author: CHEHARDY, Judge.

text:
    STATE of Louisiana v. Darryl BARTHOLMEW.
    No. 12341.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    John M. Mamoulides, Dist. Atty., David C. Loeb, Abbott Reeves, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Robert E. Lee, Gretna, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, Darryl Bartholmew, appeals a district court decision finding the defendant an habitual offender under the terms of LSA-R.S. 32:1472 and ordering him to submit his driver’s license.

The records of the Department of Public Safety, State of Louisiana, Driver Central Bureau, show that between the date of January 15, 1975 and November 12, 1979, Bartholmew was convicted of a number of traffic offenses including driving while intoxicated on two occasions and driving while under suspension or revocation of his license on two other occasions.

LSA-R.S. 32:1472 establishes that three or more convictions within a five-year period of the therein listed offenses constitute one as an habitual offender. Two of those convictions listed are operating or attempting to operate a vehicle while under the influence of liquor or drugs and driving a motor vehicle while the license permit or privilege to drive has been suspended or revoked.

In regard to his conviction of driving while intoxicated, defendant argued in the trial court that he was never given an examination demonstrating the free and voluntary nature of a plea of guilty with an articulated waiver of his constitutional rights, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and, in connection with a multiple offender hearing, as required for those pleas of guilty used to enhance a sentence by State v. Lewis, 367 So.2d 1155 (La.1979). He also argued that the defendant pleaded guilty to these offenses without an attorney. However, a review of the record establishes that it was noted on three of the four offenses used as the basis of the habitual offender conviction that defendant was advised by the court of his rights to counsel. Since only three such offenses are needed within any five-year period to establish habitual offender status, we hold that the defendant’s arguments in this regard are lacking in merit.

Defendant further contended that under the holding of State v. Graham, 360 So.2d 853 (La.1978), all convictions prior to that decision wherein a defendant was found guilty by reason of the findings of a machine determining the amount of alcohol in a person’s body were effectively overruled. He also has maintained that because the two DWI violations forming the basis of part of the habitual offender status were committed by the defendant prior to the effective date of the Graham case that status is an invalid one. We cannot agree with these contentions, however, because the record does not reveal that any such test was the basis for the defendant’s convictions.

For the reasons assigned, therefore, the trial court decision is affirmed.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Aud BERGERON v. Patrick BERGERON.
    No. 12352.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.

      Gordon Hackman, Boutte, for plaintiff-appellee.
    Steven F. Griffith, Sr.,' Destrehan, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Defendant, Patrick Bergeron, appeals a district court decision in favor of plaintiff, Aud Bergeron, wife of Patrick Bergeron (on behalf of her minor son, Chris), and against the defendant declaring that certain funds on deposit at American Bank of St. Charles Parish (totaling approximately $11,607.95) are the property of the minor, Chris Berger-on, and further holding that none of these monies is the separate property of Patrick Bergeron.

The judgment also decreed that it should be served upon the American Bank, which was ordered to make appropriate banking entries so that Chris Bergeron will have access to these funds at the time he reaches 18 years of age.

The record reflects that the plaintiff was formerly married to the defendant and the minor, Chris Bergeron, is their son. Mrs. Bergeron filed for legal separation on February 2, 1971 and obtained a legal separation in April of 1971. The plaintiff subsequently filed for divorce on July 9,1973 and judgment was rendered on September 17, 1973, however, it neglected to rule that the plaintiff had also proved the allegations necessary for a final divorce. Therefore, such divorce was granted in favor of Aud Bergeron in a supplemental judgment on June 21, 1979.

On May 10, 1979, the plaintiff was recognized as natural tutrix of her child by the court and a temporary restraining order was issued against the American Bank’s disposing of the monies in the subject bank account without further orders from the court. On January 28, 1980, the defendant moved to have the court order the subject funds deposited with American Bank withdrawn and placed in her name.

The passbook issued in connection with the subject account at the time it was opened lists the account with “Chris M. Bergeron Minor of Patrick J. Bergeron.” The first deposit is shown as $500 and is dated May 8, 1973. Another deposit dated March 6, 1974 is listed as $8,604.21. With the exception of notations of interest, there was no activity in the form of deposits or withdrawals after that date. Also exhibited in the case were statements of the savings account under the name “Chris M. Bergeron — Minor or Patrick J. Bergeron,” which the defendant testified were regularly sent to him in Michigan, his current home at the time of trial. The signature card also was filled out under the name of “Chris M. Bergeron, minor of Patrick J. Berger-on,” and the type of account checked on that card was “minor” rather than “individual” or “joint.”

It was stipulated by the parties that on February 14, 1974 a motion and order was signed by the court to vacate a previous injunction thereby allowing the parties to sell the community home.

Mrs. Bergeron stated that after the sale of the house she used her half of the proceeds to buy a trailer and she accompanied Patrick Bergeron to the bank where he deposited his share of the money, stating that it was for Chris’ education and giving custody of the passbook to Mrs. Bergeron.

Patrick Bergeron testified that although he placed his funds from the sale of the community home in the account he did not intend to make a donation of the money to Chris at that time. He stated he did intend to make the donation at some future time if the child went to college, and he added he 'has been paying taxes on the interest earned in the account, although no proof of such was offered at trial. He said he placed the child’s name on the account along with his own so that he, rather than the plaintiff, would receive the money in the event of the defendant’s death. He said he also received periodic statements from the bank on the account and he was the only person authorized to make withdrawals. He admitted, however, that the plaintiff always retained custody of the passbook until June of the year before the trial, when he secured a duplicate.

Obviously it was a finding of fact on the part of the trial court judge that the defendant intended to donate the monies in the subject account to his son at the times he made the 1973 and 1974 deposits.

The validity and irrevocability of such an intended donation was addressed by the court in Allen v. Allen, 301 So.2d 417 (La.App. 2d Cir. 1974). In that case Mr. and Mrs. Allen had a savings account with a balance of over $700. The account was closed out and a few days later two accounts were opened in the names “Mr. or Mrs. Jack H. Allen as guardian of the estate of Jacqueline Melinda Allen” and “Mr. or Mrs. Jack H. Allen as guardian of the estate of Robin Leslie Allen,” and funds were deposited therein by Mr. and Mrs. Allen. Either Mr. or Mrs. Allen had the authority to make withdrawals.

Over the years there were deposits made to the accounts by Mr. and Mrs. Allen from their earnings. Later the names on the accounts were changed to Mrs. Joyce R. Allen, custodian for Jacqueline Melinda Allen and Robin Leslie Allen under the Louisiana Uniform Gifts to Minors Act, and separate income tax returns were filed in the children’s names showing interest income on the accounts. Mr. and Mrs. Allen testified the reasons for maintaining the accounts in the children’s names were for tax purposes and to build a fund for the children’s education. The appellant contended that there was no effective donation because the funds were not irrevocably vested in the donees as required by LSA-C.C. art. 1468, since the parents retained control and the right to withdraw funds. He also contended accounts are incorporeal rights which cannot be the subject of a manual gift but require authentic acts under LSA-C.C. art. 1536 as well as Succession of Grubbs, 170 So.2d 256 (La.App. 2d Cir. 1964), writ refused, 247 La. 409, 171 So.2d 666 (1965); Basco v. Central Bank & Trust Company, 231 So.2d 425 (La.App. 3d Cir. 1970); Succession of Dykes, 258 So.2d 606 (La.App. 1st Cir. 1972), writ refused, 261 La. 535, 260 So.2d 319 (La.1972); and Gibson v. Hearne, 164 La. 65, 113 So. 766 (La.1927).

In holding that the accounts were owned by the children and not assets of the former community of their parents, the court in the Allen case said:

“Pertinent to the issue presented are the following articles of the Civil Code:

‘Art. 1468. A donation inter vivos (between living persons) is an act by which the donor divests himself, at present and irrevocably, of the thing given, in favor of the donee who accepts it.’
‘Art. 1536. An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.’
‘Art. 1538. A donation inter vivos, even of movable effects, will not be valid, unless an act be passed of the same, as is before prescribed.
‘Such an act ought to contain a detailed estimate of the effects given.’
‘Art. 1539. The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.’
‘Art. 1541. Yet, if the donation has been executed, that is, if the donee has been put by the donor into corporeal possession of the effects given, the donation, though not accepted in express terms, has full effect.’
‘Art. 1546. A donation made to a minor, not emancipated, must be accepted by his tutor.
‘Nevertheless, either parent of the minor, or any ascendant of the minor, whether the minor is emancipated or not, or the tutor of the minor, may accept the donation for the minor whether such parent or ascendant is the donor, or the tutor of the minor or both. And a donation to be held in trust for the minor may be accepted by the trustee alone.’
“In Gibson, supra, the court held that a deposit by the donor into a bank account in the name of an agent for a minor donee was a donation of money, accompanied by a real delivery, and constituted a donation by manual gift. Money is a corporeal movable, and may be donated by manual gift. See also Succession of Zacharie, 119 La. 150, 43 So. 988 (1907) and Succession of Hale, 26 La.Ann. 195 (1874).
“In the instant case, as in Gibson, the gifts were of money, accompanied by real delivery through deposit of the money in savings accounts in the name' of a fiduciary for the minors.
“The donors’ intent to make irrevocable donations of the funds deposited into the accounts is manifest from the evidence. Appellant’s own testimony was that this was done for tax purposes, which necessarily presupposes an irrevocable gift to lawfully receive the tax advantage of separate income. The accounts were continuously carried in the names of fiduciaries for the named minors. The permanent and irrevocable nature of the donations is further demonstrated by the fact that no funds were ever withdrawn in the more than ten years since the initial donations were made.
“The only factor weighing against the irrevocability of the donations is that both parents at first and then one parent had the right to make withdrawals and to that extent retained control of the funds. However, the donees are minors and someone had to act for them — logically, the parents.” 301 So.2d at 418-419.

We find Allen v. Allen, supra, however, distinguishable on the facts from the present case because Patrick Bergeron retained total control of the monies in the account and there is also serious question as to whether he intended to divest himself irrevocably of these funds when he placed them in his son’s name. Rather, his intent to donate at the time of the deposits and the opening of the account appears limited to a conditional one. In fact, the money had remained so much in the control and possession of the alleged donor, Patrick Bergeron, the trial judge found it necessary to serve the bank with a copy of the judgment and order it to make an appropriate banking entry so that the child could receive the funds at the time he reached 18 years of age. In the absence of such an order, the bank could not release the funds to the child or to the mother. It could only release them to the father.

A donation inter vivos is an act by which the donor divests himself, at present and irrevocably, of the thing given in favor of the donee who accepts it. LSA-C.C. art. 1468. Under our law such a donation must meet strict form requirements. LSA-C.C. art. 1467. As to the donation of an immovable or movable, corporeal or incorporeal, the general rule is the donation must be made by an act passed before a notary and two witnesses. LSA-C.C. arts. 1536 and 1538. A codal exception to this general rule is LSA-C.C. art. 1539, which provides as follows:

“The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.” (Emphasis added.)

Even if Patrick Bergeron intended to make a manual gift, the donation would be defective as to form because there was no transfer or delivery of the funds to the minor. The only person who had signed the signature card and, hence, the only one who could withdraw the funds from the account was Patrick Bergeron. The funds were not given to the child or to Mrs. Bergeron by a manual delivery. They were deposited into the account by the donor, Patrick Bergeron. Neither the child nor his mother, into whose custody he had been placed by the court, could withdraw funds from the account. Only Patrick Bergeron could withdraw the funds. For this to have been a manual donation in the present case someone other than the donor would have to have the power to withdraw and control the funds in the account.

A donee of a manual gift must also show by strong and convincing proof that the donor had the intent to presently and irrevocably divest himself of the thing and that real delivery was made. Here the alleged donor denies he intended to make a donation. The account bore his social security number, hence, the interest earnings were reported to the Internal Revenue Service as belonging to him. His testimony that he paid the income taxes on the account is uncontradicted and since he alone signed the signature card, only he in his individual capacity could withdraw funds from the account. Additionally, the account statements forwarded by the bank to the father-donor showed the account as “Chris M. Bergeron — Minor or Patrick J. Bergeron.”

The only evidence which could possibly support the conclusion the father made a manual delivery of the funds to the child is the wife’s testimony. Even her testimony is suspect because although she contended the account was opened in her presence right after the sale of the community house (and her presence at the time the account was opened was the basis for her contention that her husband intended the account to be the account of the minor) when it was shown the account was opened long before the sale of the community house she had to admit her prior testimony was in error. Additionally, in his deposition taken after the trial at the judge’s request, the bank’s representative said:

“Q Mr. Rodrigue, is it not true that as far as the bank is concerned and their procedures and law as you understand it that the minor cannot in and of itself have an account?
“A Yes, that is true. Let me clarify that. The minor can have an account.
“Q Oh.
“A However, the minor has no control over the account. Okay?
“Q Okay, if the minor were intended to be able to withdraw funds is it not the procedure of the bank to let him sign the signature card as well?
“A Right. Normally but however, the minor’s account, the minor cannot withdraw any money unless we have the authorizing signature, some guardian or someone over 18, of majority, to sign with him.
“Q Is it not the procedure of the bank when money is put for the account of the minor to title it or style it in such a way to show the minor’s name plus someone else’s signature such as a guardian or a tutor?
“A Yes.
“Q The only person who has the authority to withdraw this money according ,to the records that you have brought with you is Patrick J. Ber-geron; is that correct?
“A That is correct.”

According to the bank representative, therefore, under its procedure the bank desiring to open a minor’s account would not normally entitle it “Chris M. Bergeron Minor of Patrick J. Bergeron,” but rather would open it as a custodian or tutrix account similar to that involved in Allen v. Allen, supra.

Moreover, in spite of the holding in the Allen case, this court is bound by its previous decisions in cases of this sort, which we see no reason to overrule, and we are also bound by the ruling of the Supreme Court in Broussard v. Broussard, 340 So.2d 1309 (La.1976).

In the Broussard case, the husband used his separate funds to purchase certificates of deposit in his and his wife’s names, jointly, and he later cashed these in to purchase savings certificates in both their names. Mrs. Broussard contended that the purchase in both their names was a constructive delivery to her of one-half of the cash; however, the court held that absent an actual withdrawal and delivery of the funds to her, no manual gift or donation to her was effected.

In Succession of Palermo, 359 So.2d 1040 (La.App. 4th Cir. 1978), this court also held, following the Broussard decision, that funds in a joint savings account (even when a decedent indicated for several years prior to his death he desired his wife to have them and gave her the passbooks) were not effectively donated to her when she withdrew the funds several days prior to the decedent’s death. The court held that such accounts were incorporeal rights which could only be the object of a donation executed before a notary and two witnesses.

Similarly, in the present case, we hold that the deposit of the funds in the subject account did not effect delivery of those monies to the defendant’s child, even though the account was styled in his name.

For the reasons assigned, therefore, the district court judgment is reversed and the subject funds on deposit at American Bank of St. Charles Parish are declared the property of the defendant Patrick J. Bergeron. Each party is to bear his own costs in these proceedings.

REVERSED AND RENDERED.


text:
    Desi DRAUGHN v. Breaux MART.
    No. 12372.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.

      O’Dowd & O’Dowd, Kim M. O’Dowd, New Orleans, for plaintiff-appellant.
    Kullman, Lang, Inman & Bee, Clyde H. Jacob, III, New Orleans, for defendant-ap-pellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Desi Draughn, appeals a district court decision in his favor and against the defendant, Breaux Mart, in the sum of $640, representing vacation pay due, plus attorney fees of $400, costs and legal interest upon the entire judgment. Draughn alleges on appeal that he should have been granted penalty wages under the provisions of LSA-R.S. 23:631, in addition to the awards made to him.

Defendant has answered the appeal, asking that the trial court decision be reversed to a finding of no liability to the plaintiff by the defendant.

After a previous dismissal, Draughn was employed by Breaux Mart on December 13, 1976. In the latter part of January, 1980, after being reprimanded regarding his poor performance and after being counseled several times by his immediate supervisor at the store, Draughn was discharged. On the next day the plaintiff was paid for all of his back wages currently owed by the store; however, he received no payment for two weeks of accrued vacation time. He learned, moreover, upon calling the store, payment for such would not be forthcoming, whereupon this suit was filed.

Breaux Mart’s employee handbook, which was introduced at trial, provided, in part, under the heading of Vacation Pay:

“A. All employees, whether full-time or part-time, who have been on the payroll for one complete year are entitled to one week’s paid vacation.
“E. All full-time employees who have been on the payroll for two (2) complete years are entitled to two (2) weeks of paid vacation.”

At trial James E. Lamb, Sr., general manager of Breaux Mart, testified that employees were only entitled to paid vacations while still working for Breaux Mart and that it has always been the consistent policy of the store that any employee who was discharged for cause was not paid for any unused vacation time.

The trial judge, in rendering judgment from the bench, stated that although he was satisfied the plaintiff was entitled to two weeks’ vacation pay and attorney fees, there were no arbitrary or unreasonable actions on behalf of the employer in denying vacation pay since the provisions of the employee manual might have been interpreted in several ways. Accordingly, he denied the plaintiff penalty wages claimed under LSA-R.S. 23:632 but made an award of attorney fees.

LSA-R.S. 23:631 provides that upon discharge or resignation of any laborer or other employee of any kind, it shall be the duty of the employer to pay the amount then due under the terms of employment. It also provides that in a dispute as to the amount due under this section the employer shall pay the undisputed portion of the amount due.

LSA-R.S. 23:632 states that any employer who fails or refuses to comply with the provisions of LSA-R.S. 23:631 shall be liable to the employee either for 90 days’ wages at the employee’s daily rate of pay or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is lesser. It also provides that reasonable attorney fees shall be allowed the laborer or employee by the court in the event “a well-founded suit for any unpaid wages whatsoever” be filed by the laborer or employee after the three-day delay period for payment has elapsed.

The jurisprudence articulated in Berteau v. Wiener Corp., 362 So.2d 806 (La.App. 4th Cir. 1978), is directly applicable to the present case. In Berteau, the plaintiff, after becoming eligible for one week of vacation under the terms of her employer’s company handbook, and upon her completion of one year of service, was terminated before taking her scheduled vacation week. She thereupon requested her vacation pay but was denied it.

Upon deciding that the plaintiff was entitled to the vacation pay, this court said at 808-809:

“There is jurisprudence in Louisiana to the effect that vacation benefits are included in the definition of the ‘amount due under the terms of employment’. The Second and Third Circuits have held that vacation benefits are additional wages and are, therefore, to be included in the amount paid to the employee upon discharge. See SteLL v. Caylor, 223 So.2d 423 (La.App. 3rd Cir. 1969) and Sewell v. Sharp, 102 So.2d 259 (La.App.2d Cir. 1958).
* * * * *
“Appellant’s right to her vacation had vested under the handbook and her request for its approval, and the company cannot force forfeiture of that right. A vested right is defined as that case when ‘the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and a mere expectancy of future benefit . .. does not constitute a vested right.’ Tennant v. Russell, 214 La. 1046, 39 So.2d 726 (1949). Mrs. Berteau clearly had a present interest in a vacation benefit and divesting her of this is a forfeiture. Wage forfeitures are not allowed in our law. Pender, et al. v. Power Structures, Inc., 359 So.2d 1321 (La.App. 4th Cir., Docket No. 8790, June 18, 1978) and La.R.S. 23:634. We therefore hold that appellant is entitled to her vacation pay in the amount of $149.32.”

The factual situation in the present case is very similar to that of the Berteau case, and, accordingly, we hold that part of the district court decision granting the plaintiff pay for accrued vacation was correct.

Similarly, the trial court’s decision to deny penalty wages against Breaux Mart was also proper. In Berteau, supra, at 809, the court observed:

“La.R.S. 23:632 outlines certain penalties to be paid to discharged employees of employers who refuse to comply with the provisions of R.S. 23:631. The jurisprudence of this state is to the effect that statutes which are expressly penal in nature are to be strictly construed. Mitchell v. First Nat. Life Ins. Co., 236 La. 696, 109 So.2d 61 (1959). Clevy v. O’Meara, 236 La. 640, 108 So.2d 538 (1959). If it is determined then, that a bona fide dispute as to wages due existed at the time of the refusal to pay, no penalties will be awarded. Sifers v. Exxon Corp., 338 So.2d 763 (La.App. 4th Cir. 1976). For the employee to recover, the employer must have been motivated by bad faith or must be found to have acted in an ‘arbitrary or unreasonable’ manner. Pittman v. Ey-rand, 290 So.2d 800 (La.App. 4th Cir. 1974).
“It does not appear that the requisite bad faith is present in this case. The testimony of all parties indicates that this policy, while not in writing and not well settled, had been applied to others previously. This indicates to us that the action of appellee in denying the vacation benefits was not arbitrary or unreasonable. No bad faith can be imputed to the employer. Our finding that the contract between the employer and employee did not, as a matter of law, require that one continue to be an employee to receive benefits does not preclude the possibility of a good faith refusal. We therefore find that no penalty wages are due in this case.”

From the testimony of the general manager of Breaux Mart, the defendant company was apparently in good faith in interpreting the vacation provisions of the employer handbook to mean that an employee can only take advantage of accrued vacation time as long as he is employed by the store, and dismissal for cause results in forfeiture of that benefit. Moreover, Lamb testified this policy was applied indiscriminately to all employees. Accordingly no bad faith was shown in the denial of these benefits to Draughn, nor was the defendant shown to have acted in an arbitrary or unreasonable manner in doing so, which are prerequisites to recovering penalty wages.

In regard to the award of attorney fees in a ease such as the present one, the court also said in Berteau at 809:

“The rule of this circuit as to attorney’s fees is stated in Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir. 1975). In that case the court found that the phrase “well-founded suit” in the statute refers to a suit in which recovery of wages is granted. Thus, where back wages are awarded, reasonable attorney’s fees must also be granted.
“We therefore hold that the appellant is entitled to reasonable attorney’s fees under 23:632, which we fix at $300.00.”

Because the plaintiff was awarded back wages in this case, therefore, an accompanying award of attorney fees was also required.

For the reasons assigned, the trial court judgment is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Willie F. GANT, et al. v. Gollia McGee wife of and Lucious McGEE. (Consolidated with No. 12765, Mrs. Gollia McGee Wife of/and Gollia McGee vs. Willie Gant).
    No. 12764.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Bruno & Bruno, Joseph M. Bruno, New Orleans, for plaintiff-appellee.
    Robert T. Hughes, New Orleans, for defendant-appellant.
    Before BARRY, BYRNES, and WARD, JJ.
   BARRY, Judge.

Plaintiff, Willie F. Gant, filed suit to nullify a default judgment because he did not receive citation and service of the petition. The lower court granted a summary judgment nullifying the default judgment and the defendants appeal.

The original proceedings were filed on November 15, 1971 alleging personal injuries were sustained by Gollia McGhee in a restaurant owned by a person named Willie Gant. Service of that lawsuit was made on the wife of Willie Gant at 7018 Collapissa Street in New Orleans and a preliminary default was entered shortly thereafter.

Five years later a supplemental and amended petition was served personally on Willie Gant (this plaintiff) at 3915 Hamilton Street and a second preliminary default was entered. On October 13, 1977 the preliminary defaults were confirmed and judgment was rendered against Willie Gant for $65,000.00 plus special damages, legal interest and costs. The judgment was served on Gant through his thirteen year old granddaughter.

Plaintiff sued to annul the default judgment and filed a motion for summary judgment. His affidavit says he has resided at 3915 Hamilton Street since 1953, that he never lived nor transacted any business at 7018 Collapissa Street, and he was not served with a citation or petition of the McGhee lawsuit. The Willie Gant residing on Collapissa Street also signed an affidavit stating that he was served with the McGhee lawsuit but was never in the restaurant business. A deputy clerk’s affidavit states that the original petition was not attached to the citation when it was served with the supplemental and amending petition.

McGhee argues that “(w)hether or not the right ‘Willie Gant’ or wrong ‘Willie Gant’ was served with the original petition, the record clearly indicates that the right ‘Willie Gant’ was personally served with the Supplemental and Amended petition.” McGhee says this placed the correct Gant (plaintiff) on notice that a suit was pending against him, that the supplemental and amended petition made reference to the original petition, and that he was cited and required to answer the supplemental and amended petition. In addition, McGhee points to the domiciliary service of the default judgment made on the right Willie Gant and that Gant took no action until seven months later when he filed the instant petition to annul the default judgment.

Appellant McGhee’s position is without legal foundation. Jurisdiction over a person who has not submitted or waived objection, either in an ordinary or summary proceeding, is based upon service of process. LSA-C.C.P. Art. 6. This service of process “includes either personal or domiciliary service on the defendant.” Comment (f) LSA-C.C.P. Art. 6. “Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing therein as a member of his domiciliary establishment.” LSA-C.C.P. Art. 1234. Personal service requires that the proper defendant be personally served with the petition. The citation, accompanied by a certified copy of the petition, must contain, among other things, “(a) statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in Article 1001 under penalty of default.” LSA-C. C.P. Art. 1202. A default judgment may not be taken against a person who has not received citation and service thereof. LSA-C.C.P. Art. 1201.

We find no provision in our laws or jurisprudence which permits service of a supplemental and amended petition as a substitute for citation and service of process of the original petition. All subsequent proceedings are absolutely null. LSA-C. C.P. Art. 1201.

Finally, knowledge of a lawsuit, regardless of the extent or depth of that knowledge, cannot supply the requisite citation. Piper v. Olinde’s Hardware & Supply Company, Inc., 276 So.2d 788 (La.App. 1st Cir. 1973), affirmed 288 So.2d 626 (La.1974). Nationwide Acceptance Company v. Alexis, 201 So.2d 21 (La.App. 4th Cir. 1967).

Plaintiff’s petition for nullity of the default judgment clearly falls within the provisions of LSA-C.C.P. Art. 2002 which provides in part:

“A final judgment shall be annulled if it is rendered:
******
“(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;”

Therefore the judgment of the District Court, annulling the judgment rendered in the matter: Gollia McGhee, wife of/and Lucious McGhee v. Willie Gant, suit number 532-345 on the docket of the Civil District Court for the Parish of Orleans, is affirmed with appellants to pay all costs of this appeal.

AFFIRMED.

      . The supplemental and amended petition merely changed the caption of the petition to correct petitioners’ names to read “Gollia McGhee, wife of/and Lucious McGhee”.


text:
    Mrs. Gollia McGee Wife of/and Gollia McGEE v. Willie GANT. (Consolidated with No. 12764, Willie R. Gant vs. Gollia McGee Wife of/and Lucious McGee).
    No. 12765.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Bruno & Bruno, Joseph M. Bruno, New Orleans, for plaintiff-appellee.
    Robert T. Hughes, New Orleans, for defendant-appellant.
    Before BARRY, BYRNES and WARD, JJ.
   BARRY, Judge.

For the reasons assigned in No. 12764, Gant, et al. v. McGee wife of/and McGee, La.App., 411 So.2d 1191 (Consolidated with No. 12765, Mrs. Gollia McGee wife of/and Gollia McGee v. Willie Gant), the judgment of the district court is affirmed.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    FIRST NATIONAL BANK OF COMMERCE v. Richard J. BOUTALL.
    No. 12344.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.
    Writ Denied May 28, 1982.

      Robert Wakefield, Richard J. Tomeny, Jr., Newman & Drolla, A Professional Law Corp., New Orleans, for plaintiff-appellant.
    Richard J. Boutall, Metairie, in pro. per. defendant-appellee.
    Before SAMUEL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On January 24, 1978, the First National Bank of Commerce, (hereafter Bank of Commerce) plaintiff-appellant, obtained a judgment in the First Parish Court, Parish of Jefferson, against Richard J. Boutall, defendant-appellee, in the amount of $626.95 plus interest, attorney fees and costs. Subsequently, on April 27,1979, pursuant to the provisions of CCP Articles 2411 thru 2413, the Bank of Commerce filed a petition in the Second Parish Court of Jefferson to have the judgment made executo-ry and the First National Bank of Jefferson Parish (hereafter First National) made a garnishee. Simultaneously, it filed a supplemental petition with written interrogatories attached and obtained an order making the First National bank a garnishee and ordering them to respond to the interrogatories under oath in five days. The order and interrogatories were served on First National on or about May 5, 1979.

The interrogatories served on First National included the following question:

“Have you not in your hands, on deposit or under your control, not exempt by law from seizure, any money, rights, property or effects of any description belonging to the defendant herein? If yes, state what it consists of and how much.”

In response to this question, on May 10, 1979, First National replied:

“In answer to Interrogatory No. 3, garnishee says that it is favored with checking account No. 086-385-6 in the name of Richard J. Boutall Spc with a balance of $40.84 subject to a contractual charge of $10.00, leaving an available balance of $30.84 which it is holding under this garnishment. Garnishee is also favored with checking account No. 086-386-7 in the name of Richard J. Boutall Trust & Escrow with a balance of $5.54 which it is holding under this garnishment; however, garnishee does not know whether or not this account is subject to seizure.”

Subsequently, on May 23, 1978, Bank of Commerce filed a rule entitled “Rule to Traverse Garnishment Answers” against First National, containing the following allegations:

“That the answers given are false and evasive;
That the mover is entitled to and desires an accounting and judgment against said garnishee for the full amount herein sued upon, together with reasonable attorney’s fees for the filing of this rule.”

The rule was set for hearing on June 8, 1979. On June 5, 1979 First National answered the rule averring that it was willing to pay the sum of $40.84 being held in the Richard J. Boutall Spc account but not the $5.54 in the Richard J. Boutall Trust & Escrow Account unless it was judicially determined to contain monies belonging to Boutall.

On June 8,1979, Boutall in proper person, filed a motion entitled “Motion to Remove Garnishment for Preliminary Injunction and for Damages for Wrongful Seizure”. In this motion, he alleged that both accounts contained money held in trust, escrow or other fiduciary capacities for persons other than Richard J. Boutall. He alleges the action of the Bank of Commerce constituted a wrongful seizure which caused him to sustain damages of $3,506.00. A hearing on the rule was had on June 26, 1979. Following the submission of briefs, on November 13, 1980, the trial judge rendered judgment granting a preliminary injunction prohibiting the First National bank from paying and the Bank of Commerce from receiving the funds in the accounts and ordered the annullment and recall of the garnishment proceeding. Additionally, damages of $3,506.00 were awarded in favor of Richard J. Boutall and against the Bank of Commerce. The Bank of Commerce appealed.

On appeal, the Bank of Commerce argues that the trial judge erred in granting the injunctive relief in annulling the garnishment proceeding and in annulling and recalling the seizure, and in awarding damages for a wrongful seizure. Alternatively, it argues that the damage award of $3,506.00 was excessive.

Although not for the reasons argued by the appellant, we agree the preliminary injunction was improperly issued. CCP Article 3610 provided in pertinent part as follows:

“A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law ...” (Emphasis Supplied)

Under the article, the trial court can only order the issuance of a preliminary injunction without the necessity of posting of security where the posting of security is specifically dispensed with by law. Here the court did not fix the amount of security for the issuance of the preliminary injunction, nor was any posted. Since there is no dispensation from the posting of security in a situation like the present one, the injunction was improperly issued. However, this is of no moment in deciding whether the trial judge properly concluded there was a wrongful seizure.

At the commencement of the hearing on Boutall’s rule, counsel for the Bank of Commerce stated (and in his brief on appeal here contends) the seizure of the Richard J. Boutall Escrow and Trust account was released sometime after the rule to traverse answers to the interrogatories had been filed. Nowhere in the record do we find anything which supports counsel’s statement or contention. To the contrary, the record shows that the writ of fieri facias was not returned by the Sheriff to the Clerk until May 5, 1980, apparently in accordance with the requirement of CCP Article 2294 for upon return it was marked “Writ returned expired”. Further, under the provisions of CCP Article 2411, where a garnishment issues under a writ of fieri facias “the seizure shall take effect upon service of the petition, citation and interrogatories”. Hence, the seizure of both accounts was effective when the service was made on the First National Bank on or about May 5, 1979 and was not released until annulled and recalled by the trial judge on November 13, 1980.

Counsel for the Bank of Commerce argues that the procedure followed in effecting the seizure and the garnishment were proper. The trial judge apparently concluded and we conclude proper procedures were not followed. In pertinent part, CCP Article 2414 provides as follows:

“Unless the creditor files a contradictory motion traversing the answer of the garnishee within fifteen days after service upon him of the notice of the filing of the garnishee’s answer, any property of the judgment debtor in the possession of the garnishee and any indebtedness to the judgment debtor which the garnishee has not admitted holding or owing shall be released from seizure. A new seizure may be made of such property or indebtedness by filing a supplemental petition and serving additional interrogatories.”

Here the answer to the interrogatories given by the garnishee clearly puts the Bank of Commerce on notice that the garnishee was uncertain as to the ownership of the funds contained in the accounts under seizure. Although the Bank of Commerce had the right under CCP Article 2414 to release the seizure or traverse the answers given by the First National Bank, it did not do so. Instead, it filed a rule traversing the answers and combined it with a contradictory motion (See CCP Article 2413) for the First National Bank to show cause why it should not be cast in judgment for the full amount of the claim because it gave “false and evasive” answers to the interrogatories. Since a rule to traverse the answers was filed, there was no automatic annullment of the seizure. See Allied Finance Co. v. Rogers, 215 So.2d 400 (La.App., 2nd Cir. 1968). The issue of whether the answers were “false and evasive” raised by the rule to traverse was not submitted to the court by either bank because the First National Bank answered the rule offering to pay to the Bank of Commerce the funds contained in the account “Richard J. Boutall, Spc.” and refusing to pay over the funds in the account entitled “Richard J. Boutall, Trust and Escrow” unless judicially determined to belong to Boutall.

The issue as to the ownership of the funds in the account were presented to the trial judge by the judgment debtor, Boutall, when he sought to have the seizure recalled and annulled as a wrongful seizure. Now, counsel for the Bank of Commerce concedes it had no right to maintain the seizure on the account entitled “Richard J. Boutall, Trust and Escrow”, and although unsupported by the record urges that it did in fact release the seizure on this account. Counsel also contends the trial judge erred in concluding the funds in the account entitled “Richard J. Boutall, Spc.” did not belong to him and therefore erred in annulling and recalling the seizure. The only evidence in the record as to ownership of the funds is the uncontradicted testimony of Boutall that the funds in both accounts belonged to his clients and were entrusted to him because he was performing work for them and that both accounts were and had been regularly used as fiduciary accounts and not for personal or other purposes. Based on this evidence the trial judge found the funds in both accounts did not belong to the judgment debtor, Boutall, and hence concluded the seizure was wrongful. We cannot say he erred in that conclusion.

In Mid-State Homes v. Bice, 361 So.2d 275 (La.App., 1st Cir. 1978), Judge Covington said:

“Our jurisprudence has been consistent in awarding damages, including general damages for embarrassment, inconvenience and worry, for wrongful seizures (whether under executory process or writ of fieri facias). Escat v. National Bank of Commerce in New Orleans, 284 So.2d 832 (La.App. 4 Cir. 1973).

and in Homemakers Loan and Consumer Discount Co. v. Arthur, 333 So.2d 686 (La.App., 4th Cir. 1976), this court held that “awards for inconvenience, anxiety and embarrassment caused as a result of the wrongful issuance of a garnishment writ are compensable items of damages”. A wrongful garnishment by a judgment creditor is answerable in damages. Mintz and Mintz, Inc. v. Color, 250 So.2d 816 (La.App., 4th Cir. 1971); Commercial Credit Plan, Inc. v. Perry, 186 So.2d 900 (La.App., 1st Cir. 1966); Personal Finance Inc. v. Simms, 148 So.2d 176 (La.App., 1st Cir. 1962).

Here, the uncontradicted testimony of Boutall showed that substantially all of the funds in the account labeled “Richard J. Boutall, Spc.” belonged to the Crescent City Model Railroad Club and was held in trust by him for the payment of expenses to be incurred in staging a convention in New Orleans. As a result of the seizure the First National Bank refused to honor a check drawn on the account. According to Boutall’s testimony, this incident caused him embarrassment and loss of reputation in the community in general. At the time of the seizure the Bank of Commerce had full knowledge Boutall was an attorney at law and that attorneys acting as fiduciaries often have bank accounts which are used solely in a fiduciary capacity. Immediately after the seizure, the Bank of Commerce was placed on notice the accounts were something other than personal accounts of the judgment debtor. However, instead of releasing the seizure, the judgment creditor filed a combination rule to traverse answers to interrogatories and a rule against the garnishee to show cause why it should not be cast in judgment for the amount of the indebtedness. In our view, the purpose of the rule was to intimidate the garnishee into paying the funds to it.

The fiduciary account of the attorney is as necessary a tool and as integral a part of the practice of his profession as is his library. To deprive him of the use of such an account is a substantial embarrassment and humiliation amongst his clients and peers, particularly where as here, it is a young attorney attempting to establish his reputation in the community. Additionally, since the Bank of Commerce did not release the seizure when it was informed of the nature of the accounts, to his inconvenience, Bou-tall was required to expend his time and effort to have the seizure annulled and recalled and thus remove the source of the embarrassment. Also, during the period the accounts were under seizure, Boutall could not use the fiduciary accounts to serve his clients.

In the Mid-State v. Bice case, supra, the court awarded general damages of $1,000.00 and attorney fees of $500.00 for the wrongful seizure and $1,500.00 for mental anguish over the claim for breach of contract. Here the trial judge’s award includes the $6.00 bank charge on the check the First National bank refused to process because of the seizure and $3,500.00 in general damages. The trial judge has a wide discretion in awarding damages and under the standard of review set by the Supreme Court, his award is not to be disturbed unless there is an abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). We cannot say the trial judge abused his discretion here. He may well have felt and believed as we do that although garnishments under a writ of fieri facias are routine court matters, handled for the most part on printed forms, serious consequences can flow from their wrongful use and hence should not be treated lightly. Accordingly, the judgment of the trial judge is affirmed. All costs of appeal to be borne by the appellant.

AFFIRMED.


text:
    Jerome WOOL, Sr. v. PARISH OF JEFFERSON.
    No. 5-183.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.
    William Bassett, Jr., River...Ridge, for plaintiff-appellant.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

This is an appeal from a judgment dismissing the plaintiff suit for total and permanent disability benefits under the provisions of R.S. 23:1221(2) of the Workmen’s Compensation Act.

The plaintiff-appellant, Jerome Wool, Sr., was employed by the Parish of Jefferson as a heavy equipment operator earning $7.39 per hour. On August 29, 1978, while getting down from a bulldozer, he struck his left knee, injuring same. As a result, he was away from work for five months, including time to have surgery performed on the knee. He then returned to work in his regular capacity as a heavy equipment operator. After approximately eight months at work, additional problems developed with the knee causing him to miss work between October 19,1979 and May 19,1980. When he returned to work in May, 1980, he no longer performed the duties of a heavy equipment operator. Instead, he was given a job in the weed control department. The work consisted of driving a manual shift pick-up truck to check vacant lots for weed growth, taking pictures of the lots, measuring the height of the weeds and making a report of his findings. Plaintiff continued at this work for approximately four months. He then informed his superiors that he could no longer operate the manual shift in the pick-up truck without pain. His employer then furnished him with a pick-up truck equipped with an automatic transmission. Up to the time of trial, plaintiff continued to work with the weed control department, driving to an average of 16 locations per day. The salary he received in this job was the same as that for a heavy equipment operator. As the result of general increases in salaries since his injuries, he was earning more at the time of trial than he earned at the time of his injuries. From the time of the injury to the time of trial, compensation benefits of $5,812.00 were paid to plaintiff and $3,254.37 of medical expenses were paid on his behalf.

Plaintiff contends he suffers from a tightness in the knee and sharp burning pain when he uses the knee. He is required to rest between each location he visits. On occasions, he soaks the knee in hot water to relieve the tightness. He continues to work in pain because he is trying to reach full pension retirement.

Mr. Wool is 59 years of age and progressed only to the seventh grade in grammer school. His “IQ” is below average. He has been employed by the Parish of Jefferson for twenty-five years. Prior to his employment with the Parish, he worked as a carpenter’s assistant in a shipyard and as a produce clerk in a food store.

Ms. Janet Mayeux, an expert in the evaluation of people who have suffered injuries, with the aim of finding what types of employment are available in the job market, had evaluated the plaintiff and was called on his behalf. In pertinent part, she testified as follows:

Q. Based upon your interviews with Mr. Wool and the test that you performed and the information made available to you, could you reach any kind of an opinion with regard to his employability as to the open labor market?
A. Yes, sir.
Q. What was that opinion that you reached?
A. My opinion was that he is employable, and that he is presently doing a satisfactory performance on his job right now. If he had to re-enter the labor market at this time, his employment opportunities would be limited due to his skills, his physical restrictions, age, and education.

She also listed the kind of work Mr. Wool could do as a security guard, dispatcher, cashier, hay cutter, alarm monitor and generally other unskilled types of work. Although she testified that jobs as a security guard and dispatcher were available in Jefferson Parish, she had made no effort in Mr. Wool’s case to determine if the jobs were presently available for him because Mr. Wool was not unemployed. In her opinion, Mr. Wool could perform the work required for the above listed employment as well as the one he was performing for the Parish of Jefferson even with the physical limitations Dr. Byram considered him as having.

Dr. George Byram diagnosed the plaintiff’s injury as “a Baker’s cyst of the left knee with possible internal derangement”. Following treatment, he performed an ar-throscopy and arthrotomy of the left knee with the removal of the medial meniscus and the Baker’s cyst. In his opinion, the Baker’s cyst predated the injury and at the time of the injury the meniscus along with the articulate surface were degenerative. He believed the accident tore a weakened degenerated meniscus. After the injury, Wool developed a mild bowleg condition from the progressively degenerative (arthritic) condition of the knee. His arthritic condition was aggravated by the injury. Periodically, Mr. Wool returned to Dr. By-ram complaining of pain in the knee. He had made notes in his record that if the pain and degenerative condition persisted, and the bowleg condition persisted, he would have to consider an osteotomy. He described the osteotomy as follows:

“It is a procedure that is done for usually degenerative changes along most commonly the medial side of the knee joint where a wedge of bone is removed just beneath the knee joint to try to eliminate the bow-leg condition to actually create a mild knock-knee form, to relieve some of the pressure on the medial side of the joint and shift it to the lateral compartment if that side of the joint is in good condition.”

With respect to Mr. Wool’s pain, he testified as follows:

Q. Were you convinced at this time that he was genuine in his complaints to you regarding pain?
A. Yes.
Q. Based on the physical findings and following him in your office, would it be unusual for you to medically conclude that he was in pain on a continuous basis?
A. Yes. I think he always has some pain, more often with activities. I think it is aggravated by activities. He may not have pain at rest, to clarify that a little bit. Sometimes people do. It varies from one individual to another.

In his opinion, Mr. Wool had a 15% anatomical and functional disability of the left leg. He believed Mr. Wool was working with pain but he could not assess the degree of pain. At no time did he advise Mr. Wool to stop working because he believed he should stay active but within the realm of his pain tolerance.

In answer to a specific request from Ms. Mayeux, in December, 1980, Dr. Byram answered specific questions for use in evaluating Mr. Wool’s functional capacities as follows: “With rest Mr. Wool could sit 8 hours a day, stand 6 hours and walk 5 hours. He could not carry above 50 pounds, but could occasionally (33% of the time) lift up to 100 lbs. and could only occasionally squat, crawl and climb, but could not use his left leg to operate foot control mechanisms.” No pain medication other than aspirin was prescribed or being taken by the plaintiff.

Under the wording of R.S. 23:1221 prior to 1975 and jurisprudence formed thereunder, Mr. Wool would be permanently and totally disabled because he is no longer able to engage in the same (i.e., heavy equipment operator) work as that in which he was employed at the time of the injury. In an apparent effort to classify as partially disabled many claimants who were formerly classified as permanently and totally disabled despite the claimant’s ability to earn substantial wages at a different occupation, the 1975 legislature amended R.S. 23:1221(2) to define permanent and total disability as the inability to “... engage in an occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of the injury, was particularly fitted by reason of education, training and experience ...” Since this enactment, our Supreme Court adopted the “odd lot” doctrine developed in states with a statutory definition of permanent total disability similar to ours. See Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). Under the “odd lot” doctrine, if a claimant’s pain appreciably limits the type of work available to him and greatly diminishes his ability to compete in the labor market, he is classified as permanently disabled unless realistically there are jobs available to him in which the claimant can earn wages. However, where the claimant cannot perform the same work he was engaged in at the time of the injury because it causes him substantial pain, the claimant is classified as partially disabled where realistically there are jobs available which he can perform without substantial pain. Lattin v. Hica Corp., 395 So.2d 690 (La.1981).

Here, Wool was unable to perform the work of a heavy equipment operator without substantial pain. However, he is otherwise able to work and is not so disabled as to make him a marginal employee. In fact at the time of trial, he was performing light work, albeit with some pain.

The trial judge concluded the plaintiff was not permanently and totally disabled within the meaning of R.S. 23:1221(2). With that conclusion we agree. Nevertheless, under the recent decision of the State Supreme Court, i.e., Allor v. Belden, 393 So.2d 1233 (La.1981); Dusang v. Beck Builders, Inc., 389 So.2d 367 (La.1980); Schouest v. J. Ray McDermott & Co., Inc., 402 So.2d 699 (1981), this does not mean plaintiff is precluded from receiving compensation benefits. Under La. R.S. 23:1221(3) as amended, an employee who is unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training and experience ...” is classified as partially disabled. This statutory provision also fixes the compensation rate for partial disability at 66%% of the difference between the wages the employee was earning at the time of injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages. Further, under this statutory provision (i.e., R.S. 23:1221[3]) for any week during which the employee is paid any compensation under this subdivision, the employer is entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under the subdivision. However, for any week during which the employee receives no compensation because his earnings during the week exceeded the amount of compensation benefits he would be entitled to for the week, the employer is not entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under the subdivision.

Under the circumstances here, we conclude the plaintiff is permanently partially disabled and, hence, entitled to compensation benefits under the provisions of R.S. 23:1221(3).

The evidence in the record is insufficient for this court to fix the appropriate rate and duration of the compensation to which plaintiff may be entitled. Also, under R.S. 23:1203, plaintiff is entitled to receive reimbursement for his medical expenses incurred subsequent to the trial. The appropriate rate and duration of the compensation is to be fixed by the trial court, with the appropriate credit for those weeks in which actual wages are earned.

We do not conclude, however, that plaintiff is entitled to penalties and attorney fees. As was noted by the Supreme Court in Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669, at 673 (La.1977):

“ . . . The penalty provision is stricti juris and should be imposed only in those instances in which the facts negate probable cause for non-payment ...”

There is no evidence in the record to show that the defendant acted arbitrarily or capriciously in its method of paying compensation.

For the reasons above stated, the opinion of the trial court is reversed and Jerome Wool is decreed to be permanently partially disabled. The case is remanded to the trial court for entry of a judgment in favor of the plaintiff consistent with this opinion, with, the trial judge determining the appropriate rate and duration of compensation for partial disability, and the medical expenses for which reimbursement is owed. All costs to be paid by appellee.

REVERSED AND REMANDED.


author: KLEES, Judge. REDMANN, Judge,

text:
    Alfred PIZZECK v. EXECUTONE SYSTEMS COMPANY OF LOUISIANA, INC.
    No. 12635.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.
    Robert G. Stassi, Lisa Waggoner Wall, Stassi & Rausch, New Orleans, for plaintiff-appellee.

      Frederick F. Olsen, Jr., O’Keefe, O’Keefe & Berrigan, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and KLEES, JJ.
   KLEES, Judge.

Defendant-appellant appeals a decision from the Civil District Court for Orleans Parish awarding the plaintiff-appellee Alfred Pizzeck, a former employee of the appellant, $52,448.00 as fees owed to him pursuant to an oral agreement.

In the fall of 1975 Alfred Pizzeck and Eugene V. Macon, the President of Execu-tone System of Louisiana, defendant-appellant, entered into an oral agreement providing that Mr. Pizzeck would receive ten (10%) percent of all equipment, wire and cable sold on jobs he had obtained for the company, plus fifty (50%) percent of labor overages, minus a $500.00 draw per week and any “unusual expenses”.

Pursuant to this agreement Mr. Pizzeck was paid $88,000 for fiscal year 1976 (July 1, 1975 — June 30, 1976) minus a draw of $500.00 per week. However, no expenses were deducted from this figure and after this oversight was discovered by Mr. Macon and his CPA, Mr. Schlekau, it was decided that the expenses would not be deducted since the company had “one terrific good year”.

In fiscal year 1977 (July 1,1976 — June 30, 1977) the financial picture for the company was not as good. Mr. Macon expressed displeasure over the large amount of money claimed by Mr. Pizzeck pursuant to the terms of their 1975 agreement, $107,814.00. He thereafter informed Mr. Pizzeck that he was going to deduct $31,989 from the figure to cover the salary of two other employees who worked in Mr. Pizzeck’s department, presumably as an “unusual expense”.

Mr. Pizzeck disapproved of this and he was discharged by Mr. Macon but was paid the disputed $107,814.00 minus his draw up until the date of termination. He later unsuccessfully attempted to get his job back, and filed suit to recover compensation for jobs which were sold by him but which were not completed during fiscal year 1977.

The District Court awarded Mr. Pizzeck $15,904.00 on jobs obtained or sold by him which were completed after June 30, 1977, but before his termination on September 29, 1977, and $36,544.00 on jobs completed after the latter date.

Appellant contends that there was no meeting of the mind between the parties regarding the terms and conditions of the 1975 oral agreement and therefore there was no contract, and as such any awards for compensation were in error.

The plaintiff argues that there was a meeting of the mind and that all of the terms of the agreement were understood. The defendant did not deny the terms but claimed that he had a different concept of what those terms meant insofar as the agreement was concerned.

The record further reveals that the defendant-appellant’s president, Mr. Macon, admits that he did enter into an oral agreement with the plaintiff-appellee in the latter part of 1975 and, in addition, he agreed that the terms of the agreement were that Mr. Pizzeck was to receive 10% of all equipment, wire and cable sold on a job plus 50% of labor coverages, minus a $500.00 draw per week and any “unusual expenses”. Supporting this is the fact that the plaintiff was paid in accordance with this plan for fiscal year 1976.

It was not until the end of fiscal year 1977 that Mr. Macon claimed to have a different interpretation of the terms of the agreement, specifically with regard to deducting the salaries of the two employees in Mr. Pizzeck’s department. At the time Mr. Macon and Mr. Pizzeck entered into their agreement Mr. Pizzeck was the only employee in the new department. It was not until fiscal year 1977 that the other two men were hired.

The trial judge found that this was the only part of the agreement where there was no evidence of a clear and mutual understanding and based upon the facts as presented to him he concluded that the salaries of the two employees were not unusual expenses to be deducted from Mr. Pizzeck’s funds. It is within the province of the trial court to interpret what was meant by “unusual expenses” in accordance with the intention of the parties. The trial court obviously chose to accept the plaintiff-appellee’s version, and we find no error in the trial court’s action. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Appellant contends that the trial court erred in concluding that the plaintiff earned 50% of the commissions accruing after September 29, 1977. We must agree.

After plaintiff’s termination of employment on September 29, 1977 the contract or agreement between the parties ended. Thus we conclude that plaintiff was entitled to be paid out of the commissions earned only on a quantum meruit basis.

When asked about what percentage of work Mr. Pizzeck did on those jobs which were completed after September 29, 1977 the reply was “approximately around fifty percent”. However, Mr. Pizzeck later testified:

Q What things did you not do on those jobs prior to them being closed?
A What was eliminated in my phase was estimating the job, securing the purchase order from the contractor or customer and proceeding with the rest of it which pertains to the installation department.
Q And you are saying that is about half of the whole thing?
A Well, let’s say estimating is going to reduce it down to below half. I would say about thirty-five, forty percent.
Q What part is a third and what part is two-thirds?
A My third is preparing the job. The other two-thirds is estimating and the installation in these particular jobs.
Q You’re saying about a third of the selling on those was work you did?
A Yes.
Q Okay. No further questions.

In view of this testimony as well as defendant’s estimates of 10% we conclude the trial judge erred in granting Mr. Pizzeck 50% of the commission after September 29, 1977. Considering the testimony above in light of all the testimony adduced in the record this court finds that the 50% entitlement to Mr. Pizzeck should be amended to thirty (30%) percent of $73,089 or $21,-926.70.

The appellant also asserts that the final paycheck received by the plaintiff was a compromise and settlement of the entire matter. As pointed out by the trial judge in his reasons for judgment the check was not in writing and no notation whatever was made on the check to indicate that it was intended as a final payment. Even if one considers the check to be a valid writing, the record is devoid of proof that both parties intended to compromise the claim and without such there is no compromise. Mooneyhan v. State Farm Mutual Auto Ins. Co., 290 So.2d 405 (La.App. 2nd Cir. 1974).

Finally the appellant contends that the trial judge did not rule on its reconventional demand. Although the trial court did not specifically mention the reconventional demand in its judgment the demand was nevertheless denied by the trial court.

The defendant relied on the testimony of Mr. Albert J. Aucoin, Jr., a certified public accountant, who offered into evidence a document purporting to show that the plaintiff was in fact overpaid according to the terms of the agreement entered into by him and Mr. Macon. The plaintiff relied on the testimony of Mr. Harry Williams, also a certified public accountant, who provided the court with documents indicating that the plaintiff was only owed further compensation.

The trier of fact should assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence and the fact finder’s determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous. Guidry v. Davis, 382 So.2d 250 (La.App. 3rd Cir. 1980).

Here the trial judge faced with conflicting testimony from equally qualified experts, chose to accept the expert testimony of Mr. William over that of Mr. Aucoin and there appears to be no error on the part of the trial judge.

The record reveals that in the document prepared by Mr. Aucoin, the salary of Mr. Pizzeck’s replacement, Mr. Macaluso, was deducted and several jobs were not included based upon an assumption by the defendant that the plaintiff was not entitled to any commission from those jobs. The court took notice of those errors, that some of Mr. Aucoin’s “totals were admittedly wrong”, and accordingly decided that the computations of Mr. Williams, which indicated that the plaintiff did not owe, but was owed funds, were more credible.

Therefore for the above and foregoing reasons, the judgment of the trial court is amended to reduce the total judgment to $37,830.70 and as amended it is affirmed.

AMENDED AND AFFIRMED.

REDMANN, Judge,

dissenting in part.

Plaintiff’s position is in part unreasonable because in part it amounts to a demand to be paid twice for one year’s work — once as department head and then again as salesman.

When plaintiff’s new oral employment agreement began with fiscal 1975-76, he cannot have claimed entitlement to a salesman’s commission on the new construction contracts that were contracted before 1975-76, because he had received full pay (including substantial bonuses) for all of his work before 1975-76 including any “selling.” Yet he and defendant both understood and performed the new oral contract as meaning that the “commissions” for his work in 1975-76 would be calculated on all contracts performed in 1975-76, notwithstanding that virtually all of them were contracted prior to the new employment agreement.

Plaintiff in fact collected his “commissions” for 1975-76 on that basis; and it is not reasonable to claim, as he does now, that the contracts on which he was due his “commissions” for his work that year were the contracts “sold” in 1975-76. (He argues, in effect, that the pay he received in 1976-77 was primarily for his “sales” in 1975-76, and that he is therefore still due his pay for much of his “sales” in 1976-77.)

That can hardly have been either plaintiff’s or defendant’s then interpretation of an oral agreement for “commissions” that were asked for and given primarily to convert plaintiff’s compensation from an indefinite “bonus” into a more definite formula. The reasonable interpretation of the oral agreement is that then placed on it by the parties, La.C.C. 1956; the new “commission” was not a salesman’s commission on contracts “sold” during the year, but a department head’s commission on contracts performed during the year, and that “commission” was to take the place of the former “bonus.” Just as the bonus constituted payment in full for plaintiff’s work for the year, so did that commission.

The only compensation plaintiff is still partly owed is for the work he did between June 30 and September 29,1977 , for which the $15,904 commissions (net of draw) on contracts performed during that period is the.correct amount. Plaintiff is not owed the added $36,544 that the trial judge awarded nor any other sum. I therefore concur in the majority’s reduction, but I would further reduce to $15,904.

      . When the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.

      . Defendant’s president and an accountant testified that plaintiff was told in September or October of 1976 that his annual compensation would have to be reduced by the salaries of two persons hired to help plaintiff (who previously was the only employee in his department). If that were proven, then the former oral contract might have been unilaterally terminated by the employer (as it had the legal power to do), and plaintiffs continuing to work might have constituted acceptance of the new oral contract. Under that new contract, plaintiff might have been obliged to suffer the deduction of those employee salaries totalling $32,000 in 1976-77, and thus might have been overpaid even through September 29, 1977.
      But plaintiff testified that defendant’s president never did tell him that those new employee salaries would have to be deducted until the time of his firing, and we simply cannot say that the trial judge erred in believing plaintiff rather than defendant’s witness.


author: AUGUSTINE, Judge.

text:
    Stewart M. CARPENTER v. STATE FARM FIRE AND CASUALTY COMPANY, David P. Johnson and the City of New Orleans.
    No. 12363.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 9, 1982.
    Rehearing Denied April 16, 1982.

      Marvin C. Grodsky, New Orleans, for plaintiff-appellant.
    C. Gordon Johnson, Jr., Roma Caramani-ca, Porteous, Toledano, Hainkel & Johnson, Salvador Anzelmo, City Atty., Herman L. Bastían, Jr., Deputy City Atty., New Orleans, for defendants-appellees.
    Before GARRISON, AUGUSTINE and WARD, JJ.
   AUGUSTINE, Judge.

This case concerns the efforts of plaintiff Stewart M. Carpenter to recover damages from the City of New Orleans and from David P. Johnson and his insurer, State Farm Fire and Casualty Company, for injuries suffered as a result of a fall while walking on the sidewalk abutting Johnson’s property on August 28, 1978.

Since 1970 or thereabout, a problem common to most property owners in the Tall Timbers subdivision was the growth or formation of a certain algae on the City’s sidewalks. This condition was readily apparent as a rusty discoloration running in streaks across the pavement, and seemed to have its source on the abutting landowner’s property. The substance posed a hazard to pedestrians, especially when heavy rains nurtured its growth and caused it to become a slimy, very slippery film.

So pervasive was this condition that a neighborhood association circulated leaflets advising Tall Timbers residents in the various methods to combat the problem. None of the remedies proved to be effective for any length of time. Some residents even resorted to sandblasting, with no real success.

On August 28, 1978, at about 9:00 P.M., plaintiff took his dog out for the nightly walk along the usual route. After a while, Mr. Carpenter saw two neighbors also walking their dog (a large one) in his direction. Rather than allow a mismatched confrontation between his dog and theirs, Mr. Carpenter crossed his dog to the other side of the street.

Although the rain which had been falling steadily for three days had stopped by the time Mr. Carpenter set out for the short walk, the sidewalks and streets were still wet, so that when the plaintiff came to the sidewalk in front of defendant Johnson’s house, the glare or reflection of standing puddles obscured the presence of the slimy substance which streaked Johnson’s pavement.

Carpenter slipped on the slime, falling flat on his back and breaking his pelvis.

Plaintiff sued the City of New Orleans, the abutting property owner Johnson and his insurer, alleging as to each defendant breach of duty under the general law of negligence and under Art. 2317 of the Louisiana Civil Code.

Following trial on the merits, both defendants were exonerated by the finding that neither of them was negligent.

We affirm that result, but find that as to the defendant City of New Orleans, acquittal rests upon grounds different from those recognized by the trial court.

LIABILITY OF THE CITY

Insofar as the trial court’s judgment was predicated upon a finding that the City was not guilty of negligence, it is incorrect. The City’s liability must be analyzed according to the principles of strict liability, applicable to this case by virtue of Louisiana Civil Code Article 2317:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

In defining the nature of “fault” which Art. 2317 seeks to remedy, Loescher v. Parr, 324 So.2d 441, 446 (La.1975) stated:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care or guardianship of the person or thing may be liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to person or thing whose conduct or defect creates an unreasonable risk of injury to others.”

In a word, the species of “fault” contemplated by Art. 2317 is that of strict liability.

The application of Art. 2317 to the plaintiff’s case against the City is inescapable, as he has proved that the unreasonably defective thing which caused the damage (the slimy sidewalk) was in the City’s custody. Korver v. City of Baton Rouge, 348 So.2d 708 (La.App. 1st Cir. 1977). The plaintiff has established a prima facie case.

However, the defendant City has affirmatively pleaded the defenses of assumption of risk and contributory negligence on the part of the plaintiff.

While it is universally held that assumption of risk is indeed a defense to a cause of action in strict liability, we find no assumption of risk in the present case. As it has been traditionally explained, “The essence of assumption of risk is twofold: first, knowledge and appreciation of a danger, and second, a voluntary encountering of it.” Crowe, The Anatomy of a Tort, 22 Loyola L.Rev. 903, 915 (1976); Prosser, Law of Torts, 4th Ed. (1971).

“The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard.” Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 141 (1971); Restatement (Second), Torts, Sect. 496 (1965).

We must accept as true the trial court’s finding that plaintiff had no actual knowledge of the defective condition of the sidewalk in front of defendant Johnson’s house. The City, however, would have us impute to the plaintiff Carpenter actual knowledge of that specific defective condition on the basis of his prior observations that many sidewalks in the Tall Timbers subdivision were similarly afflicted.

We find it inappropriate to do so in this case. We impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976); Bass v. Aetna Ins. Co., 370 So.2d 511 (La.1979). Moreover, the facts upon which knowledge may be imputed to the plaintiff must relate directly to specific risk, i.e., that which actually caused the harm. Dorry v. La Fleur, 399 So.2d 559 (La.1981). In other words, before actual knowledge of the risk may be imputed to the plaintiff, there must be a close causal relation between the facts actually observed by the plaintiff and the resulting harm suffered by him. It is within this context that Restatement (Second), Torts, Sect. 496 D(2) explains:

“In cases of assumption of risk, however, the plaintiff’s own testimony as to what he knew, understood, or appreciated, is not necessarily conclusive. There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with fire will not be believed if he says that he was unaware of the risk that he might be burned by it; ... ”

We conclude that the facts actually observed by plaintiff in this case, i.e., the similarly defective condition of other sidewalks in the area, are too remotely associated with the particular risk in question, i.e., the slippery condition of Mr. Johnson’s sidewalk. We are therefore unable to impute to the plaintiff the knowledge of risk required as a basis for applying the assumption of risk doctrine in this case.

Traditional analysis of the defendant’s liability would require us to end our inquiry here and find the City liable, as we have found no assumption of risk by the plaintiff.

Until recently, it has been held invariably that contributory negligence is no defense to strict liability. Langlois v. Allied Chemical Corp., Inc., 258 La. 1067, 249 So.2d 133 (1971). But this rule is borrowed largely from the common law as applied in other states. There, strict liability is imposed because social policy requires that those who profit by engaging in ultrahazardous or abnormally dangerous activities, and those who create such conditions, or those engaged in the manufacture of products, must pay their way.

As Prosser states:

“The courts have tended to lay stress upon the fact that the defendant is acting for his own purposes, and is seeking a benefit or a profit of his own from such activities, and that he is in a better position to administer the unusual risk by passing it on to the public than is the innocent victim.” Prosser, Law of Torts, 4th Ed., (1971), p. 495.

Again, it is this social policy, rather than logic, which traditionally prevents courts from recognizing contributory negligence as a defense. The illogic of this principle, as Prosser puts it, is that “the fault of the plaintiff will relieve the defendant of liability when he is negligent, but not when he is innocent.” Id. at 522.

The Louisiana Civil Code sometimes imposes strict liability for conduct which would not necessarily warrant the imposition of strict liability under the common law tradition. Where this is the case, there can be no basis for applying the social policy, borrowed from the common law, which prohibits contributory negligence as a defense.

Louisiana jurisprudence has already provided the basis for this conclusion. Loescher v. Parr, 324 So.2d 441 (La.1975), which held for the first time that Art. 2317 “fault” is grounded in strict liability, recognized “victim fault” as an available defense to liability under that article.

While the Civil Code does not define “fault”, there can be no doubt that it does encompass negligence. Langlois, supra. More recent decisions have gone so far as to equate “victim fault” with contributory negligence. Edwards v. La. State Dept. of Transportation, 403 So.2d 109 (La.App. 3rd Cir., 1981); LeBlanc v. State Department of Highways, 405 So.2d 635 (La.App. 3rd Cir., 1981); Godwin v. Government Employees Ins. Co., 394 So.2d 751 (La.App. 3rd Cir., 1981); Korver v. City of Baton Rouge, 348 So.2d 708 (La.App. 1st Cir., 1977).

The Louisiana Supreme Court in Dorry v. LaFleur, 399 So.2d 559 (La.1981), held that the question of whether contributory negligence should lie allowed as a defense to strict liability under Art. 2317 is one best decided on a case-by-case basis. That decision did provide a guiding principle, however, in holding that where the policy considerations which traditionally require the imposition of strict liability are lacking (i.e., where the defendant’s conduct concerns neither ultrahazardous activity nor abnormally dangerous activity, nor liability of a manufacturer for its products, nor the realization of profit from any of these), the resolution of fault must encompass the victim’s contributory negligence.

Following the reasoning of La-Fleur, supra, we hold that the City’s liability for the proper maintenance of sidewalks requires consideration of a plaintiff pedestrian’s contributory negligence.

We note in this regard the plaintiff’s own testimony that, to his knowledge, almost all property owners in the Tall Timbers subdivision were afflicted by the presence of the slimy substance on their abutting sidewalks, and that these conditions had prevailed for many years.

Having never been on Mr. Johnson’s sidewalk before the night he fell, he did not have certain knowledge that the defective condition existed. However, although plaintiff had observed other neighbors’ attempts to remove the substance, at no time did he witness the defendant Johnson make any such attempt, and therefore had no reason to assume that Mr. Johnson had remedied the problem.

Mr. Carpenter also knew that although the sidewalks were safely traversible when dry, excessive moisture had the effect of making the substance on the sidewalks extremely slick and slippery. At the time of Mr. Carpenter’s fall, it had rained for three days. The part of the sidewalk where Mr. Carpenter fell was in fact covered by lU" of water at the time of the accident.

Finally, we must note Carpenter’s own admission that he did not take any extra precautions while walking on the sidewalk abutting Johnson’s property, but instead walked as he normally would.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. Restatement of Torts Second, Sect. 463 (1965). The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances. Restatement of Torts Second, Sect. 464 (1965); Breithaupt v. Sellers, 390 So.2d 870 (La.1980); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971).

We think that Mr. Carpenter’s conduct, while it did not constitute assumption of risk, certainly did fall below the standard of care which a reasonable person would have exercised given his knowledge of the defective condition of the sidewalks that was pervasive in that neighborhood.

If Carpenter’s object was to walk his dog safely, prudence would have dictated that he retrace the safe route he had taken up to that point, if necessary. Slightly annoying, perhaps, but preferable to taking the route which, he had reason to think, would pose a dangerous risk. Having failed in his duty to avoid the likelihood, if not the certainty, of the defective condition of Mr. Johnson’s sidewalk, we cannot find the City liable for the consequences.

LIABILITY OF THE DEFENDANT JOHNSON

Determination of the defendant Johnson’s liability as the abutting property owner does not allow the application of Art. 2317, for the reason that public sidewalks are not within his custody or “garde”.

Applying the law of negligence, we note that abutting property owners are under no duty to repair or maintain a public sidewalk. Korver v. City of Baton Rouge, supra; Youngblood v. Newspaper Production Co., 135 So.2d 620 (La.App. 2nd Cir. 1961); Toppi v. Arbour, 119 So.2d 621 (La.App. 1st Cir., 1960).

Youngblood, supra, recognized an exception to the foregoing rule when the defect is caused or created by the abutting property owner.

It was not sufficiently proved at trial that the substance which caused Mr. Carpenter’s fall actually emanated from Mr. Johnson’s property. However, accepting as true plaintiff’s allegations that this was the case, Mr. Johnson acted responsibly in using various cleaning agents at periodic intervals to try to remove the substance. We can hold him to no higher duty of care than that of a reasonable man under the circumstances. We find that his conduct satisfied that standard.

In any event, our finding of contributory negligence on the part of the plaintiff bars recovery. Langlois, supra, Prosser, Law of Torts, Sect. 65 et seq., 4th Ed., (1971); Stone, Louisiana Tort Doctrine, Sect. 50 et seq. (1977).

For the reasons assigned, the judgment of the trial court as to each defendant is affirmed.

AFFIRMED.

      . Although throughout the proceedings in the trial court, the city resisted the application of Art. 2317 to municipalities, it has been long settled that municipalities no less than private individuals are subject to its provisions. Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980).