Judge Tate comments that the curative effect of a continuance must be balanced. against the prejudice caused by the delay, expense and confusion of a continuance. These factors, he suggests, “may outweigh the merit-justice interests which favor it [amendment].”

The trial judge in the instant case noted that the issue of error had been raised earlier through the first amended answer such that plaintiff should be on notice that defendant was raising that defense. He also noted that plaintiff did not request a continuance. We also note that LSA-C. C.P. Art. 1154 provides in part:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

We cannot find that the trial judge abused his discretion in allowing the defendant’s amendment alleging error.

Allegations in pleadings of error and fraud have long been held necessary by our courts to permit the introduction of parol evidence to modify or abrogate an authentic act. Nugent v. Stanley, 336 So.2d 1058 (La.App. 3rd Cir. 1976); Gulf States Finance Corp. v. Airline Auto Sales Inc., 248 La. 591, 181 So.2d 36 (1965); Baker v. Baker, 209 La. 1041, 26 So.2d 132 (1946). It is well settled that parol evidence is admissible to prove error. National Company v. Harper Aviation, Inc., 146 So.2d 13 (La.App. 4th Cir. 1962); Baker v. Baker, supra; Le Bleu v. Savoie, 109 La. 680, 33 So. 729 (1903).

The trial judge held that:

The description and inclusion of the mobile home was done at the Plaintiff’s request by way of a quit claim and that there was no intent by either party that the Bank warrant title to the mobile home. Apparently the Plaintiff was fearful that the Bank would make some claim to the mobile home because of the fact that it had included it in the advertisement, although the advertisement was repudiated orally at the Sheriff’s sale. By inclusion of the mobile home in the deed, the Plaintiff did obtain this protection fromthe Bank. The error and mistake involved was the inclusion of the mobile home within the warranty of the deed prepared by the Plaintiff. This was error because it contradicted Plaintiff’s position that it already owned the trailer. Request of warranty from the Defendant would acknowledge Defendant’s title, which Plaintiff did not wish to do. The resolution prepared by Defendant did not cover the mobile home.

As we noted before, we cannot review his conclusions except upon the facts recited by him. Based on those facts, we do not find manifest error such that we must reverse. Canter v. Koehring Co., 283 So.2d 716 (1973); Arceneaux v. Dominique, 365 So.2d 1330 (1978).

The trial judge awarded damages to plaintiff in the sum of $1,000 for repairs or improvements. He based his decision on “substantial justice” and his finding that defendant had contributed to the error. It appears that the trial judge resorted to Art. 21 of the Civil Code for an equitable remedy. We disagree.

From the factual findings we note that:

1. the plaintiff took the position that it had acquired the mobile home at the sheriff’s sale;
2. the trial judge concluded that price paid by plaintiff did not include the mobile home; and
3. the plaintiff knew the questionable status of the mobile home.

We believe that Civil Code Article 2505 applies. It provides:

Art. 2505. Restitution of price in case of eviction, exception. Even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of the eviction, and purchased at his peril and risk.

On the basis of the factual findings and the application of Article 2505, nothing would be due the plaintiff. The defendant did not contribute to any loss suffered by the plaintiff either through the improvements made to the mobile home or by the fact that a third party had greater rights in the mobile home than the plaintiff.

For these reasons, the judgment of the trial court in favor of plaintiff is reversed and judgment is hereby entered in favor of defendant dismissing plaintiff’s suit. Costs of this appeal are assessed against plaintiff-appellee.

REVERSED AND RENDERED.

      .The record before us does not contain either a transcript of testimony or a narrative of the facts. Therefore, we are unable to review the trial judge’s factual determinations and must assume that his determinations are supported by sufficient, competent evidence. Gulling v. E. I. DuPont de Nemours and Company, 228 So.2d 750 (La.App. 4th Cir. 1969); Hutcherson v. Welch, 316 So.2d 144 (La.App. 2nd Cir. 1975); Succession of Walker, 288 So.2d 328 (1974).

      . Tate, “Amendment of Pleadings in Louisiana,” 43 Tuiane Law Review 211 (1969).

      . Tate, supra at p. 219.


author: SAMUEL, Judge.

text:
    Charles P. BILQUIST v. KAISER ALUMINUM AND CHEMICAL CORPORATION and Robert Stockstill.
    No. 10442.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 3, 1980.
    R. Ray Orrill, Jr., New Orleans, for plaintiff-appellant.
    Taylor, Porter, Brooks & Phillips, Baton Rouge, W. S. McKenzie, for Kaiser Aluminum and Chemical Corporation, defendant-appellee.
    Kizer & Kizer, Roland C. Kizer, Jr., Allen Boudreaux, Baton Rouge, for Robert Stockstill, defendant-appellee.
    Before SAMUEL, SCHOTT and CHE-HARDY, JJ.
   SAMUEL, Judge.

Plaintiff, Charles P. Bilquist, filed this suit against Kaiser Aluminum & Chemical Corporation and Robert Stockstill to recover damages sustained by him as a result of an electrical shock. At the time of the incident of which plaintiff complains he was employed by Kraft Corporation, which was performing work for Kaiser Aluminum at its plant in Gramercy, Louisiana. Defendant Stockstill was Kraft’s general superintendent and plaintiff sued him as an executive officer since the incident occurred prior to the 1976 amendment to R.S. 23:1032 which generally prohibited such actions.

Defendants answered, denying liability. After a trial on the merits, judgment was rendered in favor of both defendants dismissing plaintiff’s suit. Plaintiff has appealed.

On March 11, 1976 plaintiff was working for Kraft Corporation as a pipefitter at Kaiser’s Gramercy plant. At the time of his injury he was assigned to the “brine treatment area” at the plant. At Stocks-till’s request other members of plaintiff’s pipefitting gang had set up an electrical welding machine in the brine treatment area. This machine was plugged into a 277 volt outlet in a Kaiser electrical receptacle located in that area.

The welding machine did not function properly, and when this fact was reported to plaintiff, he investigated in an attempt to ascertain the malfunction in the machine.

At the time of the accident, the brine treatment area was covered with a white substance formed by the salt solution, and testimony was introduced to indicate that this salty substance was a good conductor of electricity. Plaintiff contends defendants were guilty of negligence by failing to warn him of this condition. Plaintiff also contends, among other things, that his supervisor was guilty of negligence by not furnishing him with rubber boots to insulate him from shock, and that the defendants were guilty for failing to provide safety instructions of an adequate nature to warn employees of the dangers inherent in the area.

Defendants, on the other hand, argue that plaintiff was aware that something was wrong with the electrical welder, that he also knew it was dangerous to handle energized electrical equipment in an area of moisture, and that he easily could have avoided the shock by simply manipulating an on-off switch which Kaiser had installed in the electrical receptacle so that it could be de-energized while being handled.

The trial judge held for defendants on the basis of plaintiff’s contributory negligence. On plaintiff’s motion for a new trial, the judge summarized his findings as follows:

“He knew there was something wrong. He knew he was dealing with a dangerous substance, electricity. And there was the switch right in front of his eyes. All he had to do was put it off.”

We agree with the factual findings of the trial judge. Plaintiff attempted to “jiggle” the electrical plug in an effort to ascertain whether malfunction was occurring in the welding machine or in the plug itself. He was aware that an electrical problem of some nature had occurred. Plaintiff also admitted he was aware of dangers inherent in dealing with electricity. The box into which the machine had been plugged was provided with a safety switch so that it could have been deactivated prior to plaintiff’s handling the plug. He ignored this safety precaution, but instead grasped the plug, came into contact with an uninsulated portion of the cord, and was shocked. All plaintiff had to do to determine whether the plug was defective, and would operate if placed in a different position, was to switch the electrical receptacle to the “off” position, manipulate the plug, and then re-energize the receptacle by flipping a switch.

We conclude, as did the trial judge, that plaintiff’s injuries resulted directly from his own negligence in failing to exercise reasonable precautions for his own safety. We consequently need not explore the various theories set forth by plaintiff to establish negligence on the part of the defendants.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Plaintiff had been the first pipefitter hired from the union hall by defendant Stockstill, and under union rules he received foreman’s pay and had the duties of relaying orders from the general superintendent to the other members of his pipefitting gang.

      . There is conflict regarding the nature of the shock. Plaintiff contends he was grounded by standing in the wet brine solution and the electrical current passed through his entire body. As the only brine on plaintiffs body was located on his hand, defendants contend that his standing in the brine solution is immaterial because electrical current only passed from his hand into the metal plug which itself was grounded by being plugged into the Kaiser electrical receptacle. In view of our holding it is not necessary to make a finding on this question.


author:
SAMUEL, Judge.
      LEMMON, Judge, concurring.

text:
    MARYLAND CASUALTY COMPANY v. Don TRAHAN d/b/a Trahan Texaco Service Station and the Travelers’ Insurance Company.
    No. 10671.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 3, 1980.

      Francipane, Regan & St. Peé, Albert C. Miranda, Metairie, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John G. Gomila, Jr., New Orleans, for Don Trahan d/b/a Trahan Texaco Service Station, defendant-appellee.
    James J. Morse and Grayson H. Brown, New Orleans, for Travelers Ins. Co., defendant-appellant.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   SAMUEL, Judge.

Plaintiff, Maryland Casualty Company, filed this suit against defendants, Don Tra-han, d/b/a Trahan Texaco Service Station, and Travelers Insurance Company, Trahan’s insurer, seeking to recover as subrogee of its insured the amount of $3,434.22 paid by it as a result of the theft of its insured’s 1974 Chevrolet Camaro automobile stolen from Trahan’s service station on October 26, 1977.

The defendants answered, denying liability. In addition, Travelers denied coverage for the loss, relying on an exclusion in their garage keeper’s liability coverage for thefts by employees.

Trahan filed a third party demand against Travelers for indemnification and cost of defense.

After a trial on the merits, judgment was rendered in favor of plaintiff and against Trahan and Travelers solidarily for $3,434.22. The court also rendered judgment in favor of Trahan and against Travelers for indemnification. Travelers has prosecuted this appeal.

The primary issue presented is whether the trial court applied the proper burden of proof and whether the trial court committed error by failing to hold the automobile was stolen by an employee of defendant Trahan.

The record reflects that on October 25, 1977, Trahan hired a service station attendant to work for him named Terrance Vaughn. The only information Trahan obtained when he hired Vaughn was his name and telephone number. Trahan did not obtain references or other personal information.

During the middle of the night on October 26, 1977, a Chevrolet Camaro owned by plaintiff’s insured was stolen from the station. Vaughn, who had custody of the service station from 10 p. m. until 8 a. m. the next morning, left the service station that night and has never returned. The next morning, Trahan found a note which indicated in part that a “lady” had come to the station to pick up the Camaro. In fact, the defendant’s insured had not retrieved the Camaro from the service station that night. It was later found at a service station in Mississippi, after having been unclaimed for some time.

Travelers contends that Terrance Vaughn was an assumed name used by Jessie Nesby. When Trahan called the telephone number given him by Vaughn, he spoke with a woman named Lena Barnes. Lena Barnes is Nesby’s mother. Lena Barnes testified that on the night of the theft her son was working at a service station. He came home early saying he was not feeling well. He then went out to mail a letter and did not return. She further testified that after the theft, a man from Trahan’s Texaco called asking for Terrance Vaughn. She informed the caller she did not know a Terrance Vaughn, but that she had a son named Jessie Nesby, who worked there. She told Trahan she had not seen Jessie Nesby since he left that morning.

The operator of the service station in Mississippi who recovered the stolen vehicle was unable to identify the man who brought the vehicle to his station. Moreover, Trahan was unable to identify a picture of Nesby as being the same person whom he hired under the name of Terrance Vaughn. The handwriting on the note found by Trahan the next morning has not been identified.

Travelers argues the trial judge did not apply the correct burden of proof. However, the standard expressly applied by the trial judge was whether Travelers had established its defense by a preponderance of the evidence that the theft of the vehicle was committed by Trahan’s employee.

Ironically, Travelers cites Ned v. Hertz Corp. and Jordan v. Travelers Insurance Company, as authority for the proposition that the trial judge applied the wrong burden of proof. However, both of these cases stand for the proposition that the burden of proof in a civil case is by a preponderance of the evidence and that a preponderance exists when the proof taken as a whole shows that the fact or causation sought to be proved is more probable than not.

Since the record clearly shows that the trial judge applied the burden of proof which Travelers now claims he should have applied, we conclude that Travelers’ first specification of error is without merit.

Travelers also contends the trial court committed error by not finding the Camaro was stolen by Trahan’s employee. Travelers advances three main arguments to justify this contention.

First, it contends it proved that Vaughn and Nesby are the same person. It cites as evidence of this fact that the telephone number given Trahan by Vaughn and that of Nesby’s mother are identical. Travelers also argues Nesby’s sister received letters addressed to Vaughn, but Nesby’s sister denies knowing anyone named Vaughn. Further, it contends Trahan identified the photograph of Nesby as that of Vaughn. However, the record indicates Trahan was not in fact able to make such identification, apparently because of the short length of time he knew Vaughn and the approximate year which intervened between the theft and the request for identification. Travelers argues the existence of the note left the night of Vaughn’s disappearance is evidence of the fact that he stole the Camaro. However, the handwriting of the note was never identified, and this presents little evidence to show that Vaughn in fact did commit the theft.

Second, Travelers argues that flight represents an admission of guilt. However, Travelers never proved that Nesby fled in connection with the theft. Nesby in fact left home on the night of the theft and did not return for approximately one month. However, the operator of the service station in Mississippi where the stolen vehicle was eventually abandoned could not identify the person who left the vehicle at his station, and stated he could not identify him in the future.

Third, Travelers argues that since the thief did not take all or any of the money in the cash register that night, such fact provides additional evidence to support the contention that Vaughn is the thief. Travelers theory, which we do not totally comprehend, is that by leaving some money in the cash register, the thief intended to “reduce the possibility of an all points bulletin being put out for him”.

The evidence offered at the trial by Travelers is, by its own admission, circumstantial in nature. Since it based its case on circumstantial evidence, its case must fail unless the circumstances lead to the exclusion of other reasonable hypotheses with a fair amount of certainty.

We conclude the circumstantial evidence advanced by Travelers does not exclude other reasonable hypotheses with a fair amount of certainty. One such alternate hypothesis advanced by Trahan is that the record shows Vaughn drove an automobile to work on the evening in question and that he was informed by the mechanic on duty that he had not finished working on the Camaro and it was not ready to be delivered to its owner. Trahan offers the hypothesis that if Vaughn were to steal an automobile from Trahan’s premises, he would have been less likely to take one in a partially assembled condition than one more driveable. Further, Trahan suggests that it is equally likely that he did not take any vehicle at all since he drove to work in his own vehicle, but rather the most reasonable probability from the evidence produced at trial is that during the period while the station was unattended, someone other than Vaughn stole the vehicle not knowing that the repairs had not been completed. That individual, or someone to whom the thief transferred the vehicle, left the car in Mississippi and never returned to retrieve it.

We are of the opinion that the circumstantial evidence produced by Travelers in support of its defense does not exclude all other reasonable hypotheses.

The trial judge obviously was faced with much conflicting evidence from which inferences of fact by necessity had to be drawn or rejected. It is well settled that on appellate review, findings of fact indicate such issues should not be disturbed in the absence of manifest error. On the contrary, the reviewing court must afford great weight to factual conclusions of the trier of fact; and where there is conflict in the testimony, reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court might feel that its own evaluations and inferences are reasonable.

Having reviewed the evidence rendered in the trial court, we are of the opinion that the trial judge did not commit error in finding as he did. The evidence, at best circumstantial, leaves much to be desired, and our own independent evaluation indicates that the trial judge’s evaluation is not subject to being altered on appeal.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge, concurring.

The overall evidence, direct and circumstantial, established it was more probable than not that the person who identified himself to Trahan as Terrance Vaughn was Jessie Nesby. Trahan contacted the person to hire him by telephone at the residence of Jessie Nesby’s mother and sister; Nesby’s sister received mail (bills) at that residence addressed to Terrance Vaughn; and the investigating officer quoted Trahan, upon viewing Nesby’s photograph on the morning following the theft, as stating Nesby “did appear to be the same subject that he knew as Terrance Vaughn”, noting Trahan declined to charge Nesby with theft because there were no witnesses to link Nesby with the money missing from the station.

The overall evidence, however, does not establish it was more probable than not that Nesby (Vaughn) stole the automobile from the station. He drove a car to work that night (according to the employee he relieved). The car in question was partially disassembled, and the employee he relieved informed him the car was not ready for pick-up. Moreover, there were numerous other cars at the station with keys in the ignition switch. And the station was left unattended most of the night, during which time many people helped themselves to gas. Under these overall circumstances it is at least equally probable that someone other than Nesby (Trahan) stole the car.

Plaintiff (subrogee of the insured) has proved general coverage under the policy, but the insured has failed to bear its burden of proving the exclusion from coverage based on theft by an employee of the insured.

      . La.App., 356 So.2d 1074, and 257 La. 995, 245 So.2d 151.

      . See Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395; Fogleman v. Piggly Wiggly Operators Warehouse, Inc., La.App., 347 So.2d 75; A & M Pest Control Serv. v. Fejta Const. Co., La.App., 338 So.2d 946.

      . See Canter v. Koehring Company, La., 283 So.2d 716; First Nat. Bank of Commerce v. Davis, La.App., 365 So.2d 8.

      . At that point in the investigation Trahan had not yet discovered the automobile was missing.


author: GULOTTA, Judge.

text:
    Diane McShea MAHMUD, Wife of Mahmud S. Mahmud v. Mahmud S. MAHMUD.
    No. 11039.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 3, 1980.

      William J. O’Hara, III, Susan Adams, Law Student, New Orleans, for plaintiff-appellant.
    Girard J. Fernandez, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   GULOTTA, Judge.

Diane McShea Mahmud appeals from the judgment dismissing her suit for separation from bed and board based on grounds of cruelty and from the granting of a judgment of separation in favor of her husband, in reconvention, based on grounds of abandonment. The evidence supports the dismissal of the wife’s claim based on cruelty; however, it does not support the proof required for a judgment against the wife based on the husband’s claim of abandonment.

DISMISSAL OF SEPARATION BASED ON CRUELTY

It is clear from a reading of the record that there exist irreconcilable differences between the parties created, to a large extent, by the different cultural backgrounds of the wife, a native of the United States, and the husband, a native of Tripoli, Libya.

The plaintiff-wife’s assertions (that her husband pursued a course of mental harassment and cruelty, including unprovoked outbursts of violent temper; absolute non-communication for no apparent reason; absence of all conjugal relations for a period of six months prior to the separation, caused by the husband; that the husband failed to adequately contribute to absolute essentials, although financially able to do so; that humiliation resulting from defendant’s cold and indifferent attitude reduced plaintiff to the status of a maid) simply have not been proven by her.

Despite the wife’s complaint of sparsity of furniture and of the husband’s unreasonable frugality, it is uncontradicted that $200 per month from the wife’s earnings was contributed to the support of her mother. Undisputed also is the fact that $7,000 was contributed by defendant toward the purchase of a house for plaintiff’s mother. Defendant was earning approximately $50,000 per year and apparently the wife’s earnings approximated $8,000 per year. She testified that of that amount, $200 monthly was sent to her mother and the balance was spent on clothes, cigarettes and movies for the child. The husband’s earnings were used to maintain the $76,000 home purchased by the parties.

The Mahmuds separated on May 25,1978, when plaintiff left the family home. Her suit for separation was filed on May 26, 1978. Mrs. Mahmud testified that for reasons unclear in the record, in November 1977 she left her husband’s bedroom and moved into another room in the house, and has not slept with him from that date until the present, despite his request to return. Although she stated that lack of communication existed between them, it is apparent that different religious beliefs relating to holiday celebrations and expenditure of money for house furnishings, and other different religious and cultural beliefs, were the strongest facts contributing to the marital discord. She failed to specify any particular dates of unprovoked outbursts of violence on the part of her husband. Her assertions in her testimony, like her allegations in the petition, are general in nature.

Although one of her strongest complaints was that her husband failed to celebrate Christmas, she did acknowledge that on one of the Christmas holidays when they were together, he purchased bikes for her and the child, and they enjoyed a Christmas dinner with his brother and family at the family home. In connection with the allegations of alleged cruel treatment, as occurs in most marital cases, the husband denied assertions that he was cruel to his wife or exhibited unprovoked bursts of violent temper. While acknowledging that he was not sympathetic toward the purchase of Christmas presents for others for this religious holiday, he could not understand how his wife could expect him to recognize her holidays and she not recognize his. He also complained of the lack of communication but explained that monetary and furniture problems become irrelevant when there exists no “conjugal relationship” and there is disharmony in the home. Considering the testimony of the parties relative to the husband’s alleged cruel treatment, we agree with the trial judge that there exists insufficient evidence to support the granting of a separation from bed and board in favor of the wife, on the grounds of cruelty.

PROOF OF ABANDONMENT

The comparatively recent case of Bergeron v. Bergeron, 372 So.2d 731 (La. App. 4th Cir. 1979), a case similar to the instant one, stated that the essential elements of proof of abandonment under LSA-C.C. article 143 require a showing of (1) withdrawal from the common dwelling, (2) absence of lawful cause for withdrawal, and (3) refusal of the spouse who withdrew to return to live with the other. We pointed out further in that opinion that this problem typically arises when one spouse sues for separation based on fault and a reconventional demand is filed based on abandonment. As we stated in Bergeron, the spouse initiating the suit based on cruelty does not automatically lose the reconven-tional demand if that spouse cannot produce sufficient proof of cruel treatment. The party seeking a separation based on abandonment has the burden of proof, either in the original demand or on the demand in reconvention, of the three requirements as set forth in LSA-C.C. article 143. See Bergeron v. Bergeron, supra. See also Anderson v. Anderson, 379 So.2d 795 (La. App. 4th Cir. 1979) to the same effect.

In our case it is clear that the wife withdrew from the family home on May 25, 1978. It is also clear that the husband established, by a preponderance of the evidence, that the wife’s constant refusal to return to the common dwelling established that her decision to leave was permanent. In this connection, the husband testified that her leaving on May 25th was followed by the filing of her separation suit on May 26th, the following day. When he arrived home on the evening of the 25th the wife had left, and he found a message which read, “We are leaving for good. . Good-bye.” According to Mahmud, he didn’t know where his wife had gone, but he recalled that this was not the first time she had abandoned the family dwelling and left similar notes. He stated that on another occasion his wife had left him and remained away from 1974 to 1977.

Mrs. Mahmud admitted that between the time of her marriage in 1970 until she left the matrimonial domicile on May 25, 1978, she had voluntarily lived away from the home of her husband more than “half the time”. Acknowledging the existence of problems, she stated on the occasions that she left she went home to live with her mother. According to Mrs. Mahmud, on May 25, 1978 she did not leave the family home voluntarily but was forced to leave because she did not want to live with anyone who did not love her.

It is apparent that the marital discord resulted in separations between the parties for extended periods of time. It is apparent also that from the marital history of the parties, they resumed living together following these separations. However, the deep-rooted irreconcilable differences were such that living together became intolerable for both parties. Under these circumstances, we cannot conclude that a party who leaves or withdraws from the matrimonial domicile is without lawful cause.

Although we have concluded that Mrs. Mahmud failed to establish grounds for separation based on cruelty, we conclude also the husband failed to establish that the wife’s leaving of the matrimonial domicile was without “lawful cause.” Having so concluded, we reverse that part of the judgment which grants a separation to the husband based on the wife’s abandonment.

Accordingly, that part of the judgment which dismisses the wife’s claim for a separation from bed and board, based on the husband’s cruelty, is affirmed. That part of the judgment which grants a separation in favor of the husband, and against the wife, on the grounds of abandonment, is reversed and set aside. Costs are to be divided equally between the parties.

AFFIRMED IN PART AND REVERSED IN PART.


author: BOUTALL, Judge.

text:
    EXXON CORPORATION v. Denis A. BARRY, Richard J. Garvey, Alvin Pierce, James Hotard, James Maher, Jr., Robert J. Coffin, Jules V. Gaffney, J. M. Fried, Jr. and Raymond L. Sievert.
    No. 11056.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Francis J. Mooney, Jr., Eugene M. McEachin, Jr., Curtis, Hyde, Mooney & McEachin, New Orleans, for Exxon Corp., plaintiff-defendant in reconvention.
    Nathan T. Gisclair, Jr., of Montgomery, Barnett, Brown & Read, New Orleans, for Denis A. Barry, et al., defendants-appel-lees.
    Before BOUTALL, GARRISON and CHEHARDY, JJ.
   BOUTALL, Judge.

Exxon Corporation filed suit against Denis A. Barry and other owners of a seven acre tract of ground seeking specific performance of an agreement to establish a servitude upon a portion of the tract measuring 30 feet by 6 feet for the purpose of erecting and maintaining a modular sign. The defendants reconvened for a declaratory judgment decreeing that the agreement is unenforceable as a matter of Louisiana law. Nearly all of the evidence was stipulated and the trial court rendered two judgments in favor of defendants, one dismissing plaintiff’s suit and one maintaining defendants reconventional demand declaring that the agreement is unenforceable. From these judgments Exxon Corporation has appealed.

The issues in this case revolve around an agreement between Humble Oil & Refining Company (Exxon’s predecessor) and HSL Corporation, (the defendants’ predecessor in title) dated March 29, 1968. The heart of that agreement reads as follows:

“1. Upon written request from Grantee, Grantor will execute an appropriate instrument granting a servitude measuring 30 feet in length by 6 feet in width upon the southwesterly corner of Lot l-A-3, together with ingress and egress thereto. Said servitude being for the purpose of erecting and maintaining modular signs upon the said servitude area.”

The agreement referred to prior agreements between the parties in which HSL Corporation had agreed to sell Humble two parcels of ground and in which the seller agreed to execute a servitude agreement for each parcel the pertinent one being a “servitude measuring 30 feet in length by 6 feet in width upon the southwesterly portion of Parcel 2-A * * * to be located at a precise point mutually agreed to by the parties hereto.” Although there is some issue raised as to the change in apparent location from southwesterly portion to southwesterly corner and a change in lot designation, we see no need to consider these matters because the present owners assumed the obligations expressed in the later agreement of March 29,1968, and it is the terms of that agreement which are controlling of the issues here.

Some time after the March 29, 1968 agreement, HSL Corporation sold the tract in question to others, and eventually ownership passed into the hands of the present owners, all of whom took title subject to that agreement. Exxon eventually made demand upon these owners requesting that they execute a grant of servitude in accordance with a Survey of Sign Sight Servitude dated March 16, 1978 made by John D. Luecke, Surveyor. That proposed servitude was located in the southeasterly corner of the property. At trial it was conceded that plaintiff was aware that the proposed servitude was located in the southeasterly corner and not the southwesterly corner, but it was explained that this proposal was made because it was conceived that that location would be less objectionable to defendants, and that it was immediately adjacent to a New Orleans Public Service servitude from which electricity could be drawn to service the sign, without further disturbing the defendants’ plans for development. Plaintiff does not contend for the establishment of the servitude in that location, but contends for specific performance by location of the servitude in the southwesterly corner. In order to understand the problems confronting the parties, we reproduce a copy of the survey which shows the tract of ground to be quite irregular along its southerly and westerly lines because it runs along the perimeter of the right of way of the interchange of Highway I — 10 and Bullard Road. A simple examination of the tract survey shows a series of lines along the southerly and, westerly sides of the property, forming a series of intersections which could be considered to be corners.

[See following illustration.]

In an effort to show the identity of the southwesterly corner referred to in the agreement, plaintiff offered the testimony of the surveyor to show that only one of these intersections could properly be classified as the southwesterly corner. He testified that he used a method whereby he located a median north-south line of this irregular property, and then similarly located an east-west line. At the intersection of these two lines he concluded was the midpoint of the property and running a line in a southwesterly direction from the midpoint he concluded that the intersection of property lines close to that line was the southwesterly corner. On cross-examination however he admitted that there were three possible corners within the southwesterly quadrant which he had formed, and further that there were other methods by which a southwesterly corner could be arrived at. We find quite revealing his testimony that when he was first approached to locate the servitude that he could not decide exactly where to place it because of the ambiguities in the agreement, and so he consulted with plaintiff’s attorney who informed him that the best place to put it would be in the southeast corner location. He was later asked to determine the southwest corner for placement of the servitude, which he did in the manner above referred to. However he testified that he still could not place the servitude in the location which he found to be the southwest corner because he could not tell whether it would be on the northern side or the south side of the southwest line, nor could he tell whether the 30 foot dimension or the 6 foot dimension should be the proper frontage, nor which roadway to run it along.

Considering this testimony, along with all of the evidence in the case, it is apparent that the trial judge concluded that the agreement in question was vague, indefinite and ambiguous. In considering these ambiguities, it is apparent that the trial court was faced with so many uncertainties as to location that specific performance, i. e. the precise location of the servitude, was not available as a remedy to plaintiffs.

In City of New Orleans v. New Orleans and N. E. R. Company, 10 So. 401, 44 La. Ann. 64 (1892), the Supreme Court stated that specific performance cannot be demanded as an absolute right, as it rests largely on the discretion of the court, nor can it be granted unless the contract is fixed in its terms, and the liability of the defendant is so certain that the duty imposed upon him by the court in ordering specific performance can be readily ascertained and executed. To the same effect are Kaplan v. Whitworth, 40 So. 723, 116 La. 337 (1906); Snyder v. Wilder, 84 So. 104, 146 La. 811 (1920); and Tri-State Transit Company of Louisiana v. Sunshine Bus Lines, 160 So. 411, 181 La. 79 (1935).

In order for specific performance to lie, the courts have required that specific description of the property about which specific performance is compelled must be given in the instrument or document giving rise to the action. Thus, specific performance was refused with respect to a contract for the purchase of a vehicle where the type of car was not specified in the contract. See Brown v. United Motor Car Company, 120 So. 264, 11 La.App. 84 (1929). Similarly, specific performance was refused when the contract called for the sale of property in which the property description was inadequate. Whitaker v. Newburger, 45 So. 264, 120 La. 324 (1908). Conversely, we have been referred to the case of Sailers v. Stafford, Derbes & Roy, 173 La. 361, 137 So. 62 (1931) in which the Supreme Court upheld a bond for deed contract which contained some uncertainty as to property descriptions. We would distinguish that case noting that therein the object of the contract was for 10 lots of ground within a certain square, which were subject to change in location by the parties. The court in that case pointed out that the square had been sub-divided, and that the position, boundaries, and measurements of the square were fixed and the size and shape of the lots were specified. In the present case, neither the position nor the location of the servitude are fixed. Factually, this case lacks the specificity present in Sailers. Accordingly, we conclude that the trial judge was correct in denying plaintiff’s demand for specific performance.

The reconventional demand goes beyond the question of whether specific performance may be had, and seeks a declaration that the agreement is unenforceable. Accordingly, we further direct our inquiry into the precise nature of the agreement in question. As we see it, the agreement does not grant a servitude per se, rather it involves the attempted enforcement of an agreement for the future establishment of a servitude. The defendant’s obligation is to “execute an appropriate instrument granting a servitude” and the document itself does not establish a servitude. If it had established a servitude, then this case would simply be a matter of enforcing the provisions of Civil Code Article 750 (reproducing the substance of former Article 779) which requires the owner of a servient estate to designate the location where the title does not specify the location of the servitude.

Instead we apply the provisions of Civil Code Article 730 (former Article 753) which provides: “doubt as to the existence, extent, or manner of exercise of the predial servitude shall be resolved in favor of the servient estate.” As noted in the comments, this provision does not change the law but reproduces the substance of former Article 753. We adopt the explanation of law set out in Comment (b):

“(b) It is a cardinal rule of interpretation that, in case of doubt, instruments purporting to establish predial servitudes are always interpreted in favor of the owner of the property to be affected. The rule incorporates into Louisiana law the civilian principle that any doubt as to the free use of immovable property must be resolved in favorem libertatis. See Domat, Les lois civiles dans leur ordre naturel, 1 Oeuvres de Domat 329 (ed. Remy 1828); 2 Toullier, Droit civil fran-cais 192 (1833). The Louisiana Supreme Court has repeatedly declared that ‘servi-tudes are restraints on the free disposal and use of property, and are not, on that account entitled to be viewed with favor by the law.’ Parish v. Municipality No. 2, 8 La.Ann. 145, 147 (1853), cited with approval in Buras Ice Factory, Inc. v. Department of Highways, 235 La. 158, 103 So.2d 74 (1958). See also McGuffy v. Weil, 240 La. 758, 767, 125 So.2d 154, 158 (1960): ‘any doubt as to the interpretation of a servitude encumbering property must be resolved in favor of the property owner’. The rule that the proper interpretation of an ambiguous instrument is that which least restricts the ownership of the land has been applied by Louisiana courts in a variety of contexts. See, e. g., Whitehall Oil Co. v. Heard, 197 So.2d 672 (La.App.3rd Cir.) writ refused 250 La. 924, 199 So.2d 923 (1967) (determination of the question whether a landowner created a single servitude over contiguous tracts or a series of multiple interests.)”

Considering the ambiguities and uncertainties which we have discussed above, we cannot say that the trial judge erred in holding that the contract is unenforceable, and accordingly we affirm his judgment.

The judgments appealed are affirmed.

AFFIRMED.


author: SCHOTT, Judge. CHEHARDY, Judge,

text:
    SUCCESSION of Mrs. Ora Nelms LOGAN, also known as Mrs. Ora Logan Shaffer.
    No. 11042.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied July 3, 1980.

      Ivor A. Trapolin, New Orleans, for plaintiffs-appellants.
    Otto B. Schoenfeld, Denechaud & Dene-chaud, New Orleans, for defendants-appel-lees.
    Before GULOTTA, SCHOTT and CHE-HARDY, JJ.
   SCHOTT, Judge.

The principal issue in this case is the trial court’s interpretation of the following clause in decedent’s will:

“Item II. I wish a trust fund to be formed of all my holdings (not mentioned in this) for Caroline who is to receive interest annually, the Whitney Bank and a lawyer she appoints to service.”

Plaintiffs, who are the nephews and nieces of decedent who died in 1969, contend that “Caroline,” who died in 1977, was to be the income beneficiary of the trust with the corpus of the trust passing to decedent’s heirs upon Caroline’s death. Defendants, who are the trustees of the trust and Daughters of Charity of St. Vincent de Paul of Indiana, Inc., which is Caroline’s residuary legatee, contend that the disposition was of the entire residue of decedent’s estate for Caroline in trust, with the result that the remainder of the corpus would fall into Caroline’s estate upon her death.

A secondary issue litigated in the trial court was whether Caroline was the adopted child of decedent and her first husband. If Caroline had been the adopted child of decedent as contended by defendants the issue over the interpretation of the will clause would be moot, since Caroline would have been the sole legal heir of decedent.

Decedent was married to George W. Logan on September 10, 1900, and the Lo-gans had one or two children who died in infancy. Hildagard Berrín was born in a foundling home in New York City on August 4, 1906, and she was placed with Mr. and Mrs. Logan on November 14,1908. She was not the daughter of Mr. or Mrs. Logan but was reared by them under the name of Caroline Logan. She eventually joined the Sisters of Charity and became known as Sister Caroline. The only evidence of an adoption was from the records in the New York Foundling Home which contained the following entry: “Date of written agreement, January 27/11. Legally adopted. (See card files)” Below this is written, “3-2-1911.” This date is written alongside the inscription “date of visitations.” We have concluded that the evidence is insufficient to establish that Caroline was the legally adopted child of decedent, so that the outcome of the case depends solely upon the interpretation of the will clause in question.

Carter v. Succession of Carter, 332 So.2d 439 (La. 1976) contains a summary of the principles which govern the decision in this case. Under LSA C.C. Arts. 1712 and 1713, the courts must endeavor to ascertain the testator’s intention and the function of the court is to determine and carry out that intention if it can be ascertained from the language of the will. Intention must be ascertained from the whole will with effect given to every part of the will as the law will permit. If possible, a will should be read so as to lead to testacy and not to intestacy. Unless the will appears otherwise the law presumes that when a will is executed the testator intends to dispose of his entire estate.

The entire will in the instant case is as follows:

“I, Ora Nelms Logan Shaffer, do hereby make this my last will and testament.
Item 1. I leave to Olyn Soniat the use during her lifetime of the property 1719 Bordeaux Street. After her death it is to go to her son. To her also I leave the painting of my mother and father. Also the farm in Lafourche Parish for (her to) have income from during her lifetime. After her death this farm to go to her son.
Item 2. To William Saufley, Sr. I leave the interest from my stock in the Parish Land and Warf Company. After his death, this stock is to go his son.
Item 3. To William Saufley, Jr., I leave the $3,000.00 owed to me by Presley Soniat.
Item 4. To Nettie Agnes Soniat I leave anything she may want from 1719 Bordeaux.
Item 5. To Nettie Soniat Wright I leave my flat silver.
Item 6. The Shaffer silver to go to Nancy Shaffer Van Neys for her granddaughter.
Item 7. I leave my clothes to Little Sisters of the Poor.
Item 10. I leave the place in Wave-land, Mississippi, to Caroline, she to give it to the teaching sisters of her order. This place not to be sold for ten years.
Item 11. I wish a trust fund to be formed of all my holdings (not mentioned in this) for Caroline who is to receive interest annually, the Whitney Bank and a lawyer she appoints to service.
Item 12. All my personal belongings to go to Caroline.
Item 13. The lot in Clearmont Harbor to Bliney.
Item 14. My handkerchief collection to be given to the guests of the Little Sisters of the Poor, one to each old lady.
Signed by me May 1, 1969
Ora Nelmes Logan Shaffer
Codicil to my will.
I leave the furniture in 1719 Bordeaux Street to Olyn Saufley. Changing donation of my handkerchief collection, I wish it to go to Nell Nelson.
Glass, silver, and china, to be sold (not here) and money given to The Prevention of Cruelty to Animals.
Written by me August 8, 1969.
Ora Nelms Logan Shaffer
Silver is in basket under bed.”

When the disputed clause is compared to the other provisions of the will no support is found for plaintiff’s position. For instance, under Item 1 the use of the Bordeaux Street property is left to Olyn Soniat with the added bequest of the property to her son upon Olyn’s death. A similar disposition is made of the farm in Lafourche Parish with the income going to Olyn Soniat but with the farm passing to Olyn’s son upon her death. Similar dispositions are made in Item 2 and Item 6. By making these bequests in this manner decedent indicated that she was aware of her right and ability to leave the use or usufruct to one person for his lifetime and the naked ownership to another but she did not choose to designate any legatee other than Caroline to be the recipient of the residue of her will in trust.

When the will is read as a whole it demonstrates an intention on decedent’s part to dispose of her entire estate. To construe Item 11 as leaving only an income interest to Caroline with the residue upon Caroline’s death to be divided according to the laws of intestacy would be inconsistent with the rest of the will as well as the jurisprudence cited and repeated in the Carter case.

Much of plaintiff’s argument centers around the use by the testatrix of the word “interest” in the bequest. They contend that this word connotes that Caroline was to receive only income as opposed to the interest in the residue in trust. This contention is not supported by the testatrix’s use of the word “income” in the first item of the will, which demonstrates that she was making a distinction between income and interest in the broader sense. Furthermore, the use of the word “interest” in Item 2 is specifically modified by the words “from my stock” whereas the use of the word “interest” in Item 11 is not modified but seems to be used in a broader sense than the use of the word in Item 2. Finally, the word interest in the Louisiana Trust Code has a broader meaning than the one plaintiff would supply. For instance, R.S. 9:1771 states that “any interest in such property may be transferred in trust.” The Code speaks of income interest in trust, R.S. 9:1961, et seq., as well as interest in the principal of the trust without an interest in income, R.S. 9:1971 et seq. From these and other parts of the Code it is clear that income and interest are not synonymous but rather the term interest is a broader term to be modified by such terms as income or principal, depending upon the intention of the settlor. The testatrix’s failure to modify the word interest in the bequest to Caroline by a term, such as income, tends to defeat plaintiff’s argument that decedent used the word interest to denote only income.

Plaintiffs sought to prove at the trial that decedent’s intention not to leave the residue of her estate to Caroline was demonstrated by a lack of closeness and affection between decedent and Caroline while they were both alive, by a dislike on decedent’s part for the Daughters of Charity of which Caroline was a member and which would ultimately become the owner of the residue if left to Caroline by decedent, and some rather vague testimony by one witness that decedent had expressed an intention simply to care for Caroline during her lifetime implying that the residue was not to fall into Caroline’s estate upon her death. In Succession of Rusha, 158 La. 74, 103 So. 515 (1925) the court indicated that parol evidence to establish the intention of a testator was to be treated with great caution and given little weight if admitted at all. In any event, the testimony that decedent had such great dislike for the Daughters of Charity is contradicted by Item 10 of decedent’s will, in which she made a bequest of her real estate in Mississippi to Caroline “to give it to the teaching sisters of her order,” and the contention by appellants that decedent wanted the residue of her estate to be divided among her heirs according to the laws of intestacy is contradicted by Item 3 in which she specifically declined to forgive a $3,000 debt owed to her by one of these presumptive legal heirs.

The trial judge had the benefit of observing and hearing appellants’ testimony and was apparently unimpressed. We find no basis for disturbing his conclusion “that the trust fund — lock, stock and barrel — was for Caroline.” The judgment appealed from is affirmed.

AFFIRMED.

CHEHARDY, J., concurs and assigns reasons.

CHEHARDY, Judge,

concurring.

I concur. There is no basis for disturbing the trial judge's conclusion “* * * that the trust fund — lock, stock and barrel — was for Caroline.” However, I would find that Caroline is the legally adopted daughter of decedent. As observed by counsel for ap-pellee: “* * * during the time when Sister Caroline would have been adopted, it was not legally required that a court proceeding be brought or that the Act of Adoption be recorded in the public records of the parish.”

The record, in my opinion, establishes beyond a doubt that Caroline was loved and cherished by Ora Logan Shaffer as much as if she would have been born a natural child. Were technicalities to prevent the conclusion that Caroline was legally adopted, which, in my opinion, is not the case, then certainly equity would demand our recognition that this woman had been “equitably adopted.” Article 21 of the Louisiana Civil Code provides:

“In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.”

Although Mrs. Shaffer and Sister Caroline are now both deceased, fairness and equity demand that we do not dishonor their lifetime of parent-child relationship any more in death than we would were they alive.